SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: July 10, 1996
(Date of earliest event reported)
MORTGAGE CAPITAL FUNDING, INC.
(Packager and Servicer)
(Issuer in Respect of
Multifamily/Commercial Mortgage Pass-Through Certificates Series 1996-MC1)
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
Delaware 3-25068;33-63924 13-3408716
(STATE OR OTHER JURIS- (COMMISSION (I.R.S. EMPLOYER
DICTION OF ORGANIZATION) FILE NOS.) IDENTIFICATION NO.)
399 Park Avenue, New York, New York 10043
- ---------------------------------------- -----
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Registrant's Telephone Number, including area code (212) 793-5880
(FORMER NAME, FORMER ADDRESS AND FORMER FISCAL YEAR, IF CHANGED SINCE LAST
REPORT.)
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Item 2. Acquisition of Disposition of Assets
Description of the Certificates and the Mortgage Pool
On July 10, 1996, a single series of certificates, entitled Mortgage
Capital Funding, Inc., Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (the "Certificates"), was issued pursuant to a
pooling and servicing agreement (the "Pooling and Servicing Agreement"),
attached hereto as Exhibit 4.1, dated as of July 1, 1996, among Mortgage Capital
Funding, Inc., as Sponsor (the "Sponsor"), Citibank, N.A. ("Citibank"), as
Mortgage Loan Seller, GMAC Commercial Mortgage Corporation, as Master Servicer,
Hanford/Healy Asset Management Company, as Special Servicer, and State Street
Bank and Trust Company, as Trustee and REMIC Administrator. The Certificates
consist of sixteen classes identified as the "Class X-1 Certificates", the
"Class X-2 Certificates", the "Class A-1 Certificates", the "Class A-2A
Certificates", the "Class A-2B Certificates", the "Class B Certificates", the
"Class C Certificates", the "Class D Certificates", the "Class E Certificates",
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" and the "Class R-II Certificates", respectively, and
were issued in exchange for, and evidence the entire beneficial ownership
interest in, the assets of a trust fund (the "Trust Fund") consisting primarily
of a segregated pool (the "Mortgage Pool") of 162 conventional, fixed and
adjustable rate, multifamily and commercial mortgage loans (the "Mortgage
Loans"), having, as of the close of business on July 1, 1996 (the "Cut-off
Date"), an aggregate principal balance of $482,357,812 (the "Initial Pool
Balance"), after taking into account all payments of principal due on the
Mortgage Loans on or before such date, whether or not received. The Sponsor
acquired the Trust Fund assets from Citibank, an affiliate of the Sponsor,
pursuant to a mortgage loan purchase agreement (the "Mortgage Loan Purchase
Agreement") attached hereto as Exhibit 99.1, dated as of June 27, 1996, between
the Sponsor and Citibank. The Sponsor sold the Class X-1, Class X-2, Class A-1,
Class A-2A, Class A-2B, Class B, Class C, Class D, Class E and Class F
Certificates to Citibank and Goldman, Sachs & Co. ("Goldman"), as underwriters
(the "Underwriters"), pursuant to an underwriting agreement (the "Underwriting
Agreement") dated June 27, 1996, attached hereto as Exhibit 1.1. The Sponsor
sold the Class G, Class H, Class J, Class K, Class R-I and Class R-II
Certificates to Citibank and Goldman, as initial purchasers pursuant to a
certificate purchase agreement (the "Certificate Purchase Agreement"), dated
June 27, 1996, attached hereto as Exhibit 1.2.
The Class A-1 Certificates have an initial stated principal balance (a
"Certificate Balance") of $29,966,951. The Class A-2A Certificates have an
initial Certificate Balance of $150,000,000. The Class A-2B Certificates have an
initial Certificate Balance of $145,624,000. The Class B Certificates have an
initial Certificate Balance of $14,470,000. The Class C Certificates have an
initial Certificate Balance of $31,353,000. The Class D Certificates have an
initial Certificate Balance of $19,294,000. The Class E Certificates have an
initial Certificate Balance of $16,882,000. The Class F Certificates have an
initial Certificate Balance of $7,235,000. The Class X-1 and Class X-2
Certificates will not have Certificate Balances, but in each case will represent
the right to receive distributions of interest accrued as provided in the
Pooling and Servicing Agreement on a hypothetical or notional amount (a
"Notional Amount") equal to: (i) in the case of the Class X-1 Certificates, the
aggregate Stated Principal Balance of the Group 1 Loans outstanding from time to
time: (ii) in the case of the Class X-2 Certificates, 99.9% of the aggregate
Stated Principal Balance
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of all the Mortgage Loans outstanding from time to time. The Class R-I and Class
R-II Certificates each have an initial Certificate Balance of $0.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
Item 7. Financial Statements and Exhibits
(a) Not applicable
(b) Not applicable
(c) Exhibits
Exhibit No. Description
1.1 Underwriting Agreement dated June 27, 1996, among
Mortgage Capital Funding, Inc., as Sponsor, Citicorp, and
Citibank, N.A. and Goldman, Sachs & Co., as underwriters.
1.2 Certificate Purchase Agreement dated June 27, 1996,
among Mortgage Capital Funding, Inc., as Sponsor, Citicorp,
and Citibank, N.A. and Goldman, Sachs & Co., as initial
purchasers.
4.1 Pooling and Servicing Agreement dated as of July 1,
1996, among Mortgage Capital Funding, Inc., as
Sponsor, Citibank, N.A., as Mortgage Loan Seller,
GMAC Commercial Mortgage Corporation, as
Master Servicer, Hanford/Healy Asset Management
Company, as Special Servicer, and State Street Bank
and Trust Company, as Trustee and REMIC
Administrator.
99.1 Mortgage Loan Purchase Agreement dated as of June
27, 1996, between Mortgage Capital Funding, Inc., as
purchaser, and Citibank, N.A., as seller.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
MORTGAGE CAPITAL FUNDING, INC.
(Registrant)
By: /s/ Richard L. Jarocki, Jr.
Richard L. Jarocki, Jr.
Vice President
Dated: July 25, 1996
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MORTGAGE CAPITAL FUNDING, INC.
$414,824,951
MULTIFAMILY/COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1996-MC1
CLASSX-1, CLASS X-2, CLASS A-1, CLASS A-2A, CLASS
A-2B, CLASS B, CLASS C, CLASS D, CLASS E AND CLASS
F
UNDERWRITING AGREEMENT
as of June 27, 1996
Citibank, N.A.
399 Park Avenue
New York, New York 10043
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Mortgage Capital Funding, Inc., a Delaware corporation ("MCFI"),
proposes to sell to Citibank, N.A. ("Citibank") and Goldman, Sachs & Co.
("Goldman"; Citibank and Goldman, in such capacity, each an "Underwriter" and,
together, the "Underwriters"), the respective classes of Multifamily/Commercial
Mortgage Pass-Through Certificates, Series 1996-MC1 which are identified on
Schedule I hereto (collectively, the "Registered Certificates"), in each case,
having the initial aggregate stated principal amount (a "Class Principal
Balance") or initial aggregate notional principal amount (a "Class Notional
Amount") set forth on Schedule I. The Registered Certificates, together with the
Class G, Class H, Class J, Class K, Class R-I and Class R-II Certificates issued
therewith (the "Privately Offered Certificates" and, collectively with the
Registered Certificates, the "Certificates"), evidence the entire beneficial
ownership interest in the assets of a trust fund (the "Trust Fund") to be formed
by MCFI and consisting primarily of a pool (the "Mortgage Pool") of commercial
and multifamily mortgage loans (the "Mortgage Loans") that will have, as of the
close of business on July 1, 1996 (the "Cut-off Date"), after taking into
account all payments of principal due on the Mortgage Loans on or before such
date, whether or not received, an aggregate principal balance of $482,357,812,
subject to a variance of plus or minus 5.0%. The Mortgage Loans (or the right to
have such transferred to the Trust Fund) will be acquired by MCFI from Citibank
in exchange for immediately available funds pursuant to a mortgage loan purchase
agreement, dated as of June 27, 1996 (the "Mortgage Loan Purchase Agreement"),
between MCFI and Citibank. Certain of the Mortgage Loans will be acquired by
Citibank from PNC Bank, National Association ("PNC") in exchange for immediately
available funds pursuant to a mortgage loan purchase agreement, dated as of June
27, 1996 (the "PNC Purchase Agreement"), between Citibank and PNC. Certain of
the Mortgage Loans (the "ContiTrade Mortgage Loans") will be acquired by
Citibank from ContiTrade Services L.L.C. ("ContiTrade") in exchange for
immediately available funds pursuant to a mortgage loan purchase agreement,
dated as of June 27, 1996 (the "ContiTrade Purchase Agreement"), between
Citibank and ContiTrade. Two separate real estate mortgage investment conduit
("REMIC") elections will be made with respect to the Trust Fund for federal
income tax purposes. The Trust Fund is to be created and the Certificates are to
be issued under a pooling and servicing agreement, dated as of July 1, 1996 (the
"Pooling and Servicing Agreement"), among MCFI as sponsor, Citibank as mortgage
loan seller (in such capacity, the "Mortgage Loan Seller"), GMAC Commercial
Mortgage Corporation as master servicer (the "Master Servicer"), Hanford Healy
Asset Management Company as
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special servicer (the "Special Servicer") and State Street Bank and Trust
Company as trustee (in such capacity, the "Trustee") and REMIC administrator (in
such capacity, the "REMIC Administrator").
1. REPRESENTATIONS, WARRANTIES AND COVENANTS. MCFI represents
and warrants to, and covenants with, each of the Underwriters that:
(a) A registration statement (File No. 33-63924) on Form S-3 and a
registration statement (File No. 33-25068) on Form S-11 have been filed with the
Securities and Exchange Commission (the "Commission") and each has become
effective under the Securities Act of 1933, as amended (the "Securities Act");
such registration statements include a prospectus which, as supplemented, shall
be, and may include a preliminary prospectus supplement which, as completed, is
proposed to be, used in connection with the sale of the Registered Certificates.
The registration statements, as amended to the date of this Agreement, are
collectively hereinafter referred to as the "Registration Statements"; such
prospectus (which shall be in the form in which it has most recently been filed,
as the same is proposed to be added to or changed), as first supplemented by a
prospectus supplement relating to the Registered Certificates, filed, or
transmitted for filing, with the Commission pursuant to Rule 424(b) under the
Securities Act and used in connection with the sale of the Registered
Certificates, is hereinafter referred to as the "Prospectus"; and such
prospectus supplement is hereinafter referred to as the "Prospectus Supplement".
Any preliminary form of Prospectus which has heretofore been filed pursuant to
Rule 424 hereinafter is called the "Preliminary Prospectus". Any reference
herein to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statements or the Prospectus shall be deemed to refer to and
include the filing of any document under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), deemed to be incorporated by reference therein
after the date hereof. MCFI will file with the Commission (i) within fifteen
days of the issuance of the Certificates a Current Report on Form 8-K (for
purposes of filing the Pooling and Servicing Agreement and other material
contracts) and (ii) in the time period specified in Section 5(e) hereof, a
Current Report on Form 8-K (for purposes of filing certain Computational
Materials and ABS Term Sheets as described in Section 5(e) hereof).
(b) The Registration Statements, as of the respective dates they became
effective, and the Prospectus, as of the date of the Prospectus Supplement, and
any revisions or amendments thereof or supplements thereto filed prior to the
termination of the offering of the Registered Certificates, as of their
respective effective or issue dates, conformed or will conform in all material
respects to the requirements of the Securities Act and the rules and regulations
of the Commission thereunder applicable to the use of such documents as of such
respective dates, and the Registration Statements and the Prospectus, as
revised, amended or supplemented as of the Closing Date (as defined in Section
3), will conform in all material respects to the requirements of the Securities
Act and the rules and regulations of the Commission thereunder applicable to the
use of such documents as of the Closing Date; and no such document, as of such
respective dates and, in the case of the Prospectus and any revisions or
amendments thereof or supplements thereto filed prior to the Closing Date, as of
the Closing Date, included or will include any untrue statement of a material
fact or omitted or will omit to state a material fact necessary to make the
statements therein in the light of the circumstances under which they were made,
not misleading; provided, however, that MCFI does not make any representations,
warranties or agreements (i) to Citibank as to (A) the information contained in
or omitted from the Prospectus or any revision or amendment thereof or
supplement thereto in reliance upon and in conformity with information furnished
in writing by Citibank to MCFI specifically for use in connection with the
preparation of the Prospectus or any revision or amendment thereof or supplement
thereto or (B) any information in any Computational Materials and ABS Term
Sheets (each as defined in Section 9) provided by Citibank specifically for use
in the preparation thereof or in connection with the sale of the Registered
Certificates or (ii) to Goldman as to (A) the information contained in or
omitted from the Prospectus or any revision or amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished in writing
by Goldman specifically for use in connection with the preparation of the
Prospectus or any revision or amendment
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thereof or supplement thereto or (B) any information in any Computational
Materials and ABS Term Sheets provided by Goldman specifically for use in the
preparation thereof or in connection with the sale of the Registered
Certificates. There are no contracts or other documents relating to MCFI of a
character required to be described in or to be filed as exhibits to the
Registration Statements, as of the date of the Prospectus Supplement, which were
not described or filed as required.
(c) As of the Closing Date, the Registered Certificates will be duly
authorized, executed and delivered and, assuming authentication in the manner
contemplated in the Pooling and Servicing Agreement, will be validly issued and
outstanding and entitled to the benefits provided by the Pooling and Servicing
Agreement.
(d) Each of KPMG Peat Marwick and Deloitte & Touche LLP is an
independent public accountant with respect to MCFI as required by the Securities
Act and the rules and regulations thereunder.
(e) As of the Closing Date, the Pooling and Servicing Agreement will
have been duly authorized, executed and delivered by MCFI and, assuming the
valid authorization, execution and delivery thereof by the other parties
thereto, will constitute a valid and binding agreement of MCFI enforceable in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting the
enforcement of creditors' rights and by general principles of equity.
(f) This Agreement has been duly authorized, executed and delivered by
each of MCFI and Citicorp and, assuming the valid authorization, execution and
delivery hereof by each of the Underwriters, constitutes a valid and binding
obligation of each of MCFI and Citicorp enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting the enforcement of
creditors' rights, by general principles of equity and 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 that purport to provide indemnification for securities laws
liabilities.
(g) MCFI has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus.
(h) MCFI is not aware of (i) any request by the Commission for any
further amendment of the Registration Statements or the Prospectus or for any
additional information, (ii) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statements or the institution
or threatening of any proceeding for that purpose or (iii) any notification with
respect to the suspension of the qualification of the Registered Certificates
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose.
(i) The Registered Certificates and the Pooling and Servicing Agreement
conform in all material respects to the descriptions thereof contained in the
Prospectus.
(j) The issuance and sale of the Registered Certificates to the
Underwriters pursuant to this Agreement, the compliance by MCFI with the other
provisions of this Agreement, the Pooling and Servicing Agreement and the
Registered Certificates and the consummation of the other transactions
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herein or therein contemplated do not, under any statute, regulation or rule of
general applicability or any decision, order, decree or judgment of any judicial
or other governmental body specifically applicable to MCFI, require any consent,
approval, authorization, order, registration or qualification of or with any
court or governmental authority, except (i) such as have been obtained or
effected under the Securities Act (provided that MCFI makes no representations
or warranties as to any consent, approval, authorization, registration or
qualification which may be required under state securities or Blue Sky laws),
(ii) the recordation of the assignments of the Mortgage Loans to the Trustee,
which are to be completed pursuant to the Pooling and Servicing Agreement on or
following the Closing Date, and (iii) such other approvals as have been
obtained.
(k) Neither the execution and delivery of this Agreement and the
Pooling and Servicing Agreement, nor the issuance and delivery of the Registered
Certificates, nor the consummation of any other of the transactions contemplated
herein or therein, nor the fulfillment of the terms of this Agreement and the
Pooling and Servicing Agreement, will conflict with, violate, result in a breach
of or constitute a default under the certificate of incorporation or by-laws of
MCFI, any statute or regulation currently applicable to MCFI, or any order
currently applicable to MCFI of any court, regulatory body, administrative
agency or governmental body having jurisdiction over MCFI, or the terms of any
indenture or other agreement or instrument to which MCFI is a party or by which
it or any of its properties are bound.
(l) There are no actions or proceedings against, or investigations of,
MCFI pending or, to the knowledge of MCFI, threatened, before any court,
administrative agency or other tribunal (i) asserting the invalidity of this
Agreement, the Pooling and Servicing Agreement or the Registered Certificates,
(ii) seeking to prevent the issuance of the Registered Certificates or the
consummation of any of the transactions contemplated by this Agreement or the
Pooling and Servicing Agreement, (iii) that might materially and adversely
affect the performance by MCFI of its obligations under, or the validity or
enforceability of, this Agreement, the Pooling and Servicing Agreement or the
Registered Certificates or (iv) seeking to affect adversely the federal income
tax attributes of the Registered Certificates described in the Prospectus.
(m) MCFI is not, and the issuance and sale of the Registered
Certificates in the manner contemplated by the Prospectus will not cause MCFI to
be, subject to registration or regulation as an investment company or affiliate
of an investment company under the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(n) The transfer of the Mortgage Loans to the Trust Fund and the sale
of the Certificates to the Underwriters, at the Closing Date, will be treated by
MCFI for financial accounting and reporting purposes as a sale of assets and not
as a pledge of assets to secure debt.
(o) Any taxes, fees and other governmental charges (other than income
taxes, franchise taxes and recording and filing fees) that are due and payable
by MCFI as of the Closing Date in connection with the execution, delivery and
performance of this Agreement, the Pooling and Servicing Agreement and the
Registered Certificates, will have been paid at or prior to the Closing Date.
(p) At the Closing Date and at the direction of MCFI, the Mortgage
Loans will have been duly and validly assigned and delivered by the Mortgage
Loan Seller to the Trustee under the Pooling and Servicing Agreement.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance on the representations and warranties herein set forth, MCFI agrees to
sell to each of Citibank and Goldman and
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Citibank and Goldman each agree to purchase from MCFI, the actual or notional,
as the case may be, amounts set forth on Schedule I hereto in the respective
classes of Registered Certificates, at the purchase price for each such class as
set forth on Schedule I.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Registered
Certificates shall be made in the manner specified below, on the date and at the
time specified in Schedule I hereto, which date and time may be changed by
agreement among the Underwriters and MCFI (such date and time of delivery of and
payment for the Registered Certificates being hereinafter referred to as the
"Closing Date"). Delivery of each Underwriter's allotment of the Registered
Certificates shall be made to the related Underwriter against payment by such
Underwriter of the purchase price therefor to or upon the order of MCFI in
same-day funds by federal funds wire (or by such other method as such
Underwriter and MCFI may agree). Unless delivery is made through the facilities
of The Depository Trust Company, the Registered Certificates of each class
thereof shall be registered in such names and in such authorized denominations
as the related Underwriter may have requested not less than three full business
days prior to the Closing Date.
MCFI agrees to have the Registered Certificates available for
inspection, checking and packaging in New York, New York, at any time before
3:00 p.m. New York city time on the business day prior to the Closing Date.
4. OFFERING BY UNDERWRITER. It is understood that the Underwriters
propose to offer the Registered Certificates for sale as set forth in the
Prospectus, and each Underwriter covenants and agrees that all offers and sales
by such Underwriter shall be made in compliance with the terms of the No-Action
Letters (as defined in Section 9 below). It is further understood that MCFI, in
reliance upon a no-filing letter from the Attorney General of the State of New
York granted pursuant to Policy Statement 105, has not and will not file an
offering statement pursuant to Section 352-c of the General Business Law of the
State of New York with respect to the Registered Certificates. As required by
Policy Statement 105, each Underwriter therefore covenants and agrees with MCFI
that sales of the Registered Certificates made by such Underwriter in and from
the State of New York will be made only to institutional investors within the
meaning of Policy Statement 105.
5. AGREEMENTS. MCFI agrees with each of the Underwriters that:
(a) MCFI will not file any amendment to the Registration Statements
prior to the Closing Date, and will not file any supplement to the Prospectus
relating to or affecting the Registered Certificates at any time, except as
contemplated by Section 5(e) or unless MCFI has furnished a copy to each
Underwriter for its review prior to filing, and will not file any such proposed
amendment or supplement to which either Underwriter reasonably objects. Subject
to the foregoing sentence, MCFI will cause the Prospectus to be filed, or
transmitted for filing, with the Commission pursuant to Rule 424(b) under the
Securities Act and will promptly advise each Underwriter when the Prospectus has
been so filed, or transmitted for filing, and, prior to the termination of the
offering of the Registered Certificates, will also promptly advise each
Underwriter (i) when any amendment to the Registration Statements relating to
the Registered Certificates has become effective or any revision of or
supplement to the Prospectus has been so filed or transmitted for filing, (ii)
of any request by the Commission for any amendment of the Registration
Statements or the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statements or the institution or threatening of any proceeding for
that purpose and (iv) of the receipt by MCFI of any notification with respect to
the suspension of the qualification of the Registered Certificates for sale in
any jurisdiction or the institution or threatening of any proceeding for such
purpose. MCFI will use its
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best efforts to prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act, (i) any event
occurs as a result of which the Prospectus, as then amended or supplemented,
would include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or (ii) it shall be
necessary to revise, amend or supplement the Prospectus to comply with the
Securities Act or the rules and regulations of the Commission thereunder, MCFI
promptly will prepare and file with the Commission, subject to paragraph (a) of
this Section 5, a revision, amendment or supplement which will correct such
statement or omission or effect such compliance.
(c) MCFI will furnish to each Underwriter and counsel for such
Underwriter, without charge, signed (if available) copies of the Registration
Statements (including exhibits thereto) and, so long as delivery of a prospectus
relating to the Registered Certificates is required under the Securities Act, as
many copies of the Prospectus and any revisions or amendments thereof or
supplements thereto as may be reasonably requested.
(d) MCFI will use its best efforts to arrange for the qualification of
the Registered Certificates for sale under the laws of such jurisdictions as the
Underwriters may designate, to maintain such qualifications in effect so long as
required for the distribution of the Registered Certificates and to arrange for
the determination of the legality of the Registered Certificates for purchase by
institutional investors; provided, however, that MCFI shall not be required to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(e) MCFI will cause or, if appropriate, will have caused any
Computational Materials and ABS Term Sheets with respect to the Registered
Certificates, which are delivered by the Underwriters to MCFI pursuant to or as
contemplated by Section 9, to be filed with the Commission on a Current Report
on Form 8-K (the "Current Report") pursuant to Rule 13a-11 under the Exchange
Act not later than, in each such case, the business day immediately following
the later of (i) the day on which such Computational Materials or ABS Term
Sheets are delivered to counsel for MCFI by the Underwriters prior to 10:30
a.m., New York City time, and (ii) the date hereof, and will promptly advise the
Underwriters when each such Current Report has been so filed. Each such Current
Report shall be incorporated by reference in the Prospectus and the Registration
Statements. MCFI shall have no obligation to review or pass upon the accuracy or
adequacy of, or to correct, any Computational Materials or ABS Term Sheets
provided by the Underwriters to MCFI pursuant to or as contemplated by Section 9
hereof.
(f) MCFI will make generally available to Registered Certificateholders
as soon as practicable, but in any event not later than eighteen months after
the filing of the Prospectus pursuant to Rule 424(b) under the Securities Act,
an earnings statement (which need not be audited) with respect to the Mortgage
Pool complying with Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including at the option of MCFI, Rule
158) which may be the annual report filed with the Commission and delivered to
Registered Certificateholders pursuant to the Pooling and Servicing Agreement.
6. CONDITIONS TO THE OBLIGATIONS OF EACH UNDERWRITER AND MCFI. The
obligation of each Underwriter to purchase, and the obligation of MCFI to sell
to such Underwriter, its allotment of the Registered Certificates shall be
subject to the accuracy of the representations and warranties on the part
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of MCFI and such Underwriter contained herein as of the date hereof and as of
the Closing Date, to the accuracy of the statements of MCFI and such Underwriter
made in any officer's certificate pursuant to the provisions hereof, to the
performance by MCFI and such Underwriter of their respective obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statements shall have been issued and no proceedings for that purpose shall have
been instituted and be pending or shall have been threatened; and all requests
for additional information from MCFI on the part of the Commission shall have
been complied with to the Underwriters' reasonable satisfaction.
(b) MCFI shall have furnished to such Underwriter:
(i) An executed copy of the Pooling and Servicing Agreement;
(ii) An opinion of Stephen E. Detz, Esq., counsel to MCFI,
dated the Closing Date, substantially to the effect that:
(A) MCFI is validly existing as a corporation
in good standing under the laws of the State of Delaware,
with corporate power and authority under such laws to own
its properties and assets and conduct its business as described
in the Prospectus;
(B) The Registered Certificates have been duly
authorized, executed and delivered and, assuming authentication
in the manner contemplated in the Pooling and Servicing
Agreement, are validly issued and outstanding and entitled to
the benefits provided by the Pooling and Servicing Agreement;
(C) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by MCFI;
(D) The Pooling and Servicing Agreement constitutes a
valid and legally binding agreement of MCFI and is enforceable
against it in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization or other
similar laws relating to or affecting the enforcement of
creditor's rights generally and by general principles of
equity;
(E) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939,
as amended, and the Trust Fund is not required to be registered
under the Investment Company Act of 1940, as amended;
(F) The Registration Statements have become effective
under the Securities Act, and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of either
of the Registration Statements has been issued and no
proceedings for that purpose have been instituted and are
pending or have been threatened under the Securities Act;
(G) Each of the Registration Statements, at the time
such Registration Statement became effective, and the
Prospectus, as of the date of the Prospectus Supplement, and
each revision or amendment thereof or supplement thereto
relating to the Registered Certificates, as of its effective or
issue date (except in each case for accounting, financial and
statistical statements included therein or omitted therefrom,
as
<PAGE>
8
to which such counsel expresses no opinion), appeared on
their respective faces to be appropriately responsive in all
material respects to the requirements of the Securities Act and
the rules and regulations of the Commission thereunder
applicable to such documents as of such respective dates; and
the Prospectus, as revised, amended or supplemented as of the
date hereof (except for accounting, financial and statistical
statements included therein or omitted therefrom, as to which
such counsel expresses no opinion), conforms in all material
respects to the requirements of the Securities Act and the
rules and regulations of the Commission thereunder applicable
to use of the Prospectus (as so revised, amended, or
supplemented) as of the date hereof;
(H) The descriptions in the Prospectus, as of the date
hereof, of the Registered Certificates and the Pooling and
Servicing Agreement are, to the extent that such descriptions
constitute statements of matters of law or legal conclusions
with respect thereto, accurate in all material respects;
(I) Such counsel does not know of any contracts or other
documents relating to MCFI of a character required to be
described in or to be filed as exhibits to the Registration
Statements, as of the date of the Prospectus Supplement, which
were not described or filed as required; and
(J) This Agreement has been duly authorized, executed
and delivered by each of MCFI and Citicorp.
In giving his opinion, counsel to MCFI shall additionally state
that, based on conferences and telephone conversations with
representatives of ContiTrade, PNC Bank, the Underwriters, Citibank,
MCFI, the Trustee, the REMIC Administrator, the Master Servicer, the
Special Servicer and their respective counsel, and without having
reviewed any of the Mortgage Notes, Mortgages or other documents in the
Mortgage Files or made any inquiry of any originator of any Mortgage
Loan not referenced above, nothing has come to such counsel's attention
that would lead him to believe that the Prospectus (except for any
accounting, financial or statistical information included therein, for
information with respect to California foreclosure law, and for
information relating to the Master Servicer, the Special Servicer, the
REMIC Administrator and the Trustee contained in or omitted from the
Prospectus, as to which such counsel has not been requested to
comment), at the date of the Prospectus Supplement or at the Closing
Date, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
Such opinion may express its reliance as to factual matters on
the representations and warranties made by, and on certificates or
other documents furnished by officers and/or authorized representatives
of, the parties to this Agreement and the Pooling and Servicing
Agreement and on certificates furnished by public officials. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto
other than MCFI and Citicorp. Such opinion may be qualified as an
opinion only on the General Corporation Law of the State of Delaware,
the laws of each state in which the writer of the opinion is admitted
to practice law and the federal law of the United States.
(iii) One or more opinions, dated the Closing Date, of Thacher
Proffitt & Wood, special counsel to MCFI and ContiTrade, substantially
to the effect that:
<PAGE>
9
(A) The statements in the Prospectus under the headings
"ERISA Considerations", "Material Federal Income Tax
Consequences" and "Certain Federal Income Tax Consequences", to
the extent that they constitute matters of New York or federal
law or legal conclusions with respect thereto, provide a fair
and accurate summary of such law and conclusions; and
(B) As described in the Prospectus Supplement and
assuming compliance with the provisions of the Pooling and
Servicing Agreement, (1) REMIC I will qualify as a real estate
mortgage investment conduit (a "REMIC") within the meaning of
Sections 860A through 860G (the "REMIC Provisions") of the
Internal Revenue Code of 1986, and the REMIC I Regular
Interests will be "regular interests" and the Class R-I
Certificates will evidence the sole class of "residual
interests" in REMIC I (as both terms are defined in the REMIC
Provisions in effect on the Closing Date), and (2) REMIC II
will qualify as a REMIC within the meaning of the REMIC
Provisions, and the Class X-1, Class X-2, Class A-1, Class
A-2A, Class A-2B, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J and Class K Certificates will
evidence "regular interests" and the Class R-II Certificates
will evidence the sole class of "residual interests" in REMIC
II.
In giving its opinions, special counsel to MCFI and ContiTrade
shall additionally state that, based on conferences and telephone
conversations with representatives of ContiTrade, PNC Bank, the
Underwriters, Citibank, MCFI, the Trustee, the REMIC Administrator, the
Master Servicer, the Special Servicer and their respective counsel, and
without having reviewed any of the Mortgage Notes, Mortgages or other
documents in the Mortgage Files (except for select provisions of the
Mortgage Notes and Mortgages relating to the ContiTrade Mortgage Loans)
or made any inquiry of any originator of any Mortgage Loan not
referenced above, nothing has come to such special counsel's attention
that would lead it to believe that the Prospectus (other than any
accounting, financial or statistical information included therein), at
the date of the Prospectus Supplement or at the Closing Date, included
or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
Such opinion may express its reliance as to factual matters on
the representations and warranties made by, and on certificates or
other documents furnished by officers and/or authorized representatives
of, the parties to this Agreement and the Pooling and Servicing
Agreement and on certificates furnished by public officials. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto
other than MCFI. Such opinion may be qualified as an opinion only on
the General Corporation Law of the State of Delaware, the laws of each
state in which the writer of the opinion is admitted to practice law
and the federal law of the United States.
(iv) Such Underwriter shall have received copies of all legal
opinion letters delivered by Thacher Proffitt & Wood to the Rating
Agencies in connection with the issuance of the Registered
Certificates, accompanied in each case by a letter signed by Thacher
Proffitt & Wood stating that such Underwriter may rely on such opinion
letter as if it were addressed to such Underwriter as of the date
thereof;
(v) A good standing certificate regarding MCFI from the
Secretary of State of the State of Delaware, dated not earlier than 30
days prior to the Closing Date;
<PAGE>
10
(vi) A certificate of MCFI, dated the Closing Date and signed by
an executive officer or authorized signatory of MCFI, to the effect
that the representations and warranties of MCFI herein are true and
correct in all material respects on and as of the Closing Date with the
same effect as if made on the Closing Date, and MCFI has complied in
all material respects with all agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date; and
(vii) An officer's certificate, dated the Closing Date and signed
by the Secretary or an assistant secretary of MCFI, to the effect that
each individual who, as an officer or representative of MCFI, signed
this Agreement, the Pooling and Servicing Agreement or any other
document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein or in the Pooling
and Servicing Agreement, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and certificates
are their genuine signatures. Such certificate shall be accompanied by
true and complete copies (certified as such by the Secretary or an
assistant secretary of MCFI) of the certificate of incorporation and
by-laws of MCFI, as in effect on the Closing Date, and of the
resolutions of MCFI and any required shareholder consent relating to
the transactions contemplated in this Agreement and the Pooling and
Servicing Agreement.
(c) The Underwriters shall have received, with respect to each of the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator, a favorable opinion of counsel, dated the Closing Date,
addressing the valid existence of such party under the laws of the jurisdiction
of its organization, the due authorization, execution and delivery of the
Pooling and Servicing Agreement by such party and, subject to the same
limitations as set forth in Section 6(b)(ii)(D), the enforceability of the
Pooling and Servicing Agreement against such party. Such opinion may express its
reliance as to factual matters on representations and warranties made by, and on
certificates or other documents furnished by officers and/or authorized
representatives of parties to this Agreement and the Pooling and Servicing
Agreements and on certificates furnished by public officials. Such opinion may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the party on
behalf of which such opinion is being rendered. Such opinion may be qualified as
an opinion only on the General Corporation Law of the State of Delaware (if
relevant), the laws of each state in which the writer of the opinion is admitted
to practice law and the federal law of the United States.
(d) MCFI and the Underwriters shall have received from KPMG Peat Marwick
and Deloitte & Touche LLP, certified public accountants, letters, dated the
Closing Date, in form and substance reasonably satisfactory to MCFI and the
Underwriters, collectively stating in effect that:
(i) They have performed certain specified procedures as a result
of which they have determined that the information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement
under the caption "Description of the Mortgage Pool" and on Annex A
thereto agrees with the data sheet or computer tape prepared by the
Mortgage Loan Seller or ContiTrade, unless otherwise noted in such
letter; and
(ii) They have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) to
information contained in an agreed upon sampling of the Mortgage Loan
files and in such other sources as shall be specified by them, and
found such data and information to be in agreement, unless otherwise
noted in such letter.
<PAGE>
11
(e) MCFI and the Underwriters shall have received from KPMG Peat
Marwick, certified public accountants, a letter dated the Closing Date, in form
and substance reasonably satisfactory to MCFI and the Underwriters, to the
effect that they have performed certain specified procedures, all of which have
been agreed to by MCFI and the Underwriters, as a result of which they confirmed
the information of an accounting, financial or statistical nature included in
the Prospectus Supplement under the caption "Yield and Maturity Considerations".
(f) KPMG Peat Marwick shall have furnished to MCFI and such Underwriter
a letter or letters, each in form and substance satisfactory to MCFI, relating
to the Computational Materials and ABS Terms Sheets of such Underwriter filed in
accordance with Section 5(e) and dated the date of the related Current Report on
Form 8-K and stating in effect that:
(i) using the assumptions and methodology used by such
Underwriter, all of which shall be described by reference in the
letter, they have recalculated the numerical data and dates set forth
in such Computational Materials and ABS Term Sheets of such Underwriter
(or portions thereof) attached to such letter, compared the results of
their calculations to the corresponding items in such Computational
Materials and ABS Term Sheets (or portions thereof) and found such
items to be in agreement with the respective results of such
calculation;
(ii) if such Computational Materials and ABS Term Sheets
include data reflecting the distribution of interest at other than a
fixed rate, or reflecting other characteristics which give rise to the
use of tables in such Computational Materials and ABS Term Sheets, such
letter shall also set forth such other statements as are customarily
set forth by KPMG Peat Marwick in such letter with respect to such
data; and
(iii) they have performed certain specified procedures as a
result of which they have determined that the information of an
accounting, financial or statistical nature set forth in such
Computational Materials and ABS Term Sheets agrees with the data sheet
or computer tape prepared by the Mortgage Loan Seller, unless otherwise
indicated in such letter.
(g) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of MCFI which such Underwriter concludes, in the judgment
of such Underwriter after consultation with MCFI, materially impairs the
investment quality of the Registered Certificates so as to make it impractical
or inadvisable to proceed with the public offering or the delivery of the
Registered Certificates as contemplated by the Prospectus.
(h) The Registered Certificates shall have been assigned ratings no less
than those set forth on Schedule I and such ratings shall not have been
rescinded.
7. INDEMNIFICATION AND CONTRIBUTION. (a) MCFI agrees to indemnify and
hold harmless each Underwriter and each person who controls such Underwriter
within the meaning of either the Securities Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which it or
any of them may become subject under the Securities Act, the Exchange Act, or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statements or in the
Prospectus, or in any revision or amendment thereof or supplement thereto, or in
any other filing incorporated by reference therein, or arise out of or are based
upon the omission or alleged omission (in the case of any Computational
Materials or ABS Term Sheets in respect of which MCFI agrees to
<PAGE>
12
indemnify any Underwriter, as set forth below, when such are read in conjunction
with the Prospectus) to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by it or him in connection with investigating or defending any such
loss, claim, damage, liability or action; provided that MCFI will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon (i) any such untrue statement or alleged untrue
statement or omission or alleged omission made in the Prospectus or any revision
or amendment thereof or supplement thereto in reliance upon and in conformity
with written information furnished to MCFI by or on behalf of such Underwriter
(in whatever capacity) specifically for use in connection with the preparation
thereof, (ii) any such untrue statement made in Computational Materials or ABS
Term Sheets of such Underwriter incorporated therein as a result of any filing
pursuant to Section 5(e) (except to the extent any such untrue statement or
alleged untrue statement therein results (or is alleged to have resulted)
directly from an error (a "Collateral Error") in the information concerning the
Mortgage Loans furnished by MCFI to any Underwriter in writing or by electronic
transmission that was used in the preparation of such Computational Materials or
ABS Term Sheets) or (iii) any omission or alleged omission to state in
Computational Materials of such Underwriter incorporated by reference into the
Registration Statements or Prospectus as a result of any filing pursuant to
Section 5(e), a material fact that, when read in conjunction with the
Prospectus, is required to be stated therein or necessary to make the statements
therein not misleading. This indemnity agreement will be in addition to any
liability which MCFI may otherwise have.
(b) Each Underwriter agrees to indemnify and hold harmless MCFI and each
of its directors, each of its officers who signed the Registration Statements or
any amendments thereof, and each person who controls MCFI within the meaning of
either the Securities Act or the Exchange Act, to the same extent as the
foregoing indemnities from MCFI to the Underwriters, but (i) only with reference
to (A) written information furnished to MCFI by or on behalf of such Underwriter
(in whatever capacity), specifically for use in connection with the preparation
of the Prospectus or any revision or amendment thereof or supplement thereto,
and (B) any untrue statement made in Computational Materials or ABS Term Sheets
of such Underwriter incorporated by reference into the Registration Statements
or Prospectus as a result of any filing pursuant to Section 5(e) (except that no
such indemnity shall be available for any losses, claims, damages or
liabilities, or actions in respect thereof resulting from any Collateral Error)
and (ii), in the case of Citibank, only insofar as Citibank does not otherwise
provide indemnification for any particular loss, claim, damage or liability
pursuant to the Mortgage Loan Purchase Agreement. This indemnity agreement will
be in addition to any liability which the Underwriters may otherwise have. MCFI
acknowledges that (i) with respect to Citibank and Goldman, the statements set
forth in the first, third and fourth sentences of the final paragraph of the
cover page of the Prospectus Supplement and in the first sentence of the second
paragraph and the first two sentences of the third paragraph under the heading
"Method of Distribution" in the Prospectus Supplement and (ii), with respect
solely to Citibank, the information for which MCFI is being indemnified under
the Mortgage Loan Purchase Agreement, constitute the only information furnished
in writing by or on behalf of Citibank or Goldman, as the case may be, for
inclusion in the Prospectus or any revision or amendment thereof or supplement
thereto, and each Underwriter confirms that such statements attributable thereto
are correct.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than under this Section 7; provided, however, that any increase in
such liability as a result of such failure to notify shall not be an expense of
the indemnifying party. In case any such action is brought against any
<PAGE>
13
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided that, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party 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, approved by the indemnified party or parties, representing the
indemnified party or parties who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is due
in accordance with its terms but is for any reason held by a court to be
unavailable on grounds of policy or otherwise, MCFI and the related Underwriter
shall each contribute to the aggregate losses, claims, damages and liabilities
(including legal and other expenses reasonably incurred in connection with
investigating or defending same) to which MCFI and such Underwriter may be
subject in such proportion so that such Underwriter is responsible for 0.5%
thereof and MCFI is responsible for the balance; provided that no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls an Underwriter within the meaning of either the
Securities Act or the Exchange Act shall have the same rights to contribution as
such Underwriter, and each person who controls MCFI within the meaning of either
the Securities Act or the Exchange Act, each officer of MCFI who shall have
signed the Registration Statements or any amendments thereof and each director
of MCFI shall have the same rights to contribution as MCFI. Any party entitled
to contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this paragraph (d).
(e) Each Underwriter (such Underwriter, the "indemnifying Underwriter")
shall indemnify and hold harmless the other Underwriter and each person, if any,
who controls such other Underwriter within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act from and against any and
all losses, liabilities, claims and damages caused by any untrue statements or
omissions, or alleged untrue statements or omissions, in the Computational
Materials prepared and delivered to potential investors, or to such other
Underwriter for delivery to potential investors, by the indemnifying
Underwriter.
<PAGE>
14
8. FEES AND EXPENSES. MCFI will pay or cause to be paid all third-party
costs and expenses in connection with the transactions herein contemplated,
other than those for which (i) Citibank is responsible under the Mortgage Loan
Purchase Agreement, (ii) ContiTrade is responsible under the ContiTrade Purchase
Agreement and (iii) PNC is responsible under the PNC Purchase Agreement;
provided, however, that each Underwriter will pay or cause to be paid any
transfer taxes on resale of any of the Registered Certificates, advertising
expenses connected with any offers that such Underwriter may make and such
additional costs arising out of any Computational Materials and ABS Term Sheets
incurred by such Underwriter (except for expenses related to accounting
procedures performed by KPMG Peat Marwick on such Computational Materials and
ABS Term Sheets in connection with any related Current Report on Form 8-K, which
shall be paid by MCFI); and provided, further, that Goldman only will be
responsible for the fees of Skadden, Arps, Slate, Meagher & Flom.
9. COMPUTATIONAL MATERIALS AND ABS TERM SHEETS. (a) Not later than 10:30
a.m., New York City time, on the date hereof, the Underwriters shall deliver to
MCFI five complete copies of all materials provided by the Underwriters to
prospective investors in the Registered Certificates which constitute either (i)
"Computational Materials" within the meaning of the no-action letter dated May
20, 1994 issued by the Division of Corporation Finance of the Commission to
Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated,
and Kidder Structured Asset Corporation and the no-action letter dated May 27,
1994 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Kidder Letters") or (ii) "ABS Term
Sheets" within the meaning of the no-action letter dated February 17, 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"), if the filing of such materials with the Commission is
a condition of the relief granted in such letters and, in the case of any such
materials that constitute "Collateral Term Sheets" within the meaning of the PSA
Letter, such Collateral Term Sheets have not previously been delivered to MCFI
as contemplated by Section 9(b)(i) below. Each delivery of Computational
Materials and/or ABS Term Sheets to MCFI pursuant to this paragraph (a) shall be
effected by delivering four copies of such materials to counsel for MCFI on
behalf of MCFI at the address specified in Section 17 hereof and one copy of
such materials to MCFI.
(b) Each Underwriter represents and warrants to and agrees with MCFI,
as of the date hereof and as of the Closing Date, as applicable, that:
(i) if such Underwriter has provided any Collateral Term Sheets
to potential investors in the Registered Certificates prior to the date
hereof and if the filing of such materials with the Commission is a
condition of the relief granted in the PSA Letter, then in each such
case such Underwriter delivered four copies of such materials to
counsel for MCFI on behalf of MCFI at the address specified in Section
17 hereof and one copy of such materials to MCFI no later than 10:30
a.m., New York City time, on the first business day following the date
on which such materials were initially provided to a potential
investor;
(ii) the Computational Materials (either in original,
aggregated or consolidated form) and ABS Term Sheets furnished to MCFI
pursuant to Section 9(a) or as contemplated in Section 9(b)(i)
constitute all of the materials relating to the Registered Certificates
furnished by such Underwriter (whether in written, electronic or other
format) to prospective investors in the Registered Certificates prior
to the date hereof, except for any Preliminary Prospectus and any
Computational Materials and ABS Term sheets which are not required to
be filed with the Commission in accordance with the No-Action Letters,
and all Computational Materials and ABS Term Sheets provided by such
Underwriter to potential investors in the Registered Certificates
comply with the requirements of the No-Action Letters;
<PAGE>
15
(iii) on the respective dates any such Computational Materials
and/or ABS Term Sheets with respect to the Registered Certificates
referred to in Section 9(b)(ii) were last furnished by such Underwriter
to each prospective investor, on the date of delivery thereof to MCFI
pursuant to or as contemplated by this Section 9 and on the Closing
Date, such Computational Materials and/or ABS Term Sheets did not and
will not include any untrue statement of a material fact;
(iv) all Computational Materials and ABS Term Sheets with
respect to the Registered Certificates furnished by such Underwriter to
potential investors contained and will contain a legend, prominently
displayed on the first page thereof, to the effect that MCFI has not
prepared, reviewed or participated in the preparation of such
Computational Materials or ABS Term Sheets, is not responsible for the
accuracy thereof and has not authorized the dissemination thereof;
(v) all Collateral Term Sheets with respect to the Registered
Certificates furnished by such Underwriter to potential investors
contained and will contain a legend, prominently displayed on the first
page thereof, indicating that the information contained therein will be
superseded by the description of the Mortgage Loans contained in the
Prospectus and, except in the case of the initial Collateral Term
Sheet, that such information supersedes the information in all prior
Collateral Term Sheets; and
(vi) on and after the date hereof, such Underwriter shall not
deliver or authorize the delivery of any Computational Materials, ABS
Term Sheets or other materials relating to the Registered Certificates
(whether in written, electronic or other format) to any potential
investor unless such potential investor has received a Prospectus prior
to or at the same time as the delivery of such Computational Materials,
ABS Term Sheets or other materials.
Notwithstanding the foregoing, neither Underwriter makes any
representation or warranty as to whether any Computational Materials or ABS Term
Sheets with respect to the Registered Certificates included or will include any
untrue statement resulting directly from any Collateral Error.
(c) The Underwriters acknowledge and agree that MCFI has not authorized
and will not authorize the distribution of any Computational Materials or ABS
Term Sheets with respect to the Registered Certificates to any prospective
investor, and agree that any such Computational Materials and/or ABS Term Sheets
furnished to prospective investors shall include a disclaimer in the form set
forth in paragraph (b)(iv) above. The Underwriters agree that they will not
represent to potential investors that any Computational Materials and/or ABS
Term Sheets with respect to the Registered Certificates were prepared or
disseminated on behalf of MCFI.
(d) If, at any time when a prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act prior to 90
days from the date hereof, it shall be necessary in the opinion of the
Underwriters or their counsel to amend or supplement the Prospectus as a result
of an untrue statement of a material fact contained in any Computational
Materials or ABS Term Sheets provided by the Underwriters pursuant to or as
contemplated by this Section 9 or the omission to state a material fact
required, when considered in conjunction with the Prospectus, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the Prospectus, not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Securities Act or the rules
thereunder, the Underwriters, at their expense (such expense to be allocated
between them equally), promptly will prepare and furnish to MCFI for filing with
the Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance and shall distribute
such amendment or supplement to each prospective investor in the
<PAGE>
16
Registered Certificates that received such information being amended or
supplemented. Each Underwriter represents and warrants to MCFI, as of the date
of delivery of such amendment or supplement to MCFI, that such amendment or
supplement will not include any untrue statement of a material fact or, when
read in conjunction with the Prospectus, omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.
MCFI shall have no obligation to file such amendment or supplement if MCFI
determines that (i) such amendment or supplement contains any untrue statement
of a material fact or, when read in conjunction with the Prospectus, omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading (it being understood, however, that MCFI shall
have no obligation to review or pass upon the accuracy or adequacy of, or to
correct, any such amendment or supplement provided by the Underwriters to MCFI
pursuant to this paragraph (d)) or (ii) such filing is not required under the
Securities Act. Notwithstanding the foregoing, neither Underwriter makes any
representation or warranty as to whether any such amendment or supplement of
Computational Materials or ABS Term Sheets with respect to the Registered
Certificates included or will include any untrue statement resulting directly
from any Collateral Error.
(e) If, at any time when a prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act prior to 90
days from the date hereof, it shall be necessary in the opinion of MCFI or its
counsel to amend or supplement the Prospectus as a result of an untrue statement
of a material fact contained in any Computational Materials or ABS Term Sheets
provided by the Underwriters pursuant to or as contemplated by this Section 9 or
the omission to state therein a material fact required, when considered in
conjunction with the Prospectus, to be stated therein or necessary to make the
statements therein, when read in conjunction with the Prospectus, not
misleading, or if it shall be necessary to amend or supplement any Current
Report to comply with the Securities Act or the rules thereunder, MCFI promptly
will notify each Underwriter of the necessity of such amendment or supplement,
and the Underwriters, at their expense (such expense to be allocated between
them based on the relative fault of the Underwriters) (or, if such amendment or
supplement is necessary due to a Collateral Error, at the expense of MCFI),
shall prepare and furnish to MCFI for filing with the Commission an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance and shall distribute such amendment or supplement to
each prospective investor in the Registered Certificates that received such
information being amended or supplemented. Notwithstanding the foregoing,
neither Underwriter makes any representation or warranty as to whether any such
amendment or supplement of Computational Materials or ABS Term Sheets with
respect to the Registered Certificates included or will include any untrue
statement resulting directly from any Collateral Error.
(10) TERMINATION. This Agreement shall be subject to termination by
notice given to MCFI, if the sale of the Registered Certificates provided for
herein is not consummated because of any failure or refusal on the part of MCFI
to comply in all material respects with the terms or to fulfill in all material
respects any of the conditions of this Agreement, or if for any reason MCFI
shall be unable to perform in all material respects its obligations under this
Agreement. This Agreement shall also be subject to termination in the absolute
discretion of either of the Underwriters, by notice given to MCFI prior to
delivery of and payment for the Certificates, if prior to such time (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal or New York
State authorities, or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of either of the Underwriters after consultation with MCFI,
impracticable to market the Registered Certificates.
<PAGE>
17
11. DEFAULT BY AN UNDERWRITER. If either Underwriter shall fail to
purchase and pay for any of the Registered Certificates agreed to be purchased
by such Underwriter hereunder and such failure to purchase shall constitute a
default in the performance of its obligations under this Agreement, the
remaining Underwriter shall be obligated to take up and pay for the Registered
Certificates that the defaulting Underwriter agreed but failed to purchase;
provided, however, that in the event that the initial principal amount of
Registered Certificates that the defaulting Underwriter agreed but failed to
purchase shall exceed 10% of the aggregate Class Principal Balance of all of the
Registered Certificates set forth in Schedule I hereto, the remaining
Underwriter shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Registered Certificates, and if such
nondefaulting Underwriter does not purchase all of the Registered Certificates,
this Agreement will terminate without liability to the nondefaulting
Underwriter, MCFI or Citicorp. In the event of a default by any Underwriter as
set forth in this Section 11, the Closing Date for the Registered Certificates
shall be postponed for such period, not exceeding seven days, as the
nondefaulting Underwriter shall determine in order that the required changes in
the Registration Statement, the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to MCFI and to any
nondefaulting Underwriter for damages occasioned by its default hereunder.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of
MCFI, Citicorp, the Underwriters and their respective officers, directors,
employees and agents set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf
of either Underwriter, MCFI, Citicorp or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Registered Certificates. The provisions of Section 7
hereof shall survive the termination or cancellation of this Agreement.
13. OBLIGATION OF CITICORP. Citicorp agrees, in consideration of and as
an inducement to the Underwriters' purchase of the Registered Certificates from
MCFI, to indemnify and hold harmless each Underwriter, and each person who
controls each Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, against any failure by MCFI to perform any of
its obligations under this Agreement, including, without limitation, any
obligation of MCFI to the Underwriters pursuant to Section 7 hereof, after
receipt from the Underwriter of written notice of any such failure.
14. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 hereof, and
no other person will have any right or obligation hereunder.
15. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the substantive laws of the State of New York, applicable to
agreements made and to be performed entirely in said state.
16. 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>
18
17. NOTICES. All communications hereunder will be in writing and
effective only upon receipt and, if sent to Citibank, will be delivered to
Citibank, N.A., 399 Park Avenue, 3rd floor, New York, New York 10043, Attention:
Mr. Richard L. Jarocki. Jr.; if sent to Goldman, will be delivered to Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004, Attention: Mr. Marvin
Kabatznick; if sent to MCFI, will be delivered to MCFI, at 399 Park Avenue, New
York, New York 10043, Attention: Mr. Richard L. Jarocki, Jr., with a copy to
Stephen E. Dietz, Esq. at 425 Park Avenue, New York, New York 10043; or if sent
to Citicorp, will be delivered to Citicorp, Citicorp Center, 153 East 53rd
Street, New York, New York 10043, Attention: Mr. Gregory C. Ehlke.
<PAGE>
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among MCFI, Citicorp and the Underwriters.
Very truly yours,
MORTGAGE CAPITAL FUNDING, INC.
By: /s/ Richard L. Jarocki, Jr.
Name: Richard L. Jarocki, Jr.
Title: Vice President
CITICORP
By: /s/ Gregory C. Ehlke
Name: Gregory C. Ehlke
Title: Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CITIBANK, N.A.
By: /s/ Gary L. Greenberg
Name: Gary L. Greenberg
Title: Vice President
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
Name:
<PAGE>
20
SCHEDULE I
As used in this Agreement, the term "Registration Statements" refers to the
registration statement Nos. 33-25068 and 33-63924 filed by MCFI on Form S-11 and
Form S-3, respectively and declared effective by the Commission.
TITLE AND DESCRIPTION OF THE REGISTERED CERTIFICATES:
Multifamily/Commercial Mortgage Pass-Through Certificates, Series 1996-MC1,
Class X-1, Class X-2, Class A-1, Class A-2A, Class A-2B, Class B, Class C, Class
D, Class E and Class F
Underwriting Agreement, dated as of June 27, 1996
Cut-off Date: July 1, 1996
<TABLE>
<CAPTION>
Class Initial Class Principal Portion of Class Portion of Class
Designation Balance (or in the case Principal Balance (or Principal Balance (or
of in the case of in the case of
Class X-1 and Class Class X-1 and Class Class X-1 and Class
X-2, Class Notional X-2, Class Notional X-2, Initial Purchase
Amount)(1) Amount) of Class Notional Pass-Through Price(2) Rating(3)
Class to be Purchased Amount) of Rate
by Class to be Purchased
Citibank (1) by
Goldman(1)
<S> <C> <C> <C> <C> <C> <C>
X-1 $29,966,951.00 $18,076,637.00 $11,890,314.00 0.796% 7.906% NR/AAA
X-2 $481,875,454.00 $290,676,478.00 $191,198,976.00 0.960% 5.125% NR/AAA
A-1 $29,966,951.00 $18,076,637.00 $11,890,314.00 6.120% 99.984% AAA/AAA
A-2A $150,000,000.00 $90,482,865.00 $59,517,135.00 7.350% 99.859% AAA/AAA
A-2B $145,624,000.00 $87,843,178.00 $57,780,822.00 7.900% 101.344% AAA/AAA
B $14,470,000.00 $8,728,580.00 $5,741,420.00 7.900% 101.031% AA+/AAA
C $31,353,000.00 $18,912,728.00 $12,440,272.00 7.800% 99.375% A+/AA-
D $19,294,000.00 $11,638,509.00 $7,655,491.00 7.800% 99.031% A-/A
E $16,882,000.00 $10,183,545.00 $6,698,455.00 7.700% 96.109% BBB/BBB
F $7,235,000.00 $4,364,290.00 $2,870,710.00 7.700% 92.984% BBB-/BBB-
</TABLE>
- ------------------------
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the Class Principal Balance or Class
Notional Amount, as applicable, of the relevant class of Certificates
to be purchased. In addition, as to each class of the Certificates
(other than the Class A-1 Certificates), the Underwriters will pay MCFI
accrued interest at the initial Pass-Through Rate therefor from the
Cut-off Date to but not including the Closing Date.
(3) By each of Standard & Poor's Ratings Services and Fitch Investors
Service, L.P., except that the Class X-1 and Class X-2 Certificates
will be rated solely by Fitch Investors Service, L.P.
Closing Time, Date and Location: 10:00 a.m. New York City time on July 10, 1996
at the offices of Thacher Proffitt & Wood.
Issuance and delivery of Registered Certificates: Each class of Registered
Certificates will be issued as one or more Certificates registered in the name
of Cede & Co., as nominee of The Depository Trust Company. Beneficial owners
will hold interests in such Certificates through the book-entry facilities of
The Depository Trust Company in minimum denominations of initial principal
balance or notional amount, as the case may be, of $100,000 (or, in the case of
the Class X-1 and Class X-2 Certificates, $5,000,000) and integral multiples of
$1 in excess thereof.
MORTGAGE CAPITAL FUNDING, INC.
$67,532,861
MULTIFAMILY/COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1996-MC1
CLASS G, CLASS H, CLASS J, CLASS K, CLASS R-I AND CLASS R-II
CERTIFICATE PURCHASE AGREEMENT
June 27, 1996
Citibank, N.A.
399 Park Avenue
New York, New York 10043
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Mortgage Capital Funding, Inc., a Delaware corporation ("MCFI"),
proposes to sell to Citibank, N.A. ("Citibank") and Goldman, Sachs & Co.
("Goldman"; Citibank and Goldman, each a "Purchaser" and together, the
"Purchasers"), the respective classes of Multifamily/Commercial Mortgage
Pass-Through Certificates, Series 1996-MC1 identified on Schedule I hereto
(collectively, the "Privately Offered Certificates"), in each case, having the
initial aggregate stated principal balance (a "Class Principal Balance") set
forth on Schedule I. The Privately Offered Certificates, together with the Class
X-1, Class X-2, Class A-1, Class A-2A, Class A-2B, Class B, Class C, Class D,
Class E and Class F Certificates issued therewith (the "Registered Certificates"
and, collectively with the Privately Offered Certificates, the "Certificates"),
evidence the entire beneficial ownership interest in the assets of a trust fund
(the "Trust Fund") to be formed by MCFI and consisting primarily of a pool (the
"Mortgage Pool") of commercial and multifamily mortgage loans (the "Mortgage
Loans") that have, as of the close of business on July 1, 1996 (the "Cut-off
Date"), after taking into account all payments of principal due on the Mortgage
Loans on or before such date, whether or not received, an aggregate principal
balance of $482,357,812, subject to a variance of plus or minus 5.0%. The
Mortgage Loans (or the right to have such transferred to the Trust Fund) will be
acquired by MCFI from Citibank in exchange for immediately available funds
pursuant to a mortgage loan purchase agreement, dated as of June 27, 1996 (the
"Mortgage Loan Purchase Agreement"), between MCFI and Citibank. Certain of the
Mortgage Loans will be acquired by Citibank from PNC Bank, National Association
("PNC") in exchange for immediately available funds pursuant to a mortgage loan
purchase agreement, dated as of June 27, 1996 (the "PNC Purchase Agreement"),
between Citibank and PNC. Certain of the Mortgage Loans (the "Contitrade
Mortgage Loans") will be acquired by Citibank from ContiTrade Services L.L.C.
("ContiTrade") in exchange for immediately available funds pursuant to a
mortgage loan purchase agreement, dated as of June 27, 1996 (the "ContiTrade
Purchase Agreement"), between Citibank and ContiTrade. Two separate real estate
mortgage investment conduit ("REMIC") elections will be made with respect to the
Trust Fund for federal income tax purposes. The Trust Fund is to be created and
the Certificates are to be issued under a pooling and servicing agreement, dated
as of July 1, 1996 (the "Pooling and Servicing Agreement"), among MCFI as
sponsor, Citibank as mortgage loan seller (in such capacity, the "Mortgage Loan
Seller"), GMAC Commercial Mortgage Corporation as master servicer (the "Master
Servicer"),
<PAGE>
2
Hanford/Healy Asset Management Company as special servicer (the "Special
Servicer") and State Street Bank and Trust Company as trustee (in such capacity,
the "Trustee") and REMIC administrator (in such capacity, the "REMIC
Administrator").
1. REPRESENTATIONS AND WARRANTIES.
(a) MCFI represents and warrants to, and agrees with, each of the
Purchasers that:
(i) As of the Closing Date (as defined in Section 3), the
Privately Offered Certificates will be duly authorized, executed and
delivered and, assuming authentication in the manner contemplated in
the Pooling and Servicing Agreement, will be validly issued and
outstanding and entitled to the benefits provided by the Pooling and
Servicing Agreement.
(ii) As of the Closing Date, the Pooling and Servicing Agreement
will have been duly authorized, executed and delivered by MCFI and,
assuming the valid authorization, execution and delivery thereof by the
other parties thereto, will constitute a valid and binding agreement of
MCFI enforceable in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting the enforcement of creditors' rights and by
general principles of equity.
(iii) This Agreement has been duly authorized, executed and
delivered by each of MCFI and Citicorp and, assuming the valid
authorization, execution and delivery hereof by each of the Purchasers,
constitutes a valid and binding obligation of each of MCFI and Citicorp
enforceable in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting the enforcement of creditors' rights, by
general principles of equity and 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 that purport to provide indemnification for securities laws
liabilities.
(iv) The Privately Offered Certificates and the Pooling and
Servicing Agreement conform in all material respects to the
descriptions thereof contained in the Private Placement Memorandum
(including the exhibits thereto, the "Private Placement Memorandum"),
dated June 27, 1996, relating to the Class G, Class H, Class J and
Class K Certificates.
(v) As of the Closing Date, the Private Placement Memorandum
will not include any untrue statement of a material fact and (when read
together with the other information referenced therein as being
available for review by prospective investors) will not 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;
provided, however, that MCFI does not make any representations,
warranties or agreements as to the information contained in or omitted
from the Private Placement Memorandum in reliance upon and in
conformity with the information furnished in writing to MCFI by or on
behalf of such Purchaser (in whatever capacity) specifically for use in
connection with the preparation of the Private Placement Memorandum.
(vi) MCFI has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Private Placement Memorandum.
(vii) The issuance and sale of the Privately Offered Certificates
to the Purchasers pursuant to this Agreement, the compliance by MCFI
with the other provisions of this
<PAGE>
3
Agreement, the Pooling and Servicing Agreement and the Privately
Offered Certificates and the consummation of the other transactions
herein or therein contemplated do not, under any statute, regulation
or rule of general applicability or any decision, order, decree or
judgment of any judicial or other governmental body specifically
applicable to MCFI, require any consent, approval, authorization,
order, registration or qualification of or with any court or
governmental authority, except (A) such as have been obtained or
effected with respect to the Registered Certificates under the
Securities Act of 1933, as amended (the "Securities Act"), (B) the
recordation of the assignments of the Mortgage Loans to the Trustee,
which are to be completed pursuant to the Pooling and Servicing
Agreement on or following the Closing Date and (C) such other
approvals as have been obtained; provided that MCFI makes no
representations or warranties as to any consent, approval,
authorization, registration or qualification which may be required
under state securities or Blue Sky laws.
(viii) Neither the execution and delivery of this Agreement and the
Pooling and Servicing Agreement, nor the issuance and delivery of the
Privately Offered Certificates, nor the consummation of any other of
the transactions contemplated herein or therein, nor the fulfillment of
the terms of this Agreement and the Pooling and Servicing Agreement,
will conflict with, violate, result in a breach of or constitute a
default under the certificate of incorporation or by-laws of MCFI, any
statute or regulation currently applicable to MCFI, or any order
currently applicable to MCFI of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
MCFI, or the terms of any indenture or other agreement or instrument to
which MCFI is a party or by which it or any of its properties are
bound.
(ix) There are no actions or proceedings against, or
investigations of, MCFI pending, or, to the knowledge of MCFI,
threatened, before any court, administrative agency or other tribunal
(A) asserting the invalidity of this Agreement, the Pooling and
Servicing Agreement or the Privately Offered Certificates, (B) seeking
to prevent the issuance of the Privately Offered Certificates or the
consummation of any of the transactions contemplated by this Agreement
or the Pooling and Servicing Agreement, (C) that might materially and
adversely affect the performance by MCFI of its obligations under, or
the validity or enforceability of, this Agreement, the Pooling and
Servicing Agreement or the Privately Offered Certificates or (D)
seeking to affect adversely the federal income tax attributes of the
Class G, Class H, Class J and Class K Certificates described in the
Private Placement Memorandum.
(x) MCFI is not, and the issuance and sale of the Privately
Offered Certificates in the manner contemplated by the Private
Placement Memorandum and this Agreement will not cause MCFI to be,
subject to registration or regulation as an investment company or
affiliate of an investment company under the Investment Company Act of
1940, as amended (the "Investment Company Act").
(xi) The transfer of the Mortgage Loans to the Trust Fund and
the sale of the Certificates to the Purchasers, at the Closing Date,
will be treated by MCFI for financial accounting and reporting purposes
as a sale of assets and not as a pledge of assets to secure debt.
(xii) Any taxes, fees and other governmental charges (other than
income taxes, franchise taxes and recording and filing fees) that are
due and payable by MCFI as of the Closing Date in connection with the
execution, delivery and performance of this Agreement, the Pooling and
Servicing Agreement and the Privately Offered Certificates, will have
been paid at or prior to the Closing Date.
<PAGE>
4
(xiii) At the Closing Date and at the direction of MCFI, the
Mortgage Loans will have been duly and validly assigned and delivered
by the Mortgage Loan Seller to the Trustee under the Pooling and
Servicing Agreement.
(xiv) Assuming the accuracy of the representations and warranties
and the performance of the covenants contained herein on the part of
the Purchasers, neither MCFI nor anyone acting on its behalf has
offered or sold any Privately Offered Certificate or interest therein
by any form of general solicitation or general advertising. In
addition, MCFI 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 the Privately Offered Certificates.
(b) Each Purchaser represents and warrants to, and agrees with,
MCFI that:
(i) Such Purchaser is acquiring its allotment of the Privately
Offered Certificates for its own account and not with a view to or for
sale or transfer in any manner except as contemplated herein and in the
Private Placement Memorandum.
(ii) Such Purchaser understands that the Privately Offered
Certificates have not and will not be registered under the Securities
Act or registered or qualified under any applicable state securities
laws, neither MCFI nor the Trustee is obligated to register or qualify
the Privately Offered Certificates and the Privately Offered
Certificates may not be resold or transferred unless they are (A)
registered pursuant to the Securities Act and registered and qualified
pursuant to any applicable state securities laws or (B) sold or
transferred in transactions which are exempt from such registration and
qualification and the Trustee or other registrar of the Certificates
has received either (1) certification(s) from the transferor and/or
transferee (substantially in the forms attached to the Pooling and
Servicing Agreement) setting forth the facts surrounding the transfer
and establishing that such transfer is being made in accordance with
Rule 144A under the Securities Act or (2) an opinion of counsel
satisfactory to the Trustee or other registrar of the Certificates 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.
(iii) Such Purchaser will not sell or otherwise transfer any
Privately Offered Certificate or interest therein except in compliance
with the provisions of Section 5.02 of the Pooling and Servicing
Agreement.
(iv) Neither such Purchaser nor anyone acting on its behalf has
(A) made any offers or sales of securities that are substantially
similar to the Privately Offered Certificates or (B) offered or sold
any Privately Offered Certificate or interest therein by any form of
general solicitation or general advertising. In addition, such
Purchaser will not act, nor has it authorized or will it authorize any
person to act, in any manner set forth in the prior sentence with
respect to the Privately Offered Certificates.
(v) Such Purchaser has been furnished with all information
regarding (A) MCFI, (B) the Privately Offered Certificates, (C) the
nature, performance and servicing of the Mortgage Loans, (D) the
Pooling and Servicing Agreement and (E) any credit enhancement
mechanism associated with the Privately Offered Certificates, that it
has requested.
(vi) Such Purchaser is an "accredited investor", as such term
is defined in Rule 501(a) of Regulation D under the Securities Act.
<PAGE>
5
(vii) In connection with its purchase of any Class R-I or Class
R-II Certificates, such Purchaser understands that it must, and hereby
agrees to, deliver a Transfer Affidavit and Agreement substantially in
the form of Exhibit C-1 to the Pooling and Servicing Agreement.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, MCFI agrees
to sell to each of Citibank and Goldman, and Citibank and Goldman each agree to
purchase from MCFI, the respective classes of Privately Offered Certificates, in
each case in the principal amount and at the purchase price for such class set
forth on Schedule I hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Privately
Offered Certificates shall be made in the manner, on the date and at the time
specified in Schedule I hereto, which date and time may be changed by agreement
between the Purchasers and MCFI (such date and time of delivery of and payment
for the Privately Offered Certificates being herein referred to as the "Closing
Date"). Delivery of each Purchaser's allotment of the Registered Certificates
shall be made to the related Purchaser against payment by such Purchaser of the
purchase price therefor to or upon the order of MCFI in same-day funds by
federal funds wire (or by such other method as either Purchaser and MCFI may
agree). The Privately Offered Certificates of each class thereof shall be
registered in such names and in such authorized denominations as the Purchasers
may have requested not less than three full business days prior to the Closing
Date.
MCFI agrees to have the Privately Offered Certificates available for
inspection, checking and packaging in New York, New York, by 3:00 p.m. New York
City time on the business day prior to the Closing Date.
4. OFFERING BY THE PURCHASERS. It is understood that each of the
Purchasers proposes to privately place the Privately Offered Certificates with a
limited number of institutional investors as set forth in the Private Placement
Memorandum.
5. FEES AND EXPENSES. MCFI will pay or cause to be paid all third-party
costs and expenses in connection with the transactions herein contemplated,
other than those for which (i) Citibank is responsible under the Mortgage Loan
Purchase Agreement, (ii) ContiTrade is responsible under the ContiTrade Purchase
Agreement and (iii) PNC is responsible under the PNC Purchase Agreement;
provided, however, that each Purchaser will pay or cause to be paid any transfer
taxes on resale of any of the Privately Offered Certificates and advertising
expenses connected with any offers that such Purchaser may make; and provided,
further, that Goldman only will be responsible for the fees of Skadden, Arps,
Slate, Meagher & Flom. Additionally, for a period of 90 days from the Closing
Date, MCFI will provide to each Purchaser, at its own expense, as many copies of
the Private Placement Memorandum as such Purchaser may reasonably request.
6. CONDITIONS TO THE OBLIGATIONS OF EACH PURCHASER. The obligations of
each Purchaser to purchase its allotment of the Privately Offered Certificates
shall be subject to the accuracy of the representations and warranties on the
part of MCFI contained herein as of the date hereof and as of the Closing Date,
to the accuracy of the statements of MCFI made in any officer's certificates
pursuant to the provisions hereof, to the performance by MCFI of its obligations
hereunder and to the following additional conditions:
(a) MCFI shall have furnished to the Purchaser:
(i) An executed copy of the Pooling and Servicing Agreement;
<PAGE>
6
(ii) An opinion Stephen E. Dietz, Esq., counsel to MCFI, dated
the Closing Date, substantially to the effect that:
(A) MCFI is validly existing as a corporation in good
standing under the laws of the State of Delaware, with
corporate power and authority under such laws to own its
properties and conduct its business as described in the Private
Placement Memorandum;
(B) The Privately Offered Certificates have been duly
authorized, executed and delivered and, assuming authentication
in the manner contemplated in the Pooling and Servicing
Agreement, are validly issued and outstanding and entitled to
the benefits provided by the Pooling and Servicing Agreement;
(C) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by MCFI;
(D) The Pooling and Servicing Agreement constitutes a
valid and legally binding agreement of MCFI and is enforceable
against it in accordance with its terms, except as the same may
be limited by bankruptcy, insolvency, reorganization or other
similar laws relating to or affecting the enforcement of
creditor's rights generally and by general principles of
equity;
(E) The Pooling and Servicing Agreement is not required
to be qualified under the Trust Indenture Act of 1939, as
amended, and the Trust Fund is not required to be registered
under the Investment Company Act of 1940, as amended;
(F) The descriptions in the Private Placement
Memorandum, as of the date hereof, of the Privately Offered
Certificates and the Pooling and Servicing Agreement are, to
the extent that such descriptions constitute statements of
matters of law or legal conclusions with respect thereto,
accurate in all material respects;
(G) This Agreement has been duly authorized, executed
and delivered by each of MCFI and Citicorp; and
(H) The issuance, offer and sale of the Privately
Offered Certificates by MCFI to the Purchasers in the manner
contemplated in the Private Placement Memorandum, this
Agreement and the Pooling and Servicing Agreement, assuming the
accuracy of your representations and warranties and the
performance of your covenants contained herein, is a
transaction that does not require registration of the Privately
Offered Certificates under the Securities Act.
In giving his opinion, counsel to MCFI shall additionally state
that, based on conferences and telephone conversations with
representatives of ContiTrade, PNC Bank, the Underwriters, Citibank,
MCFI, the Trustee, the REMIC Administrator, the Master Servicer, the
Special Servicer and their respective counsel, and without having
reviewed any of the Mortgage Notes, Mortgages or other documents in the
Mortgage Files or made any inquiry of any originator of any Mortgage
Loan not referenced above, nothing has come to such counsel's attention
that would lead him to believe that the Private Placement Memorandum
(other than (i) any accounting, financial or statistical information
included therein, (ii) information with respect to California
foreclosure law, and information relating to the Master Servicer, the
Special Servicer, the REMIC Administrator and the Trustee, contained
therein or omitted therefrom and (iii) the
<PAGE>
7
information under the headings "Description of the Mortgage Pool"
or elsewhere in the Private Placement Memorandum with respect to the
subjects discussed under such headings), as of the date thereof and as
of the Closing Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Such opinion may express its reliance as to factual matters on
the representations and warranties made by, and on certificates or
other documents furnished by officers and/or authorized representatives
of, the parties to this Agreement and the Pooling and Servicing
Agreement and on certificates furnished by public officials. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto
other than MCFI and Citicorp. Such opinion may be qualified as an
opinion only on the General Corporation Law of the State of Delaware,
the laws of each state in which the writer of the opinion is admitted
to practice law and the federal law of the United States.
(iii) One or more opinions, dated the Closing Date, of Thacher
Proffitt & Wood, special counsel to MCFI and Contitrade, substantially
to the effect that:
(A) The statements in the Private Placement Memorandum
under the headings "ERISA Considerations", "Material Federal
Income Tax Consequences" and "Certain Federal Income Tax
Consequences", to the extent they constitute matters of New
York or federal law or legal conclusions with respect thereto
that are relevant to the Privately Offered Certificates,
provide a fair and accurate summary of such law
and conclusions.
(B) As described in the Prospectus Supplement and
assuming compliance with the provisions of the Pooling and
Servicing Agreement, (1) REMIC I will qualify as a real estate
mortgage investment conduit (a "REMIC") within the meaning of
Sections 860A through 860G (the "REMIC Provisions") of the
Internal Revenue Code of 1986, and the REMIC I Regular
Interests will be "regular interests" and the Class R-I
Certificates will evidence the sole class of "residual
interests" in REMIC I (as both terms are defined in the REMIC
Provisions in effect on the Closing Date), and (2) REMIC II
will qualify as a REMIC within the meaning of the REMIC
Provisions, and the Class X-1, Class X-2, Class A-1, Class
A-2A, Class A-2B, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J and Class K Certificates will
evidence "regular interests" and the Class R-II Certificates
will evidence the sole class of "residual interests" in REMIC
II.
In giving its opinions, counsel to MCFI and ContiTrade shall
additionally state that, based on conferences and telephone
conversations with representatives of ContiTrade, PNC Bank, the
Underwriters, Citibank, MCFI, the Trustee, the REMIC Administrator, the
Master Servicer, the Special Servicer and their respective counsel, and
without having reviewed any of the Mortgage Notes, Mortgages or other
documents in the Mortgage Files (other than select provisions in the
Mortgage Notes and Mortgages for the Contitrade Mortgage Loans) or made
any inquiry of any originator of any Mortgage Loan not referenced
above, nothing has come to such special counsel's attention that would
lead it to believe that the Private Placement Memorandum (other than
(i) any accounting, financial or statistical information included in
the Private Placement Memorandum and (ii) the information under the
headings "Description of the Mortgage Pool" or elsewhere in the Private
Placement Memorandum with respect to the subjects discussed under such
headings), as of the date thereof and as of the Closing Date, included
or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make
<PAGE>
8
the statements therein, in the light of the circumstances under
which they were made, not misleading.
Such opinion may express its reliance as to factual matters on
the representations and warranties made by, and on certificates or
other documents furnished by officers and/or authorized representatives
of, the parties to this Agreement and the Pooling and Servicing
Agreement and on certificates furnished by public officials. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto
other than MCFI. Such opinion may be qualified as an opinion only on
the General Corporation Law of the State of Delaware, the laws of each
state in which the writer of the opinion is admitted to practice law
and the federal law of the United States.
(iv) A good standing certificate regarding MCFI from the
Secretary of State of the State of Delaware, dated not earlier than 30
days prior to the Closing Date;
(v) A certificate of MCFI, dated the Closing Date and signed by
an executive officer or authorized signatory of MCFI, to the effect
that the representations and warranties of MCFI herein are true and
correct in all material respects on and as of the Closing Date with the
same effect as if made on the Closing Date, and MCFI has complied in
all material respects with all agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date; and
(vi) An officer's certificate, dated the Closing Date and
signed by the Secretary or an assistant secretary of MCFI, to the
effect that each individual who, as an officer or representative of
MCFI, signed this Agreement, the Pooling and Servicing Agreement or any
other document or certificate delivered on or before the Closing Date
in connection with the transactions contemplated herein or in the
Pooling and Servicing Agreement, was at the respective times of such
signing and delivery, and is as of the Closing Date, duly elected or
appointed, qualified and acting as such officer or representative, and
the signatures of such persons appearing on such documents and
certificates are their genuine signatures. Such certificate shall be
accompanied by true and complete copies (certified as such by the
Secretary or an assistant secretary of MCFI) of the certificate of
incorporation and by-laws of MCFI, as in effect on the Closing Date,
and of the resolutions of MCFI and any required shareholder consent
relating to the transactions contemplated in this Agreement and the
Pooling and Servicing Agreement.
(b) The Purchasers shall have received, with respect to each of the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator, a favorable opinion of counsel, dated the Closing Date,
addressing the valid existence of such party under the laws of the jurisdiction
of its organization, the due authorization, execution and delivery of the
Pooling and Servicing Agreement by such party and, subject to the same
limitations as set forth in Section 6(a)(ii)(D), the enforceability of the
Pooling and Servicing Agreement against such party. Such opinion may express its
reliance as to factual matters on representations and warranties made by, and on
certificates or other documents furnished by officers and/or authorized
representatives of parties to this Agreement and the Pooling and Servicing
Agreements and on certificates furnished by public officials. Such opinion may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the party on
behalf of which such opinion is being rendered. Such opinion may be qualified as
an opinion only on the General Corporation Law of the State of Delaware (if
relevant), the laws of each state in which the writer of the opinion is admitted
to practice law and the federal law of the United States.
<PAGE>
9
(c) The Purchasers shall have received from KPMG Peat Marwick and
Deloitte & Touche LLP, certified public accountants, letters, dated the Closing
Date, in form and substance reasonably satisfactory to MCFI and the Purchasers,
collectively stating in effect that they have performed certain specified
procedures as a result of which they have determined that certain information of
an accounting, financial or statistical nature set forth in the Private
Placement Memorandum agrees with the data sheet or computer tape prepared by the
Mortgage Loan Seller or ContiTrade, unless otherwise noted in such letter.
(d) MCFI and the Underwriters shall have received from KPMG Peat
Marwick, certified public accountants, a letter dated the Closing Date, in form
and substance reasonably satisfactory to MCFI and the Purchasers, to the effect
that they have performed certain specified procedures, all of which have been
agreed to by MCFI and the Purchasers, as a result of which they confirmed the
information of an accounting, financial or statistical nature included in the
Private Placement Memorandum under the heading "Special Yield Considerations".
(e) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of MCFI which such Purchaser concludes, in the judgment
of such Purchaser after consultation with MCFI, materially impairs the
investment quality of the Privately Offered Certificates so as to make it
impractical or inadvisable to proceed with the private placement or the delivery
of the Privately Offered Certificates as contemplated by the Private Placement
Memorandum and this Agreement.
(f) The Privately Offered Certificates shall have been assigned ratings
not less than those set forth on Schedule I and such ratings shall not have been
rescinded.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to such Purchaser and its counsel, this Agreement and all
obligations of such Purchaser hereunder may be cancelled at, or at any time
prior to, the Closing Date by such Purchaser. Notice of such cancellation shall
be given to MCFI in writing or by telephone confirmed in writing.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) MCFI agrees to indemnify and hold harmless each Purchaser and each
person who controls such Purchaser within the meaning of either the Securities
Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
against any and all losses, claims, damages or liabilities, joint or several, to
which it or any of them may become subject under the Securities Act, the
Exchange Act, or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Private
Placement Memorandum, or in any revision or amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission
(when read together with the other information referenced therein as being
available for review by prospective investors) to state therein a material fact
necessary to make the statements therein in the light of the circumstances under
which they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by it or
him in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that MCFI will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made in the Private Placement Memorandum or any
revision thereof or
<PAGE>
10
supplement thereto in reliance upon and in conformity with written information
furnished to MCFI by or on behalf of such Purchaser (in whatever capacity)
specifically for use in connection with the preparation thereof. This indemnity
agreement will be in addition to any liability which MCFI may otherwise have.
(b) Each Purchaser agrees to indemnify and hold harmless MCFI and each
person who controls MCFI within the meaning of either the Securities Act or the
Exchange Act, to the same extent as the foregoing indemnities from MCFI to the
Purchasers, but only with reference to written information furnished to MCFI by
or on behalf of such Purchaser (in whatever capacity) specifically for use in
connection with the preparation of the Private Placement Memorandum or any
revision or amendment thereof or supplement thereto, and in the case of
Citibank, only insofar as Citibank does not otherwise provide indemnification
for any particular loss, claim, damage or liability pursuant to the Mortgage
Loan Purchase Agreement. This indemnity agreement will be in addition to any
liability which such Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than under this Section 7; provided, however, that any increase in
such liability as a result of such failure to notify shall not be an expense of
the indemnifying party. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided that, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
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 to assume the defense of such action
and approval by the indemnified party of counsel, the indemnifying party will
not be liable to such indemnified party 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, approved by the indemnified party or parties, representing the
indemnified party or parties who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is due
in accordance with its terms but is for any reason held by a court to be
unavailable on grounds of policy or otherwise, MCFI and the related Purchaser
shall each contribute to the aggregate losses, claims, damages and liabilities
(including legal and other expenses reasonably incurred in connection with
investigating or defending same) to which MCFI and such Purchaser may be subject
in such proportion so that such Purchaser is responsible for 0.5% thereof and
<PAGE>
11
MCFI is responsible for the balance; provided that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls a Purchaser within the meaning of either the Securities
Act or the Exchange Act shall have the same rights to contribution as such
Purchaser, and each person who controls MCFI within the meaning of either the
Securities Act or the Exchange Act shall have the same rights to contribution as
MCFI. Any party entitled to contribution will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party in respect
of which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
8. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of either of the Purchasers, by notice given to MCFI prior
to delivery of and payment for the Privately Offered Certificates, if prior to
such time (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
federal or New York State authorities, or (iii) there shall have occurred any
material outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of either of the Purchasers after consultation
with MCFI, impracticable to market the Privately Offered Certificates.
9. DEFAULT BY A PURCHASER. If either Purchaser shall fail to purchase
and pay for any of the Privately Offered Certificates agreed to be purchased by
such Purchaser hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
remaining Purchaser shall be obligated to take up and pay for the Privately
Offered Certificates that the defaulting Purchaser agreed but failed to
purchase; provided, however, that in the event that the initial principal amount
of Privately Offered Certificates that the defaulting Purchaser agreed but
failed to purchase shall exceed 10% of the aggregate Class Principal Balance of
the Privately Offered Certificates set forth in Schedule I hereto, the remaining
Purchaser shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Privately Offered Certificates, and if such
nondefaulting Purchaser does not purchase all the Privately Offered
Certificates, this Agreement will terminate without liability to the
nondefaulting Purchaser, MCFI or Citicorp. In the event of a default by any
Purchaser as set forth in this Section 9, the Closing Date for the Privately
Offered Certificates shall be postponed for such period, not exceeding seven
days, as the nondefaulting Purchaser shall determine in order that the required
changes in the Private Placement Memorandum or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Purchaser of its liability, if any, to MCFI and to any
nondefaulting Purchaser for damages occasioned by its default hereunder.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of
MCFI, Citicorp, the Purchasers and their respective officers, directors,
employees and agents set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf
of either Purchaser, MCFI, Citicorp or any of controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the Privately
Offered Certificates. The provisions of Section 7 hereof shall survive the
termination or cancellation of this Agreement.
<PAGE>
12
11. OBLIGATION OF CITICORP. Citicorp agrees, in consideration of and as
an inducement to the Purchasers' purchase of the Privately Offered Certificates
from MCFI, to indemnify and hold harmless each Purchaser, and each person who
controls each Purchaser within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, against any failure by MCFI to perform any of
its obligations under this Agreement, including, without limitation, any
obligation of MCFI to the Purchasers pursuant to Section 7 hereof, after receipt
from the Purchaser of written notice of any such failure.
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7 hereof, and no other person will
have any right or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the substantive laws of the State of New York, applicable to
agreements made and to be performed entirely in said state.
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.
15. NOTICES. All communications hereunder will be in writing and
effective only upon receipt and, if sent to Citibank, will be delivered to
Citibank, N.A., 399 Park Avenue, 3rd floor, New York, New York 10043, Attention:
Mr. Richard L. Jarocki. Jr.; if sent to Goldman, will be delivered to Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004, Attention: Mr. Marvin
Kabatznick; if sent to MCFI, will be delivered to MCFI, at 399 Park Avenue, New
York, New York 10043, Attention: Mr. Richard L. Jarocki, Jr., with a copy to
Stephen E. Dietz, Esq. at 425 Park Avenue, New York, New York 10043; or if sent
to Citicorp, will be delivered to Citicorp, Citicorp Center, 153 East 53rd
Street, New York, New York 10043, Attention: Mr. Gregory C. Ehlke.
<PAGE>
13
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between MCFI,
Citicorp and the Purchasers.
Very truly yours,
MORTGAGE CAPITAL FUNDING, INC.
By: /s/ Richard L. Jarocki, Jr.
Name: Richard L. Jarocki, Jr.
Title: Vice President
CITICORP
By: /s/ Gregory C. Ehlke
Name: Gregory C. Ehlke
Title: Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CITIBANK, N.A.
By: /s/ Gary L. Greenberg
Name: Gary L. Greenberg
Title: Vice President
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
Name:
<PAGE>
14
SCHEDULE I
TITLE AND DESCRIPTION OF THE PRIVATELY OFFERED CERTIFICATES:
Multifamily/Commercial Mortgage Pass-Through Certificates, Series 1996-MC1,
Class G, Class H, Class J, Class K, Class R-I and Class R-II
Certificate Purchase Agreement, dated as of June 27, 1996
Cut-off Date: July 1, 1996
<TABLE>
<CAPTION>
Portion of Class Portion of Class
Principal Principal
Class Initial Class Balance of, or Balance of, or Initial Purchase
Designation Principal Balance (1) Percentage Interest in, Percentage Interest in, Pass-Through Rate Price(2) Rating(3)
- ----------- --------------------- Class to be Class to be ------------- -------- ---------
Purchased by Citibank (1) Purchased by Goldman (1)
<S> <C> <C> <C> <C> <C> <C>
(1)
G $32,559,000 $19,640,211 $12,918,789 7.150% 74.547% BB/BB
H $18,088,000 $10,911,027 $7,176,973 5.700% 53.141% B/B
J $3,617,000 $2,181,843 $1,435,157 5.700% 35.094% B-/B-
K $13,268,861 $8,004,030 $5,264,831 5.700% 34.328% Not Rated
R-I N/A 100% 0% N/A N/A Not Rated
R-II N/A 100% 0% N/A N/A Not Rated
------------------------
</TABLE>
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the aggregate Class Principal Balance of
the relevant class of Certificates to be purchased. In addition, as
to each class of Privately Offered Certificates, the Purchasers will
pay to MCFI accrued interest at the initial Pass-Through Rate
therefor from the Cut-off Date to but not including the Closing Date.
(3) By each of Standard & Poor's Ratings Services and Fitch Investors
Service, L.P., respectively.
Closing Time, Date and Location: 10:00 a.m. New York City time on July 10, 1996
at the offices of Thacher Proffitt & Wood.
Issuance and delivery of Privately Offered Certificates: The Privately Offered
Certificates will be issued in fully registered, certificated form in minimum
denominations of, in the case of the Class G, Class H, Class J and Class K
Certificates, $100,000 and integral multiples of $1 in excess thereof and, in
the case of the Class R-I and Class R-II Certificates, not less than 5%
percentage interest in the relevant class.
MORTGAGE CAPITAL FUNDING, INC.,
Sponsor,
CITIBANK, N.A.,
Mortgage Loan Seller,
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer,
HANFORD/HEALY ASSET MANAGEMENT COMPANY,
Special Servicer,
and
STATE STREET BANK AND TRUST COMPANY,
Trustee and REMIC Administrator
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of July 1, 1996
---------------------------------
$482,357,812
Multifamily/Commercial Mortgage Pass-Through Certificates
Series 1996-MC1
<PAGE>
- ------------------------------------------------------------------------------
TABLE OF CONTENTS
-----------------
Section Page
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF
THE MORTGAGE POOL AND THE CERTIFICATES
1.01. Defined Terms 4
Accrued Certificate Interest 4
Acquisition Date 4
Additional Information 4
Additional Trust Fund Expense 4
Adjustment Date 4
Advance 4
Advance Interest 4
Adverse REMIC Event 5
Affiliate 5
Aggregate Principal Distribution Amount 5
Agreement 5
Applicable State Law 5
Appraisal 5
Appraisal Reduction Amount 5
Appraised Value 6
ARM Loan 6
Assignment of Leases 6
Assumed Scheduled Payment 6
Available Distribution Amount 7
Balloon Mortgage Loan 7
Balloon Payment 7
Balloon Payment Interest Excess 7
Balloon Payment Interest Shortfall 7
Bankruptcy Code 8
Book-Entry Certificate 8
Business Day 8
CERCLA 8
Certificate 8
Certificate Account 8
Certificate Factor 8
Certificateholder" or "Holder 8
Certificate Notional Amount 9
Certificate Owner 9
Certificate Principal Balance 9
Certificate Register 9
Certificate Registrar 9
Class 9
i
<PAGE>
Class A Certificate 9
Class A-1 Certificate 9
Class A-2A Certificate 9
Class A-2B Certificate 9
Class B Certificate 10
Class C Certificate 10
Class D Certificate 10
Class E Certificate 10
Class F Certificate 10
Class G Certificate 10
Class H Certificate 10
Class Interest Shortfall 10
Class J Certificate 10
Class K Certificate 11
Class Notional Amount 11
Class Principal Balance 11
Class R-I Certificate 11
Class R-II Certificate 11
Class X Certificate 11
Class X-1 Certificate 11
Class X-2 Certificate 11
Closing Date 12
Code 12
Collection Period 12
Collection Report 12
Commission 12
Conti 12
Conti Loan 12
Controlling Class 12
Corporate Trust Office 13
Corrected Mortgage Loan 13
Cross-Collateralized Mortgage Loans 13
Current Principal Distribution Amount 13
Custodian 14
Cut-off Date 14
Cut-off Date Balance 14
Debt Service Coverage Ratio 14
Defaulted Mortgage Loan 14
Default Interest 14
Definitive Certificate 15
Delinquent Loan Status Report 15
Depository 15
Depository Participant 15
Determination Date 15
ii
<PAGE>
Directly Operate 15
Discount Rate 15
Disqualified Organization 16
Distributable Certificate Interest 16
Distribution Account 16
Distribution Date 17
Distribution Date Statement 17
Document Defect 17
Due Date 17
Effective Certificate Notional Amount 17
Effective Class Notional Amount 17
Effective Pass-Through Rate 17
Eligible Account 17
ERISA 18
Escrow Payment 18
Event of Default 18
Exchange Act 18
Extension Adviser 18
FDIC 18
FHLMC 18
Final Distribution Date 18
Final Recovery Determination 18
Fitch 18
Fixed-Rate Loan 19
FNMA 19
Gross Margin 19
Ground Lease 19
Group 1 Certificates 19
Group 1 Loan 19
Group 2 Certificates 19
Group 2 Loan 19
Hazardous Materials 19
Historical Loan Modification Report 19
Historical Loss Report 20
HUD-Approved Servicer 20
Independent 20
Independent Contractor 20
Index 21
Initial Class Notional Amount 21
Initial Class Principal Balance 21
Initial Effective Class Notional Amount 21
Insurance Policy 21
Insurance Proceeds 21
Interested Person 21
iii
<PAGE>
Interest Accrual Period 21
Interest Only Certificate 22
Investment Account 22
IRS 22
Issue Price 22
Late Collections 22
LIBOR 22
LIBOR Business Day 22
LIBOR Determination Date 22
LIBOR Reference Period 23
Liquidation Event 23
Liquidation Expenses 23
Liquidation Fee 23
Liquidation Fee Rate 23
Liquidation Proceeds 23
Loan Group 24
Loan Group 1 24
Loan Group 2 24
Loan-to-Value Ratio 24
Loss Reimbursement Amount 24
Majority Certificateholder 24
Master Servicer 24
Master Servicer Remittance Amount 24
Master Servicer Remittance Date 25
Master Servicing Fee 25
Master Servicing Fee Rate 25
Maturity Assumptions 25
Modified Mortgage Loan 25
Monthly Payment 26
Mortgage 26
Mortgage File 26
Mortgage Loan 28
Mortgage Loan Schedule 28
Mortgage Loan Seller 29
Mortgage Note 29
Mortgage Pool 29
Mortgage Rate 29
Mortgaged Property 29
Mortgagor 29
Net Aggregate Prepayment Interest Shortfall 30
Net Default Interest 30
Net Investment Earnings 30
Net Investment Loss 30
Net Mortgage Rate 30
iv
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Net Operating Income 30
Nonrecoverable Advance 30
Nonrecoverable P&I Advance 30
Nonrecoverable Servicing Advance 31
Non-Registered Certificate 31
Non-United States Person 31
Officer's Certificate 31
Operating Statement Analysis 31
Opinion of Counsel 31
OTS 31
Ownership Interest 31
Pass-Through Rate 31
Payment Priority 32
Percentage Interest 32
Permitted Investments 32
Permitted Transferee 34
Person 34
Phase I Environmental Assessment 34
P&I Advance 34
Plan 34
Prepayment Assumption 34
Prepayment Interest Excess 34
Prepayment Interest Shortfall 34
Prepayment Premium 34
Primary Servicing Office 34
Principal Distribution Amount 35
Principal Prepayment 35
Prospectus Supplement 35
Purchase Price 35
Qualified Appraiser 35
Qualified Insurer 35
Rating Agency 35
Realized Loss 35
Record Date 36
Reference Banks 36
Registered Certificates 36
Reimbursement Rate 36
REMIC 36
REMIC Administrator 37
REMIC I 37
REMIC I Regular Interest 37
REMIC I Remittance Rate 37
REMIC II 38
REMIC II Certificate 38
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REMIC II Regular Certificate 38
REMIC Provisions 38
Rents from Real Property 38
REO Account 38
REO Acquisition 39
REO Disposition 39
REO Extension 39
REO Loan 39
REO Property 39
REO Revenues 39
REO Status Report 39
REO Tax 40
Request for Release 40
Required Appraisal Loan 40
Reserve Account 40
Reserve Funds 40
Residual Certificate 40
Responsible Officer 40
Scheduled Payment 40
Securities Act 40
Security Agreement 40
Senior Certificate 40
Sequential Pay Certificate 40
Servicing Account 41
Servicing Advances 41
Servicing Fees 41
Servicing File 41
Servicing Officer 41
Servicing Return Date 41
Servicing Standard 41
Servicing Transfer Event 42
Single Certificate 42
Six-Month LIBOR (Formula 1) 42
Special Servicer 43
Special Servicer Loan Status Report 43
Special Servicing Fee 43
Special Servicing Fee Rate 43
Specially Serviced Mortgage Loan 43
Sponsor 45
Spread Rate 45
Standard & Poor's 45
Standby Fee 45
Standby Fee Rate 45
Startup Day 45
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Stated Maturity Date 45
Stated Principal Balance 46
Subordinated Certificate 46
Sub-Servicer 46
Sub-Servicing Agreement 46
Tax Matters Person 46
Tax Returns 46
Transfer 46
Transferee 46
Transferor 47
Trust Fund 47
Trustee 47
UCC 47
UCC Financing Statement 47
Uncertificated Accrued Interest 47
Uncertificated Distributable Interest 47
Uncertificated Notional Amount 48
Uncertificated Principal Balance 48
Uninsured Cause 48
United States Person 48
USPAP 48
Voting Rights 49
Workout Fee 49
Workout Fee Rate 49
1.02. Certain Calculations in Respect of the Mortgage Pool 49
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
2.01. Conveyance of Mortgage Loans 51
2.02. Acceptance of REMIC I by Trustee 54
2.03. Mortgage Loan Seller's Repurchase of
Mortgage Loans for Document Defects and
Certain Breaches of Representations and Warranties 56
2.04. Representations and Warranties of the Sponsor 57
2.05. Representations and Warranties of the
Mortgage Loan Seller. 59
2.06. Representations and Warranties of the Master Servicer 64
2.07. Representations and Warranties of the Special Servicer 66
2.08. Representations and Warranties of the Trustee 67
2.09. Issuance of Class R-I Certificates; Creation of
REMIC I Regular Interests. 69
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2.10. Conveyance of REMIC I Regular Interests; Acceptance
of REMIC II by the Trustee. 69
2.11. Issuance of REMIC II Certificates 69
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
3.01. Administration of the Mortgage Loans 70
3.02. Collection of Mortgage Loan Payments 71
3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts 71
3.04. Certificate Account and Distribution Account 73
3.05. Permitted Withdrawals From the Certificate
Account and the Distribution Account 76
3.06. Investment of Funds in the Certificate Account,
the Distribution Account and the REO Account 79
3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage 81
3.08. Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Subordinate Financing 83
3.09. Realization Upon Defaulted Mortgage Loans 85
3.10. Trustee to Cooperate; Release of Mortgage Files 88
3.11. Servicing Compensation; Interest on Servicing
Advances; Payment of Certain Expenses;
Obligations of the Trustee regarding Back-up
Servicing Advances 89
3.12. Inspections; Collection of Financial Statements 93
3.13. Annual Statement as to Compliance 95
3.14. Reports by Independent Public Accountants 95
3.15. Access to Certain Information 96
3.16. Title to REO Property; REO Account 96
3.17. Management of REO Property 97
3.18. Sale of Mortgage Loans and REO Properties 101
3.19. Additional Obligations of the Master Servicer and
the Special Servicer 104
3.20. Modifications, Waivers, Amendments and Consents 107
3.21. Transfer of Servicing Between Master Servicer
and Special Servicer; Record Keeping 109
3.22. Sub-Servicing Agreements 110
3.23. Designation of Special Servicer by the Majority
Certificateholders of the Controlling Class. 112
3.24. Extension Adviser; Elections 113
3.25. Limitation on Liability of Extension Adviser 114
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3.26. Duties of Extension Adviser 114
3.27. Special Servicer to Cooperate with the
Extension Adviser 115
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
4.01. Distributions. 116
4.02. Statements to Certificateholders; Certain Reports
by the Master Servicer and the Special Servicer 131
4.03. P&I Advances 139
4.04. Allocation of Realized Losses and Additional
Trust Fund Expenses 141
ARTICLE V
THE CERTIFICATES
5.01. The Certificates 143
5.02. Registration of Transfer and Exchange of Certificates 143
5.03 Book-Entry Certificates 149
5.04. Mutilated, Destroyed, Lost or Stolen Certificates 150
5.05. Persons Deemed Owners 151
ARTICLE VI
THE SPONSOR, THE MORTGAGE LOAN SELLER, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
6.01. Liability of the Sponsor, the Mortgage Loan Seller,
the Master Servicer, the Special Servicer and
the REMIC Administrator 152
6.02. Merger, Consolidation or Conversion of the Sponsor,
the Mortgage Loan Seller, the Master Servicer,
the Special Servicer or the REMIC Administrator 152
6.03. Limitation on Liability of the Sponsor, the Master
Servicer, the Special Servicer, the REMIC
Administrator and Others 153
6.04. Master Servicer, Special Servicer and REMIC
Administrator Not to Resign 154
6.05. Rights of the Sponsor and the Trustee in Respect
of the Master Servicer 154
ARTICLE VII
DEFAULT
ix
<PAGE>
7.01. Events of Default 156
7.02. Trustee to Act; Appointment of Successor 159
7.03. Notification to Certificateholders 160
7.04. Waiver of Events of Default 161
7.05. Additional Remedies of Trustee Upon Event of Default 161
ARTICLE VIII
CONCERNING THE TRUSTEE
8.01. Duties of Trustee 162
8.02. Certain Matters Affecting the Trustee 163
8.03. Trustee Not Liable for Validity or Sufficiency
of Certificates or Mortgage Loans 165
8.04. Trustee May Own Certificates 165
8.05. Fees of Trustee; Indemnification of Trustee 165
8.06. Eligibility Requirements for Trustee 166
8.07. Resignation and Removal of the Trustee 166
8.08. Successor Trustee 167
8.09. Merger or Consolidation of Trustee 168
8.10. Appointment of Co-Trustee or Separate Trustee 168
8.11 Appointment of Custodians 169
8.12. Access to Certain Information 170
8.13. Massachusetts Filings 171
8.14. Filings with the Securities and Exchange Commission 171
ARTICLE IX
TERMINATION
9.01. Termination Upon Repurchase or Liquidation of
All Mortgage Loans 172
9.02. Additional Termination Requirements 174
ARTICLE X
ADDITIONAL REMIC PROVISIONS
10.01. REMIC Administration 176
10.02. Sponsor, Master Servicer, Special Servicer and
Trustee to Cooperate with REMIC Administrator 179
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10.03. Fees of the REMIC Administrator 179
10.04. Use of Agents 180
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01. Amendment 181
11.02. Recordation of Agreement; Counterparts 182
11.03. Limitation on Rights of Certificateholders 183
11.04. Governing Law 184
11.05. Notices 184
11.06. Severability of Provisions 184
11.07. Successors and Assigns; Beneficiaries 185
11.08. Article and Section Headings 185
11.09. Notices to the Rating Agencies 185
EXHIBIT A-1 Form of Class X-1 Certificate
EXHIBIT A-2 Form of Class X-2 Certificate
EXHIBIT A-3 Form of Class A-1 Certificate
EXHIBIT A-4 Form of Class A-2A Certificate
EXHIBIT A-5 Form of Class A-2B Certificate
EXHIBIT A-6 Form of Class B Certificate
EXHIBIT A-7 Form of Class C Certificate
EXHIBIT A-8 Form of Class D Certificate
EXHIBIT A-9 Form of Class E Certificate
EXHIBIT A-10 Form of Class F Certificate
EXHIBIT A-11 Form of Class G Certificate
EXHIBIT A-12 Form of Class H Certificate
EXHIBIT A-13 Form of Class J Certificate
EXHIBIT A-14 Form of Class K Certificate
EXHIBIT A-15 Form of Class R-I Certificate
EXHIBIT A-16 Form of Class R-II Certificate
EXHIBIT B-1 Form I of Transferor Certificate Pursuant to Section 5.02(b)
EXHIBIT B-2 Form II of Transferor Certificate Pursuant to Section 5.02(b)
EXHIBIT B-3 Form I of Transferee Certificate Pursuant to Section 5.02(b)
[For QIBs]
EXHIBIT B-4 Form II of Transferee Certificate Pursuant to Section 5.02(b)
[For Institutional Accredited Investors]
EXHIBIT C-1 Form of Transferee Affidavit and Agreement Pursuant to Section
5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor Certificate Pursuant to Section 5.02(d)(i)(D)
EXHIBIT D Request for Release
EXHIBIT E Form of REO Status Report
xi
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SCHEDULE 1 Mortgage Loan Schedule
xii
<PAGE>
This Pooling and Servicing Agreement (this "Agreement"), is dated
and effective as of July 1, 1996, among MORTGAGE CAPITAL FUNDING, INC., as
Sponsor, CITIBANK, N.A., as Mortgage Loan Seller, GMAC COMMERCIAL MORTGAGE
CORPORATION, as Master Servicer, HANFORD/HEALY ASSET MANAGEMENT COMPANY, as
Special Servicer and STATE STREET BANK AND TRUST COMPANY, as Trustee and REMIC
Administrator.
PRELIMINARY STATEMENT:
The Sponsor 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 the trust fund (the "Trust Fund") to be created hereunder.
As provided herein, the REMIC Administrator will elect to treat
the segregated pool of assets consisting of the Mortgage Loans (as defined
herein) and certain other related assets subject to this Agreement as a real
estate mortgage investment conduit (a "REMIC") for federal income tax purposes,
and such segregated pool of assets will be designated as "REMIC I". The Class
R-I Certificates will represent the sole class of "residual interests" in REMIC
I for purposes of the REMIC Provisions (as defined herein) under federal income
tax law. The following table irrevocably sets forth the designation, remittance
rate (the "REMIC I Remittance Rate"), initial stated principal amount (the
initial "Uncertificated Principal Balance") and latest possible maturity date
for each of the "regular interests" in REMIC I (the "REMIC I Regular
Interests"). None of the REMIC I Regular Interests will be certificated.
Designation REMIC I Initial Uncertificated Latest Possible Maturity
Remittance Rate Principal Balance Date(1)(2)
--------------- ----------------- ----------
X-1 Variable(3) N/A(4) June 15, 2028
LG1 Variable(3) $29,936,984.05 (5) June 15, 2028
LG2 Variable(3) $451,938,470.14 (6) June 15, 2028
A-1 Variable(3) $29,966.95 (7) June 15, 2028
A-2A 7.35% per annum $150,000.00 (8) June 15, 2028
A-2B 7.90% per annum $145,624.00 (8) June 15, 2028
B 7.90% per annum $14,470.00 (8) June 15, 2028
C 7.80% per annum $31,353.00 (8) June 15, 2028
D 7.80% per annum $19,294.00 (8) June 15, 2028
E 7.70% per annum $16,882.00 (8) June 15, 2028
F 7.70% per annum $7,235.00 (8) June 15, 2028
G 7.15% per annum $32,559.00 (8) June 15, 2028
H 5.70% per annum $18,088.00 (8) June 15, 2028
J 5.70% per annum $3,617.00 (8) June 15, 2028
K 5.70% per annum $13,268.86 (8) June 15, 2028
<PAGE>
2
(1) Determined solely for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii).
(2) Set at the first Distribution Date that is at least two years after the
end of the remaining amortization schedule of the Mortgage Loan that has,
as of the Closing Date (as defined herein), the longest remaining
amortization schedule, irrespective of its scheduled maturity.
(3) Calculated in accordance with the definition of "REMIC I Remittance Rate".
(4) REMIC I Regular Interest X-1 does not have an Uncertificated Principal
Balance and will accrue interest on a notional principal amount (an
"Uncertificated Notional Amount") that is equal to the aggregate Stated
Principal Balance (as defined herein) of the Group 1 Loans (as defined
herein) outstanding from time to time.
(5) The initial Uncertificated Principal Balance of REMIC I Regular Interest
LG1 equals 99.9% of the aggregate of the initial Stated
Principal Balances of the Group 1 Loans.
(6) The initial Uncertificated Principal Balance of REMIC I Regular Interest
LG2 equals 99.9% of the aggregate of the initial Stated
Principal Balances of all the Group 2 Loans (as defined herein).
(7) The initial Uncertificated Principal Balance of REMIC I Regular Interest
A-1 equals 0.1% of the aggregate of the initial Stated
Principal Balances of all the Group 1 Loans.
(8) The aggregate of the initial Uncertificated Principal Balances of REMIC I
Regular Interests A-2A, A-2B, B, C, D, E, F, G, H, J and K equals 0.1% of
the aggregate of the initial Stated Principal Balances of all the Group 2
Loans.
As provided herein, the REMIC Administrator will elect to treat
the segregated pool of assets consisting of the REMIC I Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC II". The Class R-II Certificates will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designation, pass-through rate (the "Pass-Through Rate"), initial aggregate
stated principal amount (the initial "Class Principal Balance") and latest
possible maturity date for each of the Classes of Certificates representing
"regular interests" in REMIC II (the "REMIC II Regular Certificates").
Pass-Through Rate Initial Class Latest Possible
Designation Principal Balance Maturity Date(1)(2)
Class X-1 N/A(3) N/A(3) June 15, 2028
Class X-2 Variable(4) N/A(5) June 15, 2028
Class A-1 Variable(4) $29,966,951 June 15, 2028
Class A-2A 7.35% per annum $150,000,000 June 15, 2028
Class A-2B 7.90% per annum $145,624,000 June 15, 2028
Class B 7.90% per annum $14,470,000 June 15, 2028
Class C 7.80% per annum $31,353,000 June 15, 2028
Class D 7.80% per annum $19,294,000 June 15, 2028
Class E 7.70% per annum $16,882,000 June 15, 2028
<PAGE>
3
Class F 7.70% per annum $7,235,000 June 15, 2028
Class G 7.15% per annum $32,559,000 June 15, 2028
Class H 5.70% per annum $18,088,000 June 15, 2028
Class J 5.70% per annum $3,617,000 June 15, 2028
Class K 5.70% per annum $13,268,861 June 15, 2028
- ---------------------------------
(1) Determined solely for purposes of satisfying Treasury regulation
section 1.860G-1(a)(4)(iii).
(2) Set at the first Distribution Date that is at least two years after
the end of the remaining amortization schedule of the Mortgage Loan
that has, as of the Closing Date, the longest remaining amortization
schedule, irrespective of its scheduled maturity.
(3) The Class X-1 Certificates do not have a Class Principal Balance or a
Pass-Through Rate. Such Certificates shall be entitled to 100% of the
Uncertificated Accrued Interest in respect of REMIC I Regular Interest
X-1, subject to such adjustments as are contemplated by the definition
of "Uncertificated Distributable Interest".
(4) Calculated in accordance with the definition of "Pass-Through Rate".
(5) The Class X-2 Certificates do not have a Class Principal Balance and
will accrue interest on a notional principal amount (a "Class Notional
Amount") that is equal to the aggregate of the Uncertificated
Principal Balances of REMIC I Regular Interests LG1 and LG2
outstanding from time to time (rounded to the nearest whole dollar in
the case of the initial Class Principal Balance of the Class X-2
Certificates on the Closing Date).
The aggregate of the initial Stated Principal Balances of the
Mortgage Loans, the aggregate of the initial Uncertificated Principal Balances
of the REMIC I Regular Interests and the aggregate of the initial Class
Principal Balances of the respective Classes of REMIC II Regular Certificates
will, in each such case, be $482,357,812.
In consideration of the mutual agreements herein contained, the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator agree as follows:
<PAGE>
4
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF
THE MORTGAGE POOL AND THE CERTIFICATES
SECTION 1.01. Defined Terms .
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"Accrued Certificate Interest ": With respect to any Class of
REMIC II Regular Certificates (other than the Class X-1 Certificates), for any
Distribution Date, one month's (or, in the case of the Class A-1 Certificates
for the initial Distribution Date, 35 days') interest (calculated on the basis
of a 360-day year consisting of twelve 30-day months) at the Pass-Through Rate
applicable to such Class of Certificates for such Distribution Date, accrued on
the Class Principal Balance or Class Notional Amount, as the case may be, of
such Class of Certificates outstanding immediately prior to such Distribution
Date. With respect to the Class X-1 Certificates, for any Distribution Date,
100% of the Uncertificated Accrued Interest in respect of REMIC I Regular
Interest X-1 for such Distribution Date.
"Acquisition Date ": With respect to any REO Property, the first
day on which such REO Property is considered to be acquired by the Trust Fund
within the meaning of Treasury Regulation Section 1.856-6(b)(1), which is the
first day on which the Trust Fund is treated as the owner of such REO Property
for federal income tax purposes.
"Additional Information ": As defined in Section 4.02(a).
"Additional Trust Fund Expense ": Any expense experienced with
respect to the Trust Fund and not otherwise included in the calculation of a
Realized Loss, that would result in the REMIC II Regular Certificateholders'
receiving less than the full amount of principal and/or interest to which they
are entitled on any Distribution Date.
"Adjustment Date ": With respect to each ARM Loan, any date on
which the Mortgage Rate thereon is subject to adjustment pursuant to the related
Mortgage Note. The first Adjustment Date following the Cut-off Date as to each
ARM Loan is set forth in the Mortgage Loan Schedule. Successive Adjustment Dates
will occur as to each ARM Loan with the frequency specified in the Mortgage Loan
Schedule.
"Advance ": Any P&I Advance or Servicing Advance.
"Advance Interest ": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer, the Special Servicer or
the Trustee, as the case may be, all in accordance with Section 3.11(f) or
Section 4.03(d), as applicable.
<PAGE>
5
"Adverse REMIC Event ": With respect to each of REMIC I and REMIC
II, either (i) the endangerment of the status of such REMIC as a REMIC or (ii)
except as permitted by Section 3.17(a), the imposition of a tax upon such REMIC
or any of its assets or transactions (including, without limitation, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax
on prohibited contributions set forth in Section 860G(d) of the Code).
"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.
"Aggregate Principal Distribution Amount ": With respect to any
Distribution Date, the aggregate of the Principal Distribution Amounts for
both Loan Groups for such Distribution Date.
"Agreement ": This Pooling and Servicing Agreement, together with all
amendments hereof and supplements hereto.
"Applicable State Law ": For purposes of Article X, the
Applicable State Law shall be (a) the laws of the state of New York, (b) the
laws of the states in which the Corporate Trust Office of the Trustee and the
Primary Servicing Offices of the Master Servicer and the Special Servicer are
located, (c) the laws of the states in which any portion of the Trust Fund is
maintained, (d) other state or local law as to which the REMIC Administrator has
actual knowledge of applicability and (e) such other state or local law whose
applicability shall have been brought to the attention of the REMIC
Administrator by either (i) an opinion of counsel delivered to it, or (ii)
written notice from the appropriate taxing authority as to the applicability of
such state law.
"Appraisal ": With respect to any Mortgaged Property or REO
Property as to which an appraisal is required or permitted to be performed
pursuant to the terms of this Agreement, either: (i) a narrative appraisal
complying with USPAP conducted by a Qualified Appraiser in the case of Mortgage
Loans and REO Loans with a Stated Principal Balance as of the date of such
appraisal of greater than $1,000,000; or (ii) a limited appraisal and a summary
report of the "market value" of the Mortgaged Property, as defined in 12 CFR
ss.225.62(g), conducted by a Qualified Appraiser in the case of Mortgage Loans
and REO Loans with a Stated Principal Balance as of the date of such appraisal
of $1,000,000 or less.
"Appraisal Reduction Amount ": With respect to any Required
Appraisal Loan, an amount (as calculated on the Determination Date immediately
succeeding the date on which the most recent relevant Appraisal was obtained by
the Master Servicer or the Special Servicer, as the case may be, pursuant to
this Agreement) equal to the excess, if any, of (a) the sum of (i) the Stated
Principal Balance of such Required Appraisal Loan, (ii) to the extent not
previously
<PAGE>
6
advanced by or on behalf of the Master Servicer or the Trustee, all accrued and
unpaid interest on such Required Appraisal Loan through the most recent Due Date
prior to such Determination Date at a per annum rate equal to the related Net
Mortgage Rate, (iii) all accrued but unpaid Master Servicing Fees and Special
Servicing Fees in respect of such Required Appraisal Loan, (iv) all related
unreimbursed Advances made by or on behalf of the Master Servicer, the Special
Servicer or the Trustee in respect of such Required Appraisal Loan, together
with all unpaid Advance Interest accrued on such Advances, and (v) all currently
due but unpaid real estate taxes and assessments, insurance premiums and, if
applicable, ground rents in respect of the related Mortgaged Property or REO
Property, net of any Escrow Payments or other reserves held by the Master
Servicer or the Special Servicer with respect to any such item, over (b) 90% of
an amount equal to (i) the Appraised Value of the related Mortgaged Property or
REO Property, as applicable, as determined by such Appraisal referred to in the
parenthetical above, net of (ii) the amount of any liens on such property (not
accounted for in clause (a)(v) of this definition) that are prior to the lien of
the Required Appraisal Loan.
"Appraised Value ": As of any date of determination, the
appraised value of a Mortgaged Property based upon the most recent Appraisal
obtained pursuant to this Agreement.
"ARM Loan ": Any Mortgage Loan that, as of the Closing Date,
provides for the related Mortgage Rate to adjust from time to time in accordance
with the terms of the related Mortgage Note, and any successor REO Loan in
respect thereof.
"Assignment of Leases ": With respect to any Mortgaged Property,
any assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment ": With respect to any Balloon
Mortgage Loan for its Stated Maturity Date (provided that such Mortgage Loan has
not been paid in full, and no other Liquidation Event has occurred in respect
thereof, on or before the end of the Collection Period in which such Stated
Maturity Date occurs) and for any subsequent Due Date therefor as of which such
Mortgage Loan remains outstanding and part of the Trust Fund, if no Scheduled
Payment (other than the related delinquent Balloon Payment) is due on such Due
Date, 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 accrue interest in accordance with its terms, and
to pay principal in accordance with the amortization schedule (if any), in
effect immediately prior to, and without regard to the occurrence of, its most
recent scheduled 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 (or, in the case
of a Balloon Mortgage Loan described in the preceding
<PAGE>
7
sentence of this definition, the Assumed Scheduled Payment) that was due in
respect of the related Mortgage Loan on the last Due Date prior to its becoming
an REO Loan.
"Available Distribution Amount ": With respect to any
Distribution Date, an amount equal to (a) the balance on deposit in the
Distribution Account as of 11:00 a.m. (New York City time) on such Distribution
Date (or such later time on such date as of which distributions are made on the
Certificates), including, without limitation, if and to the extent on deposit
therein as of such time, the Master Servicer Remittance Amount for the related
Master Servicer Remittance Date, any P&I Advances made by the Master Servicer or
Trustee to cover uncollected Scheduled Payments due and/or Assumed Scheduled
Payments deemed due during the related Collection Period and any payments made
by the Master Servicer to cover Balloon Payment Interest Shortfalls and/or
Prepayment Interest Shortfalls incurred during the related Collection Period,
net of (b) any portion of the amounts described in clause (a) of this definition
that represents one or more of the following: (i) any amounts payable or
reimbursable to any Person from the Distribution Account pursuant to any of
clauses (ii) through (vi) of Section 3.05(b), (ii) Prepayment Premiums, (iii)
any amounts deposited in the Distribution Account in error, and (iv) except in
the case of the Final Distribution Date, any of the amounts described in clauses
(b)(i) and (b)(ii) of the definition of "Master Servicer Remittance Amount".
"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
and as to which, in accordance with such terms, the Scheduled Payment due on its
Stated Maturity Date is larger than the Scheduled Payment due on the Due Date
next preceding its Stated Maturity Date.
"Balloon Payment ": With respect to any Balloon Mortgage Loan as
of any date ofdetermination, the Scheduled Payment payable on the Stated
Maturity Date of such Mortgage Loan.
"Balloon Payment Interest Excess ": With respect to any Balloon
Mortgage Loan as to which the Stated Maturity Date occurs after the first day
of, but on or before the Determination Date in, any calendar month, the amount
of interest (net of related Servicing Fees) accrued on such Mortgage Loan from
the beginning of such month to, but not including, such Stated Maturity Date, to
the extent such interest is actually paid by the related Mortgagor in connection
with the payment of the related Balloon Payment during the Collection Period in
which such Stated Maturity Date occurs.
"Balloon Payment Interest Shortfall : With respect to any Balloon
Mortgage Loan as to which the Stated Maturity Date occurs after the
Determination Date in any calendar month, the amount of interest (net of related
Master Servicing Fees) that would have accrued on such Mortgage Loan from such
Stated Maturity Date through the end of such calendar month, to the extent not
paid by the related Mortgagor.
<PAGE>
8
"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.
"Business Day ": Any day other than a Saturday, a Sunday or a day
on which banking institutions in New York, New York and the cities in which the
Primary Servicing Offices of the Master Servicer and Special Servicer and the
Corporate Trust Office of the Trustee are located, are authorized or obligated
by law or executive order to remain closed.
"CERCLA ": The Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate ": Any one of the Sponsor's Multifamily/Commercial
Mortgage Pass-Through Certificates, Series 1996-MC1, as executed by the Trustee
and authenticated and delivered hereunder by the Certificate Registrar.
"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
"[Name of Master Servicer], as Master Servicer, in trust for the registered
holders of Mortgage Capital Funding, Inc., Multifamily/Commercial Mortgage
Pass-Through Certificates, Series 1996-MC1".
"Certificate Factor ": With respect to any Class of REMIC II
Regular Certificates, as of any date of determination, a fraction, expressed as
a decimal carried to eight places, the numerator of which is the then related
Class Principal Balance, Class Notional Amount or Effective Class Notional
Amount, as the case may be, and the denominator of which is the related Initial
Class Principal Balance, Initial Class Notional Amount or Initial Effective
Class Notional Amount, as the case may be.
"Certificateholder" or "Holder ": The Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Sponsor, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator
or any Affiliate of any of them 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 has been obtained, except as
otherwise provided in Sections 7.04 and 11.01, except in connection with the
Controlling Class exercising its rights under Section 3.23 or unless such
Persons collectively own an entire Class of Certificates and only the Holders of
such Class of Certificates are entitled to grant such consent, approval or
waiver. The Trustee shall be entitled to request and rely upon a certificate of
the Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer
or the REMIC Administrator, as the case may be, in determining
<PAGE>
9
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.
"Certificate Notional Amount ": With respect to any Class X-2
Certificate, as of any date of determination, the then notional principal amount
on which such Certificate accrues interest equal to the product of (a) the
Percentage Interest evidenced by such Certificate, multiplied by (b) the then
Class Notional Amount of the Class X-2 Certificates.
"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.
"Class ": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificate ": Any one of the Class A-1, Class A-2A or
Class A-2B Certificates.
"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-3 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class A-2A Certificate ": Any one of the Certificates with a
"Class A-2A" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class A-2B Certificate ": Any one of the Certificates with a
"Class A-2B" designation on the face thereof, substantially in the form of
Exhibit A-5 attached hereto and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
<PAGE>
10
"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 "regular interest" in REMIC II 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 "regular interest" in REMIC II 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 "regular interest" in REMIC II 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 "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Certificate ": Any one of the Certificates with a "Class
F" designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC II 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 "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H Certificate ": Any one 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 "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class Interest Shortfall ": With respect to any Class of REMIC
II Regular Certificates and any Distribution Date (except the initial
Distribution Date, with respect to which the Class Interest Shortfall for each
such Class will equal zero), the sum of (a) the excess, if any, of (i) all
Distributable Certificate Interest in respect of such Class of Certificates for
the immediately preceding Distribution Date, over (ii) all distributions of
interest made with respect to such Class of Certificates on the immediately
preceding Distribution Date pursuant to Section 4.01(b), and (b), to the extent
permitted by applicable law, other than in the case of the Class X Certificates,
one month's interest (calculated on the basis of a 360-day year consisting of
twelve 30-day months) on any such excess at the Pass-Through Rate applicable to
such Class of Certificates for the current Distribution Date.
"Class J Certificate ": Any one 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 "regular interest" in REMIC II for purposes of
the REMIC Provisions.
<PAGE>
11
"Class K Certificate ": Any one 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 "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class Notional Amount ": The aggregate notional principal amount
on which the Class X-2 Certificates accrue interest from time to time which, as
of any date of determination, is equal to the then aggregate of the
Uncertificated Principal Balances of REMIC I Regular Interest LG1 and REMIC I
Regular Interest LG2 (rounded to the nearest whole dollar in the case of the
initial Class Notional Amount of the Class X-2 Certificates as of the Closing
Date).
"Class Principal Balance ": The aggregate principal amount of any
Class of Sequential Pay Certificates outstanding as of any date of
determination. On each Distribution Date, the Class Principal Balance of each
Class of the Sequential Pay Certificates shall be reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01(b) and, if and to the extent appropriate, shall be further reduced
on such Distribution Date as provided in Section 4.04(b).
"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.
"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 X Certificate ": Any one of the Class X-1 or Class X-2
Certificates.
"Class X-1 Certificate ": Any one of the Certificates with a
"Class X-1" designation on the face thereof, substantially in the form of
Exhibit A-1, and evidencing a "regular interest" in REMIC II for purposes of the
REMIC Provisions.
"Class X-2 Certificate ": Any one of the Certificates with a
"Class X-2" designation on the face thereof, substantially in the form of
Exhibit A-2, and evidencing a "regular interest" in REMIC II for purposes of the
REMIC Provisions.
"Class X-2 Share": When used to describe a portion of the
Uncertificated Accrued Interest in respect of either REMIC I Regular Interest
LG1 or REMIC I Regular Interest LG2 for any Distribution Date, that portion
thereof equal to one month's interest (calculated on the basis of a 360-day year
consisting of twelve 30-day months) on the Uncertificated Principal Balance of
such REMIC I Regular Interest immediately prior to such Distribution Date at a
per annum rate equal to: (a) in the case of the initial Distribution Date,
0.960% per annum; and (b) in the case of each subsequent Distribution Date, the
excess, if any,
<PAGE>
12
of (i) the weighted average of the REMIC I Remittance Rates applicable to REMIC
I Regular Interests LG1 and LG2 for such Distribution Date (weighted on the
basis of the respective Uncertificated Principal Balances of such REMIC I
Regular Interests immediately prior to such Distribution Date), over (ii) the
weighted average of the REMIC I Remittance Rates applicable to REMIC I Regular
Interests A-1, A-2A, A-2B, B, C, D, E, F, G, H, J and K for such Distribution
Date (weighted on the basis of the respective Uncertificated Principal Balances
of such REMIC I Regular Interests immediately prior to such current Distribution
Date). When used to describe a portion of the Uncertificated Distributable
Interest in respect of either REMIC I Regular Interest LG1 or REMIC I Regular
Interest LG2 for any Distribution Date, that portion thereof equal to: (a) the
Class X-2 Share of the Uncertificated Accrued Interest in respect of such REMIC
I Regular Interest for such Distribution Date; reduced (to not less than zero)
by (b) that portion of the Net Aggregate Prepayment Interest Shortfall, if any,
for such Distribution Date allocable in respect of such REMIC I Regular Interest
specifically in reduction of the Class X-2 Share of its Uncertificated
Distributable Interest for such Distribution Date; and increased by (c), in the
case of any Distribution Date subsequent to the initial Distribution Date, the
excess, if any, of (i) the Class X-2 Share of the Uncertificated Distributable
Interest in respect of such REMIC I Regular Interest for the prior Distribution
Date, over (ii) 1,000 times the aggregate distributions of interest made in
respect of such REMIC I Regular Interest on the prior Distribution Date pursuant
to clause (i) of the first paragraph of Section 4.01(a).
"Closing Date " or "Issue Date": July 10, 1996.
"Code ": The Internal Revenue Code of 1986, as amended.
"Collection Period ": With respect to any Distribution Date, the
period commencing immediately following the prior such period (or, in the case
of the initial Collection Period, commencing immediately following the Cut-off
Date) and ending on and including the related Determination Date.
"Collection Report ": As defined in Section 4.02(b).
"Commission ": The Securities and Exchange Commission.
"Conti ": ContiTrade Services L.L.C. or its successor in interest.
"Conti Loan ": Any of the Mortgage Loans acquired by the Mortgage
Loan Seller from Conti. The Conti Loans are identified in the Mortgage Loan
Schedule by loan counter numbers 1 through 8 and 85 through 162.
"Controlling Class ": As of any date of determination, the
outstanding Class of Sequential Pay Certificates with the lowest Payment
Priority (the Class A Certificates being treated as a single Class for this
purpose) that has a then outstanding Class Principal Balance at least equal to
25% of the Initial Class Principal Balance thereof (or, if no Class of
Sequential Pay Certificates has a Class Principal Balance at least equal to 25%
of the Initial Class Principal
<PAGE>
13
Balance thereof, then the "Controlling Class" shall be the outstanding Class of
Sequential Pay Certificates with the then largest remaining Class Principal
Balance).
"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 Two International Place, 5th Floor,
Boston, Massachusetts 02110, Attention: Corporate Trust Department, reference
MCF 1996-MC1.
"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" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or a related
Mortgaged Property becoming an REO Property).
"Cross-Collateralized Mortgage Loans ": Any two or more Mortgage
Loans listed on the Mortgage Loan Schedule that are cross-collateralized and
cross-defaulted with each other.
"Current Principal Distribution Amount ": With respect to either
Loan Group for any Distribution Date, an amount equal to the aggregate of:
(a) the principal portions of all Scheduled Payments (other than
Balloon Payments) and any Assumed Scheduled Payments due or deemed due,
as the case may be, in respect of the Mortgage Loans and any REO Loans
constituting such Loan Group for their respective Due Dates occurring
during the related Collection Period;
(b) all Principal Prepayments received on the Mortgage Loans
in such Loan Group during the related Collection Period;
(c) with respect to any Balloon Mortgage Loan in such Loan Group
as to which the related Stated Maturity Date occurred during or prior to
the related Collection Period, any payment of principal (exclusive of
any Principal Prepayment and any amount described in subclause (d)
below) that was made by or on behalf of the related Mortgagor during the
related Collection Period, net of any portion of such payment that
represents a recovery of the principal portion of any Scheduled Payment
(other than a Balloon Payment) due, or the principal portion of any
Assumed Scheduled Payment deemed due, in respect of such Balloon
Mortgage Loan on a Due Date during or prior to the related Collection
Period and not previously recovered;
(d) that portion of all Liquidation Proceeds and Insurance
Proceeds received on or in respect of the Mortgage Loans in such Loan
Group during the related Collection Period that were identified and
applied by the Master Servicer as recoveries of principal thereof, 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 any
<PAGE>
14
such Mortgage Loan on a Due Date during or prior to the related
Collection Period and not previously recovered; and
(e) that portion of all Liquidation Proceeds, Insurance Proceeds
and REO Revenues received on or in respect of any REO Properties during
the related Collection Period that were identified and applied by the
Master Servicer as recoveries of principal of REO Loans in such Loan
Group, 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 any such REO Loan or the
related Mortgage Loan on a Due Date during or prior to the related
Collection Period and not previously recovered.
"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 Sponsor, the Mortgage Loan Seller or an Affiliate
of either of them.
"Cut-off Date ": July 1, 1996.
"Cut-off Date Balance ": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date, net
of all unpaid payments of principal due in respect thereof on or before such
date.
"Debt Service Coverage Ratio ": With respect to any Mortgage
Loan, as of any date of determination, the ratio of (x) the Net Operating Income
(before payment of any debt service on such Mortgage Loan) generated by the
related Mortgaged Property during the most recently ended period of not more
than twelve months or less than three months for which financial statements
(whether or not audited) have been received by or on behalf of the Mortgage Loan
Seller (prior to the Closing Date) or the Master Servicer or Special Servicer
(following the Closing Date) (such Net Operating Income to be annualized if the
relevant period is less than twelve months), to (y) the product of the amount of
the Monthly Payment in effect for such Mortgage Loan as of such date of
determination, multiplied by 12.
"Defaulted Mortgage Loan ": Any Specially Serviced Mortgage Loan
as to which a material default has occurred or a default in respect of any
payment thereon is reasonably foreseeable, and which the Special Servicer has
determined, in its reasonable and good faith judgment, will become the subject
of a foreclosure sale or similar proceedings (the basis for which determination
shall be set forth in an Officer's Certificate to be delivered to the Master
Servicer and the Trustee).
"Default Interest ": With respect to any Mortgage Loan (or
related REO Loan), any amounts collected thereon, other than late payment
charges and Prepayment Premiums, that represent penalty interest in excess of
interest on the principal balance of such Mortgage Loan (or REO Loan) accrued at
the related Mortgage Rate.
<PAGE>
15
"Definitive Certificate ": As defined in Section 5.03(a).
"Delinquent Loan Status Report ": A report or reports setting
forth, among other things, those Mortgage Loans which, as of the close of
business on the Determination Date in the calendar month prior to the month of
preparation of such report or reports, were (i) delinquent 30-59 days, (ii)
delinquent 60-89 days, (iii) delinquent 90 days or more, (iv) current but
specially serviced, (v) in foreclosure but as to which the related Mortgaged
Property had not become REO Property, or (vi) related to Mortgaged Property
which had become REO Property, together with such additional information in
respect of each such Mortgage Loan as is contemplated on page B-6 of the
Prospectus Supplement.
"Depository ": The Depository Trust Company, or any successor
Depository hereafter named. 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
5th day of the month in which such Distribution Date occurs, or if such 5th day
is not a Business Day, the Business Day immediately preceding.
"Directly Operate ": With respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers (other than the sale of an REO Property pursuant to Section
3.18(d)), the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by REMIC I other than through an
Independent Contractor; provided, however, that the Trustee (or the Special
Servicer on behalf of the Trustee) shall not be considered to Directly Operate
an REO Property solely because the Trustee (or the Special Servicer on behalf of
the Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to, or funds,
repairs or capital expenditures with respect to such REO Property (including,
without limitation, construction activity to effect repairs or in conjunction
with leasing activity).
"Discount Rate ": With respect to any Class of Registered
Certificates, the rate determined by the Trustee, in its good faith, in
connection with the voluntary or involuntary prepayment of any Mortgage Loan, to
be the yield (interpolated and rounded to the nearest one-thousandth of a
percent, if necessary) in the secondary market for United States Treasury
securities with a maturity closest to the earlier of (i) the then scheduled
maturity of such Mortgage Loan and (ii) the last Distribution Date on which
principal or, in the case of the
<PAGE>
16
Class X Certificates, interest was to be paid in respect of such Class of
Certificates (without taking into account the related principal prepayment but
giving effect to all prior principal prepayments). Such determination is to be
made by assuming no future prepayments on or in respect of the Mortgage Loans
during, and by otherwise applying the Maturity Assumptions to, the period
subsequent to the end of the Collection Period in which the related prepayment
was received.
"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 REMIC Administrator based upon an Opinion of Counsel that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Trust Fund or any Person having an Ownership Interest in any Class of
Certificates, other than such Person, to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest ": With respect to any Class
of REMIC II Regular Certificates, for any Distribution Date, the Accrued
Certificate Interest in respect of such Class of Certificates for such
Distribution Date, reduced (to not less than zero) by that portion, if any, of
the Net Aggregate Prepayment Interest Shortfall, if any, for such Distribution
Date allocated to such Class of Certificates as set forth below, and increased
by any Class Interest Shortfall in respect of such Class of Certificates for
such Distribution Date. The Net Aggregate Prepayment Interest Shortfall, if any,
for each Distribution Date shall be allocated on such Distribution Date: first,
to the respective Classes of REMIC II Regular Certificates (other than the
Senior Certificates), sequentially in reverse alphabetical order of Class
designation, in each case up to the amount of any Accrued Certificate Interest
in respect of such Class of Certificates for such Distribution Date; and
thereafter, among the respective Classes of Senior Certificates, pro rata, in
accordance with the respective amounts of Accrued Certificate Interest for such
Classes of Certificates for such Distribution Date.
"Distribution Account ": The segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b) in trust for
the Certificateholders, which shall be entitled "[Name of Trustee], as Trustee,
in trust for the registered holders of Mortgage Capital Funding, Inc.,
Multifamily/Commercial Mortgage Pass-Through Certificates, Series 1996-MC1".
<PAGE>
17
"Distribution Date ": The 15th day of any month, or if such 15th
day is not a Business Day, the Business Day immediately following, commencing
in August, 1996.
"Distribution Date Statement ": As defined in Section 4.02(a).
"Document Defect ": As defined in Section 2.02(e).
"Due Date ": With respect to (i) any Mortgage Loan on or prior to
its Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Mortgage Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Monthly Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on the related Mortgage Loan had been scheduled to be first due.
"Effective Certificate Notional Amount ": With respect to any
Class X-1 Certificate, as of any date of determination, the then notional
principal amount on which such Certificate indirectly accrues interest equal to
the product of (a) the Percentage Interest evidenced by such Certificate,
multiplied by (b) the then Effective Class Notional Amount of the Class X-1
Certificates.
"Effective Class Notional Amount ": The aggregate notional
principal amount on which the Class X-1 Certificates indirectly accrue interest
from time to time, which, as of any date of determination, is equal to the then
aggregate Stated Principal Balance of the Group 1 Loans.
"Effective Pass-Through Rate ": With respect to the Class X-1
Certificates, for any Distribution Date, the REMIC I Remittance Rate applicable
to REMIC I Regular Interest X-1 for such Distribution Date.
"Eligible Account ": Any of (i) an account maintained with a
federal or state chartered depository institution or trust company, including,
without limitation, the Trustee (if it meets the following rating criteria), the
long term unsecured debt obligations of which (or of such institution's parent
holding company) are rated "AA-" or better by Standard & Poor's and "AA" or
better by Fitch if the deposits are to be held in the account for more than 30
days, or the short term unsecured debt obligations of which (or of such
institution's parent holding company) are rated "A-1+" or better by S&P and
"F-1+" by Fitch if the deposits are to be held in the account for 30 days or
less, in each case, at any time funds are on deposit therein, (ii) a segregated
trust account or accounts maintained with the trust department of a federally
chartered depository institution or trust company, including, without
limitation, the Trustee, acting in its fiduciary capacity, (iii) a segregated
trust account or accounts maintained with the trust department of a state
chartered depository institution or trust company, including, without
limitation, the Trustee, acting in its fiduciary capacity and subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 CFR ss. 9.10(b), or (iv) any other
<PAGE>
18
account which would not result in the downgrade, qualification or withdrawal of
the rating then assigned by any Rating Agency to any Class of Certificates (as
confirmed in writing by each Rating Agency).
"Emergency Advance:" Any Servicing Advance that must be made
within five Business Days by the Special Servicer in order to avoid any material
penalty, any material harm to a Mortgaged Property or any other material adverse
consequence to the Trust Fund.
"ERISA ": The Employee Retirement Income Security Act of 1974,
as amended.
"Escrow Payment ": Any payment received by the Master Servicer or
the Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums and similar items
in respect of the related Mortgaged Property.
"Event of Default ": One or more of the events described in
Section 7.01(a).
"Exchange Act ": The Securities Exchange Act of 1934, as amended.
"Extension Adviser ": As defined in Section 3.24.
"FDIC ": Federal Deposit Insurance Corporation or any successor.
"FHLMC ": Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date ": The final Distribution Date on which
any distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination ": A determination by the Special
Servicer with respect to any defaulted Mortgage Loan or REO Property and,
accordingly, the related REO Loan (other than a Mortgage Loan or REO Property,
as the case may be, purchased by the Mortgage Loan Seller pursuant to Section
2.03, by the Majority Certificateholder of the Controlling Class pursuant to
Section 3.18(b), by the Master Servicer or the Special Servicer pursuant to
Section 3.18(c) or by the Master Servicer or the Majority Certificateholder of
the Controlling Class 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, exercised without regard to any obligation of the Master Servicer or
Special Servicer to make payments from its own funds pursuant to Section
3.07(b), will be ultimately recoverable.
"Fitch ": Fitch Investors Service, L.P. or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"Fitch" shall be deemed to refer to such other nationally recognized statistical
rating agency or other comparable Person designated by the Sponsor, notice of
which designation shall be given to the Trustee, the Master Servicer, the
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19
Special Servicer and the REMIC Administrator, and specific ratings of Fitch
Investors Service, L.P. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Fixed-Rate Loan ": Any Mortgage Loan that, as of the Closing
Date, provides for the related Mortgage Rate to be fixed for the remaining term
thereof in accordance with the terms of the related Mortgage Note, and any
successor REO Loan in respect thereof.
"FNMA ": Federal National Mortgage Association or any successor.
"Gross Margin ": With respect to each ARM Loan, the fixed
percentage set forth in the related Mortgage Note that is added to the
applicable value of the related Index on each Adjustment Date in accordance
with, and subject to, the terms of the related Mortgage Note, to determine the
Mortgage Rate for such Mortgage Loan.
"Ground Lease ": The ground lease pursuant to which any
Mortgagor holds a leasehold interest in the related Mortgaged Property.
"Group 1 Certificates ": The Class X-1 and Class A-1
Certificates.
"Group 1 Loan ": Any Mortgage Loan (or related REO Loan) in
Loan Group 1.
"Group 2 Certificates ": The Class X-2, Class A-2A, Class A-2B,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class
K Certificates.
"Group 2 Loan ": Any Mortgage Loan (or related REO Loan) in
Loan Group 2.
"Hazardous Materials ": Any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations, and specifically including, without
limitation, asbestos and asbestos-containing materials, polychlorinated
biphenyls ("PCBs"), radon gas, petroleum and petroleum products, urea
formaldehyde and any substances classified as being "in inventory", "usable work
in process" or similar classification which would, if classified as unusable, be
included in the foregoing definition.
"Historical Loan Modification Report ": A report or reports
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 or reports, have been modified pursuant to this Agreement (i) during
the Collection Period ending on such Determination Date and (ii) since the
Cut-off Date, showing the original and the revised terms thereof, together with
such additional information in respect of each such Mortgage Loan as is
contemplated on page B-11 of the Prospectus Supplement.
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20
"Historical Loss Report ": A report or reports setting forth,
among other things, as of the close of business on the last day of the most
recently ended Collection Period preceding the preparation of such report or
reports, (i) the amount of Liquidation Proceeds and Liquidation Expenses, both
for such Collection Period and historically, and (ii) the amount of Realized
Losses occurring during such Collection Period and historically, set forth on a
Mortgage Loan-by-Mortgage Loan and REO Property-by-REO Property basis, together
with such additional information in respect of each Defaulted Mortgage Loan and
REO Property as to which a Final Recovery Determination has been made as is
contemplated on page B-12 of the Prospectus Supplement.
"HUD-Approved Servicer ": A servicer approved by the Secretary of
Housing and Urban Development pursuant to Section 207 of the National Housing
Act.
"Independent ": When used with respect to any specified Person,
any such Person who (i) is in fact independent of the Sponsor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator 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 Sponsor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof, and (iii) is not connected with the Sponsor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator 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 Sponsor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any class of securities issued by the Sponsor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator or any Affiliate thereof,
as the case may be.
"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 not be an expense of the Trustee,
the REMIC Administrator or the Trust Fund, delivered to the Trustee and the
REMIC Administrator), so long as REMIC I does not receive or derive any income
from such Person and provided that the relationship between such Person and
REMIC I is at arm's length, all within the meaning of Treasury Regulation
Section 1.856-4(b)(5), or any other Person upon receipt by the Trustee and the
REMIC Administrator of an Opinion of Counsel, which shall be at no expense to
the Trustee, the REMIC Administrator 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.
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21
"Index ": With respect to any ARM Loan, the base index upon which
adjustments to the related Mortgage Rate are based, in accordance with and
subject to the terms of the related Mortgage Note.
"Initial Class Notional Amount ": With respect to the Class X-2
Certificates, the initial Class Notional Amount thereof as of the Closing Date,
equal to $481,875,454.
"Initial 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 set forth below:
Initial Class
Class Principal Balance
Class A-1 $29,966,951
Class A-2A $150,000,000
Class A-2B $145,624,000
Class B $14,470,000
Class C $31,353,000
Class D $19,294,000
Class E $16,882,000
Class F $7,235,000
Class G $32,559,000
Class H $18,088,000
Class J $ 3,617,000
Class K $13,268,861
"Initial Effective Class Notional Amount ": With respect to the
Class X-1 Certificates, the initial Effective Class Notional Amount thereof as
of the Closing Date, equal to $29,966,951.
"Insurance Policy ": With respect to any Mortgage Loan, any
hazard insurance policy, flood insurance policy, title policy or other insurance
policy that is maintained from time to time in respect of such Mortgage Loan or
the related Mortgaged Property.
"Insurance Proceeds ": Proceeds paid under any Insurance Policy,
to the extent such proceeds are not applied to the restoration of the related
Mortgaged Property or released to the Mortgagor, in either case, in accordance
with the Servicing Standard.
"Interested Person ": The Sponsor, the Mortgage Loan Seller,
the Master Servicer, the Special Servicer, any Holder of a Certificate, or any
Affiliate of any such Person.
"Interest Accrual Period ": With respect to REMIC I Regular
Interest LG1, REMIC I Regular Interest A-1 and the Class A-1 Certificates, for
any Distribution Date, the
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22
period that begins on the 15th day of the calendar month preceding the month in
which such Distribution Date occurs (or, in the case of the initial Distribution
Date, that begins on the Closing Date) and ends on the 14th day of the calendar
month in which such Distribution Date occurs. With respect to each other REMIC I
Regular Interest and each other Class of REMIC II Regular Certificates, for any
Distribution Date, the calendar month immediately preceding the month in which
such Distribution Date occurs.
"Interest Only Certificate ": Any Class X-1 or Class X-2
Certificate.
"Investment Account ": As defined in Section 3.06(a).
"IRS ": The Internal Revenue Service or any successor.
"Issue Price ": With respect to each Class of Certificates, the
"issue price" as defined in the Code and Treasury regulations promulgated
thereunder.
"Late Collections ": With respect to any Mortgage Loan, all
amounts received thereon during any Collection Period, whether as payments,
Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
collections of the principal and/or interest portions of a Scheduled Payment
(other than a Balloon Payment) or an Assumed Scheduled Payment in respect of
such Mortgage Loan due or deemed due, as the case may be, for a Due Date in a
previous Collection Period, or for a Due Date coinciding with or preceding the
Cut-off Date, and not previously received or 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 a Scheduled Payment (other than a Balloon Payment) or an
Assumed Scheduled Payment in respect of the related Mortgage Loan or of an
Assumed Scheduled Payment in respect of such REO Loan due or deemed due, as the
case may be, for a Due Date in a previous Collection Period and not previously
received or recovered. The term "Late Collections" shall specifically exclude
any Default Interest and late payment charges.
"LIBOR ": With respect to each Distribution Date, the value of
Six-Month LIBOR (Formula 1) on the most recent LIBOR Determination Date
preceding the commencement of the Interest Accrual Period applicable to the
Class A-1 Certificates for such Distribution Date.
"LIBOR Business Day ": Each day on which commercial banks are
open for domestic and international business (including dealings in U.S. Dollar
deposits) in London and New York City.
"LIBOR Determination Date ": The day that is two LIBOR Business
Days prior to the first day of each LIBOR Reference Period.
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23
"LIBOR Reference Period ": Each successive six-month calendar
period, commencing on the first day of April and October of each year and ending
on the day preceding the next LIBOR Reference Period.
"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 Section
2.03; or (iv) such Mortgage Loan is purchased by the Majority Certificateholder
of the Controlling Class pursuant to Section 3.18(b), by the Master Servicer or
the Special Servicer pursuant to Section 3.18(c) or by the Master Servicer or
the Majority Certificateholder of the Controlling Class 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 Master Servicer
or the Majority Certificateholder of the Controlling Class pursuant to Section
9.01.
"Liquidation Expenses ": All customary, reasonable and necessary
"out of pocket" costs and expenses incurred by the Special Servicer in
connection with the liquidation of any Specially Serviced Mortgage Loan or REO
Property pursuant to Section 3.09 or 3.18 (including, without limitation, legal
fees and expenses, committee or referee fees and, if applicable, brokerage
commissions and conveyance taxes).
"Liquidation Fee ": With respect to each Specially Serviced
Mortgage Loan or REO Property (other than any Specially Serviced Mortgage Loan
or REO Property purchased by the Mortgage Loan Seller pursuant to Section 2.03
within 120 days of the Mortgage Loan Seller's notice or discovery of the breach
or Document Defect giving rise to such repurchase obligation, by the Majority
Certificateholder of the Controlling Class, the Master Servicer or the Special
Servicer pursuant to Section 3.18 or by the Master Servicer or the Majority
Certificateholder of the Controlling Class pursuant to Section 9.01), the fee
designated as such and payable to the Special Servicer pursuant to the fourth
paragraph of Section 3.11(c).
"Liquidation Fee Rate ": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"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; (ii) the
liquidation of a Mortgaged Property or other collateral constituting, or that
constituted, security for a defaulted Mortgage Loan, through trustee's sale,
foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof
required to be released to the related Mortgagor in accordance with applicable
law and the terms and conditions of the related Mortgage Note and Mortgage;
(iii) the realization upon any deficiency judgment obtained against a Mortgagor
or any guarantor; (iv) the purchase of a Defaulted Mortgage Loan by the Majority
Certificateholder of the Controlling Class pursuant to Section 3.18(b) or by the
Master
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24
Servicer or the Special Servicer pursuant to Section 3.18(c) or any other sale
thereof pursuant to Section 3.18(d); (v) the purchase of a Mortgage Loan by the
Mortgage Loan Seller pursuant to Section 2.03; or (vi) the purchase of a
Mortgage Loan or REO Property by the Master Servicer or the Majority
Certificateholder of the Controlling Class pursuant to Section 9.01.
"Loan Group ": Each of Loan Group 1 and Loan Group 2.
"Loan Group 1 ": Collectively, all of the ARM Loans that, as of
the Closing Date, provide for semi-annual Adjustment Dates.
"Loan Group 2 ": Collectively, all of the Fixed Rate Loans and
all of the ARM Loans that, as of the Closing Date, provide for monthly
Adjustment Dates.
"Loan-to-Value Ratio ": With respect to any Mortgage Loan, as of
any date of determination, a fraction, expressed as a percentage, the numerator
of which is the then current principal amount of such Mortgage Loan, and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"Loss Reimbursement Amount ": With respect to any REMIC I Regular
Interest and any Distribution Date (except the initial Distribution Date, with
respect to which the Loss Reimbursement Amount for such REMIC I Regular Interest
will be zero), an amount equal to (a) (i) the Loss Reimbursement Amount with
respect to such REMIC I Regular Interest for the immediately preceding
Distribution Date, minus (ii) the aggregate of all reimbursements deemed made to
REMIC II on the immediately preceding Distribution Date pursuant to Section
4.01(a) in connection with the Loss Reimbursement Amount with respect to such
REMIC I Regular Interest for the immediately preceding Distribution Date, plus
(iii) the aggregate of all reductions made to the Uncertificated Principal
Balance of (and, accordingly, the aggregate of all Realized Losses and
Additional Trust Fund Expenses deemed allocated to) such REMIC I Regular
Interest on the immediately preceding Distribution Date pursuant to Section
4.04(a), plus (b), solely in the case of REMIC I Regular Interest LG1 and REMIC
I Regular Interest LG2, one month's interest (calculated on the basis of a
360-day year consisting of twelve 30-day months) on the amount, if any,
described in clause (a) at the REMIC I Remittance Rate applicable to such REMIC
I Regular Interest for the current Distribution Date.
"Majority Certificateholder ": With respect to any specified
Class or Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes, as the case may be.
"Master Servicer ": GMAC Commercial Mortgage Corporation, its
successor in interest, or any successor master servicer appointed as herein
provided.
"Master Servicer Remittance Amount ": With respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on deposit in the
Certificate Account as of
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25
the commencement of business on such Master Servicer Remittance Date, net of (b)
any portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments that are
due on a Due Date following the end of the related Collection Period, (ii) any
Monthly Payments, Principal Prepayments (and any corresponding payments of
interest covering the period subsequent to the applicable Due Date during the
related Collection Period), Liquidation Proceeds and Insurance Proceeds received
after the end of the related Collection Period, (iii) any Prepayment Premiums
received after the end of the related Collection Period, (iv) any amounts
payable or reimbursable to any Person from the Certificate Account pursuant to
any of clauses (ii) through (xv) of Section 3.05(a), and (v) any amounts
deposited in the Certificate Account in error; provided that, with respect to
the Master Servicer Remittance Date occurring in the same calendar month as the
Final Distribution Date, the Master Servicer Remittance Amount will be
calculated without regard to clauses (b)(i), (b)(ii) and (b)(iii) of this
definition.
"Master Servicer Remittance Date ": The 2nd Business Day
preceding each Distribution Date.
"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
(and any related REO Loan), the rate per annum specified as such in the Mortgage
Loan Schedule.
"Maturity Assumptions ": As defined in the Prospectus Supplement.
"Modified Mortgage Loan ": Any Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(A) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Mortgage Loan);
(B) except as expressly contemplated by the related Mortgage,
results 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 is), as
determined by an Appraisal delivered to the Special Servicer (at the
expense of the related Mortgagor and upon which the Special Servicer may
conclusively rely), of the property to be released; or
(C) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage
Loan or reduces the likelihood of timely payment of amounts due thereon.
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26
"Monthly Payment ": With respect to any Mortgage Loan, for any
Due Date as of which it is outstanding, the scheduled monthly payment of
principal and/or interest on such Mortgage Loan 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 a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master Servicer or
Special Servicer pursuant to Section 3.20).
"Mortgage ": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust and/or
other similar document or instrument securing the related Mortgage Note and
creating a lien on the related Mortgaged Property.
"Mortgage File ": With respect to any Mortgage Loan, subject to
Section 2.01(b), collectively the following documents:
(i) the original Mortgage Note, endorsed by the
most recent endorsee prior to the Trustee or, if none, by
the originator, without recourse, either in blank or to
the order of the Trustee in the following form: "Pay to
the order of State Street Bank and Trust Company, as
trustee for the registered holders of Mortgage Capital
Funding, Inc., Multifamily/Commercial Mortgage
Pass-Through Certificates, Series
1996-MC1, without recourse";
(ii) the original or a copy of the Mortgage and,
if applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to
the most recent assignee of record thereof prior to the
Trustee, if any, in each case with evidence of recording
indicated thereon;
(iii) an original assignment of the Mortgage, in
recordable form, executed by the most recent assignee of
record thereof prior to the Trustee or, if none, by the
originator, in favor of the Trustee (in such capacity);
(iv) the original or a copy of the related
Assignment of Leases (if such item is a document separate
from the Mortgage) and, if applicable, the originals or
copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the
Mortgage Loan to the most recent assignee of record
thereof prior to the Trustee, if any, in each case with
evidence of recording thereon;
(v) an original assignment of any related
Assignment of Leases (if such item is a document separate
from the Mortgage), in recordable form, executed by the
most recent assignee of record thereof prior to the
Trustee or, if
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27
none, by the originator, in favor of the
Trustee (in such capacity), which assignment may be
included as part of the corresponding assignment of
Mortgage referred to in clause (iii) above;
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and,
if applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to
the most recent assignee of record thereof prior to the
Trustee, if any;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage)
executed by the most recent assignee of record thereof
prior to the Trustee or, if none, by the originator,
either in blank or in favor of the Trustee (in such
capacity), which assignment may be included as part of
the corresponding assignment of Mortgage referred to in
clause (iii) above;
(viii) originals or copies of all assumption,
modification, written assurance and substitution
agreements, with evidence of recording thereon if
appropriate, in those instances where the terms or
provisions of the Mortgage, Mortgage Note or any related
security document have been modified or the Mortgage Loan
has been assumed;
(ix) the original or a copy of the lender's title
insurance policy issued as of the date of the origination
of the Mortgage Loan, together with all endorsements or
riders (or copies thereof) that were issued with or
subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgaged
Property;
(x) the original of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan which was in the
possession of the Mortgage Loan Seller at the time the
Mortgage Files were delivered to the Trustee;
(xi) (A) file or certified copies of any UCC
Financing Statements and continuation statements which
were filed in order to perfect (and maintain the
perfection of) any security interest held by the
originator of the Mortgage Loan (and each assignee of
record prior to the Trustee) in and to the personalty of
the Mortgagor at the Mortgaged Property (in each case
with evidence of filing thereon) and which were in the
possession of the Mortgage Loan Seller at the time the
Mortgage Files were delivered to the Trustee and (B) if
any such security interest is perfected and the earlier
UCC Financing Statements and continuation statements were
in the possession of the Mortgage Loan Seller, a UCC
Financing Statement executed by the most recent assignee
of record prior to the Trustee or, if
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28
none, by the originator, evidencing the transfer of such
security interest to the Trustee;
(xii) the original or a copy of the power of
attorney (with evidence of recording thereon, if
appropriate) granted by the Mortgagor if the Mortgage,
Mortgage Note or other document or instrument referred to
above was signed on behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest
in the related Mortgaged Property, the original Ground
Lease or a copy thereof; and
(xiv) any additional documents required to be
added to the Mortgage File pursuant to this Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually so received.
"Mortgage Loan ": Each of the mortgage loans transferred and
assigned to the Trustee pursuant to Section 2.01 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 Schedule ": The list of Mortgage Loans transferred
on the Closing Date to the Trustee as part of the Trust Fund, which list is
attached hereto as Schedule I and may be amended from time to time in accordance
with Section 2.02(c). The Mortgage Loan Schedule shall set forth, among other
things, the following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address (including city, state
and zip code) of the related Mortgaged Property;
(iii) the Mortgage Rate in effect as of the
Cut-off Date and whether such Mortgage Loan is an ARM
Loan or a Fixed-Rate Loan;
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity
and (B) Stated Maturity Date;
(vii) the Due Date;
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29
(viii) the amount of the Monthly Payment due on
the first Due Date following the Cut-off Date;
(ix) in the case of an ARM Loan, the (A) Index,
(B) Gross Margin, (C) first Adjustment Date following the
Cut-off Date and the frequency of Mortgage Rate
adjustments, and (D) maximum and minimum lifetime
Mortgage Rate, if any;
(x) the Master Servicing Fee Rate; and
(xi) the Loan Group.
The Mortgage Loan Schedule shall also set forth the aggregate Cut-off Date
Balance for all of the Mortgage Loans. Such list may be in the form of more than
one list, collectively setting forth all of the information required.
"Mortgage Loan Seller ": Citibank, N.A., or its successor
in interest.
"Mortgage Note ": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"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 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 terms of the related Mortgage Note (as such
may be modified at any time following the Closing Date) 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 Stated
Maturity Date, and (iii) any REO Loan, the annualized rate described in clause
(i) or (ii) above, as applicable, determined as if the related Mortgage Loan had
remained outstanding.
"Mortgaged Property ": Individually and collectively, as the
context may require, each real property subject to the lien of a Mortgage and
constituting collateral for a Mortgage Loan. With respect to any
Cross-Collateralized Mortgage Loan, as the context may require, "Mortgaged
Property" may mean, collectively, all the Mortgaged Properties securing such
Cross-Collateralized Mortgage Loan.
"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.
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30
"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
Distribution Account for such Distribution Date pursuant to Section 3.19(g) in
connection with such Prepayment Interest Shortfalls.
"Net Default Interest ": With respect to any Mortgage Loan, any
Default Interest actually collected thereon (determined in accordance with the
allocation of amounts collected as specified in Section 1.02), net of any
portion thereof allocable to pay the Special Servicer any Liquidation Fee or
Workout Fee in respect of such Mortgage Loan and further net of any Advance
Interest accrued on Advances made in respect of such Mortgage Loan and
reimbursable from such Default Interest in accordance with Section
3.05(a)(viii).
"Net Investment Earnings ": With respect to any Investment
Account 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 Investment Account, exceeds the aggregate of all losses and
investment costs, 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 any Investment Account
for any Collection Period, the amount by which the aggregate of all losses and
investment costs, if any, incurred during such Collection Period in connection
with the investment of funds held in such Investment 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 REO
Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate then in effect, minus the related Master Servicing Fee Rate.
"Net Operating Income ": With respect to any Mortgaged Property,
the total operating revenues derived from such Mortgaged Property, minus the
total fixed and variable operating expenses incurred in respect of such
Mortgaged Property other than adjustments, including, but not limited to, for
(i) non-cash items such as depreciation and amortization, (ii) capital
expenditures and (iii) debt service on loans secured by the Mortgaged Property.
"Nonrecoverable Advance ": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance ": Any P&I Advance made or proposed
to be made in respect of a Mortgage Loan or REO Loan which, in the reasonable
and good faith judgment of the Master Servicer or, if applicable, the Trustee,
will not be (together with Advance Interest accrued thereon), or which in fact
was not, ultimately recoverable from late collections, Insurance Proceeds,
Liquidation Proceeds or any other recovery on or in respect of
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31
such Mortgage Loan or REO Property (without giving effect to potential
recoveries on deficiency judgments or recoveries from guarantors).
"Nonrecoverable Servicing Advance ": Any Servicing Advance made
or proposed to be made in respect of a Mortgage Loan or REO Property which, in
the reasonable and good faith judgment of the Master Servicer, the Special
Servicer or, if applicable, the Trustee will not be (together with Advance
Interest accrued thereon), or which in fact was not, ultimately recoverable from
late collections, Insurance Proceeds, Liquidation Proceeds or any other recovery
on or in respect of such Mortgage Loan or REO Property (without giving effect to
potential recoveries on deficiency judgments or recoveries from guarantors).
"Non-Registered Certificate ": Unless and until registered under
the Securities Act, any Class G, Class H, Class J, Class K or Residual
Certificate.
"Non-United States Person ": Any person other than a United
States Person.
"Officer's Certificate ": A certificate signed by a Servicing
Officer of the Master Servicer or the Special Servicer or a Responsible Officer
of the Trustee, as the case may be.
"Operating Statement Analysis ": As defined in Section 4.02(b).
"Opinion of Counsel ": A written opinion of counsel (who must, in
connection with any opinion rendered pursuant hereto with respect to tax matters
or a resignation under Section 6.04, be Independent counsel, but who otherwise
may be salaried counsel for the Sponsor, the Mortgage Loan Seller, the Trustee,
the REMIC Administrator, the Master Servicer or the Special Servicer), which
written opinion is acceptable and delivered to the addressee(s).
"OTS ": The Office of Thrift Supervision or any successor
thereto.
"Ownership Interest ": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"Pass-Through Rate ": With respect to:
(1) the Class A-1 Certificates, (a) for each
Distribution Date up to and including the Distribution
Date in October 1996, 6.12% per annum, and (b) for any
subsequent Distribution Date, the lesser of (i) LIBOR for
such Distribution Date plus 0.37% and (ii) 11.375% per
annum;
(2) the Class X-2 Certificates, (a) for the initial
Distribution Date, 0.960% per annum, and (b) for any
subsequent Distribution Date, a rate per annum equal to
the excess, if any, of (i) the weighted average of the
REMIC I Remittance Rates applicable to REMIC I Regular
Interest LG1
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32
and REMIC I Regular Interest LG2 for such
Distribution Date (weighted on the basis of the
respective Uncertificated Principal Balances of such
REMIC I Regular Interests immediately prior to such
Distribution Date), over (ii) the weighted average of the
respective REMIC I Remittance Rates applicable to REMIC I
Regular Interest A-1, REMIC I Regular Interest A-2A,
REMIC I Regular Interest A-2B, REMIC I Regular Interest
B, REMIC I Regular Interest C, REMIC I Regular Interest
D, REMIC I Regular Interest E, REMIC I Regular Interest
F, REMIC I Regular Interest G, REMIC I Regular Interest
H, REMIC I Regular Interest J and REMIC I Regular
Interest K for such Distribution Date (weighted on the
basis of the respective Uncertificated Principal Balances
of such REMIC I Regular Interests immediately prior to
such Distribution Date); and
(3) the Class A-2A Certificates, the Class A-2B
Certificates, the Class B Certificates, the Class C
Certificates, the Class D Certificates, the Class E
Certificates, the Class F Certificates, the Class G
Certificates, the Class H Certificates, the Class J
Certificates and the Class K Certificates, for any
Distribution Date, the respective fixed rates per annum
specified as such in the Preliminary Statement.
"Payment Priority ": With respect to any Class of Certificates,
the priority of the Holders thereof in respect of the Holders of the other
Classes of Certificates to receive distributions out of the Available
Distribution Amount for any Distribution Date. The Payment Priority of the
respective Classes of Certificates shall be, in descending order, as follows:
first, the respective Classes of Senior Certificates, pro rata; second, the
Class B Certificates; third, the Class C Certificates; fourth, the Class D
Certificates; fifth, the Class E Certificates; sixth, the Class F Certificates;
seventh, the Class G Certificates; eighth, the Class H Certificates; ninth, the
Class J Certificates; tenth, the Class K Certificates; and last, the respective
Classes of Residual Certificates.
"Percentage Interest ": With respect to any REMIC II Regular
Certificate, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the Certificate Principal
Balance, Certificate Notional Amount or Effective Certificate Notional Amount,
as the case may be, of such Certificate as of the Closing Date, as specified on
the face thereof, and the denominator of which is the Initial Class Principal
Balance, Initial Class Notional Amount or Initial Effective Class Notional
Amount, as the case may be, of the relevant Class. With respect to a Residual
Certificate, the percentage interest in distributions to be made with respect to
the relevant Class, as stated on the face of such Certificate.
"Permitted Investments ": Any one or more of the following
obligations:
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33
(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;
(ii) repurchase obligations with respect to any security
described in clause (i) above, provided that the long-term unsecured
debt obligations of the party agreeing to repurchase such obligations
are rated "AAA" by each Rating Agency;
(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, provided that (a) the long-term
unsecured debt obligations of such bank or trust company (or, in the
case of the principal depository institution in a depository institution
holding company, the long-term unsecured debt obligations of the
depository institution holding company) are rated "AAA" by each Rating
Agency or (b) the short-term unsecured debt obligations of such bank,
trust company or depository institution holding company are rated "A-1"
or better by Standard & Poor's and "F-1+" or better by Fitch or (c) if
both such long-term and short-term unsecured debt obligations have been
rated by either Rating Agency, then each must be rated as specified in
the immediately preceding clauses (a) and (b) with respect to such
Rating Agency;
(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 rated "A-1" or better by Standard &
Poor's and "F-1+" or better by Fitch; and
(v) any other obligation or security which would not result in
the downgrade, qualification or withdrawal of the rating then assigned
by any Rating Agency to any Class of Certificates, evidence of which
shall be confirmed in writing by each Rating Agency to the Trustee;
provided that no investment described hereunder shall evidence either the right
to receive (a) only interest with respect to such investment or (b) a yield to
maturity greater than 120% of the yield to maturity at par of the underlying
obligations; and provided, further, 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; and
provided, further, that no investment described hereunder may be sold prior to
stated maturity if such sale would result in a loss of principal on the
instrument or a tax on "prohibited transactions" under Section 860F of the Code;
and provided, further, that no investment described hereunder shall have an "r"
highlight affixed to any rating assigned thereto by Standard & Poor's; and
provided, further, that each investment described hereunder shall, by its terms,
have a predetermined fixed amount of principal due at maturity (that cannot vary
or change) and either a fixed interest rate or variable interest rate tied to a
single interest rate index plus a single fixed spread; and provided, further,
that each investment described hereunder shall be a "cash flow investment", as
defined in the REMIC Provisions.
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34
"Permitted Transferee ": Any Transferee of a Residual
Certificate other than a Disqualified Organization.
"Person ": Any individual, corporation, partnership, joint
venture, association, joint-stock 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, Part II, as it exists on the Closing Date.
"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.
"Plan ": As defined in Section 5.02(c).
"Prepayment Assumption ": A CPR (as defined in the Prospectus
Supplement) of 0%, such assumption to be used for determining the accrual of
original issue discount, market discount and premium, if any, on the Mortgage
Loans, the REMIC I Regular Interests and the Certificates for federal income tax
purposes.
"Prepayment Interest Excess ": With respect to any Mortgage Loan
that was subject to a Principal Prepayment in full or in part made on or prior
to the Determination Date in any calendar month but after the first day of such
month, any payment of interest (exclusive of Prepayment Premiums and net of
related Servicing Fees) actually collected from the related Mortgagor and
intended to cover the period from the commencement of such month to the date of
prepayment.
"Prepayment Interest Shortfall ": With respect to any Mortgage
Loan that was subject to a Principal Prepayment in full or in part made after
the Determination Date in any calendar month, 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 the
Net Mortgage Rate for such Mortgage Loan on the amount of such Principal
Prepayment during the period commencing on the date as of which such Principal
Prepayment was applied to such Mortgage Loan and ending on the last day of such
calendar month, inclusive.
"Prepayment Premium ": Any premium, penalty or fee paid or
payable, as the context requires, by a Mortgagor in connection with a Principal
Prepayment on, or other early collection of principal of, a Mortgage Loan or any
successor REO Loan.
"Primary Servicing Office ": With respect to each of the Master
Servicer and the Special Servicer, the office thereof primarily responsible for
performing its respective duties under this Agreement; initially located in
Illinois and California, respectively.
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35
"Principal Distribution Amount ": With respect to either Loan
Group for any Distribution Date, the aggregate of (i) the Current Principal
Distribution Amount with respect to such Loan Group for such Distribution Date
and (ii), if such Distribution Date is subsequent to the initial Distribution
Date, the excess, if any, of the Principal Distribution Amount with respect to
such Loan Group for the preceding Distribution Date, over the aggregate
distributions of principal made on the Sequential Pay Certificates in respect of
such Principal Distribution Amount on the preceding Distribution Date.
"Principal Prepayment ": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not 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 Supplement ": That certain prospectus supplement
dated June 27, 1996, relating to the Registered Certificates.
"Purchase Price ": With respect to any Mortgage Loan, a price
equal to the unpaid principal balance of the Mortgage Loan as of the date of
purchase, together with (a) all accrued and unpaid interest on the Mortgage Loan
at the related Mortgage Rate to but not including the Due Date in the Collection
Period of purchase, and (b) all related unreimbursed Servicing Advances. With
respect to any REO Property, a price equal to the unpaid principal balance of
the related REO Loan as of the date of purchase, together with (a) all 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 purchase, and (b) all related
unreimbursed Servicing Advances.
"Qualified Appraiser ": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Insurer ": An insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rating Agency ": Each of Standard & Poor's and Fitch.
"Realized Loss ": With respect to each defaulted Mortgage Loan as
to which a Final Recovery Determination has been made, or with respect to any
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 (i) 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 (ii) all accrued but unpaid interest on such
Mortgage Loan or REO Loan, as the case may be (without taking into account the
amounts described in subclause (iv) of this sentence), at the related Mortgage
Rate to but not including the Due Date in the Collection Period in
<PAGE>
36
which the Final Recovery Determination was made, plus (iii) 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 (iv) 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 (net of any related Liquidation Expenses paid
therefrom).
With respect to any Mortgage Loan as to which any portion of the
outstanding principal or accrued interest owed thereunder was forgiven 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 Master Servicer or Special Servicer pursuant to Section
3.20, the amount of such principal or interest so forgiven.
With respect to any Mortgage Loan as to which the Mortgage Rate
thereon has been permanently reduced 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 Master Servicer or Special Servicer pursuant to Section 3.20, the amount of
the consequent reduction in the interest portion of each successive Monthly
Payment due thereon. Each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment.
"Record Date ": With respect to the Class A-1 Certificates for
any Distribution Date, the fifth day of the calendar month in which such
Distribution Date occurs or, if such fifth day is not a Business Day, the
Business Day immediately preceding. With respect to each other Class of
Certificates for any Distribution Date, the last Business Day of the calendar
month immediately preceding the month in which such Distribution Date occurs.
"Reference Banks ": For so long as the Master Servicer is
required pursuant to Section 3.19(b) to calculate Six-Month LIBOR (Formula 1),
those reference banks utilized by it in connection with such calculation, which
shall in any event be leading banks engaged in Eurodollar deposits in the
international Eurocurrency market with an established place of business in
London. Thereafter, Barclays Bank, plc, The Bank of Tokyo, Ltd., Bankers Trust
Company and National Westminster Bank, plc, or any substitute reference bank
appointed by the Trustee which is a leading bank engaged in transactions in
Eurodollar deposits in the international Eurocurrency market with an established
place of business in London.
"Registered Certificates ": The Class X-1, Class X-2, Class A-1,
Class A-2A, Class A-2B, Class B, Class C, Class D, Class E and Class F
Certificates.
"Reimbursement Rate ": The rate per annum applicable to the
accrual of Advance Interest, which rate per annum shall be equal to the "prime
rate" as published in the "Money Rates" section of The Wall Street Journal, as
such "prime rate" may change from time to time.
"REMIC ": A "real estate mortgage investment conduit" as defined
in Section 860D of the Code.
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37
"REMIC Administrator ": State Street Bank and Trust Company, its
successor in interest, or any successor REMIC administrator appointed as herein
provided.
"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 REMIC election is to be made, 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 or receivable after
the Cut-off Date (other than payments of principal, interest and other amounts
due and payable on the Mortgage Loans on or before the Cut-off Date), together
with all documents delivered or caused to be delivered hereunder with respect to
such Mortgage Loans by the Mortgage Loan Seller; (ii) any REO Property acquired
in respect of a Mortgage Loan; and (iii) such funds or assets as from time to
time are deposited in the Distribution Account, the Certificate Account and the
REO Account (if established).
"REMIC I Regular Interest ": Any of the 15 separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a "regular interest" in REMIC I. Each REMIC I Regular Interest
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time and, except for REMIC I Regular Interest X-1, 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 I Regular Interests are set forth in the Preliminary Statement hereto.
"REMIC I Remittance Rate ": With respect to:
(a) REMIC I Regular Interest LG1, (i) for each Distribution Date
up to and including the Distribution Date in October 1996, 6.12% per
annum, and (ii) for any subsequent Distribution Date, the lesser of (A)
LIBOR for such Distribution Date plus 0.37%, and (B) 11.375% per annum;
(b) REMIC I Regular Interest LG2, (i) for the initial
Distribution Date, 8.496% per annum, and (ii) for any subsequent
Distribution Date, the weighted average of the Net Mortgage Rates in
effect for the Group 2 Loans as of the first day of the related
Collection Period (weighted on the basis of the respective Stated
Principal Balances of such Mortgage Loans and/or REO Loans immediately
following the preceding Distribution Date);
(c) REMIC I Regular Interest X-1, (i) for the initial
Distribution Date, 0.796% per annum, and (ii) for any subsequent
Distribution Date, the excess, if any, of (A) the weighted average of
the Net Mortgage Rates in effect for the Group 1 Loans as of the first
day of the related Collection Period (weighted on the basis of the
respective Stated Principal Balances of such Mortgage Loans and/or REO
Loans immediately following the preceding Distribution Date), over (B)
the REMIC I Remittance Rate applicable to REMIC I Regular Interest LG1
for such Distribution Date;
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(d) REMIC I Regular Interest A-1, (i) for each Distribution Date
up to and including the Distribution Date in October 1996, 6.12% per
annum, and (ii) for any subsequent Distribution Date, the lesser of (A)
LIBOR for such Distribution Date plus 0.37% and (B) 11.375% per annum;
and
(e) each of REMIC I Regular Interests A-2A, A-2B, B, C, D, E, F,
G, H, J and K, for any Distribution Date, the respective fixed rates per
annum specified as such in the Preliminary Statement.
As set forth above, the REMIC I Remittance Rate applicable to
REMIC I Regular Interest X-1 for the initial Distribution Date is equal to
0.796% per annum, which represents the excess of (i) the weighted average of the
Net Mortgage Rates in effect for the Group 1 Loans as of the first day of the
initial Collection Period (weighted on the basis of the respective Stated
Principal Balances of such Mortgage Loans as of the Closing Date), over (ii) the
per annum rate at which interest would have to accrue for a one-month period
(assuming a 360-day year consisting of twelve 30-day months) on the initial
aggregate Uncertificated Principal Balance of REMIC I Regular Interests LG1 and
A-1, in order to produce the aggregate amount of Uncertificated Accrued Interest
in respect of REMIC I Regular Interests LG1 and A-1 for the initial Distribution
Date.
"REMIC II ": The segregated pool of assets consisting of all of
the REMIC I Regular Interests conveyed in trust to the Trustee for the benefit
of the Holders of the REMIC II Certificates pursuant to Section 2.10, with
respect to which a separate REMIC election is to be made.
"REMIC II Certificate ": Any Certificate, other than a Class R-I
Certificate.
"REMIC II Regular Certificate ": Any REMIC II Certificate, other
than a Class R-II Certificate.
"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
rulings promulgated thereunder, as the foregoing may be in effect from time to
time.
"Rents from Real Property ": With respect to any REO Property,
gross income of the character described in Section 856(d) of the Code.
"REO Account ": A segregated custodial account or accounts
created and maintained by the Special Servicer pursuant to Section 3.16 on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "[Name of Special Servicer], as Special Servicer, in trust for
registered holders of Mortgage Capital Funding, Inc., Multifamily/Commercial
Mortgage Pass-Through Certificates, Series 1996-MC1".
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"REO Acquisition ": The acquisition of any REO Property pursuant
to Section 3.09.
"REO Disposition ": The sale or other disposition of the 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 any and all REO Property acquired in respect of any
Mortgage Loan. 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 the related 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 the related 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 related 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. All amounts payable or reimbursable to the Master
Servicer, Special Servicer and/or Trustee in respect of the related Mortgage
Loan as of the date of the related REO Acquisition, including, without
limitation, any unpaid Servicing Fees and any unreimbursed Advances, together
with any Advance Interest accrued and payable to the Master Servicer, Special
Servicer and/or Trustee in respect of such Advances, shall continue to be
payable or reimbursable to the Master Servicer, Special Servicer or Trustee, as
the case may be, in respect of an REO Loan.
"REO Property ": A Mortgaged Property acquired by the Special
Servicer for the benefit of the Certificateholders pursuant to Section 3.09
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 and rents derived from the
ownership, operation or leasing of any REO Property.
"REO Status Report ": A report or reports substantially in the
form of Exhibit E 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 last day of the most recently ended Collection Period
preceding the preparation of such report or reports, (i) the Acquisition Date of
such REO Property, (ii) the amount of income collected with respect to any REO
Property (net of related expenses) and other amounts, if any, received on such
REO Property during such Collection Period and (iii) the value of the REO
Property based on the most recent Appraisal or other valuation thereof available
to the Master Servicer as of such date of determination (including any valuation
prepared internally by the Special Servicer).
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"REO Tax ": As defined in Section 3.17(a).
"Request for Release ": A release signed by a Servicing Officer
of, as applicable, the Master Servicer or Special Servicer in the form of
Exhibit D attached hereto.
"Required Appraisal Loan ": As defined in Section 3.19(c).
"Reserve Account ": The account or accounts created and
maintained pursuant to Section 3.03(d).
"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, replacements, capital improvements
and/or environmental testing and remediation with respect to the related
Mortgaged Property.
"Residual Certificate ": Any Class R-I or Class R-II Certificate.
"Responsible Officer ": When used with respect to the Trustee,
any vice president, any assistant vice president, any assistant secretary, any
assistant treasurer and any other trust officer or assistant trust officer in
the Corporate Trust Department of the Trustee, or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers to whom a particular matter is referred by the
Trustee because of such officer's knowledge of and familiarity with the
particular subject.
"Scheduled Payment ": With respect to any Mortgage Loan, for any
Due Date following the Cut-off Date as of which it is outstanding, the scheduled
monthly payment of principal and/or interest on such Mortgage Loan that is
payable by the related Mortgagor on such Due Date 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 a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Master Servicer or Special Servicer pursuant to Section 3.20).
"Securities Act ": The Securities Act of 1933, as amended.
"Security Agreement ": With respect to any Mortgage Loan, any
security agreement, chattel mortgage or similar document or instrument, whether
contained in the related Mortgage or executed separately, creating in favor of
the holder of such Mortgage a security interest in the personal property
constituting security for repayment of such Mortgage Loan.
"Senior Certificate ": Any Class A-1, Class A-2A, Class A-2B,
Class X-1 or Class X-2 Certificate.
"Sequential Pay Certificate ": Any Class A-1, Class A-2A, Class
A-2B, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J or
Class K Certificate.
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41
"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 or to be incurred, as the context
requires, by the Master Servicer or the Special Servicer (or, if applicable, the
Trustee) in connection with the servicing of a Mortgage Loan after a default,
delinquency or other unanticipated event, or in connection with the
administration of any REO Property, including, but not limited to, the cost of
(a) compliance with the obligations of the Master Servicer and/or the Special
Servicer set forth in Sections 3.03(c) and 3.09, (b) the preservation,
insurance, restoration, protection and management of a Mortgaged Property, (c)
obtaining any Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan or REO Property, (d) any enforcement or judicial proceedings with
respect to a Mortgaged Property, including, without limitation, foreclosures,
and (e) the operation, management, maintenance and liquidation of any REO
Property; provided that notwithstanding anything to the contrary, "Servicing
Advances" shall not include allocable overhead of the Master Servicer or the
Special Servicer, such as costs for office space, office equipment, supplies and
related expenses, employee salaries and related expenses and similar internal
costs and expenses, or costs incurred by either such party in connection with
its purchase of any Mortgage Loan or REO Property pursuant to any provision of
this Agreement. All Emergency Advances made by the Special Servicer hereunder
shall be considered "Servicing Advances" for the purposes hereof.
"Servicing Fees ": With respect to each Mortgage Loan and REO
Loan, the Master Servicing Fee and the Special Servicing Fee.
"Servicing File ": Any documents (other than documents required
to be part of the related Mortgage File), including, without limitation, the
related environmental site assessment report(s) referred to in Section
2.05(b)(xiv), in the possession of the Master Servicer or the Special Servicer
and relating to the origination and servicing of any Mortgage Loan.
"Servicing Officer ": Any officer or authorized signatory of the
Master Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of such officers and authorized signatories furnished
by such party to the Trustee and the Sponsor on the Closing Date, as such list
may be amended from time to time thereafter.
"Servicing Return Date ": With respect to any Corrected Mortgage
Loan, the date that servicing thereof is returned by the Special Servicer to
the Master Servicer pursuant to Section 3.21(a).
"Servicing Standard ": With respect to each of the Master
Servicer and the Special Servicer, to service and administer the Mortgage Loans
and any REO Properties in the same manner in which, and with the same care,
skill, prudence and diligence with which, the Master Servicer or Special
Servicer, as the case may be, generally services and administers comparable
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42
mortgage loans or assets, as applicable, for other portfolios or held in its own
portfolio, whichever servicing procedure is of a higher standard, and in any
event, with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans or, if a Mortgage Loan comes
into and continues in default and no satisfactory arrangements can be made for
the collection of the delinquent payments, the maximization of the recovery on
such Mortgage Loan to 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), but without regard to: (i) any relationship that the Master
Servicer or the Special Servicer, as the case may be, or any Affiliate thereof
may have with the related Mortgagor; (ii) the ownership of any Certificate by
the Master Servicer or the Special Servicer, as the case may be, or by any
Affiliate thereof; (iii) the Master Servicer's obligation to make Advances; (iv)
the Special Servicer's obligation to make (or to direct the Master Servicer to
make) Servicing Advances; and (v) the right of the Master Servicer (or any
Affiliate thereof) or the Special Servicer (or any Affiliate thereof), as the
case may be, to receive compensation for its services or reimbursement of costs
hereunder or with respect to any particular transaction.
"Servicing Transfer Event ": With respect to any Mortgage Loan,
the occurrence of any of the events described in clauses (a) through (h) of the
definition of "Specially Serviced Mortgage Loan".
"Single Certificate ": For purposes of Section 4.02(a), a
hypothetical Certificate of any Class of REMIC II Regular Certificates
evidencing a $1,000 denomination or, in the case of an Interest Only
Certificate, a 100% Percentage Interest in the related Class.
"Six-Month LIBOR (Formula 1) ": The rate per annum determined on
each LIBOR Determination Date in the following manner after first referring to
the offered quotations appearing on the display page designated as "LIBO" on the
Reuters Monitor Money Rates Service or such other page as may replace the LIBO
page (the "Reuters Screen LIBO Page") for six-month United States dollar
deposits in the London interbank market, as of 11:00 a.m. (London time) on such
LIBOR Determination Date. If on any LIBOR Determination Date two or more such
offered quotations appear on the Reuters Screen LIBO page, Six-Month LIBOR
(Formula 1) for the immediately succeeding LIBOR Reference Period will be equal
to the arithmetic mean of such offered quotations (rounded upwards, if
necessary, to the nearest whole multiple of 1/16%). If on any LIBOR
Determination Date fewer than two such offered quotations appear on the Reuters
Screen LIBO Page, Six-Month LIBOR (Formula 1) for the immediately succeeding
LIBOR Reference Period will be equal to the arithmetic mean of the quotations
offered by the Reference Banks for six-month United States dollar deposits in
the London interbank market, as of 11:00 a.m. (London time) on such LIBOR
Determination Date (rounded upwards, if necessary, to the nearest whole multiple
of 1/16%); provided, however, that (i) if only one Reference Bank offers such a
quotation, Six-Month LIBOR (Formula 1) for the immediately succeeding LIBOR
Reference Period will be equal to that quotation (rounded upwards, if necessary,
to the nearest whole multiple of 1/16%), or (ii) if no Reference Banks offer
such a quotation, Six-Month LIBOR (Formula 1) for the immediately succeeding
LIBOR
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43
Reference Period shall be Six-Month LIBOR (Formula 1) as determined on the
previous LIBOR Determination Date. For so long as it is required pursuant to
Section 3.19(b) to do so, the Master Servicer shall calculate Six-Month LIBOR
(Formula 1); and, thereafter, the Trustee shall calculate Six-Month LIBOR
(Formula 1).
"Special Servicer ": Hanford/Healy Asset Management Company, its
successor in interest, or any successor special servicer appointed as herein
provided.
"Special Servicer Loan Status Report ": A report or reports
setting forth, among other things, as of the close of business on the
Determination Date immediately preceding the preparation of such report or
reports, (i) the aggregate amount of Specially Serviced Mortgage Loans and (ii)
a loan-by-loan listing of all Specially Serviced Mortgage Loans indicating their
status, date and reason for transfer to the Special Servicer and such additional
information as is contemplated on pages B-9 and B-10 of the Prospectus
Supplement.
"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 has occurred:
(a) the related Mortgagor has failed to make when due
any Balloon Payment, which failure has continued
unremedied for 30 days; or
(b) the related Mortgagor has failed to make when due any
Monthly Payment (other than a Balloon Payment) or any
other payment required under the related Mortgage Note or
the related Mortgage, which failure continues unremedied
for 60 days; or
(c) if the Master Servicer has determined in its good
faith and reasonable judgment, that a default in the
making of a Monthly Payment or any other payment required
under the related Mortgage Note or the related Mortgage
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, for at least 30 days; or
(d) there shall have occurred a default, other
than as described in clause (a) or (b) above, that
materially impairs the value of the related Mortgaged
Property as security for the Mortgage Loan or otherwise
materially and adversely affects the interests of
Certificateholders, which default has
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44
continued unremedied for the applicable grace period
under the terms of the Mortgage Loan (or, if no grace
period is specified, 60 days); or
(e) 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, marshalling 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
(f) the related Mortgagor shall have consented to the
appointment of a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshalling 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
(g) 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; or
(h) the Master Servicer shall have received notice
of the commencement of foreclosure or similar proceedings
with respect to the related Mortgaged Property;
provided that a Mortgage Loan will cease to be a Specially Serviced Mortgage
Loan, when a Liquidation Event has occurred in respect of such Mortgage Loan,
when the related Mortgaged Property or Properties become REO Property or
Properties, or at such time as such of the following as are applicable occur
with respect to the circumstances identified above that caused the Mortgage Loan
to be characterized as a Specially Serviced Mortgage Loan (and provided that no
other Servicing Transfer Event then exists):
(w) with respect to the circumstances described in
clauses (a) and (b) above, the related Mortgagor has made
three consecutive full and timely Monthly Payments under
the terms of such Mortgage Loan (as such terms may be
changed or modified in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or by
reason of a modification, waiver or amendment granted or
agreed to by the Special Servicer pursuant to Section
3.20);
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45
(x) with respect to the circumstances described in
clauses (c), (e), (f) and (g) above, such circumstances
cease to exist in the good faith and reasonable judgment
of the Special Servicer;
(y) with respect to the circumstances described
in clause (d) above, such default is cured; and
(z) with respect to the circumstances described
in clause (h) above, such proceedings are terminated.
"Sponsor ": Mortgage Capital Funding, Inc., or its successor in
interest.
"Spread Rate ": With respect to the Class X-2 Certificates, 1.00%
per annum; with respect to the Class A-2A and Class A-2B Certificates, 0.20% per
annum; with respect to the Class B Certificates, 0.30% per annum; with respect
to the Class C Certificates, 0.40% per annum; with respect to the Class D
Certificates, 0.50% per annum; with respect to the Class E Certificates, 1.00%
per annum; and with respect to the Class F Certificates, 1.50% per annum.
"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 Sponsor, notice of
which designation shall be given to the Trustee, the Master Servicer, the
Special Servicer and the REMIC Administrator, and specific ratings of Standard &
Poor's Ratings Services, a Division of the McGraw-Hill Companies, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Standby Fee ": With respect to each Mortgage Loan and each REO
Loan, the fee designated as such and payable to the Special Servicer pursuant to
the second paragraph of Section 3.11(c).
"Standby Fee Rate ": With respect to each Mortgage Loan and each
REO Loan, 0.005% per annum.
"Startup Day ": With respect to each of REMIC I and REMIC II,
the day designated as such in Section 10.01(c).
"Stated Maturity Date ": With respect to any Mortgage Loan, the
Due Date on which the last payment of principal is due and payable under the
terms of the related 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 Master Servicer or Special Servicer pursuant to Section 3.20.
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46
"Stated Principal Balance ": With respect to any Mortgage Loan
(and any related 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 P&I Advances in lieu thereof) of, and all other collections allocated as
provided in Section 1.02 to, principal of or with respect to such Mortgage Loan
(or related REO Loan) that are (or, if they had not been applied to cover any
Additional Trust Fund Expense, would have been) distributed to
Certificateholders on such Distribution Date, and (ii) the principal portion of
any Realized Loss incurred in respect of such Mortgage Loan (or related REO
Loan) during the related Collection Period. Notwithstanding the foregoing, if a
Liquidation Event occurs in respect of any Mortgage Loan or REO Property, then
the "Stated Principal Balance" of such Mortgage Loan or of the related REO Loan,
as the case may be, shall be zero commencing as of the Distribution Date in the
Collection Period next following the Collection Period in which such Liquidation
Event occurred.
"Subordinated Certificate ": Any Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K or Residual Certificate.
"Sub-Servicer ": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement ": The written contract between the
Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer,
on the other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Tax Matters Person ": With respect to each of REMIC I and REMIC
II, the Person designated as the "tax matters person" of such REMIC in the
manner provided under Treasury regulation section 1.860F-4(d) and temporary
Treasury regulation section 301.6231(a)(7)-1T. The "Tax Matters Person" for each
of REMIC I and REMIC II is the Holder of Certificates evidencing the largest
Percentage Interest in the related Class of Residual Certificates.
"Tax Returns ": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I and REMIC II due to its classification
as a REMIC under the REMIC Provisions, together with any and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal or
Applicable State Law.
"Transfer ": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee ": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
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47
"Transferor ": Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust Fund ": Collectively, all of the assets of REMIC I and
REMIC II.
"Trustee ": State Street Bank and Trust Company, its successor in
interest, or any successor trustee appointed as herein provided.
"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 the relevant
jurisdiction.
"Uncertificated Accrued Interest ": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's (or, in the case of
each of REMIC I Regular Interest LG1 and REMIC I Regular Interest A-1 for the
initial Distribution Date, 35 days') interest (calculated on the basis of a
360-day year consisting of twelve 30-day months) at the REMIC I Remittance Rate
applicable to such REMIC I Regular Interest for such Distribution Date, accrued
on the Uncertificated Principal Balance or Uncertificated Notional Amount, as
the case may be, of such REMIC I Regular Interest outstanding immediately prior
to such Distribution Date.
"Uncertificated Distributable Interest ": With respect to any
REMIC I Regular Interest for any Distribution Date, an amount equal to: (a) the
Uncertificated Accrued Interest in respect of such REMIC I Regular Interest for
such Distribution Date; reduced (to not less than zero) by (b) the portion, if
any, of the Net Aggregate Prepayment Interest Shortfall, if any, for such
Distribution Date allocated to such REMIC I Regular Interest as set forth below;
and increased by (c) any Uncertificated Distributable Interest in respect of
such REMIC I Regular Interest for the prior Distribution Date that was not
deemed paid on such prior Distribution Date pursuant to Section 4.01(a),
together with (except in the case of REMIC I Regular Interest X-1) one month's
interest (calculated on the basis of a 360-day year consisting of twelve 30-day
months) on such unpaid Uncertificated Distributable Interest (exclusive, in the
case of each of REMIC I Regular Interest LG1 and REMIC I Regular Interest LG2,
of the Class X-2 Share thereof) at the REMIC I Remittance Rate applicable to
such REMIC I Regular Interest for the current Distribution Date. One-tenth of
one percent of the Net Aggregate Prepayment Interest Shortfall, if any, for each
Distribution Date shall be allocated on such Distribution Date: first, to REMIC
I Regular Interests K, J, H, G, F, E, D, C and B, sequentially in that order, in
each case up to the amount of any Uncertificated Accrued Interest in respect of
such REMIC I Regular Interest for such Distribution Date; and, thereafter, among
the remaining REMIC I Regular Interests, up to an amount equal to, and pro rata
in accordance with, (i) in the case of each of REMIC I Regular Interest A-1,
REMIC I Regular Interest A-2A and REMIC I Regular Interest A-2B, the amount of
Uncertificated Accrued Interest in respect of such REMIC I Regular Interest for
such Distribution Date, (ii) in the case of each of REMIC I Regular Interest LG1
and REMIC I Regular Interest LG2, 0.1% of the Class X-2 Share of the
Uncertificated
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Accrued Interest in respect of such REMIC I Regular Interest for such
Distribution Date (any such allocation in respect of each of REMIC I Regular
Interest LG1 and REMIC I Regular Interest LG2 pursuant to this clause thereafter
being specifically made in reduction of the Class X-2 Share of such REMIC I
Regular Interest's Uncertificated Distributable Interest for such Distribution
Date), and (iii) in the case of REMIC I Regular Interest X-1, 0.1% of the
Uncertificated Accrued Interest in respect of such REMIC I Regular Interest for
such Distribution Date. The remaining 99.9% of the Net Aggregate Prepayment
Interest Shortfall, if any, for such Distribution Date shall be allocated on
such Distribution Date: first, among REMIC I Regular Interests LG1, LG2 and X-1,
in each case, in an amount equal to 999 times the amount allocated thereto on
such Distribution Date pursuant to the preceding sentence (any such allocation
in respect of each of REMIC I Regular Interest LG1 and REMIC I Regular Interest
LG2 pursuant to this clause first being specifically made in reduction of the
Class X-2 Share of such REMIC I Regular Interest's Uncertificated Distributable
Interest for such Distribution Date); and thereafter, between REMIC I Regular
Interests LG1 and LG2, pro rata in accordance with the respective amounts of
Uncertificated Accrued Interest in respect of such REMIC I Regular Interests for
such Distribution Date (in each case, net of the Class X-2 Share thereof).
"Uncertificated Notional Amount ": The aggregate notional
principal amount on which REMIC I Regular Interest X-1 accrues interest from
time to time which, as of any date of determination, is equal to the then
aggregate Stated Principal Balance of the Group 1 Loans.
"Uncertificated Principal Balance ": The principal amount of any
REMIC I Regular Interest (other than REMIC I Regular Interest X-1) outstanding
as of any date of determination. As of the Closing Date, the Uncertificated
Principal Balance of each such REMIC I Regular Interest shall equal the amount
set forth in the Preliminary Statement hereto as its initial Uncertificated
Principal Balance. On each Distribution Date, the Uncertificated Principal
Balance of each such REMIC I 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(a) and, if and to the extent appropriate, shall be
further reduced on such Distribution Date as provided in Section 4.04(a).
"Uninsured Cause ": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"United States Person ": A citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate or trust whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
"USPAP ": The Uniform Standards of Professional Appraisal
Practices.
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49
"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, 94.0% of the Voting Rights shall be allocated among the
Holders of the various outstanding Classes of Sequential Pay Certificates in
proportion to the respective Class Principal Balances of their Certificates,
6.0% of the Voting Rights shall be allocated among the Holders of the various
outstanding Classes of the Interest Only Certificates in proportion to the
respective Class Notional Amount or Effective Class Notional Amount, as the case
may be, of their Certificates (but only for so long as such Interest Only
Certificates remain outstanding), and all Voting Rights, if any, not otherwise
allocated in the aforesaid manner shall be allocated equally by Class among the
Holders of the various Classes of Residual 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.
"Workout Fee ": With respect to each Corrected Mortgage Loan,
the fee designated as such and payable to the Special Servicer pursuant to the
third paragraph of Section 3.11(c).
"Workout Fee Rate ": With respect to each Corrected Mortgage
Loan as to which a Workout Fee is payable, 1.0%.
SECTION 1.02. Certain Calculations in Respect of the Mortgage Pool .
(a) All amounts collected in respect of any group of related
Cross-Collateralized Mortgage Loans in the form of payments from Mortgagors,
Insurance Proceeds and Liquidation Proceeds, shall be applied by the Master
Servicer among such Mortgage Loans in accordance with the express provisions of
the related loan documents and, in the absence of such express provisions, on a
pro rata basis in accordance with the respective amounts then "due and owing" as
to each such Mortgage Loan. All amounts collected in respect of any Mortgage
Loan (whether or not such Mortgage Loan is a Cross-Collateralized Mortgage Loan)
in the form of payments from Mortgagors, Liquidation Proceeds or Insurance
Proceeds shall be applied to amounts due and owing under the related Mortgage
Note and Mortgage (including, without limitation, for principal and accrued and
unpaid interest) in accordance with the express provisions of the related
Mortgage Note and Mortgage and, in the absence of such express provisions, shall
be applied for purposes of this Agreement: first, as a recovery of any related
unreimbursed Servicing Advances and, if applicable, unpaid Liquidation Expenses;
second, as a recovery of accrued and unpaid interest at the related Mortgage
Rate on such Mortgage Loan to but not including, as appropriate, the date of
receipt or, in the case of a full Monthly Payment from any Mortgagor, the
related Due Date; third, as a recovery of principal of such Mortgage Loan then
due and owing, including, without limitation, by reason of acceleration of the
Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid principal balance); fourth, as a recovery
of amounts to be currently applied to the payment of, or escrowed for the future
payment of, real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items; fifth, as a recovery of Reserve Funds to the
extent
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then required to be held in escrow; sixth, as a recovery of any Prepayment
Premium then due and owing under such Mortgage Loan; seventh, as a recovery of
any other amounts then due and owing under such Mortgage Loan other than
remaining unpaid principal or Default Interest; eighth, as a recovery of Default
Interest; and ninth, as a recovery of any remaining principal of such Mortgage
Loan to the extent of its entire remaining unpaid principal balance.
(b) Collections in respect of each REO Property (exclusive of
amounts to be applied to the payment of the costs of operating, managing,
maintaining and disposing of such REO Property) shall be treated: first, as a
recovery of any related unreimbursed Servicing Advances; second, as a recovery
of accrued and unpaid interest on the related REO Loan at the related Mortgage
Rate to but not including the Due Date in the Collection Period of receipt;
third, as a recovery of principal of the related REO Loan to the extent of its
entire unpaid principal balance; and fourth, as a recovery of any other amounts
deemed to be due and owing in respect of the related REO Loan.
(c) Insofar as amounts received in respect of any Mortgage Loan
or REO Property and allocable to fees and charges owing in respect of such
Mortgage Loan or the related REO Loan, as the case may be, that constitute
additional servicing compensation payable to the Master Servicer and/or Special
Servicer, are insufficient to cover the full amount of such fees and charges,
such amounts shall be allocated between such of those fees and charges as are
payable to the Master Servicer, on the one hand, and such of those fees and
charges as are payable to the Special Servicer, on the other, pro rata in
accordance with their respective entitlements, and such payments so made shall
constitute the sole amount that will be paid to the Master Servicer and the
Special Servicer with respect thereto.
(d) The foregoing applications of amounts received in respect of
any Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the Collection Report to be delivered thereby pursuant to Section
4.02(b).
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51
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans .
(a) The Mortgage Loan Seller, concurrently with the execution and
delivery hereof, and at the direction and on behalf of the Sponsor, does hereby
assign to the Trustee without recourse for the benefit of the Certificateholders
all the right, title and interest of the Mortgage Loan Seller in and to the
Mortgage Loans identified on the Mortgage Loan Schedule and all other assets
included or to be included in REMIC I. Such assignment of the Mortgage Loans
includes all interest and principal received or receivable on or with respect to
the Mortgage Loans after the Cut-off Date (other than payments of principal and
interest due and payable on the Mortgage Loans on or before the Cut-off Date).
It is intended that the conveyance of the Mortgage Loans by the
Mortgage Loan Seller to the Trustee, at the direction of the Sponsor, as
provided in this Section be, and be construed as, a sale of the Mortgage Loans
by the Mortgage Loan Seller, at the direction of the Sponsor, to the Trustee for
the benefit of the Certificateholders. It is, further, not intended that such
conveyance be deemed a pledge of the Mortgage Loans by the Mortgage Loan Seller
or the Sponsor to the Trustee to secure a debt or other obligation of the
Mortgage Loan Seller or the Sponsor. However, in the event that the Mortgage
Loans are held to be property of the Mortgage Loan Seller or the Sponsor, or if
for any reason this Agreement is held or deemed to create a security interest in
the Mortgage Loans, then it is intended that, (a) this Agreement shall also be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
New York Uniform Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction; (b) the conveyance provided for in this Section shall
be deemed to be (1) a grant by the Mortgage Loan Seller and the Sponsor to the
Trustee of a security interest in all of their respective right (including the
power to convey title thereto), title and interest, whether now owned or
hereafter acquired, in and to (A) the Mortgage Notes, the Mortgages, any related
insurance policies and all other documents in the related Mortgage Files, (B)
all amounts payable to the holders of the Mortgage Loans in accordance with the
terms thereof and (C) all proceeds of the conversion, voluntary or involuntary,
of the foregoing into cash, instruments, securities or other property, including
without limitation all amounts from time to time held or invested in the
Certificate Account, the Distribution Account or the REO Account, whether in the
form of cash, instruments, securities or other property, and (2) an assignment
by the Sponsor to the Trustee of any security interest in any and all of the
Mortgage Loan Seller's right (including the power to convey title thereto),
title and interest, whether now owned or hereafter acquired, in and to the
property described in the foregoing clauses (1)(A) through (C) that may have
been granted by the Mortgage Loan Seller to the Sponsor pursuant to the Mortgage
Loan Purchase Agreement; (c) the possession by the Trustee or its agent of the
Mortgage Notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" or possession by a purchaser or a Person
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designated by such secured party, for purposes of perfecting the security
interest pursuant to the New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction (including, without
limitation, Section 9-305, 8-313 or 8-321 thereof); and (d) notifications to
Persons holding such property, and acknowledgments, receipts or confirmations
from Persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The Sponsor, the Mortgage Loan
Seller and the Trustee shall, to the extent consistent with this Agreement, take
such actions as may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the Mortgage Loans, such security interest
would be deemed to be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of the
Agreement. At the Sponsor's direction, the Trustee shall execute and deliver,
and the Master Servicer shall (at its expense) file, all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect and maintain the
Trustee's security interest in or lien on the Trust Fund, including without
limitation (A) continuation statements and (B) such other statements as may be
occasioned by any transfer of any interest of the Trustee, the Master Servicer,
the Special Servicer or the Sponsor in the Trust Fund. In connection herewith,
the Trustee shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
(b) In connection with the Mortgage Loan Seller's assignment
pursuant to subsection (a) above, the Mortgage Loan Seller shall deliver to and
deposit with, or cause to be delivered to and deposited with, the Trustee or a
Custodian appointed thereby, on or before the Closing Date, the Mortgage File
for each Mortgage Loan so assigned. If the Mortgage Loan Seller cannot deliver,
or cause to be delivered, as to any Mortgage Loan, the original or a copy of any
of the documents and/or instruments referred to in clauses (ii), (iv), (viii),
(xi)(A) and (xii) of the definition of "Mortgage File", with evidence of
recording thereon, solely because of a delay caused by the public recording or
filing office where such document or instrument has been delivered for
recordation or filing, as the case may be, the delivery requirements of this
Section 2.01(b) shall be deemed to have been satisfied as to such missing item,
and such missing item shall be deemed to have been included in the related
Mortgage File, provided that a copy of such document or instrument (without
evidence of recording or filing thereon, but certified (which certificate may
relate to multiple documents and/or instruments) by the Mortgage Loan Seller to
be a true and complete copy of the original thereof submitted for recording or
filing, as the case may be) is delivered to the Trustee or a Custodian appointed
thereby on or before the Closing Date, and either the original of such missing
document or instrument, or a copy thereof, with evidence of recording or filing,
as the case may be, thereon, is delivered to the Trustee or such Custodian
within 180 days of the Closing Date (or within such longer period after the
Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so long as the Mortgage Loan Seller has provided the
Trustee with evidence of such recording or filing, as the case may be, or has
certified to the Trustee as to the occurrence of such recording or filing, as
the case may be, and is, as certified to the Trustee no less often than monthly,
in good faith attempting to obtain from the appropriate county
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53
recorder's or filing office such original or copy). If the Mortgage Loan Seller
cannot or does not deliver, or cause to be delivered, as to any Mortgage Loan,
the original of any of the documents and/or instruments referred to in clauses
(iii), (v), and (xi)(B) of the definition of "Mortgage File", because such
document or instrument has been delivered for recordation or filing, as the case
may be, the delivery requirements of this Section 2.01(b) shall be deemed to
have been satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, provided that a copy
of such document or instrument (without evidence of recording or filing thereon,
but certified (which certificate may relate to multiple documents and/or
instruments) by the Mortgage Loan Seller to be a true and complete copy of the
original thereof submitted for recording or filing, as the case may be) is
delivered to the Trustee or a Custodian appointed thereby on or before the
Closing Date, and either the original of such missing document or instrument, or
a copy thereof, with evidence of recording or filing, as the case may be,
thereon, is delivered to the Trustee or such Custodian within 180 days of the
Closing Date (or within such longer period after the Closing Date as the Trustee
may consent to, which consent shall not be unreasonably withheld so long as the
Mortgage Loan Seller has provided the Trustee with evidence of such recording or
filing, as the case may be, or has certified to the Trustee as to the occurrence
of such recording or filing, as the case may be, and is, as certified to the
Trustee no less often than monthly, in good faith attempting to obtain from the
appropriate county recorder's or filing office such original or copy). If the
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of the related lender's title insurance
policy referred to in clause (ix) of the definition of "Mortgage File" solely
because such policy has not yet been issued, the delivery requirements of this
Section 2.01(b) shall be deemed to be satisfied as to such missing item, and
such missing item shall be deemed to have been included in the related Mortgage
File, provided that the Mortgage Loan Seller shall have delivered to the Trustee
or a Custodian appointed thereby, on or before the Closing Date, a commitment
for title insurance "marked-up" at the closing of such Mortgage Loan, and the
Mortgage Loan Seller shall deliver to the Trustee or such Custodian, promptly
following the receipt thereof, the original related lender's title insurance
policy (or a copy thereof). In addition, notwithstanding anything to the
contrary contained herein, if there exists with respect to any group of related
Cross-Collateralized Mortgage Loans only one original of any document referred
to in the definition of "Mortgage File" covering all the Mortgage Loans in such
group, then the inclusion of the original of such document in the Mortgage File
for any of the Mortgage Loans in such group shall be deemed an inclusion of such
original in the Mortgage File for each such Mortgage Loan. None of the Trustee,
any Custodian, the Sponsor, the Master Servicer or the Special Servicer shall in
any way be liable for any failure by the Mortgage Loan Seller to comply with the
delivery requirements of this Section 2.01(b). The Trustee, the Master Servicer
and the Mortgage Loan Seller shall, subject to the other provisions of this
Agreement, reasonably cooperate with the Special Servicer in performing its
duties hereunder when such performance is impaired by any Document Defect in any
Mortgage File.
If any of the endorsements referred to in clause (i) of the
definition of "Mortgage File", any of the assignments of Mortgage referred to in
clause (iii) of the definition of "Mortgage File", or any of the assignments of
Security Agreement referred to in clause (vii) of
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54
the definition of "Mortgage File" are delivered to the Trustee in blank, the
Trustee shall (without being obligated to record or file such) be responsible
for completing the related endorsement or assignment in the name of the Trustee
(in such capacity).
(c) The Mortgage Loan Seller shall, as to each Mortgage Loan, at
its own expense, promptly (and in any event within 45 days of the Closing Date)
submit or 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, each assignment referred to in clauses (iii) and (v)
of the definition of "Mortgage File" and each UCC-2 and UCC-3, if any, referred
to in clause (xi)(B) of the definition of "Mortgage File". Each such assignment
shall reflect that it should be returned by the public recording office to the
Trustee following recording, and each such UCC-2 and UCC-3 shall reflect that
the file copy thereof should be returned to the Trustee following filing. At
such time as such assignments, UCC-2's and UCC-3's have been returned to the
Trustee, the Trustee shall promptly forward a copy of each thereof to the Master
Servicer. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Mortgage Loan
Seller shall promptly prepare or cause the preparation of a substitute therefor
or cure or cause the curing of such defect, as the case may be, and thereafter
the Mortgage Loan Seller shall, at its own expense, submit the substitute or
corrected documents or cause such to be submitted for recording or filing, as
appropriate.
(d) All documents and records in the Mortgage Loan Seller's
possession (or under its control) relating to the Mortgage Loans that are not
required to be a part of a Mortgage File in accordance with the definition
thereof, together with all Escrow Payments and Reserve Funds in the possession
of the Mortgage Loan Seller (or under its control) with respect to the Mortgage
Loans, shall be delivered by the Mortgage Loan Seller (or its agent) to the
Master Servicer, within 10 days of the Closing Date, and shall be retained by
the Master Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders.
(e) In accordance with that certain Mortgage Loan Purchase
Agreement, dated as of June 27, 1996, between the Sponsor and the Mortgage Loan
Seller, the Sponsor hereby directs the Mortgage Loan Seller to comply with the
foregoing subsections of this Section 2.01.
SECTION 2.02. Acceptance of REMIC I by Trustee .
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf, subject to the
provisions of Section 2.01 and the further review provided for in this Section
2.02, of, with respect to each Mortgage Loan, an original Mortgage Note endorsed
to the Trustee, an original or a copy of the Mortgage (with evidence of
recording thereon), and an original assignment of such Mortgage executed in
favor of the Trustee (in such capacity) and of all other assets included in
REMIC I, in good faith and without notice of any adverse claim, and declares
that it or a Custodian on its behalf holds and will hold the documents delivered
or caused to be delivered by the Mortgage Loan Seller
<PAGE>
55
in respect of the Mortgage Loans, and that it holds and will hold such other
assets included in REMIC I, in trust for the exclusive use and benefit of all
present and future Certificateholders.
(b) Within 60 days of the Closing Date (or, in the case of any
Mortgage Loan as to which a Servicing Transfer Event has occurred during such
60-day period of which event the Trustee has notice, within the shorter of 60
days of the Closing Date and five Business Days of the Trustee's receiving such
notice), the Trustee or a Custodian on its behalf shall review each of the
documents delivered or caused to be delivered by the Mortgage Loan Seller with
respect to each Mortgage Loan pursuant to Section 2.01(b); and, promptly
following such review, the Trustee shall certify in writing to each of the
Sponsor, Conti, the Master Servicer, the Special Servicer and the Mortgage Loan
Seller that as to each Mortgage Loan listed in the Mortgage Loan Schedule (other
than any Mortgage Loan paid in full), and except as specifically identified in
any exception report annexed to such certification, (i) all documents specified
in clauses (i) - (iii), (ix) and, if the Mortgage Loan Schedule specifies that
the related Mortgagor has a leasehold interest in the related Mortgaged
Property, (xiii) of the definition of "Mortgage File" are in its possession or
the possession of a Custodian on its behalf, or the Mortgage Loan Seller has
otherwise satisfied the delivery requirements in respect of such documents in
accordance with Section 2.01(b), (ii) all documents delivered or caused to be
delivered by the Mortgage Loan Seller constituting the related Mortgage File
have been reviewed by it or by a Custodian on its behalf and appear regular on
their face and relate to such Mortgage Loan, and (iii) based on such examination
and only as to the foregoing documents, the information set forth in the
Mortgage Loan Schedule with respect to the items specified in clauses (i), (ii),
(iv) and (vi)(B) of the definition of "Mortgage Loan Schedule" is correct.
(c) The Trustee or a Custodian on its behalf shall review each of
the documents relating to the Mortgage Loans received thereby subsequent to the
Closing Date; and, on or about the first anniversary of the Closing Date, the
Trustee shall certify in writing to each of the Sponsor, Conti, the Master
Servicer, the Special Servicer and the Mortgage Loan Seller that as to each
Mortgage Loan listed on the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or otherwise liquidated), and except as specifically identified in
any exception report annexed to such certification, (i) all documents specified
in clauses (i), (ii), (ix) and, if the Mortgage Loan Schedule specifies that the
related Mortgagor has a leasehold interest in the related Property, (xiii) of
the definition of "Mortgage File" are in its possession or the possession of a
Custodian on its behalf, or the Mortgage Loan Seller has otherwise satisfied the
delivery requirements in respect of such documents in accordance with Section
2.01(b), (ii) it or a Custodian on its behalf has received either the original
or copy of each of the assignments specified in clauses (iii) and (v) of the
definition of "Mortgage File", with evidence of recording thereon, (iii) all
documents received by it or any Custodian in respect of such Mortgage Loan have
been reviewed by it or by such Custodian on its behalf and appear regular on
their face and relate to such Mortgage Loan, and (iv) based on the examinations
referred to in subsection (b) above and this subsection (c) and only as to the
foregoing documents, the information set forth in the Mortgage Loan Schedule
with respect to the items specified in clauses (i), (ii), (iv) and (vi)(B) of
the definition of "Mortgage Loan Schedule", is correct.
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56
(d) It is herein acknowledged that, notwithstanding any other
provision hereof, neither the Trustee nor any Custodian is under any duty or
obligation (i) to determine whether any of the documents specified in clauses
(iv) - (viii), (x) - (xii) and (xiv) of the definition of "Mortgage File" exist
or are required to be delivered by the Mortgage Loan Seller in respect of any
Mortgage Loan or (ii) 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 genuine, enforceable, executed by
the appropriate person, in recordable form or appropriate for the represented
purpose, executed by the appropriate Person or that they are other than what
they purport to be on their face.
(e) If, in the process of reviewing the documents delivered or
caused to be delivered by the Mortgage Loan Seller pursuant to Section 2.01(b),
the Trustee or any Custodian discovers that any document required to have been
delivered pursuant to Section 2.01(b) has not been so delivered, or discovers
that any of the documents that were delivered has not been properly executed,
contains information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule, or is
defective on its face (each, including, without limitation, that a document is
missing, a "Document Defect"), or if, at any other time, the Trustee or any
other party hereto discovers a Document Defect in respect of any Mortgage Loan,
the party discovering such Document Defect shall promptly so notify each of the
other parties hereto. If and when notified of any error in the Mortgage Loan
Schedule, the Mortgage Loan Seller shall promptly correct such error and
distribute a new, corrected Mortgage Loan Schedule to each of the other parties
hereto. Such new, corrected Mortgage Loan Schedule shall be deemed to amend and
replace the existing Mortgage Loan Schedule.
SECTION 2.03. Mortgage Loan Seller's Repurchase of
Mortgage Loans for Document Defects and Certain Breaches of
Representations and Warranties .
(a) Within 120 days of the earlier of discovery or receipt of
notice by the Mortgage Loan Seller of a Document Defect in respect of any
Mortgage Loan or a breach of any representation or warranty set forth in Section
2.05(b), which Document Defect or breach, as the case may be, materially and
adversely affects the value of any Mortgage Loan or the interests of the
Certificateholders therein, the Mortgage Loan Seller shall cure such Document
Defect or breach, as the case may be, in all material respects or repurchase the
affected Mortgage Loan at the applicable Purchase Price by deposit of such
Purchase Price into the Certificate Account and delivery to the Trustee of a
written certification (upon which the Trustee may conclusively rely) that such
deposit has been made.
(b) Notwithstanding Section 2.03(a), within 90 days of the
earlier of discovery or receipt of notice by the Mortgage Loan Seller that any
Mortgage Loan does not constitute a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code, the Mortgage Loan Seller shall repurchase such
Mortgage Loan at the applicable Purchase Price by deposit of such
<PAGE>
57
Purchase Price into the Certificate Account and delivery to the Trustee of a
written certification that such deposit has been made.
(c) In connection with any repurchase of a Mortgage Loan
contemplated by this Section 2.03, the Trustee, the Master Servicer and the
Special Servicer shall each tender to the Mortgage Loan Seller, upon delivery to
each of the Trustee, the Master Servicer and the Special Servicer of a receipt
executed by the Mortgage Loan Seller, all portions of the Mortgage File and
other documents and funds 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 in the same manner. The form and sufficiency of all
such instruments and certificates shall be the responsibility of the Mortgage
Loan Seller.
(d) This Section 2.03 provides the sole remedies available to the
Certificateholders, or to the Trustee on behalf of the Certificateholders,
respecting any Document Defect or any breach of any representation or warranty
set forth in Section 2.05(b), or in the event any Mortgage Loan does not
constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code. If the Mortgage Loan Seller defaults on its obligations to repurchase
any Mortgage Loan in accordance with Section 2.03(a) or 2.03(b) or disputes its
obligation to repurchase any Mortgage Loan in accordance with either such
Section, the Trustee shall promptly notify the Certificateholders and, subject
to Sections 8.01 and 8.02 and its right to reimbursement pursuant to Section
8.05(b), shall take such action as may be appropriate to enforce such payment or
performance, including, without limitation, the institution and prosecution of
appropriate proceedings. If it is judicially determined or subsequently agreed
that the Mortgage Loan Seller is required to repurchase such Mortgage Loan under
Section 2.03(a) or 2.03(b), as applicable, the Mortgage Loan Seller shall
reimburse the Trustee for all necessary and reasonable costs and expenses
incurred in connection with such enforcement, and otherwise the Trustee's right
of reimbursement shall be limited to amounts on deposit in the Distribution
Account from time to time in accordance with Section 8.05(b) and to such other
sources of security and indemnity as shall have been offered to the Trustee by
the Certificateholders.
SECTION 2.04. Representations and Warranties of the
Sponsor .
(a) The Sponsor hereby represents and warrants to each of the
other parties to this Agreement and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Sponsor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Sponsor,
and the performance and compliance with the terms of this Agreement by
the Sponsor, will not violate the Sponsor'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
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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 Sponsor 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 Sponsor, enforceable against the Sponsor
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 Sponsor 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 Sponsor's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Sponsor to perform its obligations under this Agreement
or the financial condition of the Sponsor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer
or similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Sponsor's
knowledge, threatened against the Sponsor which would prohibit the
Sponsor from entering into this Agreement or, in the Sponsor's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Sponsor to perform its obligations
under this Agreement or the financial condition of the Sponsor.
(b) Upon discovery by any of the parties hereto of a breach of
any of the foregoing representations and warranties which materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice to each of
the other parties hereto.
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59
SECTION 2.05. Representations and Warranties of the
Mortgage Loan Seller.
(a) The Mortgage Loan Seller hereby represents and warrants
to the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Mortgage Loan Seller 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 Mortgage
Loan Seller, and the performance and compliance with the terms of this
Agreement by the Mortgage Loan Seller, will not violate the Mortgage
Loan Seller's charter and by-laws or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets.
(iii) The Mortgage Loan Seller 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 Mortgage Loan Seller, enforceable against
the Mortgage Loan Seller 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 Mortgage Loan Seller 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 Mortgage
Loan Seller's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Mortgage Loan Seller
to perform its obligations under this Agreement or the financial
condition of the Mortgage Loan Seller.
(vi) No litigation is pending or, to the best of the Mortgage Loan
Seller's knowledge, threatened against the Mortgage Loan Seller which
would prohibit the Mortgage Loan Seller from entering into this
Agreement or, in the Mortgage Loan Seller's good faith and reasonable
judgment, is likely to materially and adversely affect either the
ability of the Mortgage Loan Seller to perform its obligations under
this Agreement or the financial condition of the Mortgage Loan Seller.
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(b) With respect to each Mortgage Loan, the Mortgage Loan Seller
hereby represents and warrants to the other parties hereto and for the benefit
of the Certificateholders, as of the date hereinbelow specified or, if no such
date is specified, as of the Closing Date, that:
(i) Immediately prior to the transfer thereof to the Trustee, the
Mortgage Loan Seller had good and marketable title to, and was the sole
owner and holder of, such Mortgage Loan, free and clear of any and all
liens, encumbrances and other interests on, in or to such Mortgage Loan
(other than, in certain cases, the right of a subservicer to primary
service such Mortgage Loan).
(ii) The Mortgage Loan Seller has full right and authority to
sell, assign and transfer such Mortgage Loan.
(iii) The information pertaining to such Mortgage Loan set forth in
the Mortgage Loan Schedule was true and correct in all material respects
as of the Cut-off Date.
(iv) Such Mortgage Loan was not, as of the Cut-off Date, 30 days
or more delinquent in respect of any Monthly Payment of principal and/or
interest required thereunder, without giving effect to any applicable
grace period.
(v) The Mortgage for such Mortgage Loan constitutes a valid first
lien upon the related Mortgaged Property, including all buildings
located thereon and all fixtures attached thereto, subject only to (and
such Mortgaged Property is free and clear of all encumbrances and liens
having priority over the lien of such Mortgage, except for) (A) the lien
of current real property taxes and assessments not yet due and payable,
(B) covenants, conditions and restrictions, rights of way, easements and
other matters of public record, and (C) exceptions and exclusions
specifically referred to in the lender's title insurance policy issued
or, as evidenced by a "marked-up" commitment, to be issued in respect of
such Mortgage Loan (the exceptions set forth in the foregoing clauses
(A), (B) and (C) collectively, "Permitted Encumbrances").
(vi) The lien of the related Mortgage is insured by an ALTA
lender's title insurance policy, or its equivalent as adopted in the
applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of the related Mortgage Loan,
its successors and assigns, as to the first priority lien of the
Mortgage in the original principal amount of the related Mortgage Loan
after all advances of principal, subject only to Permitted Encumbrances
(or, if a title insurance policy has not yet been issued in respect of
any Mortgage Loan, a policy meeting the foregoing description is
evidenced by a commitment for title insurance "marked-up" at the closing
of such loan).
(vii) The Mortgage Loan Seller has not waived any material default,
breach, violation or event of acceleration existing under the related
Mortgage or Mortgage Note.
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(viii) There is no valid offset, defense or counterclaim to such
Mortgage Loan.
(ix) The Mortgage Loan Seller has not received actual notice (A)
that there is any proceeding pending or threatened for the total or
partial condemnation of the related Mortgaged Property or (B) that there
is any material damage at the related Mortgaged Property that materially
and adversely affects the value of such Mortgaged Property.
(x) At origination and as of the Closing Date, such Mortgage Loan
complied in all material respects with all requirements of federal,
state and local laws, including, without limitation, laws relating to
usury, relating to the origination of such Mortgage Loan.
(xi) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder.
(xii) The Mortgage Note and Mortgage for such Mortgage Loan and all
other documents and instruments evidencing, guaranteeing, insuring or
otherwise securing such Mortgage Loan have been duly and properly
executed by the parties thereto, and each is the legal, valid and
binding obligation of the maker thereof (subject to any non-recourse
provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency legislation), enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws
relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xiii) All insurance required under the Mortgage for such Mortgage
Loan is in full force and effect with respect to the related Mortgaged
Property.
(xiv) Since January 1, 1994, one or more environmental site
assessments (or an update of a previously conducted assessment) were
performed with respect to the related Mortgaged Property, and the
Mortgage Loan Seller, having made no independent inquiry other than
reviewing the resulting report(s) and/or employing an environmental
consultant to perform the assessment(s) referenced herein, has no
knowledge of any material and adverse environmental condition or
circumstance affecting such Mortgaged Property that was not disclosed in
the related report(s). Insofar as they relate to such Mortgaged
Property, the statements set forth in the Prospectus Supplement in the
first paragraph under the heading "Description of the Mortgage
Pool--Certain Underwriting Matters--Environmental Assessments" are true
and correct.
(xv) Such Mortgage Loan is not cross-collateralized with a
mortgage loan outside the Mortgage Pool.
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(xvi) The terms of the Mortgage and the Mortgage Note for such
Mortgage Loan have not been impaired, waived, altered or modified in any
material respect, except as specifically set forth in the related
Mortgage File.
(xvii) There are no delinquent taxes, ground rents, water charges,
sewer rents, insurance premiums, assessments, including assessments
payable in future installments, or other similar outstanding charges
affecting the related Mortgaged Property.
(xviii) Except in the case of four Mortgage Loans as to which the
interest of the related Mortgagor in the related Mortgaged Property is a
leasehold estate, the interest of the related Mortgagor in each related
Mortgaged Property consists of a fee simple estate in real property.
(xix) Such Mortgage Loan is a whole loan and not a
participation interest.
(xx) The assignment of the related Mortgage to the Trustee
constitutes the legal, valid and binding assignment of such Mortgage
from the relevant assignor to the Trustee, and the assignment of the
related Assignment of Leases, if any, or of any other agreement executed
in connection with such Mortgage Loan to the Trustee constitutes the
legal, valid and binding assignment thereof from the relevant assignor
to the Trustee.
(xxi) All escrow deposits (including capital improvements and
environmental remediation reserves) relating to such Mortgage Loan that
were required to be delivered to the mortgagee under the terms of the
related loan documents, have been received and, to the extent of any
remaining balances thereof are in the possession, or under the control,
of the Mortgage Loan Seller or its agents (which shall include the
Master Servicer).
(xxii) As of the date of origination of such Mortgage Loan and as of
the Closing Date, the related Mortgaged Property was and is free and
clear of any mechanics' and materialmen's liens or liens in the nature
thereof which create a lien prior to that created by the related
Mortgage.
(xxiii) No improvement that was included for the purpose of
determining the appraised value of the related Mortgaged Property at the
time of origination of such Mortgage Loan lies outside the boundaries
and building restriction lines of such property to any material extent,
and no improvements on adjoining properties materially encroach upon
such Mortgaged Property to any material extent, and no improvement
located on or forming part of such Mortgaged Property is in material
violation of any applicable zoning laws or ordinances (except to the
extent that they may constitute legal non-conforming uses).
(xxiv) To the extent required under applicable law as of the Closing
Date, the originator of such Mortgage Loan was authorized to do business
in the jurisdiction
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in which the related Mortgaged Property is located at all times when it
held the Mortgage Loan.
(xxv) There is no material default, breach or event of acceleration
existing under the related Mortgage or Mortgage Note, and the Mortgage
Loan Seller has not received actual notice of any event (other than
payments due but not yet delinquent) that, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute such a material default, breach or event of acceleration;
provided, however, that this representation and warranty does not cover
any default, breach or event of acceleration that specifically pertains
to any matter otherwise covered by any other representation and warranty
made by the Seller in any of paragraphs (iv), (xiv), (xvii), (xxi),
(xxiii) and (xxxi) of this Section 2.05(b).
(xxvi) If the Mortgage Loan is an ARM Loan, all of the terms of the
related Mortgage Note pertaining to interest rate adjustments, payment
adjustments and adjustments of the principal balance are enforceable,
such adjustments will not affect the priority of the mortgage lien, and
all such adjustments and all calculations made before the Cut-off Date
were made correctly and in full compliance with the terms of the related
Mortgage and Mortgage Note.
(xxvii) If the Mortgage Loan is secured in whole or in part by the
interest of a Mortgagor under a Ground Lease and by the related fee
interest, such fee interest is subordinate to the related Mortgage and
the related Mortgage does not by its terms provide that it will be
subordinated to the lien of any mortgage or any other lien upon such fee
interest.
(xxviii) The Mortgage Loan does not contain any equity participation
by the lender or provide for any contingent or additional interest in
the form of participation in the cash flow of the related Mortgaged
Property.
(xxix) The Permitted Encumbrances referred to above do not
materially interfere with the security intended to be provided by the
related Mortgage, the current use of the related Mortgaged Property, or
the ability of such Mortgaged Property to generate net operating income
sufficient to service the Mortgage Loan.
(xxx) No holder of the Mortgage Loan has, to the Mortgage Loan
Seller's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the
related Mortgaged Property, directly or indirectly, for the payment of
any amount required by the Mortgage Loan.
(xxxi) To the Mortgage Loan Seller's knowledge, based on due
diligence customarily performed in the origination of comparable
mortgage loans, as of the date of origination of the Mortgage Loan, (A)
the related Mortgagor was in possession of all material licenses,
permits and authorizations required by applicable laws for the
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ownership and operation of the related Mortgaged Property as it was
then operated and (B) all such licenses, permits and authorizations
were valid and in full force and effect.
(xxxii) The servicing and collection practices used with respect to
the Mortgage Loan have been in all material respects legal and prudent
and have met customary standards utilized by prudent institutional
multifamily and commercial mortgage loan servicers.
(xxxiii) The related Mortgage or Mortgage Note, together with
applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in clause (v)) such as to render
the rights and remedies of the holders thereof adequate for the
practical realization against the related Mortgaged Property of the
principal benefits of the security intended to be provided thereby.
(xxxiv) Such Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code.
(xxxv) If such Mortgage Loan is one of four Mortgage Loans that are
secured by mortgage liens on the applicable Mortgagor's leasehold
interest in the related Mortgaged Property, then either (A) the related
ground lessor has subordinated its interest in the related Mortgaged
Property to the interest of the holder of the Mortgage Loan (in three
such cases) or (B) the related ground lessor has granted the holder of
the Mortgage Loan the right to cure any default or breach by the lessee
(the fourth such case).
(c) It is understood and agreed that the representations and
warranties set forth in this Section 2.05 shall survive delivery of the
respective Mortgage Files to the Trustee or a Custodian on its behalf and shall
inure to the benefit of the Certificateholders notwithstanding any restrictive
or qualified endorsement or assignment. Upon discovery by any of the parties
hereto of a breach of any of the representations and warranties set forth in
subsection (a) above which materially and adversely affects the interests of the
Certificateholders or any party hereto or a breach of any of the representations
and warranties set forth in subsection (b) above which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt written
notice to each of the other parties hereto.
SECTION 2.06. Representations and Warranties of the Master Servicer .
(a) The Master Servicer hereby represents and warrants to the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of California
and the Master Servicer
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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
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 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 Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit the Master Servicer from entering into this Agreement or, in
the Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Master
Servicer to perform its obligations under this Agreement or the
financial condition of the Master Servicer.
(vii) Each officer, director, employee, consultant or advisor of
the Master Servicer that has responsibilities concerning the servicing
and administration of the Mortgage Loans is or, within 15 days of the
Closing Date, will be covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c). Neither the
Master Servicer nor any of its officers, directors, employees,
consultants or
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advisors that is involved in the servicing or administration
of the Mortgage Loans has been refused such coverage or insurance.
(b) Upon discovery by any of the parties hereto of a breach of
any of the foregoing representations and warranties which materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice to each of
the other parties hereto.
(c) Any successor Master Servicer shall be deemed to have made,
as of the date of its succession, each of the representations set forth in
Section 2.06(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.07. Representations and Warranties of the Special Servicer .
(a) The Special Servicer hereby represents and warrants to the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Special Servicer is a general partnership duly organized,
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 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 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.
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(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Special
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Special Servicer to
perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which
would prohibit the Special Servicer from entering into this Agreement
or, in the Special Servicer's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the
Special Servicer to perform its obligations under this Agreement or the
financial condition of the Special Servicer.
(vii) Each officer, director or employee of the Special Servicer
that has or, following the occurrence of a Servicing Transfer Event,
would have responsibilities concerning the servicing and administration
of the Mortgage Loans is or, within 15 days of the Closing Date, will be
covered by errors and omissions insurance in the amounts and with the
coverage required by Section 3.07(c). Neither the Special Servicer nor
any of its officers, directors, employees that is or, following the
occurrence of a Servicing Transfer Event, would be involved in the
servicing or administration of the Mortgage Loans has been refused such
coverage or insurance.
(b) Upon discovery by any of the parties hereto of a breach of
any of the foregoing representations and warranties which materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice to each of
the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made,
as of the date of its succession, each of the representations set forth in
Section 2.07(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.07(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.08. Representations and Warranties of the Trustee and the REMIC
Administrator.
(a) State Street Bank and Trust Company ("State Street"), both in
its capacity as Trustee and in its capacity as REMIC Administrator, hereby
represents and warrants to the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
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(i) State Street is a trust company duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts.
(ii) The execution and delivery of this Agreement by State
Street, and the performance and compliance with the terms of this
Agreement by State Street, do not violate State Street'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
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) State Street 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 State Street, enforceable against State Street
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) State Street 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 State Street's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of State Street to perform its obligations under this Agreement
or the financial condition of State Street.
(vi) No litigation is pending or, to the best of State Street's
knowledge, threatened against State Street which would prohibit State
Street from entering into this Agreement or, in State Street's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of State Street to perform its obligations
under this Agreement or the financial condition of State Street.
(b) Upon discovery by any of the parties hereto of a breach of
any of the foregoing representations and warranties which materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice to each of
the other parties hereto.
(c) Any successor Trustee or REMIC Administrator shall be deemed
to have made, as of the date of its succession, each of the representations set
forth in Section 2.08(a),
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subject to such appropriate modifications to the representation and warranty set
forth in Section 2.08(a)(i) to accurately reflect such successor's jurisdiction
of organization and whether it is a corporation, partnership, bank, association
or other type of organization. In any such case, the term "State Street" shall
be deemed to mean Trustee or REMIC Administrator, as appropriate.
SECTION 2.09. Issuance of Class R-I Certificates; Creation of REMIC I Regular
Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC I, and in exchange therefor, at the direction of the Sponsor,
the REMIC I Regular Interests have been issued hereunder and the Trustee has
executed, authenticated and delivered to or upon the order of the Sponsor, 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 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 of the Class R-I
Certificateholders and REMIC II in and to such distributions, shall be as set
forth in this Agreement.
SECTION 2.10. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee.
The Sponsor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Sponsor in and to the REMIC I Regular Interests
to the Trustee for the benefit of the REMIC II Certificateholders. The Trustee
acknowledges the assignment to it of the REMIC I Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of all present and future REMIC II Certificateholders.
SECTION 2.11. Issuance of REMIC II Certificates .
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests, and in exchange therefor, at the direction of the Sponsor,
the Trustee has executed, authenticated and delivered to or upon the order of
the Sponsor, the REMIC II Certificates in authorized denominations evidencing
the entire beneficial ownership of REMIC II. The rights of the respective
Classes of REMIC II Certificateholders to receive distributions from the
proceeds of REMIC II in respect of their REMIC II Certificates, and all
ownership interests of the respective Classes of REMIC II Certificateholders in
and to such distributions, shall be as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans .
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans that it is obligated to service and
administer pursuant to this Agreement on behalf of the Trustee, and in the best
interests and for the benefit of the Certificateholders, in accordance with any
and all applicable laws and the terms of this Agreement, the Insurance Policies
and 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 as to which no Servicing Transfer Event has
occurred and all Corrected Mortgage Loans, and (ii) the Special Servicer shall
service and administer (x) each Mortgage Loan (other than a Corrected Mortgage
Loan) as to which a Servicing Transfer Event has occurred, and (y) each REO
Property; provided, however, that the Master Servicer shall continue to collect
information and prepare all reports to the Trustee required hereunder with
respect to any Specially Serviced Mortgage Loans and REO Properties (and the
related REO Loans), and further to render such incidental services with respect
to any Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein.
(b) Subject to Section 3.01(a), the Master Servicer and the
Special Servicer each shall have full power and authority, acting alone, to do
or cause to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, each of the Master Servicer and the Special
Servicer, in its own name, with respect to each of the Mortgage Loans it is
obligated to service hereunder, is hereby authorized and empowered by the
Trustee to execute and deliver, on behalf of the Certificateholders and the
Trustee or any of them: (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; (ii) in accordance
with the Servicing Standard and subject to Sections 3.08 and 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 a Servicing Officer of the Master
Servicer or the Special Servicer, furnish, or cause to be so furnished, to the
Master Servicer and the Special Servicer, as the case may be, any limited powers
of attorney and other documents necessary or appropriate to enable them to carry
out their servicing and administrative duties hereunder; provided, however, that
the Trustee shall not be held liable for any misuse of any such power of
attorney by the Master Servicer or the Special Servicer.
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(c) The relationship of each of the Master Servicer and 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 venturer, partner or
agent.
(d) In the event that any two or more Mortgage Loans are
cross-collateralized with each other, the Master Servicer or Special Servicer,
as applicable, in accordance with the terms of this Agreement, shall service and
administer such Mortgage Loans as a single Mortgage Loan as and when it deems
necessary and appropriate, consistent with the Servicing Standard. If any
Cross-Collateralized Mortgage Loan becomes a Specially Serviced Mortgage Loan,
then each other Mortgage Loan that is cross-collateralized with it shall also
become a Specially Serviced Mortgage Loan. Similarly, no Cross-Collateralized
Mortgage Loan shall subsequently become a Corrected Mortgage Loan, unless and
until all Servicing Transfer Events in respect of each other Mortgage Loan that
is cross-collateralized with it, are remediated or otherwise addressed as
contemplated in the definition of "Specially Serviced Mortgage Loan".
SECTION 3.02. Collection of Mortgage Loan Payments .
Each of the Master Servicer and the Special Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans it is obligated to service hereunder, and
shall, to the extent such procedures shall be consistent with this Agreement
(including without limitation, the Servicing Standard), follow such collection
procedures as it would follow were it the owner of such Mortgage Loans;
provided, however, that nothing herein contained shall be construed as an
express or implied guarantee by the Master Servicer or the Special Servicer of
the collectability of the Mortgage Loans. Consistent with the foregoing, the
Master Servicer or the Special Servicer each may waive any Default Interest or
late payment charge in connection with any specific delinquent payment on a
Mortgage Loan it is obligated to service hereunder.
Ninety (90) days prior to the maturity date of each Balloon
Mortgage Loan, the Master Servicer shall send a notice to the related Mortgagor
of such maturity date (with a copy to be sent to the Special Servicer) and shall
request confirmation that the Balloon Payment will be paid by such date.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts .
(a) Each of the Master Servicer and the Special Servicer shall,
as to those Mortgage Loans it is obligated to service hereunder, establish and
maintain one or more accounts (the "Servicing Accounts"), into which all Escrow
Payments shall be deposited and retained. Subject to any terms of the related
Mortgage Loan documents that specify the nature of the account in which Escrow
Payments shall be held, each Servicing Account shall be an Eligible Account.
Withdrawals of amounts so collected in respect of any Mortgage Loan (and
interest earned thereon) from a Servicing Account may be made only: (i) to
effect payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and comparable items
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in respect of the related Mortgaged Property; (ii) to reimburse the Master
Servicer, the Special Servicer or the Trustee, as applicable, for any
unreimbursed Servicing Advances made thereby to cover any of the items described
in the immediately preceding clause (i); (iii) to refund to the related
Mortgagor any sums as may be determined to be overages; (iv) to pay interest, if
required and as described below, to the related Mortgagor on balances in the
Servicing Account (or, if and to the extent not payable to the related
Mortgagor, to pay such interest to the Master Servicer); or (v) to clear and
terminate the Servicing Account at the termination of this Agreement in
accordance with Section 9.01. The Master Servicer and Special Servicer shall
each pay or cause to be paid to the Mortgagors interest, if any, earned on the
investment of funds in Servicing Accounts maintained thereby, if required by law
or the terms of the related Mortgage Loan. If the Master Servicer or Special
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.
(b) Each of the Master Servicer and the Special Servicer shall,
as to those Mortgage Loans it is obligated to service hereunder, (i) maintain
accurate records with respect to the related Mortgaged Property reflecting the
status of real estate taxes, assessments and other similar items that are or may
become a lien thereon and the status of insurance premiums and any ground rents
payable in respect thereof and (ii) use reasonable efforts to obtain, from time
to time, all bills for the payment of such items (including renewal premiums)
and shall effect payment thereof prior to the applicable penalty or termination
date. For purposes of effecting any such payment for which it is responsible,
the Master Servicer or the Special Servicer, as the case may be, shall apply
Escrow Payments as allowed under the terms of the related Mortgage Loan or, if
such Mortgage Loan does not require the related Mortgagor to escrow for the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, each of the Master Servicer and the Special
Servicer shall, as to those Mortgage Loans it is obligated to service hereunder
and subject to the Servicing Standard, enforce the requirement of the related
Mortgage that the Mortgagor make payments in respect of such items at the time
they first become due.
(c) In accordance with the Servicing Standard, each of the Master
Servicer and the Special Servicer shall, as to those Mortgage Loans it is
obligated to service hereunder, advance with respect to the related Mortgaged
Property, all such funds as are necessary for the purpose of effecting the
payment of (i) real estate taxes, assessments and other similar items, (ii)
ground rents (if applicable), and (iii) premiums on Insurance Policies, in each
instance if and to the extent Escrow Payments (if any) collected from the
related Mortgagor are insufficient to pay such item when due and the related
Mortgagor has failed to pay such item on a timely basis, and provided that the
particular advance would not, if made, constitute a Nonrecoverable Servicing
Advance. All such advances shall be reimbursable in the first instance from
related collections from the Mortgagors and further as provided in Section
3.05(a). No costs incurred by the Master Servicer or the Special Servicer in
effecting the payment of real estate taxes, assessments and similar items and,
if applicable, ground rents on or in respect of such Mortgaged Properties shall,
for purposes hereof, including, without limitation, calculating
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monthly distributions to Certificateholders, be added to the unpaid principal
balances of the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit.
(d) Each of the Master Servicer and the Special Servicer shall,
as to those Mortgage Loans it is obligated to service hereunder, establish and
maintain, as applicable, one or more accounts (the "Reserve Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained. Withdrawals of
amounts so deposited may be made to pay for, or to reimburse the related
Mortgagor in connection with, the related repairs, environmental remediation,
replacements and/or capital improvements at the related Mortgaged Property if
such repairs, environmental remediation, replacements and/or capital
improvements have been completed, and such withdrawals are made, in accordance
with the Servicing Standard and the terms of the related Mortgage Note, Mortgage
and any agreement with the related Mortgagor governing such Reserve Funds.
Subject to the terms of the related Mortgage Note and Mortgage, all Reserve
Accounts shall be Eligible Accounts.
SECTION 3.04. Certificate Account and Distribution Account .
(a) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Certificate Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Certificate
Account shall be an Eligible Account. The Master Servicer shall deposit or cause
to be deposited in the Certificate Account, within one Business Day of receipt
(in the case of payments by Mortgagors or other collections on or in respect of
the Mortgage Loans) or as otherwise required hereunder, the following payments
and collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal, interest and any other amounts due and
payable on the Mortgage Loans on or before the Cut-off Date, which payments
shall be delivered promptly to the Mortgage Loan Seller or its designee, with
negotiable instruments endorsed as necessary and appropriate without recourse):
(i) all payments on account of principal, including
Principal Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (including, without
limitation, Default Interest) on the Mortgage Loans and all
Prepayment Premiums;
(iii) all Insurance Proceeds and Liquidation Proceeds (net of all
related Liquidation Expenses paid therefrom) received in respect of any
Mortgage Loan (other than Liquidation Proceeds that are received in
connection with a purchase by the Master Servicer or a Majority
Certificateholder of the Controlling Class of all of the Mortgage Loans
and any REO Properties in the Trust Fund and are required to be
deposited in the Distribution Account pursuant to Section 9.01);
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(iv) 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;
(v) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.07(b) in connection with
losses resulting from a deductible clause in a blanket hazard policy;
and
(vi) any amounts required to be transferred from the REO
Account pursuant to Section 3.16(c).
The foregoing requirements for deposit in the Certificate Account
shall be exclusive. Without limiting the generality of the foregoing, actual
payments from Mortgagors in the nature of Escrow Payments, and amounts that the
Master Servicer and the Special Servicer are entitled to retain as additional
servicing compensation pursuant to Section 3.11(b) and Section 3.11(d),
respectively, need not be deposited by the Master Servicer in the Certificate
Account. If the Master Servicer shall deposit in the Certificate Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Certificate Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer as additional servicing compensation in accordance with Section
3.11(d), assumption fees, modification fees, late payment charges and other
transaction fees received by the Master Servicer with respect to Specially
Serviced Mortgage Loans. 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 serviced and the other accounts of the
Master Servicer.
Upon receipt of any of the amounts described in clauses (i)
through (iii) above with respect to any Mortgage Loan, the Special Servicer
shall promptly, but in no event later than two Business Days 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 two 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 Trustee 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. On each Master
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Servicer Remittance Date, the Master Servicer shall deliver to the Trustee, for
deposit in the Distribution Account, an aggregate amount of immediately
available funds equal to the Master Servicer Remittance Amount for such Master
Servicer Remittance Date. If, at 3:00 p.m., New York City time, on any Master
Servicer Remittance Date, the Trustee has not received the Master Servicer
Remittance Amount, the Trustee shall provide notice to the Master Servicer in
the same manner as required by Section 4.03(a) hereof with respect to P&I
Advances.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit in the Distribution Account:
(i) 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;
(ii) any P&I Advances required to be made by the Master
Servicer in accordance with Section 4.03(a);
(iii) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.19(f) in connection with Balloon
Payment Interest Shortfalls or pursuant to Section 3.19(g) in
connection with Prepayment Interest Shortfalls; and
(iv) any Liquidation Proceeds paid by the Master
Servicer or a Majority Certificateholder of the Controlling Class
in connection with the purchase of all of the Mortgage Loans and
any REO Properties pursuant to Section 9.01, exclusive of the
portion of such Liquidation Proceeds required to be deposited in
the Certificate Account pursuant to Section 9.01.
The Trustee shall, upon receipt, deposit in the Distribution
Account any and all amounts received or advanced by the Trustee that are
required by the terms of this Agreement to be deposited therein.
(c) Funds in the Certificate Account and the Distribution Account
may be invested in Permitted Investments in accordance with the provisions of
Section 3.06. The Master Servicer shall give notice to the other parties hereto
of the location of the Certificate Account as of the Closing Date and of the new
location of the Certificate Account prior to any change thereof. The Trustee
shall give notice to the other parties hereto of the location of the
Distribution Account as of the Closing Date and of the new location of the
Distribution Account prior to any change thereof.
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SECTION 3.05. Permitted Withdrawals From the Certificate Account and the
Distribution Account .
(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the
Distribution Account the Master Servicer Remittance Amount for
each Master Servicer Remittance Date;
(ii) to reimburse itself or the Trustee, as applicable,
for unreimbursed P&I Advances made thereby, the Master Servicer's
and the Trustee's, as the case may be, respective rights to
reimbursement pursuant to this clause (ii) with respect to any
P&I Advance being limited to amounts that represent Late
Collections of interest and principal (net of related Master
Servicing Fees, Workout Fees and/or Liquidation Fees payable
therefrom) received in respect of the particular Mortgage Loan or
REO Loan as to which such P&I Advance was made;
(iii) to pay to itself earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Loan, the
Master Servicer's right to payment pursuant to this clause (iii)
with respect to any Mortgage Loan or REO Loan being limited to
amounts received on or in respect of such Mortgage Loan (whether
in the form of payments, Liquidation Proceeds or Insurance
Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) that are allocable as
a recovery of interest thereon;
(iv) to pay to the Special Servicer earned and unpaid
Special Servicing Fees in respect of each Specially Serviced
Mortgage Loan and REO Loan;
(v) to pay to the Special Servicer earned and unpaid
Workout Fees and Liquidation Fees to which it is entitled
pursuant to, and from the sources contemplated by, the third and
fourth paragraphs of Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the
Trustee, as applicable, for any unreimbursed Servicing Advances
made thereby, the Master Servicer's, the Special Servicer's and
the Trustee's respective rights to reimbursement pursuant to this
clause (vi) with respect to any Servicing Advance being limited
to (A) payments made by the related Mortgagor that are allocable
to cover the item in respect of which such Servicing Advance was
made, and (B) Liquidation Proceeds (net of Liquidation Fees
payable therefrom), Insurance Proceeds and, if applicable, REO
Revenues received in respect of the particular Mortgage Loan or
REO Property as to which such Servicing Advance was made;
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(vii) to reimburse itself, the Special Servicer or the
Trustee, as applicable, for any unreimbursed Advances made
thereby that have been or are determined to be Nonrecoverable
Advances;
(viii) to pay itself, the Special Servicer or the
Trustee, as applicable, any Advance Interest due and owing
thereto, the Master Servicer's, the Special Servicer's and the
Trustee's respective rights to payment pursuant to this clause
(viii) being limited to Default Interest collected in respect of
the Mortgage Loan or REO Loan as to which the related Advances
were made;
(ix) at or following such time as it reimburses itself,
the Special Servicer or the Trustee, as applicable, for any
unreimbursed Advance pursuant to clause (ii), (vi) or (vii) above
or Section 3.03, and insofar as payment has not already been made
pursuant to clause (viii) above, to pay itself, the Special
Servicer or the Trustee, as the case may be, any related Advance
Interest accrued and payable thereon;
(x) to pay itself, as additional servicing compensation
in accordance with Sections 3.06(b) and 3.11(b), any Net
Investment Earnings in respect of amounts held in the Certificate
Account for any Collection Period;
(xi) to pay itself, as additional servicing compensation
in accordance with Section 3.11(b), any Prepayment Interest
Excesses, Balloon Payment Interest Excesses and, to the extent
allocable to the period (not to exceed 60 days) when the related
Mortgage Loan did not constitute a Specially Serviced Mortgage
Loan or REO Property, any Net Default Interest collected on the
Mortgage Loans;
(xii) to pay the Special Servicer, as additional
servicing compensation in accordance with Section 3.11(d), any
Net Default Interest collected on the Mortgage Loans and not
otherwise payable as additional servicing compensation to the
Master Servicer;
(xiii)to reimburse itself, the Special Servicer, the
REMIC Administrator, the Sponsor, or any of their respective
directors, officers, employees and agents any amounts
reimbursable to any such Person pursuant to Section 6.03, or to
pay directly to any third party any amount which if paid by any
such Person will be reimbursable thereto pursuant to Section
6.03;
(xiv) to pay for (A) the reasonable costs of the advice
of counsel contemplated by Section 3.17(a), (B) the reasonable
costs of the Opinions of Counsel contemplated by Sections
3.09(b)(ii), 3.16(a) and 11.02(a), (C) the reasonable costs of
obtaining any REO Extension sought by the Special Servicer as
contemplated by Section 3.16(a), and (D) the cost of recording
this Agreement in accordance with Section 11.02(a);
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(xv) to pay itself, the Special Servicer, the Majority
Certificateholder of the Controlling Class 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;
and
(xvi) to clear and terminate the Certificate Account at
the termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from the Certificate Account pursuant to clauses
(ii) through (xv) above.
The Master Servicer shall pay to the Special Servicer (or to
third party contractors at the direction of the Special Servicer) from the
Certificate Account amounts permitted to be paid to it (or to such third party
contractors) therefrom promptly upon receipt of a certificate of a Servicing
Officer of the Special Servicer describing the item and amount to which the
Special Servicer (or such third party contractors) is entitled. The Master
Servicer may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Property, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for withdrawal from the Certificate Account.
(b) The Trustee may, from time to time, make withdrawals from the
Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders on
each Distribution Date pursuant to Section 4.01;
(ii) to pay itself or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05;
(iii) to pay the Master Servicer, as additional
servicing compensation in accordance with Sections 3.06(b) and
3.11(b), any Net Investment Earnings in respect of amounts held
in the Distribution Account for any Collection Period;
(iv) to pay for the reasonable costs of the Opinions of
Counsel sought by the Trustee 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 (A) pay any and all federal, state and local
taxes imposed on REMIC I or REMIC II or on the assets or
transactions of either such REMIC,
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together with all incidental
costs and expenses, and any and all reasonable expenses relating
to tax audits, if and to the extent that either (1) none of it,
the Master Servicer, the Special Servicer or the REMIC
Administrator is liable therefor pursuant to Section 10.01(d)
and/or Section 10.01(h) or (2) any such Person that may be so
liable has failed to timely make the required payment, and (B)
reimburse the REMIC Administrator for reasonable expenses
incurred by and reimbursable to it by the Trust Fund pursuant to
Section 10.01(d) and/or Section 10.01(g); and
(vi) to clear and terminate the Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
SECTION 3.06. Investment of Funds in the
Certificate Account, the Distribution
Account and the REO Account .
(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account and (through the Trustee) any depository
institution maintaining the Distribution Account, and the Special Servicer may
direct any depository institution maintaining the REO Account, to invest, or if
it is such depository institution, may itself invest, the funds held therein
(each such account, for purposes of this Section 3.06, an "Investment Account")
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, in which case
such investments may be sold at any time. Any investment of funds in an
Investment Account shall be made in the name of the Trustee (in its capacity as
such). The Master Servicer (with respect to Permitted Investments of amounts in
the Certificate Account) and the 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. The Trustee shall maintain possession of each such Permitted
Investment of amounts in the Distribution Account or, if possession is not
possible, shall maintain ownership in the name of the Trustee. Possession of any
such Permitted Investment by the Master Servicer or the Special Servicer shall
constitute possession by a person designated by the Trustee for purposes of
Section 8-313 of the UCC and possession by the Trustee, as secured party, for
purposes of Section 9-305 of the UCC and any other applicable law. If amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Master Servicer (in the case of the
Certificate Account), the Trustee (in the case of the Distribution Account) or
the Special Servicer (in the case of the REO Account) shall:
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(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day
such Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder
promptly upon determination by the Master Servicer or the Special
Servicer, as the case may be, that such Permitted Investment
would not constitute a Permitted Investment in respect of funds
thereafter on deposit in the Investment Account.
(b) Whether or not the Master Servicer directs the investment of
funds in either of the Certificate Account or the Distribution Account, interest
and investment income realized on funds deposited therein, to the extent of the
Net Investment Earnings, if any, for each such Investment Account for each
Collection Period, shall be for the sole and exclusive benefit of the Master
Servicer and shall be subject to its withdrawal in accordance with Section
3.05(a) or withdrawal by the Trustee at its direction in accordance with Section
3.05(b), as applicable. Whether or not the Special Servicer directs the
investment of funds in the REO Account, interest and investment income realized
on funds deposited therein, to the extent of the Net Investment Earnings, if
any, for such Investment Account for each Collection Period, shall be for the
sole and exclusive benefit of the Special Servicer and shall be subject to its
withdrawal in accordance with Section 3.16(b). If any loss shall be incurred in
respect of any Permitted Investment on deposit in any Investment Account, the
Master Servicer (in the case of the Certificate Account and the Distribution
Account) and the Special Servicer (in the case of the REO Account) shall
promptly deposit therein from its own funds, without right of reimbursement, no
later than the end of the Collection Period during which such loss was incurred,
the amount of the Net Investment Loss, if any, for such Collection Period. The
Trustee shall have no liability whatsoever with respect to any such losses,
except to the extent that it is the obligor on any such Permitted Investment.
(c) Except as otherwise expressly provided in this Agreement, if
any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, the Trustee may and, subject to Section 8.02, upon the
request of Holders of Certificates entitled to not less than 25% of the Voting
Rights allocated to any Class, shall take such action as may be appropriate to
enforce such payment or performance, including, without limitation, 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 and the
Master Servicer Remittance Amount, the amounts so invested (but not any interest
earned thereon) shall be deemed to remain on deposit in such Investment Account.
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SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage .
(a) Each of the Master Servicer and the Special Servicer shall,
as to those Mortgage Loans it is obligated to service hereunder, cause to be
maintained for each such Mortgage Loan all insurance coverage as is required
under the related Mortgage (subject to applicable law); provided that if any
Mortgage permits the holder thereof to dictate to the Mortgagor the insurance
coverage to be maintained on such Mortgaged Property, the Special Servicer or
the Master Servicer, as appropriate, shall impose such insurance requirements as
are consistent with the Servicing Standard. The Special Servicer shall also
cause to be maintained for each REO Property, in each case with an insurer
having a claims-paying rating at the time such policy is purchased of "A" or
better from Standard & Poor's and, if rated thereby, "AA" or better from Fitch
(or, if not rated by Fitch, "A" or better from Standard & Poor's and "A:IX" or
better from A.M. Best), no less insurance coverage than was previously required
of the Mortgagor under the related Mortgage and, if the related Mortgage did not
so require, hazard insurance, public liability insurance and business
interruption or rent loss insurance in such amounts as are consistent with the
Servicing Standard, and the Special Servicer shall be reimbursed for the premium
costs thereof as a Servicing Advance pursuant to and to the extent permitted
under Section 3.05(a). All such insurance policies shall contain a "standard"
mortgagee clause, with loss payable to the Master Servicer (in the case of
insurance maintained in respect of the Mortgaged Properties) or the Special
Servicer (in the case of insurance maintained in respect of REO Properties) on
behalf of the Trustee, shall be issued by an insurer authorized under applicable
law to issue such insurance, and, unless prohibited by the related Mortgage, may
contain a deductible clause (not in excess of a customary amount). Any amounts
collected by the Master Servicer or 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 in accordance with the Servicing Standard) shall be
deposited in the Certificate Account, subject to withdrawal pursuant to Section
3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in
the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case
of amounts received in respect of an REO Property. Any cost incurred by the
Master Servicer or the Special Servicer, as applicable, 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 a blanket policy insuring against hazard losses on any or all of
the Mortgaged Properties and/or REO Properties it is required to service and
administer hereunder, then, to the extent such policy (i) is obtained from a
Qualified Insurer having a claims-paying rating, at the time such policy is
purchased, of "A" or better from Standard & Poor's and, if rated thereby, "AA"
or better from Fitch (or, if not rated by Fitch, "A" by Standard & Poor's and
"A:IX" or better from A.M. Best), and (ii) provides protection equivalent to the
individual policies otherwise required, the Master Servicer or the Special
Servicer, as the case may be, shall conclusively be deemed
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to have satisfied its obligation to cause hazard insurance to be maintained on
the related Mortgaged Properties, and the premium costs thereof shall be, if and
to the extent they are specifically attributable to a specific Mortgaged
Property during any period that the related Mortgagor has failed to maintain the
hazard insurance required under the related Mortgage Loan in respect of such
Mortgaged Property, a Servicing Advance reimbursable pursuant to and to the
extent permitted under Section 3.05(a); provided that, to the extent that such
premium costs are attributable to properties other than Mortgaged Properties
and/or REO Properties or are attributable to Mortgaged Properties as to which
the hazard insurance required under the related Mortgage Loan is being
maintained, they shall be borne by the Master Servicer or Special Servicer, as
the case may be, without right of reimbursement. Such a 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 which would have been covered by
such property specific policy (taking into account any deductible clause that
would have been permitted therein), promptly deposit into the Certificate
Account from its own funds the amount of such losses up to the difference
between the amount of the deductible clause in such blanket policy and the
amount of any deductible clause that would have been permitted under such
property specific policy. The Master Servicer and the Special Servicer each
agree to prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims under any such blanket policy maintained by it in a
timely fashion in accordance with the terms of such policy.
(c) The Master Servicer shall at all times during the term of
this Agreement keep in force with recognized insurers having a claims-paying
rating of "A" or better from Standard & Poor's and, if rated thereby, "AA" or
better from Fitch (or, if not rated by Fitch, "A" by Standard & Poor's and
"A:IX" or better from A.M. Best), a fidelity bond in such form and amount as
would permit it to be a qualified FNMA or FHLMC seller-servicer of multifamily
mortgage loans. The Master 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. Such fidelity bond shall provide that it may not be
canceled without ten days' prior written notice to the Trustee.
In addition, the Master Servicer shall at all times during the
term of this Agreement keep in force with recognized insurers having a
claims-paying rating of "A" or better from Standard & Poor's and, if rated
thereby, "AA" or better from Fitch (or, if not rated by Fitch, "A" by Standard &
Poor's and "A:IX" or better from A.M. Best), a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers, employees
and agents in connection with its obligation to service the Mortgage Loans
hereunder, which policy or policies shall be in such form and amount as would
permit it to be a qualified FNMA or FHLMC seller-servicer of multifamily
mortgage loans. Any such errors and omissions policy, if required, shall provide
that it may not be canceled without ten days' prior written notice to the
Trustee.
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The Special Servicer shall at all times during the term of this
Agreement maintain, with recognized insurers having a claims-paying rating of
"A" or better from Standard & Poor's and, if rated thereby, "AA" or better from
Fitch (or, if not rated by Fitch, "A" or better from Standard & Poor's and
"A:IX" or better from A.M. Best), at its own expense, a blanket fidelity
insurance and an errors and omissions insurance policy, with broad coverage,
covering all (i) officers, (ii) employees or (iii) other persons performing as
employees on a contract basis, in each case acting in any capacity permitting
such persons to handle funds, money, documents and papers relating to the
Mortgage Loans and REO Properties. Such fidelity insurance and errors and
omissions insurance shall protect and insure against losses, including forgery,
theft, embezzlement, fraud, errors and omissions and negligent acts of such
persons and shall name the Trustee as loss payee. No provision of this section
requiring such fidelity insurance and errors and omissions insurance (nor the
provision of such insurance) shall diminish or relieve the Special Servicer from
its duties and obligations as set forth in this Agreement. The minimum coverage
under any such insurance policy during the term of this Agreement shall be at
least equal to $2,500,000 (fidelity insurance) and $1,000,000 (errors and
omissions insurance), which is the amount currently being carried by the Special
Servicer. Upon request of the Sponsor, the Trustee or a Rating Agency, the
Special Servicer shall cause to be delivered to such party a certified true copy
of such fidelity insurance and errors and omissions insurance policy and a
statement from the surety and the insurer that such insurance policy shall in no
event be terminated or materially modified without 30 days prior written notice
to the Trustee. The Special Servicer shall maintain such other fidelity
insurance and errors and omissions insurance, in such amounts and with such
insurers, as the Rating Agencies may require from time to time during the term
of this Agreement.
(d) All insurance coverage required to be maintained under this
Section 3.07 shall be obtained from Qualified Insurers.
(e) Notwithstanding anything to the contrary above, the Special
Servicer may maintain (i) an errors and omissions insurance policy pursuant to
Section 3.07(d) with Reliance Insurance Co. which currently has a claims-paying
rating of "A" from Standard & Poor's and "A-:XI" from A.M. Best and (ii) a
fidelity insurance policy pursuant to Section 3.07(d) with CNA Insurance which
currently has a claims-paying rating of "A+" from Standard & Poor's and "A-:XIV"
from A.M. Best. If either such insurer's claims-paying rating from Standard &
Poor's falls below "A", or its claims-paying rating from A.M. Best falls below
the aforementioned rating therefrom, the Special Servicer will replace such
policy with a policy from an insurer meeting the standards described in 3.07(d).
SECTION 3.08. Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Subordinate Financing .
(a) As to each Mortgage Loan which contains a provision in
the nature of a "due-on-sale" clause, which by its terms:
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(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property; or
(ii) provides that such Mortgage Loan may not be assumed
without the consent of the mortgagee in connection with any such sale or
other transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, each of
the Master Servicer and the Special Servicer shall, on behalf of the Trustee as
the mortgagee of record, as to those Mortgage Loans it is obligated to service
hereunder, exercise (or waive its right to exercise) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon, or (y) to
withhold its consent to any such sale or other transfer, in a manner consistent
with the Servicing Standard, but subject to Section 3.20(a)(iii). In the event
that the Master Servicer or Special Servicer intends or is required, in
accordance with the preceding sentence, the Mortgage Loan documents or
applicable law, to permit the transfer of any Mortgaged Property, the Master
Servicer or the Special Servicer, as the case may be, if consistent with the
Servicing Standard, may enter into a substitution of liability agreement,
pursuant to which the original Mortgagor and any original guarantors are
released from liability, and the transferee and any new guarantors are
substituted therefor and become liable under the Mortgage Note and any related
guaranties and, in connection therewith, may require from the related Mortgagor
a reasonable and customary fee for the additional services performed by it,
together with reimbursement for any related costs and expenses incurred by it
(but only to the extent that charging such fee will not be a significant
modification of the Mortgage Loan for purposes of the REMIC Provisions). The
Master Servicer or the Special Servicer, as the case may be, shall promptly
notify the Trustee of any such agreement and forward the original thereof to the
Trustee for inclusion in the related Mortgage File.
(b) As to each Mortgage Loan which contains a provision in
the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property;
or
(ii) requires the consent of the mortgagee to the creation of
any such additional lien or other encumbrance on the related Mortgaged
Property,
then, for so long as such Mortgage Loan is included in the Trust Fund, each of
the Master Servicer and the Special Servicer shall on behalf of the Trustee as
the mortgagee of record, as to those Mortgage Loans it is obligated to service
hereunder, exercise (or waive its right to exercise) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon, or (y) to
withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard, but subject to
Section 3.20(a)(iii); provided that neither the Master Servicer nor the Special
Servicer shall waive any
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right it has, or grant any consent it is otherwise entitled to withhold, under
any related "due-on-encumbrance" clause until it has received written
confirmation from each Rating Agency that such action would not result in the
downgrade, qualification or withdrawal of the rating then assigned by any Rating
Agency to any Class of Certificates.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Section 3.20, neither the
Master Servicer nor the Special Servicer shall agree to modify, waive or amend
any term of any Mortgage Loan in connection with the taking of, or the failure
to take, any action pursuant to this Section 3.08.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans .
(a) The Special Servicer shall, subject to subsections (b)
through (d) of this Section 3.09, exercise reasonable efforts, consistent with
the Servicing Standard, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) 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, and
which are not released from the Trust Fund pursuant to any other provision
hereof, if the Special Servicer determines, consistent with the Servicing
Standard, that such action would be in the best economic interest of the Trust
Fund. The Special Servicer shall advance all costs and expenses incurred by it
in any such proceedings, subject to its being entitled to reimbursement therefor
as a Servicing Advance as provided in Section 3.05(a), and further subject to
its being entitled to pay out of the related Liquidation Proceeds any
Liquidation Expenses incurred in respect of any Mortgage Loan, which Liquidation
Expenses were outstanding at the time such proceeds are received. When
applicable state law permits the Special Servicer to select between judicial and
non-judicial foreclosure in respect of any Mortgaged Property, the Special
Servicer shall make such selection in a manner consistent with the Servicing
Standard. 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 an offer 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 or otherwise, all such offers to be made in a
manner consistent with the Servicing Standard. If and when the Special Servicer
or the Master Servicer deems it necessary and prudent for purposes of
establishing the fair market value of any Mortgaged Property securing a
defaulted Mortgage Loan, whether for purposes of making an offer at foreclosure
or otherwise, the Special Servicer or the Master Servicer, as the case may be,
is authorized to have an Appraisal completed with respect to such property (the
cost of which Appraisal shall constitute a Servicing Advance).
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(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 (with the exception of cash or cash equivalents
pledged as collateral for a Mortgage Loan) 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 reasonable 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 by the Trust Fund will not cause
either REMIC I or REMIC II to fail to qualify as a REMIC at any time
that any Certificate is outstanding or, subject to Section 3.17, cause
the imposition of a tax on the Trust Fund under the REMIC Provisions.
(c) Notwithstanding the foregoing provisions of this Section
3.09, neither the Special Servicer nor the Master Servicer shall, on behalf of
the Trustee, initiate foreclosure proceedings, obtain title to a Mortgaged
Property in lieu of foreclosure or otherwise, have a receiver of rents appointed
with respect to any Mortgaged Property, 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, would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously determined in accordance with the
Servicing Standard, based on a Phase I Environmental Assessment (and any
additional environmental testing that the Special Servicer deems necessary and
prudent) of such Mortgaged Property performed by an Independent Person who
regularly conducts Phase I Environmental Assessments and such additional
environmental testing, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions
as are necessary to bring the Mortgaged Property in compliance therewith
and proceeding against the Mortgaged Property is reasonably likely to
produce a greater recovery to Certificateholders on a present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related Net
Mortgage Rate), taking into consideration any associated liabilities,
than not taking such actions and not proceeding against such Mortgaged
Property; 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/or regulations or, if such
circumstances or conditions are present for which any such action could
be required, that taking such actions with respect to such Mortgaged
Property and proceeding against the Mortgaged Property is reasonably
likely to produce a greater recovery to Certificateholders
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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), taking into consideration any associated liabilities, than
not taking such actions and not proceeding against such Mortgaged Property.
The cost of such Phase I Environmental Assessment and any such
additional environmental testing, 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, shall be advanced by the Master Servicer at the
direction of the Special Servicer given in accordance with the Servicing
Standard; provided, however, that the Master Servicer shall not be obligated in
connection therewith to advance any funds which, if so advanced, would
constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall be
subject to reimbursement as Servicing Advances in accordance with Section
3.05(a).
(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 defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property, but including the sale of the
affected Mortgage Loan) 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 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 Trustee in writing of its
intention to so release all or a portion of such Mortgaged Property, (ii) the
Trustee shall have notified the Certificateholders in writing of the Special
Servicer's intention to so release all or a portion of such Mortgaged Property
and (iii) the Holders of Certificates entitled to a majority of the Voting
Rights shall not have objected to such release within 30 days of the Trustee's
distributing such notice.
(e) The Special Servicer shall provide written reports to the
Trustee and the Master Servicer monthly regarding any actions taken by the
Special Servicer with respect to any Mortgaged Property securing a defaulted
Mortgage Loan as to which the environmental testing contemplated in subsection
(c) above has revealed that either of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof has not been satisfied or that any
remedial, corrective or other further action contemplated by either such clause
is required, in each case until the earliest to occur of (i) satisfaction of
both such conditions and completion of all such remedial, corrective or other
further action, (ii) repurchase of the related Mortgage Loan by the Mortgage
Loan Seller and (iii) release of the lien of the related Mortgage on such
Mortgaged Property. The Master Servicer shall forward copies of all such reports
to the Certificateholders and the Rating Agencies promptly following the receipt
thereof.
(f) The Special Servicer shall file the information returns with
respect to the receipt of any mortgage interest received in a trade or business,
the reports of foreclosures and abandonments and reports relating to any
cancellation of indebtedness income with respect to
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any Mortgaged Property required by Sections 6050H, 6050J and 6050P of the Code
and deliver to the Trustee an Officer's Certificate stating that such reports
have been filed. Such reports shall be in form and substance sufficient to meet
the reporting requirements imposed by such Sections 6050H, 6050J and 6050P of
the Code.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan permit such an action.
The Special Servicer shall advance the costs incurred in any such deficiency
action, subject to its being entitled to reimbursement therefor as a Servicing
Advance as provided in Section 3.05(a).
(h) The Special Servicer shall maintain accurate records,
certified by a Servicing Officer, of each Final Recovery Determination in
respect of any Mortgage Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Master Servicer no later than the tenth Business Day
following such Final Recovery Determination.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files .
(a) Upon the payment in full of any Mortgage Loan, or the receipt
by the Master Servicer or Special Servicer of a notification that payment in
full shall be escrowed in a manner customary for such purposes, the Master
Servicer or Special Servicer, as the case may be, shall immediately notify the
Trustee and request delivery of the related Mortgage File by delivering thereto
a Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer of the Master Servicer or Special Servicer, as applicable. Any
such Request for Release 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. Upon receipt of such notice and request
conforming in all material respects to the provisions hereof, the Trustee shall
promptly release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer or Special Servicer, as applicable. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Certificate 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), then, upon
request of the Master Servicer or the Special Servicer and receipt therefrom of
a Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer thereof, the Trustee 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 the 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 which are
required to be
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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, the
Request for Release shall be released by the Trustee to the Master Servicer or
the Special Servicer, as applicable.
(c) The Trustee, if requested, shall promptly execute and deliver
to the Special Servicer any court pleadings, requests for trustee's sale or
other documents furnished by the Special Servicer and certified by it as being
necessary to the foreclosure or trustee's sale in respect of a Mortgaged
Property or to any legal action brought to obtain judgment against any Mortgagor
on the Mortgage Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Mortgage Note or Mortgage
or otherwise available at law or in equity or for any other purpose necessary or
advisable in the reasonable, good faith judgment of the Special Servicer;
provided, however, that the Special Servicer shall be responsible for the
preparation of all such documents and pleadings; and when submitted to the
Trustee for signature, such documents or pleadings shall be accompanied by a
certificate of a Servicing Officer requesting that such pleadings or documents
be executed by the Trustee and certifying as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
SECTION 3.11. Servicing Compensation; Interest on Servicing
Advances; Payment of Certain Expenses; Obligations of the Trustee
regarding Back-up Servicing Advances .
(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, without limitation, 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 applicable Master Servicing Fee Rate on
the basis of the same principal amount and for the same period respecting which
the related interest payment due on such Mortgage Loan or deemed to be due on
such REO Loan is computed. The Master Servicing Fee with respect to any Mortgage
Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in respect
thereof. Earned but unpaid Master Servicing Fees shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each Mortgage Loan and REO
Revenues allocable as interest on each REO Loan. The Master Servicer shall be
entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan
or REO Loan out of Insurance Proceeds or Liquidation Proceeds, to the extent
permitted by Section 3.05(a). The right to receive the Master Servicing Fee may
not be transferred in whole or in part except in connection with the transfer of
all of the Master Servicer's responsibilities and obligations under this
Agreement. The Master Servicer shall, monthly, pay the Special Servicer its
Standby Fee out of the Master Servicer's Master Servicing Fee.
(b) Additional servicing compensation in the form of late payment
charges, assumption fees, modification fees, charges for beneficiary statements
or demands, amounts
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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, 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) any Prepayment Interest
Excesses, Balloon Payment Interest Excesses and, to the extent allocable to the
period (not to exceed 60 days) when the related Mortgage Loan did not constitute
a Specially Serviced Mortgage Loan or REO Property, any Net Default Interest
collected on the Mortgage Loans; (ii) interest or other income earned on
deposits in the Certificate Account and the Distribution Account, in accordance
with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if
any, with respect to each such Investment Account for each Collection Period),
and (iii) to the extent not required to be paid to any Mortgagor under
applicable law or under the related Mortgage, 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 Sub-Servicers
retained by it and the premiums for any blanket policy insuring against hazard
losses pursuant to Section 3.07(b)), if and to the extent such expenses are not
payable directly out of the Certificate Account, and the Master Servicer shall
not be entitled to reimbursement therefor except as expressly provided in this
Agreement.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from
time to time at the Special Servicing Fee Rate on the basis of the same
principal amount and for the same period respecting which any related interest
payment due on such Mortgage Loan or deemed to be due on such REO Loan is
computed. The Special Servicing Fee with respect to any Specially Serviced
Mortgage Loan or REO Loan shall cease to accrue as of the date a Liquidation
Event occurs in respect thereof or it becomes a Corrected Mortgage Loan. Earned
but unpaid Special Servicing Fees shall be payable monthly out of general
collections on the Mortgage Loans and any REO Properties on deposit in the
Certificate Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Standby Fee with respect to each
Mortgage Loan and each REO Loan. As to each Mortgage Loan and each REO Loan, the
Standby Fee shall accrue from time to time at the Standby Fee Rate on the basis
of the same principal amount and for the same period respecting which any
related interest payment due on such Mortgage Loan or deemed to be due on such
REO Loan is computed. Standby Fees shall be payable monthly by the Master
Servicer out of its Master Servicing Fees with respect to each Mortgage Loan and
each REO Loan.
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan, unless the basis on which such loan became a Corrected
Mortgage Loan was the remediation of a
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circumstance or condition relating to the Mortgage Loan Seller's obligation to
repurchase such Mortgage Loan pursuant to Section 2.03, in which case, if such
Mortgage Loan is repurchased within the 120-day period described in Section
2.03(a), no Workout Fee would be payable from or based upon the receipt of, any
Purchase Price paid by the Mortgage Loan Seller in satisfaction of such
repurchase obligation. As to each Corrected Mortgage Loan, subject to the
exception provided for in the preceding sentence, the Workout Fee shall be
payable from, and shall be calculated by application of the Workout Fee Rate to,
each collection of interest and principal received on such Mortgage Loan for so
long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to
any Corrected Mortgage Loan will cease to be payable if a Servicing Transfer
Event occurs with respect thereto or if the related Mortgaged Property becomes
an REO Property; provided that a new Workout Fee will become payable if and when
such Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special
Servicer is terminated other than for cause or resigns in accordance with clause
(ii) of the first paragraph of Section 6.04, it shall retain the right to
receive any and all Workout Fees payable in respect of Mortgage Loans that
became Corrected Mortgage Loans during the period that it acted as Special
Servicer and were still such at the time of such termination or resignation (and
the successor Special Servicer shall not be entitled to any portion of such
Workout Fees), in each case until the Workout Fee for any such loan ceases to be
payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan or REO Property as to which it receives
any full or discounted payoff from the related Mortgagor or any Liquidation
Proceeds (other than in connection with the purchase of any such Specially
Serviced Mortgage Loan or REO Property by the Special Servicer pursuant to
Section 3.18, by the Master Servicer or the Majority Certificateholder of the
Controlling Class pursuant to Section 3.18 or Section 9.01 or by the Mortgage
Loan Seller pursuant to Section 2.03 within 120 days of its discovery or notice
of the breach or Document Defect that gave rise to the repurchase obligation,
and other than in connection with the condemnation or other governmental taking
of a Mortgaged Property or REO Property). As to each such Specially Serviced
Mortgage Loan or REO Property, the Liquidation Fee shall be payable from, and
shall be calculated by application of the Liquidation Fee Rate to, such full or
discounted payoff and/or such Liquidation Proceeds. The Liquidation Fee with
respect to any such Specially Serviced Mortgage Loan will not be payable if such
Mortgage Loan becomes a Corrected Mortgage Loan. Notwithstanding anything herein
to the contrary, no Liquidation Fee will be payable from, or based upon the
receipt of, Liquidation Proceeds collected as a result of any purchase of a
Specially Serviced Mortgage Loan or REO Property described in the parenthetical
to the first sentence of this paragraph or in connection with a condemnation or
other governmental taking of a Mortgaged Property or REO Property; provided,
however, that if any such Liquidation Proceeds are received (other than in
connection with a condemnation or other governmental taking of a Mortgaged
Property or REO Property) with respect to any Corrected Mortgaged Loan, and the
Special Servicer is properly entitled to a Workout Fee therefrom, such Workout
Fee will be payable based on and from the portion of such Liquidation Proceeds
that constitute principal and/or interest).
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Notwithstanding anything to the contrary herein, a Liquidation
Fee and a Workout Fee relating to the same Mortgage Loan shall not be paid from
the same proceeds on or with respect to such Mortgage Loan.
The Special Servicer's right to receive the Special Servicing
Fee, the Standby Fee, the Workout Fee and/or the Liquidation Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement.
(d) Additional servicing compensation in the form of late payment
charges, assumption fees and modification fees received on or with respect to
Specially Serviced Mortgage Loans shall be promptly paid to the Special Servicer
by the Master Servicer and shall not be required to be deposited in the
Certificate Account pursuant to Section 3.04(a). Additional servicing
compensation in the form of late payment charges, Net Default Interest,
assumption fees and modification fees that the Master Servicer is entitled to
and that are collected by the Special Servicer, shall be paid promptly to the
Master Servicer by the Special Servicer. 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);
(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 thereby; and (iii) to the extent not required to be paid to the
Master Servicer as additional servicing compensation pursuant to Section
3.11(b), any Net Default Interest collected on the Mortgage Loans. The Special
Servicer shall be required to pay out of its own funds all overhead, general and
administrative expenses incurred by it in connection with its servicing
activities hereunder (including, without limitation, payment of any amounts due
and owing to any Sub-Servicers retained by it and the premiums for any blanket
policy obtained by it 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 or the REO Account, and the Special Servicer shall not be
entitled to reimbursement except as expressly provided in this Agreement.
(e) If the Master Servicer or Special Servicer is required under
this Agreement to make a Servicing Advance, but neither does so within 15 days
after such Advance is required to be made, the Trustee shall, if it has actual
knowledge of such failure on the part of the Master Servicer or Special
Servicer, as the case may be, give notice of such failure, as applicable, to the
Master Servicer and the Special Servicer. If such Advance is not made by the
Master Servicer or the Special Servicer within three days after such notice then
(subject to Section 3.11(g) below), the Trustee shall make such Advance. Any
failure by the Master Servicer or the Special Servicer to make a Servicing
Advance it is required to make 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)(iv).
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(f) As and to the extent permitted by Section 3.05(a), the Master
Servicer, the Special Servicer and the Trustee shall each be entitled to receive
interest at the Reimbursement Rate in effect from time to time, accrued on the
amount of each Servicing Advance made thereby for so long as such Servicing
Advance is outstanding. The Master Servicer shall reimburse itself, the Special
Servicer or the Trustee, as appropriate, for any Servicing Advance made thereby
as soon as practicable after funds available for such purpose are deposited in
the Certificate Account.
(g) Notwithstanding anything to the contrary set forth herein,
none of the Master Servicer, the Special Servicer or the Trustee shall be
required to make any Servicing Advance (including, without limitation, an
Emergency Advance) that it determines in its reasonable, good faith judgment
would constitute a Nonrecoverable Servicing Advance. In addition, Nonrecoverable
Servicing Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of
general collections on the Mortgage Pool on deposit in the Certificate Account.
The determination by the Master Servicer, the Special Servicer or, if
applicable, the Trustee, that it has made a Nonrecoverable Servicing Advance or
that any proposed Servicing Advance, if made, would constitute a Nonrecoverable
Servicing Advance, shall be evidenced by an Officer's Certificate delivered
promptly to the Trustee (or, if applicable, retained thereby) and the Sponsor,
setting forth the basis for such determination, together with (if such
determination is prior to the liquidation of the related Mortgage Loan or REO
Property) a copy of an Appraisal of the related Mortgaged Property or REO
Property, as the case may be, which shall have been performed within the twelve
months preceding such determination, and further accompanied by any other
information, including, without limitation, engineers' reports, environmental
surveys, inspection reports, rent rolls, income and expense statements or
similar reports, that the Master Servicer or the Special Servicer may have
obtained and that supports such determination. If such an Appraisal shall not
have been required and performed pursuant to the terms of this Agreement, the
Master Servicer or the Special Servicer, as the case may be, may, subject to its
reasonable and good faith determination that such Appraisal will demonstrate the
nonrecoverability of the related Advance, obtain an Appraisal for such purpose
at the expense of the Trust Fund. The Trustee shall be entitled to rely on any
determination of nonrecoverability that may have been made by the Master
Servicer or the Special Servicer with respect to a particular Servicing Advance,
and the Master Servicer shall be entitled to rely on any determination of
nonrecoverability that may have been made by the Special Servicer with respect
to a particular Servicing Advance.
SECTION 3.12. Inspections; Collection of Financial Statements .
(a) The Master Servicer shall inspect or cause the inspection of
each Mortgaged Property at least once every two years (or, if the related
Mortgage Loan has a then current balance greater than $5,000,000, at least once
every year), provided that at least 50% of the Mortgaged Properties (by both
number and aggregate Stated Principal Balances of the related Mortgage Loans)
will be inspected each year, commencing in 1997, by the Master Servicer (or an
entity employed by the Master Servicer for such purpose) or, in accordance with
the second succeeding sentence, by the Special Servicer. The Master Servicer
shall be
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responsible for such inspections only in respect of (i) Mortgage Loans that are
not Specially Serviced Mortgage Loans and (ii) Corrected Mortgage Loans. The
Special Servicer, subject to statutory limitations or limitations set forth in
the related Mortgage Loan documents, shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable after the
servicing of any Mortgage Loan is transferred thereto pursuant to Section
3.21(a). The Master Servicer and the Special Servicer shall each prepare or
cause to be prepared a written report of each such inspection performed or
caused to be performed thereby detailing the condition of the Mortgaged Property
and specifying the existence of (i) any vacancy in the Mortgaged Property that
is, in the reasonable judgment of the Master Servicer or Special Servicer (or
their respective designees), as the case may be, material and is evident from
such inspection, (ii) any abandonment of the Mortgaged Property, (iii) any
change in the condition or value of the Mortgaged Property that is, in the
reasonable judgment of the Master Servicer or Special Servicer (or their
respective designees), as the case may be, material and is evident from such
inspection, (iv) any waste on or deferred maintenance in respect of the
Mortgaged Property that is evident from such inspection or (v) any capital
improvements made that are evident from such inspection. The Master Servicer and
Special Servicer shall each deliver to the Trustee and each other a copy of each
such written report prepared or caused to be prepared by it within 45 days of
such report's preparation. The Trustee shall make available to
Certificateholders, Certificate Owners and prospective Certificateholders and
Certificate Owners, in accordance with Section 8.12(b), all such copies so
delivered to it. In the absence of actual knowledge that the Master Servicer or
the Special Servicer is in default under this Section 3.12(a), the Trustee shall
have no obligation to confirm that inspections of the Mortgaged Properties are
being performed in accordance with this Section 3.12(a).
(b) The Special Servicer, in the case of the Specially Serviced
Mortgage Loans, and the Master Servicer, in the case of all other Mortgage
Loans, shall make reasonable efforts to collect promptly from each Mortgagor
annual and quarterly operating statements and rent rolls of the related
Mortgaged Property, and financial statements of such Mortgagor, whether or not
delivery of such items is required pursuant to the terms of the related
Mortgage. The Special Servicer, in the case of the Specially Serviced Mortgage
Loans, and the Master Servicer, in the case of all other Mortgage Loans, shall
promptly: (i) review all such items as may be collected; (ii) prepare written
reports based on such reviews identifying the revenues, expenses, Net Operating
Income and Debt Service Coverage Ratios for the related Mortgage Loans and any
extraordinary increases or decreases in expenses or revenues associated with the
related Mortgaged Properties; and (iii) deliver copies of the collected items,
and of the written reports prepared in respect thereof, to the Trustee, the
Rating Agencies and each other, in each case within 45 days of its receipt or
preparation, as applicable. The Trustee shall make available to
Certificateholders, Certificate Owners and prospective Certificateholders and
Certificate Owners, in accordance with Section 8.12(b), all such copies so
delivered to it. In the absence of actual knowledge that the Master Servicer or
the Special Servicer is in default under this Section 3.12(b), the Trustee shall
have no obligation to confirm that the Master Servicer or the Special Servicer
has or is attempting to collect any of the items described above in this Section
3.12(b).
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SECTION 3.13. Annual Statement as to Compliance .
Each of the Master Servicer and the Special Servicer will deliver
to the Trustee, with a copy to the Sponsor, on or before March 15 of each year,
beginning March 15, 1997, an Officer's Certificate stating 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 during such calendar year, has been made under the signing 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 in all
material respects fulfilled all of its obligations under this Agreement
throughout such calendar year, or, if there has been a material default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof, and (iii) the Master Servicer or the
Special Servicer, as the case may be, has received no notice regarding
qualification, or challenging the status, of any portion of the Trust Fund as a
REMIC from the Internal Revenue Service or any other governmental agency or body
or, if it has received any such notice, specifying the details thereof. The
signing officer shall have no personal liability with respect to the content of
any such statement, and the Master Servicer or the Special Servicer, as the case
may be, shall be deemed to have made such statement and shall assume any
liability resulting therefrom.
SECTION 3.14. Reports by Independent Public Accountants .
On or before April 15 of each year, beginning April 15, 1997 (or,
as to any such year, such earlier date as is contemplated by the last sentence
of this paragraph), 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 Sponsor 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 and multifamily
mortgage 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 and multifamily 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 and
multifamily 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 respect to those Sub-Servicers. If the Sponsor notifies the
Trustee and the Master Servicer on or before March 1 of any year that such
statement is required to be filed with the Commission as part of the Form 10-K
for the Trust Fund covering the prior calendar year, the Master Servicer shall
deliver such statement by March 15 of such year.
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The Special Servicer will deliver an annual accountants' report
only if, and in such form as may be, requested by the Rating Agencies.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Sponsor in conforming any reports
delivered pursuant to this Section 3.14 to requirements imposed by the
Commission on the Sponsor in connection with the Commission's issuance of a
no-action letter relating to the Sponsor's reporting requirements in respect of
the Trust Fund pursuant to the Exchange Act.
SECTION 3.15. Access to Certain Information .
Each of the Master Servicer and the Special Servicer shall
provide or cause to be provided to the other such party, the Sponsor, the
Trustee and the Rating Agencies, and to the OTS, the FDIC, and any other federal
or state banking or insurance regulatory authority that may exercise authority
over any Certificateholder, access to any documentation regarding the Mortgage
Loans and the Trust Fund within its control which may be required 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 Master Servicer or the Special Servicer, as the case may be,
designated by it.
SECTION 3.16. Title to REO Property; REO Account .
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee on behalf of the
Certificateholders. The Special Servicer shall sell any REO Property within two
years after ownership of such REO Property is acquired for purposes of Section
860G(a)(8) of the Code, unless the Special Servicer either (i) is granted an
extension of time (an "REO Extension") by the Internal Revenue Service to sell
such REO Property or (ii) obtains for the Trustee and the REMIC Administrator an
Opinion of Counsel, addressed to the Trustee and the REMIC Administrator, to the
effect that the holding by the Trust Fund of such REO Property subsequent to the
second anniversary of such acquisition will not result in the imposition of
taxes on "prohibited transactions" of REMIC I or REMIC II as defined in Section
860F of the Code or cause REMIC I or REMIC II to fail to qualify as a REMIC at
any time that any Certificates are outstanding. If the Special Servicer is
granted the REO Extension contemplated by clause (i) of the immediately
preceding sentence or obtains the Opinion of Counsel contemplated by clause (ii)
of the immediately preceding sentence, the Special Servicer shall sell such REO
Property within such period longer than two years as is permitted by such REO
Extension or such Opinion of Counsel, as the case may be. Any reasonable expense
incurred by the Special Servicer in connection with its being granted the REO
Extension contemplated by clause (i) of the second preceding sentence or its
obtaining the Opinion of Counsel contemplated by clause (ii) of the second
preceding sentence, shall be an expense of the Trust Fund payable out of the
Certificate Account pursuant to Section 3.05(a). Any REO Extension shall be
requested by the Special Servicer more than 60 days before the day on which the
two-year grace period would otherwise expire.
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(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, in each case at a depository
institution designated by the Master Servicer, one or more accounts
(collectively, the "REO Account"), to be 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 and need consist of no more than one account for all the REO
Properties. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, within two Business Days of receipt, all REO Revenues, Liquidation
Proceeds (net of all Liquidation Expenses paid therefrom) and Insurance Proceeds
received in respect of an REO Property. The Special Servicer is authorized to
pay out of related Liquidation Proceeds any Liquidation Expenses incurred in
respect of an REO Property and outstanding at the time such proceeds are
received. Funds in the REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall be entitled to make
withdrawals from the REO Account to pay itself, as additional servicing
compensation in accordance with Section 3.11(d), interest and investment income
earned in respect of amounts held in the REO Account as provided in Section
3.06(b) (but only to the extent of the Net Investment Earnings with respect to
the REO Account for any Collection Period). The Special Servicer shall give
notice to the other parties hereto of the location of the REO Account when first
established and of the new location of the REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the REO Account
funds necessary for the proper operation, management, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. Within two Business Days
following the end of each Collection Period, the Special Servicer shall withdraw
from the REO Account and deposit into the Certificate Account or deliver to the
Master Servicer (which shall deposit such amounts into the Certificate Account)
the aggregate of all amounts received in respect of each REO Property during
such Collection Period, net of any withdrawals made out of such amounts pursuant
to the preceding sentence; provided that 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,
maintenance and disposition of the related REO Property (including without
limitation the creation of a reasonable reserve for repairs, replacements and
necessary capital improvements 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.
(d) The Special Servicer shall keep and maintain separate
records, on a property-by-property basis, for the purpose of accounting for all
deposits to, and withdrawals from, the REO Account pursuant to Section 3.16(b)
or (c).
SECTION 3.17. Management of REO Property .
(a) Prior to the acquisition of title to any Mortgaged Property
securing a defaulted Mortgage Loan, the Special Servicer shall review the
operation of such Mortgaged
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Property and determine the nature of the income that would be derived from such
property if it were acquired by the Trust Fund. If the Special Servicer
determines from such review that:
(i) None of the income from Directly Operating such
Mortgaged Property would be subject to tax as "net income from
foreclosure property" within the meaning of the REMIC Provisions
or would be subject to the tax imposed on "prohibited
transactions" under Section 860F of the Code (either such tax
referred to herein as an "REO Tax"), such Mortgaged Property may
be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an
REO Property could result in income from such property that would
be subject to an REO Tax, but that a lease of such property to
another party to operate such property, or the performance of
some services by an Independent Contractor with respect to such
property, or another method of operating such property would not
result in income subject to an REO Tax, then the Special Servicer
may (provided, that in the good faith and reasonable judgment of
the Special Servicer, it is commercially feasible) acquire such
Mortgaged Property as REO Property and so lease or operate such
REO Property; or
(iii) It is reasonable to believe that Directly
Operating such property as REO Property could result in income
subject to an REO Tax and that no commercially feasible means
exists to operate such property as REO Property without the Trust
Fund incurring or possibly incurring an REO Tax on income from
such property, the Special Servicer shall 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
feasible, 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.
The Special Servicer's decision as to how each REO Property shall
be managed and operated shall be based in either case on the good faith and
reasonable judgment
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of the Special Servicer as to which means would be in the best interest of the
Certificateholders by maximizing (to the extent commercially feasible) the net
after-tax REO Revenues received by the Trust Fund with respect to such property
and, to the extent consistent with the foregoing, in the same manner as would
prudent mortgage loan servicers and asset managers operating acquired mortgaged
property comparable to the respective Mortgaged Property. Both the Special
Servicer and the REMIC Administrator may consult with counsel knowledgeable in
such matters at (to the extent reasonable) the expense of the Trust Fund in
connection with determinations required under this Section 3.17(a). Neither the
Special Servicer nor the REMIC Administrator shall be liable to the
Certificateholders, the Trust Fund, the other parties hereto or each other for
errors in judgment made in good faith in the reasonable exercise of their
discretion while performing their respective responsibilities under this Section
3.17(a) or, to the extent it relates to federal income tax consequences for the
Trust Fund, Section 3.17(b) below. Nothing in this Section 3.17(a) is intended
to prevent the sale of a Defaulted Mortgage Loan or REO Property pursuant to the
terms and subject to the conditions of Section 3.18.
(b) If title to any REO Property is acquired, the Special
Servicer shall manage, conserve, protect and operate such REO Property for the
benefit of the Certificateholders solely for the purpose of its prompt
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or, except as contemplated by Section 3.17(a), result in the receipt by
either REMIC I or REMIC II of any "income from non-permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code or in an Adverse REMIC Event in
respect of any such REMIC. Except as provided in Section 3.17(a), the Special
Servicer shall not enter into any lease, contract or other agreement that causes
REMIC I to receive, and (unless required to do so under any lease, contract or
agreement to which the Special Servicer or the Trust Fund may become a party or
successor to a party due to a foreclosure, deed-in-lieu of foreclosure or other
similar exercise of a creditor's rights or remedies with respect to a Mortgage
Loan) shall not cause or allow REMIC I to receive any "net income from
foreclosure property" that is subject to taxation under the REMIC Provisions.
Subject to the foregoing, however, the Special Servicer shall have full power
and authority to do any and all things in connection therewith as are consistent
with the Servicing Standard and, consistent therewith, shall withdraw from the
REO Account, to the extent of amounts on deposit therein with respect to any REO
Property, funds necessary for the proper operation, management, 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
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(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) through (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 Officer's Certificate delivered to the Trustee) 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) any such contract shall be consistent with the
provisions of Treasury Regulation ss.1.856-4(b)(5) and, to the
extent consistent therewith, shall be administered to require,
that the Independent Contractor, in a timely manner, (A) to the
extent of available revenue from the REO Property, 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) remit all related
revenues collected (net of its fees and such costs and expenses)
to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c)
relating to any such contract or to actions taken through any
such Independent Contractor shall be deemed to relieve the
Special Servicer of any of its duties and obligations hereunder
with respect to the operation and management of any such REO
Property;
(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; and
(vi) the appointment of such Independent Contractor will
not result in a qualification, downgrading or withdrawal of any
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of the ratings then assigned to the Certificates by such Rating
Agency (as evidenced in writing or otherwise by such Rating
Agency).
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.
SECTION 3.18. Sale of Mortgage Loans and REO Properties .
(a) The parties hereto may sell or purchase, or permit the sale
or purchase of, a Mortgage Loan or REO Property only on the terms and subject to
the conditions set forth in this Section 3.18 or as otherwise expressly provided
in or contemplated by Sections 2.03 and 9.01.
(b) If the Special Servicer has determined, in its good faith and
reasonable judgment, that any Defaulted Mortgage Loan will become the subject of
a foreclosure sale or similar proceeding, the Special Servicer shall promptly so
notify in writing the Trustee and the Master Servicer, and the Trustee shall,
within 10 days after receipt of such notice, notify all the Certificateholders
of the Controlling Class. The Majority Certificateholder of the Controlling
Class may at its option purchase from the Trust Fund, at a price equal to the
applicable Purchase Price, any such Defaulted Mortgage Loan. The Purchase Price
for any Mortgage Loan purchased under this paragraph (b) shall be deposited into
the Certificate Account, and the Trustee, upon receipt of an Officer's
Certificate from the Master Servicer to the effect that such deposit has been
made, shall release or cause to be released to the Certificateholder(s)
effecting such purchase (or any designee thereof) 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 Certificateholder(s) effecting such purchase (or any designee
thereof) ownership of such Mortgage Loan. In connection with any such purchase,
the Special Servicer shall deliver the related Servicing File to the
Certificateholder(s) effecting such purchase (or any designee thereof).
(c) If the Majority Certificateholder of the Controlling Class
has not purchased any Defaulted Mortgage Loan within 15 days of its having
received notice in respect thereof pursuant to Section 3.18(b) above, either the
Special Servicer or, subject to the Special Servicer's prior rights in such
regard, the Master Servicer may at its option purchase such Mortgage Loan from
the Trust Fund, at a price equal to the Purchase Price. The Purchase Price for
any such Mortgage Loan purchased under this paragraph (c) shall be deposited
into the Certificate Account, and the Trustee, upon receipt of an Officer's
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
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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 Section 3.18(b) or Section 3.18(c)
above, if and when the Special Servicer determines, consistent with the
Servicing Standard, that such a sale would be in the best economic interests of
the Trust Fund. Such offer shall be made in a commercially reasonable manner
(which, for purposes hereof, includes an offer to sell without representation or
warranty other than customary warranties of title, loan status, condition and
similar customary matters, 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 offer would not be in the
best economic interests of the Trust Fund, the Special Servicer shall accept the
highest cash offer received from any Person that constitutes a fair price for
such Mortgage Loan. In the absence of any offer 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 and, otherwise, in accordance with
the Servicing Standard.
The Special Servicer shall use its best efforts to solicit offers
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 offers are received
contemporaneously, highest) cash offer 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 offer, regardless of from whom received.
The Special Servicer shall give the Trustee and the Master
Servicer not less than five Business Days' prior written notice of its intention
to sell any Defaulted Mortgage Loan or REO Property pursuant to this Section
3.18(d). No Interested Person shall be obligated to submit an offer to purchase
any such Mortgage Loan or REO Property, and notwithstanding anything to the
contrary herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may make an offer for or purchase any Defaulted Mortgage Loan or any
REO Property pursuant hereto.
(e) Whether any cash offer 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 or, if such cash
offer is from an Interested Person, by the Trustee. In determining whether any
offer received from an Interested Person represents a fair price for any such
Mortgage Loan or REO Property, the Trustee shall be supplied with and shall rely
on the most recent Appraisal or updated Appraisal conducted in accordance with
this Agreement within the preceding 12-month period or, in the absence of any
such Appraisal, on a narrative appraisal prepared by a Qualified Appraiser,
retained by the Special Servicer. Such
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appraiser shall be selected by the Special Servicer if the Special Servicer is
not making an offer with respect to a Defaulted Mortgage Loan or REO Property
and shall be selected by the Master Servicer if the Special Servicer is making
such an offer. The cost of any such narrative appraisal shall constitute a
Servicing Advance. When any Interested Person is among those making an offer
with respect to a Defaulted Mortgage Loan or REO Property, the Special Servicer
shall require that all offers be submitted in writing and be accompanied by a
refundable deposit of cash in an amount equal to 5% of the offered amount. In
determining whether any offer from a Person other than an Interested Person
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,
updated Appraisal or narrative Appraisal that it may have obtained pursuant to
this Agreement within the prior 12 months), and in determining whether any offer
from an Interested Person constitutes a fair price for any such Mortgage Loan or
REO Property, 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). Notwithstanding the other provisions
of this Section 3.18, no cash offer from any Interested Person or any Affiliate
thereof in an amount less than the related Purchase Price shall constitute a
fair price for any Defaulted Mortgage Loan or REO Property unless such offer is
the highest cash offer received and at least two additional offers (not
including the offer of the Interested Person or any Affiliate) have been
received from Independent third parties. The Purchase Price for any Defaulted
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 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 offerors, 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 offers without obligation to deposit such
amounts into the Certificate Account. Any sale of a Defaulted Mortgage Loan or
any REO Property shall be final and without recourse to the Trustee or the Trust
Fund (except such recourse imposed by those representations and warranties
typically given in such transactions, any prorations applied thereto and any
customary closing matters), and if such sale is consummated in accordance with
the terms of this Agreement, neither the Special Servicer nor the Trustee shall
have any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property
shall be for cash only (unless, as evidenced by an Opinion of Counsel, changes
in the REMIC Provisions made subsequent to the Startup Day allow a sale for
other consideration).
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(h) Notwithstanding any of the foregoing paragraphs of this
Section 3.18, the Special Servicer shall not be obligated to accept the highest
cash offer if the Special Servicer determines, in accordance with the Servicing
Standard, that rejection of such offer would be in the best interests of the
Certificateholders, and the Special Servicer may accept a lower cash offer (from
any Person other than itself or an Affiliate) if it determines, in accordance
with the Servicing Standard, that acceptance of such offer would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations or the terms
offered by the prospective buyer making the lower offer are more favorable).
SECTION 3.19. Additional Obligations of the
Master Servicer and the Special Servicer .
(a) The Master Servicer shall maintain at its Primary Servicing
Office and shall, upon reasonable advance written notice, make available during
normal business hours for review by each Rating Agency and by any
Certificateholder or Certificate Owner or any Person identified to the Master
Servicer as a prospective transferee of a Certificate or an interest therein,
copies of the Servicing Files. Copies of all or any portion of any Servicing
File are to be available from the Master Servicer upon request; however, the
Master Servicer shall be permitted to require payment of a sum sufficient to
cover the reasonable costs and expenses of providing such service. The Special
Servicer shall, as to each Specially Serviced Mortgage Loan and REO Property,
promptly deliver to the Master Servicer a copy of each document or instrument
added to the related Servicing File, and the Master Servicer shall in no way be
in default under this Section 3.19(a) solely by reason of the Special Servicer's
failure to do so.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Master Servicer may require (a) in the
case of Certificate Owners, a written confirmation executed by the requesting
Person, in form reasonably satisfactory to the Master Servicer, generally to the
effect that such Person is a beneficial holder of Certificates, is requesting
the information solely for use in evaluating such Person's investment in the
Certificates and will otherwise keep such information confidential and (b) in
the case of a prospective purchaser, confirmation executed by the requesting
Person generally to the effect that such Person is a prospective purchaser of a
Certificate or an interest therein, is requesting the information solely for use
in evaluating a possible investment in Certificates and will otherwise keep such
information confidential. All Certificateholders, by the acceptance of their
Certificates, shall be deemed to have agreed to keep such information
confidential. The Master Servicer shall not be liable for the dissemination of
information in accordance with this Section 3.19(a).
(b) In connection with each ARM Loan (and, if and to the extent
applicable, any successor REO Loan), the Master Servicer shall calculate all
post-Cut-off Date adjustments in the Mortgage Rate and the Monthly Payment
therefor and shall notify the Mortgagor of such adjustments, all in accordance
with the Mortgage Note and applicable law. In the event the Index for any ARM
Loan (or successor REO Loan) is not published or is otherwise unavailable,
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the Master Servicer shall select a comparable alternative index with respect to
such Mortgage Loan (or successor REO Loan) over which it has no direct control,
which is readily verifiable and which is acceptable under the terms of the
related Mortgage Note. In connection with satisfying its obligations under this
Section 3.19(b) with respect to the Group 1 Loans identified on the Mortgage
Loan Schedule by loan numbers 1, 2, 4, 5 and/or 6 the Master Servicer shall
calculate on each LIBOR Determination Date and promptly report to the Trustee
the value of Six-Month LIBOR (Formula 1).
(c) Upon the earliest of (i) the date on which any Mortgage Loan
becomes a Modified Mortgage Loan, (ii) the 90th day following the occurrence of
any uncured delinquency in Monthly Payments with respect to any Mortgage Loan,
(iii) the date on which a receiver is appointed and continues in such capacity
in respect of the Mortgaged Property securing any Mortgage Loan and (iv) the
date on which the Mortgaged Property securing any Mortgage Loan becomes an REO
Property (each such Mortgage Loan and any related REO Loan, a "Required
Appraisal Loan"), the Master Servicer or Special Servicer, as applicable, shall
request and, within 30 days of the occurrence of such event (or such longer
period as the Master Servicer or the Special Servicer, as applicable, is (as
certified thereby to the Trustee in writing) diligently and in good faith
proceeding to obtain such) obtain an Appraisal of the related Mortgaged
Property; unless an Appraisal thereof had previously been obtained within the
prior twelve months. The cost of such Appraisal shall be a Servicing Advance.
With respect to each Required Appraisal Loan (unless such loan
has become a Corrected Mortgage Loan and has remained current for twelve
consecutive Monthly Payments, and no other Servicing Transfer Event has occurred
with respect thereto during the preceding twelve months), the Special Servicer
shall, within 30 days of each anniversary of such loan's becoming a Required
Appraisal Loan, order an update of the prior Appraisal (the cost of which will
be a Servicing Advance). Based upon such Appraisal, the Special Servicer shall
redetermine and report to the Trustee the Appraisal Reduction Amount, if any,
with respect to such loan.
(d) The Master Servicer and the Special Servicer shall each
deliver to the other and to the Trustee (for inclusion in the Mortgage File)
copies of all Appraisals, environmental reports and engineering reports (or, in
each case, updates thereof) obtained with respect to any Mortgaged Property or
REO Property.
(e) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated, to reimburse the Special Servicer for any Servicing Advances made by
but not previously reimbursed to the Special Servicer, and to pay the Special
Servicer interest thereon at the Reimbursement Rate from the date made to, but
not including, the date of reimbursement. Such reimbursement and any
accompanying payment of interest shall be made within ten (10) days of the
request therefor by wire transfer of immediately available funds to an account
designated by the Special Servicer. Upon the Master Servicer's reimbursement to
the Special Servicer of any Servicing Advance and payment to the Special
Servicer of interest thereon, all in accordance with this Section 3.19(e),
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the Master Servicer shall for all purposes of this Agreement be deemed to have
made such Servicing Advance at the same time as the Special Servicer originally
made such Advance, and accordingly, the Master Servicer shall be entitled to
reimbursement for such Advance, together with Advance Interest thereon, at the
same time, in the same manner and to the same extent as the Master Servicer
would otherwise have been entitled if it had actually made such Servicing
Advance.
Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer is required under this Agreement to make any
Servicing Advance but does not desire to do so, the Special Servicer may, in its
sole discretion, request that the Master Servicer make such Advance, such
request to be made in writing and in a timely manner that does not materially
and adversely affect the interests of any Certificateholder; provided, however,
that the Special Servicer shall have an obligation to make any Emergency
Advance. The Master Servicer shall have the obligation to make any such
Servicing Advance (other than an Emergency Advance) that it is requested by the
Special Servicer to make within ten days of the Master Servicer's receipt of
such request. The Special Servicer shall be relieved of any obligations with
respect to an Advance that it requests the Master Servicer to make (regardless
of whether or not the Master Servicer shall make such Advance) other than an
Emergency Advance. The Master Servicer shall be entitled to reimbursement for
any Servicing Advance made by it at the direction of the Special Servicer,
together with Advance Interest thereon, at the same time, in the same manner and
to the same extent as the Master Servicer is entitled with respect to any other
Servicing Advance made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(e),
the Master Servicer shall not be required to make at the Special Servicer's
direction, any Servicing Advance if the Master Servicer determines in its
reasonable, good faith judgment that the Servicing Advance which the Special
Servicer is directing the Master Servicer to make hereunder, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance,
would be, if made, a Nonrecoverable Servicing Advance. The Master Servicer shall
notify the Special Servicer in writing of such determination. Such notice shall
not obligate the Special Servicer to make such Servicing Advance.
(f) The Master Servicer shall deliver to the Trustee for deposit
in the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the aggregate of all Balloon
Payment Interest Shortfalls incurred in connection with Balloon Payments
received in respect of the Mortgage Pool during the most recently ended
Collection Period.
(g) The Master Servicer shall deliver to the Trustee for deposit
in the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the lesser of (i) the
aggregate of all Prepayment Interest Shortfalls incurred in connection with
Principal Prepayments received in respect of the Mortgage Pool during the most
recently ended Collection Period, and (ii) that portion of its Master Servicing
Fees that is, in the case of each Mortgage Loan and REO Loan, calculated at
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0.04% per annum, together with the total amount of other master servicing
compensation, in any event received by the Master Servicer during such
Collection Period.
SECTION 3.20. Modifications, Waivers, Amendments and Consents .
(a) The Master Servicer and the Special Servicer each may,
consistent with the Servicing Standard, agree to any modification, waiver or
amendment of any term of, forgive interest on and principal of, capitalize
interest on, permit the release, addition or substitution of collateral
securing, and/or permit the release of the Mortgagor on or any guarantor of any
Mortgage Loan it is required to service and administer hereunder, without the
consent of the Trustee or, except as contemplated by clause (ii) below, any
Certificateholder, subject, however, to each of the following limitations,
conditions and restrictions:
(i) other than as provided in Sections 3.02 and 3.08 and in
subsection (c) below, the Master Servicer shall not agree to any
modification, waiver or amendment of any term of, or take any of the
other acts referenced in this Section 3.20(a) with respect to, any
Mortgage Loan it is required to service and administer hereunder that
would affect the amount or timing of any related payment of principal,
interest or other amount payable thereunder or, in the Master Servicer's
good faith and reasonable judgment, materially impair the security for
such Mortgage Loan or reduce the likelihood of timely payment of amounts
due thereon; the Special Servicer may, however, agree to any
modification, waiver or amendment of any term of, or take any of the
other acts referenced in this Section 3.20(a) with respect to, a
Specially Serviced Mortgage Loan that would have any such effect, but
only if a material default on such Mortgage Loan has occurred or, in the
Special Servicer's reasonable and good faith judgment, a default in
respect of payment on such Mortgage Loan is reasonably foreseeable, and
such modification, waiver, amendment or other action is reasonably
likely to produce a greater recovery to Certificateholders on a present
value basis (the relevant discounting of anticipated collections that
will be distributable to Certificateholders to be performed at the
related Net Mortgage Rate), than would liquidation;
(ii) if any Person has been selected and is serving as Extension
Adviser, the Special Servicer may not extend the date on which any
Balloon Payment is scheduled to be due on any Specially Serviced
Mortgage Loan for more than 36 months beyond its Stated Maturity Date
unless such Extension Adviser has approved or is deemed to have approved
such extension pursuant to Section 3.26;
(iii) neither the Master Servicer nor the Special Servicer shall
make or permit any modification, waiver or amendment of any term of, or
take any of the other acts referenced in this Section 3.20(a) with
respect to, any Mortgage Loan that would (A) cause REMIC I or REMIC II
to fail to qualify as a REMIC under the Code or, except as contemplated
by Section 3.17(a), result in the imposition of any tax on "prohibited
transactions" or "contributions" after the Startup Day of either such
REMIC under the REMIC Provisions or (B) cause any Mortgage Loan to cease
to be a "qualified
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mortgage" within the meaning of Section 860G(a) (3) of
the Code (neither the Master Servicer nor the Special Servicer shall be
liable for judgments as regards decisions made under this subsection
which were made in good faith and, unless it would constitute bad faith
or negligence to do so, each of the Master Servicer and the Special
Servicer may rely on opinions of counsel in making such decisions);
(iv) neither the Master Servicer nor the Special Servicer shall
permit any Mortgagor to add or substitute any collateral for an
outstanding Mortgage Loan, which collateral constitutes real property,
unless the Master Servicer or the Special Servicer, as the case may be,
shall have first determined in accordance with the Servicing Standard,
based upon a Phase I Environmental Assessment (and such additional
environmental testing as the Master Servicer or Special Servicer, as the
case may be, deems necessary and appropriate) prepared by an Independent
Person who regularly conducts Phase I Environmental Assessments (and
such additional environmental testing), at the expense of the Mortgagor,
that such additional or substitute collateral is in compliance with
applicable environmental laws and regulations and that there are no
circumstances or conditions present with respect to such new collateral
relating to the use, management or disposal of any Hazardous Materials
for which investigation, testing, monitoring, containment, clean-up or
remediation would be required under any then applicable environmental
laws and/or regulations; and
(v) neither the Master Servicer nor the Special Servicer shall
release or substitute any collateral securing an outstanding Mortgage
Loan except as provided in Section 3.09(d) and except in the case of a
release where (A) the use of the collateral to be released will not, in
the Master Servicer's or Special Servicer's, as the case may be, good
faith and reasonable judgment, materially and adversely affect the Net
Operating Income being generated by or the use of the related Mortgaged
Property, (B) there is a corresponding principal paydown of such
Mortgage Loan in an amount at least equal to, or a delivery of
substitute collateral with an appraised value at least equal to, the
appraised value of the collateral to be released, (C) the remaining
Mortgaged Property and any substitute collateral is, in the Master
Servicer's or Special Servicer's, as the case may be, good faith and
reasonable judgment, adequate security for the remaining Mortgage Loan
and (D) such release and/or substitution would not result in the
downgrade, qualification or withdrawal of the rating then assigned by
any Rating Agency to any Class of Certificates (as confirmed in writing
by each Rating Agency);
provided that (x) the limitations, conditions and restrictions set forth in
clauses (i) through (v) above shall not apply to any modification of any term of
any Mortgage Loan that is required under the terms of such Mortgage Loan in
effect on the Closing Date or that is solely within the control of the related
Mortgagor, and (y) notwithstanding clauses (i) through (v) above, neither the
Master Servicer nor the Special Servicer shall be required to oppose the
confirmation of a plan in any bankruptcy or similar proceeding involving a
Mortgagor if in their reasonable and good faith judgment such opposition would
not ultimately prevent the confirmation of such plan or one substantially
similar.
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(b) The Special Servicer shall have no liability to the Trust
Fund, the Certificateholders or any other Person if its analysis and
determination that the modification, waiver, amendment or other action
contemplated by Section 3.20(a) is reasonably likely to produce a greater
recovery to Certificateholders on a present value basis than would liquidation,
should prove to be wrong or incorrect, so long as the analysis and determination
were made on a reasonable basis in good faith by the Special Servicer and the
Special Servicer was not negligent in ascertaining the pertinent facts.
(c) Any payment of interest, which is deferred pursuant to
Section 3.20(a), 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 Mortgage Loan so permit or that such interest may actually be
capitalized.
(d) The Master Servicer and the Special Servicer each may, as a
condition to its granting any request by a Mortgagor for consent, modification,
waiver or indulgence or any other matter or thing, the granting of which is
within the Master Servicer's or Special Servicer's, as the case may be,
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, as additional servicing compensation, a
reasonable and customary fee (not to exceed 1.0% of the unpaid principal balance
of the related Mortgage Loan) for the additional services performed in
connection with such request, together with any related costs and expenses
incurred by it.
(e) All modifications, waivers, amendments and other actions
entered into or taken in respect of the Mortgage Loans pursuant to this Section
3.20 shall be in writing. Each of the Master Servicer and the Special Servicer
shall notify the other such party, the Extension Adviser and the Trustee, in
writing, of any modification, waiver, amendment or other action entered into or
taken in respect of any Mortgage Loan pursuant to this Section 3.20 and the date
thereof, and shall deliver to the Trustee or the related Custodian for deposit
in the related Mortgage File (with a copy to the other such party), an original
counterpart of the agreement relating to such modification, waiver, amendment or
other action, promptly (and in any event within 10 Business Days) following the
execution thereof. In addition, following the execution of any modification,
waiver or amendment agreed to by the Special Servicer pursuant to Section
3.20(a) above, the Special Servicer shall deliver to the Master Servicer and the
Trustee an Officer's Certificate setting forth in reasonable detail the basis of
the determination made by it pursuant to clause (i) of Section 3.20(a).
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 promptly give notice thereof, and
deliver the related Servicing File, to the
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Special Servicer and shall use its best efforts to provide the Special Servicer
with all information, documents (or copies thereof) and records (including
records stored electronically on computer tapes, magnetic discs and the like)
relating to the Mortgage Loan and reasonably requested by the Special Servicer
to enable it to assume its functions hereunder with respect thereto without
acting through a Sub-Servicer. The Master Servicer shall use its best efforts to
comply with the preceding sentence within five Business Days of the occurrence
of each related Servicing Transfer Event.
Upon determining that a Specially Serviced Mortgage Loan has
become a Corrected Mortgage Loan and if the Master Servicer is not also the
Special Servicer, the Special Servicer shall promptly give notice thereof, and
return the related Servicing File, to the Master Servicer and upon giving such
notice, and returning such Servicing File, to the Master Servicer, the Special
Servicer's obligation to service such Mortgage Loan, and the Special Servicer's
right to receive the Special Servicing Fee with respect to such Mortgage Loan,
shall terminate, and the obligations of the Master Servicer to service and
administer such Mortgage Loan shall resume.
Notwithstanding other provisions in this Agreement to the
contrary, the Master Servicer shall remain responsible for the billing and
collection, accounting, data collection, reporting and other basic Master
Servicer administrative functions with respect to Specially Serviced Mortgage
Loans, provided that the Special Servicer shall establish procedures for the
Master Servicer as to the application of receipts and tendered payments and
shall have the exclusive responsibility for and authority over all contacts with
and notices to Mortgagors and similar matters relating to each Specially
Serviced Mortgage Loan and the related Mortgaged Property.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer shall provide to the Trustee 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) Notwithstanding anything in this Agreement to the contrary,
in the event that the Master Servicer and the Special Servicer are the same
Person, all notices, certificates, information and consents required to be given
by the Master Servicer to the Special Servicer or vice versa shall be deemed to
be given without the necessity of any action on such Person's part.
SECTION 3.22. Sub-Servicing Agreements .
(a) The Master Servicer and, with the consent of the Sponsor
(which is hereby deemed given as to any Sub-Servicing Agreement between the
Master Servicer and the Special Servicer for the provision of conventional
master servicing functions as to the Specially Serviced Mortgage Loans and REO
Properties), the Special Servicer, may enter into Sub-Servicing Agreements to
provide for the performance by third parties of any or all of its
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obligations hereunder, provided that, in each case, the Sub-Servicing Agreement:
(i) is not inconsistent with this Agreement; (ii) expressly or effectively
provides that if the Master Servicer or 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 either assume all of the rights and, except to the extent
they arose prior to the date of assumption, obligations of the Master Servicer
or Special Servicer, as the case may be, under such agreement or terminate such
rights and obligations; (iii) in the case of a Sub-Servicing Agreement entered
into by the Master Servicer, expressly or effectively provides that such
agreement shall terminate with respect to any Mortgage Loan serviced thereunder
at the time such Mortgage Loan becomes a Specially Serviced Mortgage Loan; and
(iv) in the case of a Sub-Servicing Agreement entered into by the Special
Servicer, relates only to Specially Serviced Mortgage Loans or REO Properties
and expressly or effectively provides that such agreement shall terminate with
respect to any such Mortgage Loan that becomes a Corrected Mortgage Loan.
References in this Agreement to actions taken or to be taken by the Master
Servicer or the Special Servicer, as the case may be, 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, as the case may be, hereunder to make 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 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, and, for so long as they are outstanding, such Advances shall
accrue interest in accordance with Section 3.11(f) and/or Section 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
Special Servicer, the Trustee and the Sponsor in writing promptly of the
appointment by it of any Sub-Servicer, and shall deliver to the Trustee 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.
(b) Each Sub-Servicer (i) shall be authorized to transact
business in the state or states in which the Mortgaged Properties for the
Mortgage Loans 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
multifamily 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) each monitor the performance and
enforce the obligations of its Sub-Servicers under the related Sub-Servicing
Agreements. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the pursuit of other appropriate remedies, shall
be in such form and
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carried out to such an extent and at such time as the Master Servicer or the
Special Servicer, as the case may be, in its good faith business judgment, would
require were it the owner of the Mortgage Loans. Subject to the terms of the
related Servicing Agreement, the Master Servicer and the Special Servicer each
shall 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) In the event the Trustee or its designee assumes the rights
and obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as the
case may be, 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 each remain obligated and liable to the
Trustee and the Certificateholders for the performance of its obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans for which it is responsible.
SECTION 3.23. Designation of Special Servicer by
Majority Certificateholders of the Controlling Class.
The Certificateholders entitled to a majority of the Voting
Rights allocated to the Controlling Class, may at any time and from time to time
replace any existing Special Servicer or any Special Servicer that has resigned
or otherwise ceased to serve as Special Servicer. Such Holders shall so
designate a Person to so serve by the delivery to the Trustee of a written
notice stating such designation, subject to the approval of the Trustee, which
approval shall not be unreasonably withheld. The Trustee shall, promptly after
receiving any such notice, so notify the Rating Agencies. If the Trustee
approves the designated Person (based upon the servicing qualifications and
financial condition of such designated Person) as a replacement Special
Servicer, which approval shall not be unreasonably withheld, the designated
Person shall become the Special Servicer as of the date the Trustee shall have
received: (i) written confirmation from the Rating Agencies stating that if the
designated Person were to serve as Special Servicer hereunder, none of the
then-current ratings of the respective Classes of the Certificates would be
qualified, downgraded or withdrawn; (ii) a written acceptance of all obligations
of the Special Servicer under this Agreement, executed by the designated Person;
and (iii) an Opinion of Counsel (at the expense of the Person designated to
become the Special Servicer or the Holders that made the designation) to the
effect that the designation of such Person to serve as Special Servicer is in
compliance with this Section 3.23 and all other applicable provisions of this
Agreement, that upon the execution and delivery of the written acceptance
referred to in the immediately preceding clause (ii), the designated Person
shall be bound by the terms of this Agreement and that this Agreement shall be
enforceable against the designated Person in
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accordance with its terms. The existing Special Servicer shall be deemed to have
resigned simultaneously with such designated Person's becoming the Special
Servicer hereunder; provided, however, that (i) the resigning Special Servicer
shall continue to be entitled to receive all amounts accrued or owing to it
under this Agreement on or prior to the effective date of such resignation,
whether in respect of Servicing Advances or otherwise, (ii) if terminated
without cause, it shall be entitled to a portion of certain Workout Fees
thereafter received on the Corrected Mortgage Loans (but only if and to the
extent permitted by Section 3.11(c)), and (iii) it and its directors, officers,
employees and agents 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 3.24. Extension Adviser; Elections .
(a) The Holder or Holders of Certificates representing more than
50% by Certificate Principal Balance of all the Registered Certificates with
Certificate Principal Balances (exclusive, if applicable, of the Controlling
Class and any Class of Registered Certificates subordinate to the Controlling
Class) shall be entitled to elect an extension adviser having the rights and
powers specified in Section 3.26(a) (the "Extension Adviser") and/or to replace
an existing Extension Adviser, all as provided in this Section 3.24. Upon (i)
the receipt by the Trustee of written requests for an election of an Extension
Adviser from the Holder or Holders of Certificates representing more than 50% by
Certificate Principal Balance of all the Registered Certificates with
Certificate Principal Balances (exclusive, if applicable, of the Controlling
Class and any Class of Registered Certificates subordinate to the Controlling
Class) or (ii) the resignation or removal of the Person acting as Extension
Adviser, an election of an Extension Adviser shall be held commencing as soon as
practicable thereafter. The Extension Adviser shall be elected for the purpose
of approving the actions of the Special Servicer specified herein in respect of
extending the maturity of any Specially Serviced Mortgage Loan beyond the third
anniversary of its Stated Maturity Date.
(b) After any such receipt, resignation or removal contemplated
by Section 3.24(a), the Trustee shall call a meeting of the Holders of all
Registered Certificates with Certificate Principal Balances (exclusive of the
Controlling Class, if applicable, and any Class of Registered Certificates
subordinate to the Controlling Class). Notice of the meeting of such Holders
shall be mailed or delivered to each such Holder not less than 10 nor more than
60 days prior to the meeting. The notice shall state the place and the time of
the meeting, which may be held by telephone. Holders of the Certificates
representing a majority of the Voting Rights allocated to the applicable Class
or Classes, present themselves or represented by proxy, shall constitute a
quorum for the nomination of an Extension Adviser, as the case may be. At the
meeting, each such Holder shall be entitled to nominate one Person to act as
Extension Adviser.
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The Trustee shall cause the election of the Extension Adviser
to be held as soon thereafter as convenient and in such manner as the Trustee
shall reasonably determine.
(c) Each Holder of Registered Certificates of the Classes
described above shall be entitled to vote in each election of the Extension
Adviser. Immediately upon receipt by the Trustee of written votes (which have
not been rescinded) from the Holders of Certificates representing more than 50%
by Certificate Principal Balance of all the Registered Certificates with
Certificate Principal Balances (exclusive of the Controlling Class, if
applicable, and any Class of Registered Certificates subordinate to the
Controlling Class) which are cast for a single Person, such Person shall be,
upon such Person's acceptance, the Extension Adviser. Prior to the initial
election of an Extension Adviser, the Master Servicer shall act as the Extension
Adviser. Notwithstanding anything to the contrary herein, the Special Servicer
shall not have any right or obligation to consult with or to seek and/or obtain
approval from an Extension Adviser prior to acting, and provisions of this
Agreement relating thereto or requiring such shall be of no effect, in any event
during any such period that there is no Extension Adviser.
(d) The Extension Adviser may be removed at any time by the
written vote, copies of which must be delivered to the Trustee, of the Holders
of Certificates representing more than 50% by Certificate Principal Balance of
all the Registered Certificates with Certificate Principal Balances (exclusive
of the Controlling Class, if applicable, and any Class of Registered
Certificates subordinate to the Controlling Class).
(e) The Trustee shall act as judge of each election of an
Extension Adviser and, absent manifest error, the determination of the results
of any such election by the Trustee shall be conclusive. Notwithstanding any
other provisions of this Section 3.24, the Trustee may make such reasonable
regulations as it may deem advisable for any such election.
SECTION 3.25. Limitation on Liability of Extension Adviser .
The Extension Adviser may act solely as a representative of the
interests of the Certificateholders entitled to vote in the election thereof.
The Extension Adviser shall not have any liability to the Trust Fund or the
Certificateholders for any action taken, or for refraining from the taking of
any action, in good faith pursuant to this Agreement, or for errors in judgment.
By its acceptance of a Certificate, each Certificateholder confirms its
understanding that the Extension Adviser may take actions that favor the
interests of one or more Classes of the Certificates over other Classes of the
Certificates and that the Extension Adviser may have special relationships and
interests that conflict with those of Holders of some Classes of the
Certificates and agrees to take no action against the Extension Adviser or any
of its officers, directors, employees, principals or agents as a result of such
a special relationship or conflict.
SECTION 3.26. Duties of Extension Adviser .
If there is an Extension Adviser, the Special Servicer may not
extend the maturity of any Specially Serviced Mortgage Loan beyond the third
anniversary of its Stated Maturity
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Date, unless: (i) the Special Servicer has notified the Extension Adviser of its
intention to take such action and has supplied the Extension Adviser with such
information as the Extension Adviser may reasonably request to allow the
Extension Adviser to make an informed decision; and (ii) the Extension Adviser
has not objected to such extension in writing within ten days of receiving from
the Special Servicer written notice thereof and sufficient information to make
an informed decision (provided that if such written objection to such extension
has not been received by the Special Servicer within such ten-day period, then
the Extension Adviser's approval will be deemed to have been given). In
addition, the Extension Adviser shall be entitled to confirm to its reasonable
satisfaction that all conditions precedent to the granting of any such extension
set forth in this Agreement have been satisfied.
SECTION 3.27. Special Servicer to Cooperate with the Extension Adviser .
(a) The Special Servicer shall, with respect to any proposed
extension of the maturity of any Specially Serviced Mortgage Loan beyond the
third anniversary of its Stated Maturity Date, prepare and deliver to the
Extension Adviser a summary of such proposed action and an analysis of whether
such action is reasonably likely to produce a greater recovery to
Certificateholders on a present value basis (the relevant discounting to be
performed at the related Mortgage Rate) than liquidation of such Mortgage Loan.
Such analysis shall specify the basis on which the Special Servicer has made
such determination, including the status of any existing material default or the
grounds for concluding that a payment default is reasonably foreseeable.
(b) All correspondence and communications with or from the
Extension Adviser may be conducted with or from the officers or employees of the
Extension Adviser whose names appear on a list of officers or employees
furnished to the Special Servicer by the Extension Adviser, as such list may
from time to time be amended.
(c) Any and all reports provided by the Special Servicer to the
Extension Adviser shall also be delivered to the Trustee.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall be deemed to apply 0.1%
of the Available Distribution Amount (such 0.1% thereof, the "Sub-Available
Distribution Amount") for such date for the following purposes and in the
following order of priority:
(i) to pay interest to REMIC II in respect of REMIC I Regular
Interests A-1, A-2A, A-2B, LG1, LG2 and X-1, up to an amount equal to,
and pro rata in accordance with, (A) in the
case of each of REMIC I Regular Interest A-1, REMIC I Regular Interest
A-2A and REMIC I Regular Interest A-2B, the amount of Uncertificated
Distributable Interest in respect of such REMIC I Regular Interest for
such Distribution Date, (B) in the case of each of REMIC I Regular
Interest LG1 and REMIC I Regular Interest LG2, 0.1% of the amount of
the Class X-2 Share of the Uncertificated Distributable Interest in
respect of such REMIC I Regular Interest for such Distribution Date,
and (C) in the case of REMIC I Regular Interest X-1, 0.1% of the amount
of the Uncertificated Distributable Interest in respect of such REMIC I
Regular Interest for such Distribution Date;
(ii) to pay principal to REMIC II: (A) first in respect of REMIC
I Regular Interest A-1, second in respect of REMIC I Regular Interest
A-2A, and third in respect of REMIC I Regular Interest A-2B, in each
case, up to an amount equal to the lesser of (1) the then Uncertificated
Principal Balance of such REMIC I Regular Interest and (2) the remaining
portion of an amount equal to 0.1% of the Principal Distribution Amount
with respect to Loan Group 1 for such Distribution Date; and (B) first
in respect of REMIC I Regular Interest A-2A, second in respect of REMIC
I Regular Interest A-2B, and third in respect of REMIC I Regular
Interest A-1, in each case, up to an amount equal to the lesser of (1)
the then Uncertificated Principal Balance of such REMIC I Regular
Interest and (2) the remaining portion of an amount equal to 0.1% of the
Principal Distribution Amount with respect to Loan Group 2 for such
Distribution Date; provided that, if the remaining portion of the
Sub-Available Distribution Amount for such Distribution Date that is
distributable pursuant to this clause (ii), is less than 0.1% of the
Aggregate Principal Distribution Amount for such date, payments pursuant
to this clause (ii) in respect of the Principal Distribution Amounts
with respect to the two Loan Groups shall be deemed made on a pro rata
basis in accordance with the relative sizes of such Principal
Distribution Amounts;
(iii) to reimburse REMIC II for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC I
Regular Interest A-1, REMIC I Regular Interest A-2A and REMIC I Regular
Interest A-2B, up to an amount equal to, and pro rata as among such
REMIC I Regular Interests in accordance with, the
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respective Loss Reimbursement Amounts in respect of such REMIC I Regular
Interests for such Distribution Date; and
(iv) to make payments to REMIC II in respect of REMIC I Regular
Interests B, C, D, E, F, G, H, J and K as contemplated below;
provided that, on each Distribution Date after the aggregate of the
Uncertificated Principal Balances of REMIC I Regular Interests B, C, D, E, F, G,
H, J and K has been reduced to zero, and in any event on the Final Distribution
Date, the payments of principal to be deemed made pursuant to clause (ii) above,
will be so deemed made to REMIC II in respect of REMIC I Regular Interests A-1,
A-2A and A-2B, up to an amount equal to, and pro rata as among such REMIC I
Regular Interests in accordance with, the respective then Uncertificated
Principal Balances of such REMIC I Regular Interests, and without regard to the
Principal Distribution Amounts with respect to the two Loan Groups for such
date.
On each Distribution Date, following the foregoing series of deemed
payments, the Trustee shall be deemed to apply the remaining portion, if any, of
the Sub-Available Distribution Amount for such date that was deemed applied to
such payments, for the following purposes and in the following order of
priority:
(i) to pay interest to REMIC II in respect of REMIC I Regular
Interest B, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC I Regular Interest for such
Distribution Date;
(ii) to pay principal to REMIC II in respect of REMIC I Regular
Interest B, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC I Regular Interest and
(2) an amount equal to 0.1% of the Aggregate Principal Distribution
Amount for such Distribution Date (net of any payments of principal
deemed made to REMIC II in respect of REMIC I Regular Interests A-1,
A-2A and A-2B on such Distribution Date);
(iii) to reimburse REMIC II for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC I
Regular Interest B, up to an amount equal to the Loss Reimbursement
Amount in respect of such REMIC I Regular Interest for such Distribution
Date;
(iv) to pay interest to REMIC II in respect of REMIC I Regular
Interest C, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC I Regular Interest for such
Distribution Date;
(v) to pay principal to REMIC II in respect of REMIC I Regular
Interest C, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC I Regular Interest and
(2) an amount equal to 0.1% of the Aggregate Principal Distribution
Amount for such Distribution Date (net of any payments of
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118
principal deemed made to REMIC II in respect of REMIC I Regular
Interests A-1, A-2A, A-2B and B on such Distribution Date);
(vi) to reimburse REMIC II for any Realized Losses and Additional
Trust Fund Expenses previously deemed allocated to REMIC I Regular
Interest C, up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC I Regular Interest for such Distribution Date;
(vii) to pay interest to REMIC II in respect of REMIC I Regular
Interest D, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC I Regular Interest for such
Distribution Date;
(viii) to pay principal to REMIC II in respect of REMIC I Regular
Interest D, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC I Regular Interest and
(2) an amount equal to 0.1% of the Aggregate Principal Distribution
Amount for such Distribution Date (net of any payments of principal
deemed made to REMIC II in respect of REMIC I Regular Interests A-1,
A-2A, A-2B, B and C on such Distribution Date);
(ix) to reimburse REMIC II for any Realized Losses and Additional
Trust Fund Expenses previously deemed allocated to REMIC I Regular
Interest D, up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC I Regular Interest for such Distribution Date;
(x) to pay interest to REMIC II in respect of REMIC I Regular
Interest E, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC I Regular Interest for such
Distribution Date;
(xi) to pay principal to REMIC II in respect of REMIC I Regular
Interest E, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC I Regular Interest and
(2) an amount equal to 0.1% of the Aggregate Principal Distribution
Amount for such Distribution Date (net of any payments of principal
deemed made to REMIC II in respect of REMIC I Regular Interests A-1,
A-2A, A-2B, B, C and D on such Distribution Date);
(xii) to reimburse REMIC II for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC I
Regular Interest E, up to an amount equal to the Loss Reimbursement
Amount in respect of such REMIC I Regular Interest for such Distribution
Date;
(xiii) to pay interest to REMIC II in respect of REMIC I Regular
Interest F, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC I Regular Interest for such
Distribution Date;
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119
(xiv) to pay principal to REMIC II in respect of REMIC I Regular
Interest F, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC I Regular Interest and
(2) an amount equal to 0.1% of the Aggregate Principal Distribution
Amount for such Distribution Amount (net of any payments of principal
deemed made to REMIC II in respect of REMIC I Regular Interests A-1,
A-2A, A-2B, B, C, D and E on such Distribution Date);
(xv) to reimburse REMIC II for any Realized Losses and Additional
Trust Fund Expenses previously deemed allocated to REMIC I Regular
Interest F, up to an amount equal to the Loss Reimbursement Amount in
respect of such REMIC I Regular Interest for such Distribution Date;
(xvi) to pay interest to REMIC II in respect of REMIC I Regular
Interest G, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC I Regular Interest for such
Distribution Date;
(xvii) to pay principal to REMIC II in respect of REMIC I Regular
Interest G, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC I Regular Interest and
(2) an amount equal to 0.1% of the Aggregate Principal Distribution
Amount for such Distribution Amount (net of any payments of principal
deemed made to REMIC II in respect of REMIC I Regular Interests A-1,
A-2A, A-2B, B, C, D, E and F on such Distribution Date);
(xviii) to reimburse REMIC II for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC I
Regular Interest G, up to an amount equal to the Loss Reimbursement
Amount in respect of such REMIC I Regular Interest for such Distribution
Date;
(xix) to pay interest to REMIC II in respect of REMIC I Regular
Interest H, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC I Regular Interest for such
Distribution Date;
(xx) to pay principal to REMIC II in respect of REMIC I Regular
Interest H, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC I Regular Interest and
(2) an amount equal to 0.1% of the Aggregate Principal Distribution
Amount for such Distribution Amount (net of any payments of principal
deemed made to REMIC II in respect of REMIC I Regular Interests A-1,
A-2A, A-2B, B, C, D, E, F and G on such Distribution Date);
(xxi) to reimburse REMIC II for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC I
Regular Interest H, up to an amount equal to the Loss Reimbursement
Amount in respect of such REMIC I Regular Interest for such Distribution
Date;
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120
(xxii) to pay interest to REMIC II in respect of REMIC I Regular
Interest J, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC I Regular Interest for such
Distribution Date;
(xxiii) to pay principal to REMIC II in respect of REMIC I
Regular Interest J, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC I Regular Interest and
(2) an amount equal to 0.1% of the Aggregate Principal Distribution
Amount for such Distribution Amount (net of any payments of principal
deemed made to REMIC II in respect of REMIC I Regular Interests A-1,
A-2A, A-2B, B, C, D, E, F, G and H on such Distribution Date);
(xxiv) to reimburse REMIC II for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC I
Regular Interest J, up to an amount equal to the Loss Reimbursement
Amount in respect of such REMIC I Regular Interest for such Distribution
Date;
(xxv) to pay interest to REMIC II in respect of REMIC I Regular
Interest K, up to an amount equal to all Uncertificated Distributable
Interest in respect of such REMIC I Regular Interest for such
Distribution Date;
(xxvi) to pay principal to REMIC II in respect of REMIC I Regular
Interest K, up to an amount equal to the lesser of (1) the then
Uncertificated Principal Balance of such REMIC I Regular Interest and
(2) an amount equal to 0.1% of the Aggregate Principal Distribution
Amount for such Distribution Amount (net of any payments of principal
deemed made to REMIC II in respect of REMIC I Regular Interests A-1,
A-2A, A-2B, B, C, D, E, F, G, H and J on such Distribution Date); and
(xxvii) to reimburse REMIC II for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC I
Regular Interest K, up to an amount equal to the Loss Reimbursement
Amount in respect of such REMIC I Regular Interest for such Distribution
Date;
provided that, on the Final Distribution Date, the payments of principal to be
deemed made pursuant to any of clauses (ii), (v), (viii), (xi), (xiv), (xvii),
(xx), (xxiii) and (xxvi) above in respect of any REMIC I Regular Interest, will
be so deemed made to REMIC II in respect of such REMIC I Regular Interest, up to
an amount equal to the then Uncertificated Principal Balance of such REMIC I
Regular Interest, and without regard to the Principal Distribution Amounts with
respect to the two Loan Groups for such date.
On each Distribution Date, following the foregoing two series of deemed
payments, the Trustee shall be deemed to apply the entire Available Distribution
Amount for such date not otherwise deemed applied to make such respective series
of payments contemplated by the preceding two paragraphs, for the following
purposes and in the following order of priority:
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121
(i) to pay interest to REMIC II in respect of REMIC I Regular
Interests LG1, LG2 and X-1, up to 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 (net of any portion of such interest deemed paid on
such Distribution Date pursuant to the foregoing provisions of this
Section 4.01(a));
(ii) to pay principal to REMIC II: (A) in respect of REMIC I
Regular Interest LG1, up to an amount equal to the excess, if any, of
(1) the then Uncertificated Principal Balance of such REMIC I Regular
Interest, over (2) an amount equal to 99.9% of the aggregate Stated
Principal Balance of Loan Group 1 that will be outstanding immediately
following such Distribution Date; and (B) in respect of REMIC I Regular
Interest LG2, up to an amount equal to the excess, if any, of (1) the
then Uncertificated Principal Balance of such REMIC I Regular Interest,
over (2) an amount equal to 99.9% of the aggregate Stated Principal
Balance of Loan Group 2 that will be outstanding immediately following
such Distribution Date; provided that, if the remaining portion of the
Available Distribution Amount for such Distribution Date that is
distributable pursuant to this clause (ii), is less than the aggregate
of the two excesses referred to in subclauses (A) and (B) of this clause
(ii), payments pursuant to this clause (ii) in respect of REMIC I
Regular Interest LG1 and REMIC I Regular Interest LG2, respectively,
shall be deemed made on a pro rata basis in
accordance with the relative sizes of such excesses; and
(iii) to reimburse REMIC II for any Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to REMIC I
Regular Interest LG1 and REMIC I Regular Interest LG2, up to an amount
equal to, and pro rata as between such REMIC I Regular Interests in
accordance
with, the respective Loss Reimbursement Amounts in respect of such
REMIC I Regular Interests for such Distribution Date;
provided that, on the Final Distribution Date, the payments of principal to be
deemed made pursuant to clause (ii) above, will be so deemed made to REMIC II in
respect of REMIC I Regular Interests LG1 and LG2, up to an amount equal to, and
pro rata as between such REMIC I Regular Interests in accordance with, the
respective then Uncertificated Principal Balances of such REMIC I Regular
Interests.
On each Distribution Date, the Trustee shall withdraw from the
Distribution Account and pay to the Holders of the Class R-I Certificates that
portion, if any, of the Available Distribution Amount for such date that has not
otherwise been deemed paid to REMIC II in respect of the REMIC I Regular
Interests pursuant to the foregoing provisions of this Section 4.01(a). Such
payments shall be the only actual distributions made pursuant to this Section
4.01(a).
On each Distribution Date, the Trustee shall be deemed to apply all
Prepayment Premiums then on deposit in the Distribution Account and received
during or prior to the related Collection Period, to pay additional interest to
REMIC II in respect of REMIC I Regular Interest LG1, in the case of each such
Prepayment Premium received with respect to a Group 1 Loan,
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122
and REMIC I Regular Interest LG2, in the case of each such Prepayment Premium
received with respect to a Group 2 Loan.
(b) On each Distribution Date, following the deemed payments to
REMIC II in respect of the REMIC I Regular Interests on such date pursuant to
Section 4.01(a), the Trustee shall withdraw from the Distribution Account the
Available Distribution Amount for such Distribution Date, net of any portion
thereof paid to the Holders of the Class R-I Certificates pursuant to Section
4.01(a), and shall apply such net amount for the following purposes and in the
following order of priority:
(i) to pay interest to the Holders of the respective
Classes of Senior Certificates, in an amount equal to, and pro
rata in accordance with, all Distributable Certificate Interest
in respect of each such Class of Certificates for such
Distribution Date;
(ii) to pay principal: (A) first to the Holders of the
Class A-1 Certificates, second to the Holders of the Class A-2A
Certificates and third to the Holders of the Class A-2B
Certificates, in each case, up to an amount equal to the lesser
of (1) the then outstanding Class Principal Balance of such Class
of Certificates and (2) the remaining Principal Distribution
Amount with respect to Loan Group 1 for such Distribution Date;
and (B) first to the Holders of the Class A-2A Certificates,
second to the Holders of the Class A-2B Certificates and third to
the Holders of the Class A-1 Certificates, in each case, up to an
amount equal to the lesser of (1) the then outstanding Class
Principal Balance of such Class of Certificates and (2) the
remaining Principal Distribution Amount with respect to Loan
Group 2 for such Distribution Date; provided that, if the
remaining portion of the Available Distribution Amount for such
Distribution Date that is distributable pursuant to this clause
(ii), is less than the Aggregate Principal Distribution Amount
for such date, payments pursuant to this clause (ii) in respect
of the Principal Distribution Amounts with respect to the two
Loan Groups shall be made on a pro rata basis in accordance with
the relative sizes of such Principal Distribution Amounts;
(iii) to reimburse the Holders of the respective Classes
of Class A Certificates, up to an amount equal to and pro rata as
among such Classes in accordance with, the respective amounts of
Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Classes of Certificates and
for which no reimbursement has previously been paid; and
(iv) to make payments on the Subordinated Certificates
pursuant to the following paragraph;
provided that, on each Distribution Date after the aggregate of the
Class Principal Balances of the Subordinated Certificates has been
reduced to zero, and in any event on
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123
the Final Distribution Date, the payments of principal to be made
pursuant to clause (ii) above, will be so made to the Holders of the
respective Classes of Class A Certificates, up to an amount equal to, and
pro rata as among such Classes in accordance with, the respective then
outstanding Class Principal Balances of such Classes of Certificates, and
without regard to the Principal Distribution Amounts with respect to the
two Loan Groups for such date. References to "remaining Principal
Distribution Amount" with respect to either Loan Group in clause (ii)
above, shall be to the Principal Distribution Amount with respect to such
Loan Group for such Distribution Date, net of any distributions of
principal made in respect thereof to the Holders of each Class of Class A
Certificates that pursuant to clause (ii) above have a prior right to
payment with respect thereto.
On each Distribution Date, following the foregoing series of payments on
the Senior Certificates, the Trustee shall apply the remaining portion, if any,
of the Available Distribution Amount for such date for the following purposes
and in the following order of priority:
(i) to pay interest to the Holders of the Class B
Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(ii) if the Class Principal Balances of the Class A
Certificates have been reduced to zero, to pay principal to the
Holders of the Class B Certificates, up to an amount equal to the
lesser of (A) the then outstanding Class Principal Balance of
such Class of Certificates and (B) the remaining Aggregate
Principal Distribution Amount for such Distribution Date;
(iii) to reimburse the Holders of the Class B
Certificates, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed
allocated to such Class of Certificates and for which no
reimbursement has previously been paid;
(iv) to pay interest to the Holders of the Class C
Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(v) if the Class Principal Balances of the Class A and
Class B Certificates have been reduced to zero, to pay principal
to the Holders of the Class C Certificates, up to an amount equal
to the lesser of (A) the then outstanding Class Principal Balance
of such Class of Certificates and (B) the remaining Aggregate
Principal Distribution Amount for such Distribution Date;
(vi) to reimburse the Holders of the Class C
Certificates, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any,
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124
previously deemed allocated to such Class of Certificates
and for which no reimbursement has previously been received;
(vii) to pay interest to the Holders of the Class D
Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(viii)if the Class Principal Balances of the Class A,
Class B and Class C Certificates have been reduced to zero, to
pay principal to the Holders of the Class D Certificates, up to
an amount equal to the lesser of (A) the then outstanding Class
Principal Balance of such Class of Certificates and (B) the
remaining Aggregate Principal Distribution Amount for such
Distribution Date;
(ix) to reimburse the Holders of the Class D
Certificates, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed
allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(x) to pay interest to the Holders of the Class E
Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xi) if the Class Principal Balances of the Class A,
Class B, Class C and Class D Certificates have been reduced to
zero, to pay principal to the Holders of the Class E
Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of such Class of Certificates
and (B) the remaining Aggregate Principal Distribution Amount for
such Distribution Date;
(xii) to reimburse the Holders of the Class E
Certificates, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed
allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xiii)to pay interest to the Holders of the Class F
Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xiv) if the Class Principal Balances of the Class A,
Class B, Class C, Class D and Class E Certificates have been
reduced to zero, to pay principal to the Holders of the Class F
Certificates, up to an amount equal to the lesser of (A) the then
outstanding Class Principal Balance of such Class of Certificates
and (B) the remaining Aggregate Principal Distribution Amount for
such Distribution Date;
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125
(xv) to reimburse the Holders of the Class F
Certificates, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed
allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xvi) to pay interest to the Holders of the Class G
Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xvii)if the Class Principal Balances of the Class A,
Class B, Class C, Class D, Class E and Class F Certificates have
been reduced to zero, to pay principal to the Holders of the
Class G Certificates, up to an amount equal to the lesser of (A)
the then outstanding Class Principal Balance of such Class of
Certificates and (B) the remaining Aggregate Principal
Distribution Amount for such Distribution Date;
(xviii) to reimburse the Holders of the Class G
Certificates, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed
allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xix) to pay interest to the Holders of the Class H
Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xx) if the Class Principal Balances of the Class A,
Class B, Class C, Class D, Class E, Class F and Class G
Certificates have been reduced to zero, to pay principal to the
Holders of the Class H Certificates, up to an amount equal to the
lesser of (A) the then outstanding Class Principal Balance of
such Class of Certificates and (B) the remaining Aggregate
Principal Distribution Amount for such Distribution Date;
(xxi) to reimburse the Holders of the Class H
Certificates, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed
allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xxii)to pay interest to the Holders of the Class J
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date;
(xxiii) if the Class Principal Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates have been reduced to zero, to pay principal to the
Holders of the Class J Certificates, up to an
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amount equal to the lesser of (A) the then outstanding Class
Principal Balance of such Class of Certificates and (B) the
remaining Aggregate Principal Distribution Amount for such
Distribution Date;
(xxiv)to reimburse the Holders of the Class J
Certificates, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed
allocated to such Class of Certificates and for which no
reimbursement has previously been received;
(xxv) to pay interest to the Holders of the Class K
Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(xxvi)if the Class Principal Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H and
Class J Certificates have been reduced to zero, to pay principal
to the Holders of the Class K Certificates, up to an amount equal
to the lesser of (A) the then outstanding Class Principal Balance
of such Class of Certificates and (B) the remaining Aggregate
Principal Distribution Amount for such Distribution Date;
(xxvii) to reimburse the Holders of the Class K
Certificates, up to an amount equal to all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed
allocated to such Class of Certificates and for which no
reimbursement has previously been received; and
(xxviii) to pay to the Holders of the Class R-II
Certificates the balance, if any, of the Available Distribution Amount for such
Distribution Date;
provided that, on the Final Distribution Date, the payments of principal to be
made pursuant to any of clauses (ii), (v), (viii), (xi), (xiv), (xvii), (xx),
(xxiii) and (xxvi) above with respect to any Class of Sequential Pay
Certificates, will be so made to the Holders thereof, up to an amount equal to
the entire then outstanding Class Principal Balance of such Class of
Certificates, and without regard to the Principal Distribution Amounts with
respect to the two Loan Groups for such date. References to "remaining Aggregate
Principal Distribution Amount" in any of clauses (ii), (v), (viii), (xi), (xiv),
(xvii), (xx), (xxiii) and (xxvi) above, in connection with the payments of
principal to be made to the Holders of any Class of Sequential Pay Certificates,
shall be to the Aggregate Principal Distribution Amount for such Distribution
Date, net of any payments of principal made in respect thereof to the Holders of
each Class of Sequential Pay Certificates that have a higher Payment Priority.
On each Distribution Date, the Trustee shall withdraw any amounts
then on deposit in the Distribution Account that represent Prepayment Premiums
collected during or prior to the related Collection Period and shall distribute
such amounts, in each case, subject to available funds, as additional interest,
as follows:
(i) if such Prepayment Premium was received with
respect to a Group 1 Loan, to the Holders of the
Class X-1 Certificates; and
(ii) if such Prepayment Premium was received with
respect to a Group 2 Loan:
first, on a pro rata basis in accordance with their
respective entitlements: (A) to the Holders of the
Class X-2 Certificates, up to an amount equal to (1)
the present value (discounted at the Discount Rate
for the Class X-2 Certificates plus the Spread Rate
for the Class X-2 Certificates) of the aggregate
interest that would have been paid in respect of the
Class X-2 Certificates from the Distribution Date
occurring in the following month until the Class
Notional Amount of the Class X-2 Certificates would
have been reduced to zero had the related principal
prepayment not occurred, minus (2) the present value
(discounted at the Discount Rate for the Class X-2
Certificates plus the Spread Rate for the Class X-2
Certificates) of the aggregate interest that is to
be paid in respect of the Class X-2 Certificates
from the Distribution Date occurring in the
following month until the Class Notional Amount of
the Class X-2 Certificates is to be reduced to zero
after taking account of such principal prepayment;
and (B) to the Holders of the Class A-2A
Certificates, up to an amount equal to (1) the
present value (discounted at the Discount Rate for
the Class A-2A Certificates plus the Spread Rate for
the Class A-2A Certificates) of the aggregate
principal and interest that would have been paid in
respect of the Class A-2A Certificates from the
Distribution Date occurring in the following month
until the Class Principal Balance of the Class A-2A
Certificates would have been reduced to zero had the
related principal prepayment not occurred, minus (2)
the sum of the portion of such principal prepayment
distributed in respect of the Class A-2A
Certificates and the present value (discounted at
the Discount Rate for the Class A-2A Certificates
plus the Spread Rate for the Class A-2A
Certificates) of the aggregate principal and
interest that is to be paid in respect of the Class
A-2A Certificates from the Distribution Date
occurring in the following month until the Class
Principal Balance of the Class A-2A Certificates is
to be reduced to zero after taking account of such
principal prepayment; and (C) to the Holders of the
Class A-2B Certificates, up to an amount equal to
(1) the present value (discounted at the Discount
Rate for the Class A-2B Certificates plus the Spread
Rate for the Class A-2B Certificates) of the
aggregate principal and interest that would have
been paid in respect of the Class A-2B Certificates
from the Distribution Date occurring in the
following month until the Class Principal Balance of
the Class A-2B Certificates would have been reduced
to zero had the related principal prepayment not
occurred, minus (2) the sum of the portion of the
related principal
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prepayment distributed in respect
of the Class A-2B Certificates and the present value
(discounted at the Discount Rate for the Class A-2B
Certificates plus the Spread Rate for the Class A-2B
Certificates) of the aggregate principal and
interest that is to be paid in respect of the Class
A-2B Certificates from the Distribution Date
occurring in the following month until the
Certificate Balance of the Class A-2B Certificates
is to be reduced to zero after taking account of
such principal prepayment;
second, to the extent of any portion of such Prepayment
Premium remaining following the distributions made
pursuant to the immediately preceding clause first,
to the Holders of the respective Classes of
Subordinated Certificates (other than the
Non-Registered Certificates), in alphabetical order
of Class designation, in each case in the same
manner and amount as described for the Class A-2A
and Class A-2B Certificates in subclauses (2) and
(3) of the immediately preceding clause first
(except that the Discount Rate and Spread Rate for
each such Class shall correspond to the applicable
rates set forth in the respective definitions
thereof); and
last, to the Holders of the Class R-II Certificates.
The foregoing calculations in connection with the distribution of Prepayment
Premiums shall be made by applying the Maturity Assumptions to the period
subsequent to the end of the Collection Period in which the related principal
prepayment was received. If more than one principal prepayment occurs with
respect to Loan Group 2 during any Collection Period, then the foregoing
calculations shall be applied collectively for all such principal prepayments in
the aggregate.
All of the foregoing distributions to be made from the
Distribution Account on any Distribution Date with respect to the REMIC II
Certificates shall be deemed made from the payments deemed made to REMIC I in
respect of the REMIC I Regular Interests on such Distribution Date pursuant to
Section 4.01(a).
(c) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class on
each Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates) and is the registered owner of Certificates
the aggregate initial
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Certificate Principal Balance of which is at least $1,000,000 (or,
alternatively, is the registered owner of all the Certificates of any Class of
Interest Only Certificates), 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. 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 Registrar or to any other address of
which the Trustee was subsequently notified in writing.
(d) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the 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 Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Sponsor, the Master Servicer, the Special Servicer or
the REMIC Administrator shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(e) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of their 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. Distributions in reimbursement of
Realized Losses and Additional Trust Fund Expenses previously allocated to a
Class of Certificates shall not constitute distributions of principal and shall
not result in a reduction of the related Class Principal Balance.
(f) Except as otherwise provided in Section 9.01, whenever the
Trustee 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 Trustee
shall, as soon as practicable in the month in which such Distribution Date
occurs, mail to each Holder of such Class of Certificates as of the date of
mailing a notice to the effect that:
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(i) the Trustee 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 offices
of the Certificate Registrar or such other location therein specified,
and
(ii) no interest shall accrue on such Certificates from and
after such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(f) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee 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 Trustee, 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 Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(f). If all of the Certificates
shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, the Trustee shall distribute to the Class
R-II Certificateholders all unclaimed funds and other assets which remain
subject hereto.
(g) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such
Certificateholders.
SECTION 4.02. Statements to Certificateholders;
Certain Reports by the Master Servicer and the Special Servicer .
(a) On each Distribution Date, the Trustee shall forward by mail
to all of the Holders of each Class of REMIC II Regular Certificates (and, in
the case of a Class of Book-Entry Certificates, to each related Certificate
Owner that makes a written request therefor and
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certifies as to its Ownership Interest in such Class) and to the Rating Agencies
a written report (a "Distribution Date Statement") setting forth the following
information:
(i) the amount of distributions, if any, made on such
Distribution Date to the holders of each Class of Sequential Pay
Certificates and applied to reduce the respective Class Principal
Balances thereof;
(ii) the amount of distributions, if any, made on such
Distribution Date to the holders of each Class of REMIC II
Regular Certificates allocable to (A) Distributable Certificate
Interest and (B) Prepayment Premiums;
(iii) the number of outstanding Mortgage Loans in each
Loan Group and in the Mortgage Pool at the close of business on
the related Determination Date, the aggregate Stated Principal
Balance of such Mortgage Loans in each Loan Group and in the
Mortgage Pool immediately before and after such Distribution Date
and the percentage of the Cut-off Date Balance of each Loan Group
and the Mortgage Pool which remains outstanding immediately after
such Distribution Date;
(iv) as of the Determination Date in the prior calendar
month, the number and aggregate unpaid principal balance of
Mortgage Loans in each Loan Group and in the Mortgage Pool (A)
delinquent one month, (B) delinquent two months, (C) delinquent
three or more months, (D) that are Specially Serviced Mortgage
Loans but are not delinquent or (E) as to which foreclosure
proceedings have been commenced;
(v) with respect to any Mortgage Loan as to which the
related Mortgaged Property became an REO Property during the
related Collection Period, the Stated Principal Balance and
unpaid principal balance of such Mortgage Loan as of the date
such Mortgaged Property became an REO Property;
(vi) as to any Mortgage Loan repurchased or otherwise
liquidated or disposed of during the related Collection Period,
the loan number thereof and the amount of any Liquidation
Proceeds and/or other amounts, if any, received thereon during
the related Collection Period and the portion thereof included in
the Available Distribution Amount for such Distribution Date;
(vii) with respect to any REO Property included in the
Trust Fund as of the close of business on the last day of the
related Collection Period, the loan number of the related
Mortgage Loan, the book value of such REO Property and the amount
of any income collected with respect to such REO Property (net of
related expenses) and other amounts, if any, received on such REO
Property
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during the related Collection Period and the portion
thereof included in the Available Distribution Amount for such
Distribution Date;
(viii) with respect to any REO Property sold or
otherwise disposed of during the related Collection Period, (A)
the loan number of the related Mortgage Loan, (B) the amount of
Liquidation Proceeds and other amounts, if any, received in
respect of such REO Property during the related Collection Period
and the portion thereof included in the Available Distribution
Amount for such Distribution Date and (C) the date of the related
Final Recovery Determination by the Special Servicer;
(ix) the Class Principal Balance, Class Notional Amount
or Effective Class Notional Amount, as the case may be, of each
Class of REMIC II Regular Certificates immediately before and
immediately after such Distribution Date, separately identifying
any reduction in the Class Principal Balance, Class Notional
Amount or Effective Class Notional Amount, as the case may be, of
each such Class due to Realized Losses and Additional Trust Fund
Expenses;
(x) the aggregate amount of Principal Prepayments made
during the related Collection Period, and the aggregate amount of
any Prepayment Interest Excesses received and Prepayment Interest
Shortfalls incurred in connection therewith (in each case
separately identifying to which Loan Group they relate);
(xi) the aggregate amount of servicing compensation
retained by or paid to the Master Servicer and the Special
Servicer in respect of the related Collection Period;
(xii) the aggregate amount of Realized Losses and
Additional Trust Fund Expenses, if any, incurred with respect to
the Trust Fund during the related Collection Period;
(xiii) the aggregate amount of Advances outstanding for
each of the Master Servicer, the Special Servicer and the
Trustee, respectively, as of the close of business on the prior
Distribution Date;
(xiv) any Appraisal Reduction Amounts on a loan-by-loan
basis, and the total
Appraisal Reduction Amounts, as of such Distribution Date;
(xv) the aggregate amount of any Balloon Payment
Interest Excesses and Balloon Payment Interest Shortfalls (in
each case identifying the amounts relating to each Loan Group);
and
(xvi) such additional information as contemplated by
pages B-2 through B-5 of the Prospectus Supplement.
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In the case of information furnished pursuant to subclauses (i), (ii) and (ix)
above, the amounts shall be expressed as a dollar amount in the aggregate for
all Certificates of each applicable Class and per single Certificate of a
specified minimum denomination.
In addition, the Trustee shall so deliver or cause to be
delivered to such Certificateholders and Certificate Owners, at the same time
that the Distribution Date Statement is delivered thereto, each (i) Delinquent
Loan Status Report, (ii) REO Status Report, (iii) Historical Loan Modification
Report, (iv) Special Servicer Loan Status Report and (v) Historical Loss Report
that has been received or prepared by the Trustee since the prior Distribution
Date.
On each Distribution Date, the Trustee shall make available via
electronic bulletin board (or in the alternative in written form to a Person
entitled thereto and so requesting in writing) to each Certificateholder, to
each Certificate Owner that makes a written request therefor and certifies as to
its Ownership Interest in any Class of Book-Entry Certificates, and to the
Rating Agencies, a report (based on information received from the Master
Servicer and in a format mutually acceptable to the Trustee and the Master
Servicer) containing, as and to the extent received from the Master Servicer,
information regarding the Mortgage Pool and each Loan Group as of the close of
business on the related Determination Date, which report shall contain
substantially the categories of information regarding the Mortgage Loans set
forth in the Prospectus Supplement in the schedules and tables under the caption
"Annex A: Certain Characteristics of the Mortgage Loans" (calculated, where
applicable, on the basis of the most recent relevant information provided by the
Mortgagors to the Master Servicer or the Special Servicer and by the Master
Servicer or the Special Servicer, as the case may be, to the Trustee) and such
information shall be presented in a loan-by-loan and tabular format
substantially similar to the formats utilized in Annex A to the Prospectus
Supplement.
On the Distribution Date that occurs during the first month of
each calendar quarter, the Trustee shall deliver or shall cause to be delivered
to each Certificateholder a copy of the Operating Statement Analysis of the
Master Servicer which the Trustee has most recently received.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a REMIC II Regular Certificate a statement
containing the information as to the applicable Class set forth in clauses (i)
and (ii) of the description of Distribution Date Statements above aggregated for
such calendar year or applicable portion thereof during which such person was a
Certificateholder, together with such other information as the Trustee
determines to be necessary to enable Certificateholders to prepare their tax
returns for such calendar year. Such obligation of the Trustee shall be deemed
to have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee or the REMIC Administrator pursuant to any
requirements of the Code as from time to time are in force.
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On each Distribution Date, the Trustee shall forward or make
available electronically to the Sponsor, to each Rating Agency, to each Holder
of a Residual Certificate, to the Master Servicer, to the Special Servicer, to
the REMIC Administrator and, in the case of reports regarding a Class of
Book-Entry Certificates, to The Trepp Group (at 477 Madison Avenue, 15th Floor,
New York, New York 10022, or such other address as The Trepp Group may hereafter
designate) or any other party that the Depository may designate, a copy of the
reports forwarded to the Holders of the REMIC II Regular Certificates on such
Distribution Date and a statement setting forth the amounts, if any, actually
distributed with respect to each Class of Residual Certificates on such
Distribution Date.
Upon filing with the Internal Revenue Service, the REMIC
Administrator shall furnish to the Holders of the Residual Certificates the Form
1066 and shall furnish their respective Schedules Q thereto at the times
required by the Code or the Internal Revenue Service, and shall provide from
time to time such information and computations with respect to the entries on
such forms as any Holder of the Residual Certificates may reasonably request.
The specification of information to be furnished by the Trustee
to the Certificateholders in this Section 4.02 (and any other terms of this
Agreement requiring or calling for delivery or reporting of information by the
Trustee to Certificateholders and Certificate Owners) shall not limit the
Trustee in furnishing, and the Trustee is hereby authorized to furnish, to
Certificateholders, Certificate Owners and/or to the public any other
information (such other information, collectively, "Additional Information")
with respect to the Mortgage Loans, the Mortgaged Properties or the Trust Fund
as may be provided to it by the Sponsor, the Master Servicer or the Special
Servicer or gathered by it in any investigation or other manner from time to
time, provided that (A) while there exists any Event of Default, any such
Additional Information shall only be furnished with the consent or at the
request of the Sponsor (except pursuant to clause (E) below), (B) the Trustee
shall be entitled to indicate the source of all information furnished by it, and
the Trustee may affix thereto any disclaimer it deems appropriate in its sole
discretion (together with any warnings as to the confidential nature and/or the
uses of such information as it may, in its sole discretion, determine
appropriate), (C) the Trustee may notify Certificateholders and Certificate
Owners of the availability of any such information in any manner as it, in its
sole discretion, may determine, (D) the Trustee shall be entitled (but not
obligated) to require payment from each recipient of a reasonable fee for, and
its out-of-pocket expenses incurred in connection with, the collection,
assembly, reproduction or delivery of any such Additional Information, (E)
without the consent of or notice to the Sponsor, the Trustee may, in its sole
discretion, furnish Additional Information to a Rating Agency in any instance,
and to the Certificateholders, Certificate Owners and/or the public-at-large if
it determines that the furnishing of such information would assist in the
evaluation of the investment characteristics or valuation of the Certificates or
would be in the best interests of the Certificateholders or is required by
applicable law and (F) the Trustee shall be entitled to distribute or make
available such Additional Information in accordance with such reasonable rules
and procedures as it may deem necessary or appropriate (which may include the
requirement that an agreement that provides such information shall be used
solely for purposes of evaluating the investment characteristics or valuation of
the Certificates be executed by the
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recipient, if and to the extent the Trustee deems the same to be necessary or
appropriate). Nothing herein shall be construed to impose upon the Trustee any
obligation or duty to furnish or distribute any Additional Information to any
Person in any instance, and the Trustee shall neither have any liability for
furnishing nor for refraining from furnishing Additional Information in any
instance. The Trustee shall be entitled (but not required) to request and
receive direction from the Sponsor as to the manner of delivery of any such
Additional Information, if and to the extent the Trustee deems necessary or
advisable, and to require that any consent, direction or request given to it
pursuant to this Section be made in writing.
Upon the authorization of the Sponsor, the Trustee shall deliver
all the reports delivered or made available pursuant to this Section 4.02(a) to
the Certificateholders and Certificate Owners to Bloomberg Financial Markets,
L.P. ("Bloomberg") using a format and media mutually acceptable to the Trustee
and Bloomberg.
(b) At or before 11:00 a.m. (New York City time) on the third
Business Day prior to each Distribution Date, the Master Servicer shall deliver
or cause to be delivered to the Trustee and the Special Servicer, in writing and
on a computer-readable medium, in form reasonably acceptable to the Trustee,
including, without limitation, on a loan-by-loan basis if determined by the
Trustee to be necessary to comply with the requirements relating thereto that
are set forth in this Agreement, the following reports (collectively, the
"Collection Report"): (1) a Delinquent Loan Status Report, (2) an REO Status
Report, (3) a Historical Loan Modification Report, (4) a Historical Loss Report,
(5) the Special Servicer Loan Status Report most recently received by the Master
Servicer and (6) a single report setting forth the information specified in
clauses (i) through (xiv) below (the amounts and allocations of payments,
collections, fees and expenses with respect to Specially Serviced Mortgage Loans
and REO Properties to be based upon the report to be delivered by the Special
Servicer to the Master Servicer on the second Business Day after the related
Determination Date, in the form required by Section 4.02(c) below):
(i) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account on the related Master
Servicer Remittance Date that is allocable to principal on or in respect
of the Mortgage Loans and any REO Loans in each Loan Group, separately
identifying the aggregate amount of any Principal Prepayments included
therein, and (if different) the Principal Distribution Amount with
respect to such Loan Group for the immediately succeeding Distribution
Date;
(ii) the aggregate amount that is to be transferred from the
Certificate Account to the Distribution Account on the related Master
Servicer Remittance Date that is allocable to (A) interest on or in
respect of the Mortgage Loans and any REO Loans and (B) Prepayment
Premiums (separately identifying to which Loan Group they relate);
(iii) the aggregate amount of any P&I Advances (specifying the
principal and interest portions thereof separately) to be made pursuant
to Section 4.03 of this
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Agreement that are included in the amounts to be deposited in the
Distribution Account (separately identifying to which Loan Group they
relate);
(iv) the amount of the Master Servicing Fees, Special Servicing
Fees, Workout Fees, Liquidation Fees and other servicing compensation
with respect to the Mortgage Pool for the Collection Period ending on
such Determination Date, specifying the items and amounts of such other
servicing compensation payable to the Master Servicer and the Special
Servicer;
(v) the number and aggregate unpaid principal balance as of the
close of business on such Determination Date of Mortgage Loans in each
Loan Group and in the Mortgage Pool (A) remaining outstanding, (B)
delinquent 30-59 days, (C) delinquent 60-89 days, (D) delinquent 90 days
or more but not in foreclosure, (E) in foreclosure, (F) as to which the
related Mortgaged Property has become REO Property during the Collection
Period ending on such Determination Date, (G) as to which the related
Mortgaged Property was REO Property as the end of such Collection Period
and (H) the terms of which have been modified during such Collection
Period pursuant to this Agreement;
(vi) the loan number and the unpaid principal balance as of the
close of business on such Determination Date of each Specially Serviced
Mortgage Loan and each other Defaulted Mortgage Loan (separately
identifying to which Loan Group each such Mortgage Loan relates);
(vii) with respect to any REO Property that was included in the
Trust Fund as of the close of business on such Determination Date, the
loan number of the related Mortgage Loan, the Loan Group to which it
relates, the book value of such REO Property and the amount of REO
Revenues and other amounts, if any, received on such REO Property during
the related Collection Period and the portion thereof included in the
Available Distribution Amount for the immediately succeeding
Distribution Date;
(viii) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the Collection Period
ending on such Determination Date, the loan number of such Mortgage
Loan, the Loan Group to which it relates and the Stated Principal
Balance of such Mortgage Loan as of the related Acquisition Date;
(ix) with respect to any Mortgage Loan or REO Property as to
which a Final Recovery Determination was made by the Master Servicer
during the Collection Period ending on such Determination Date, the loan
number of such Mortgage Loan or, in the case of an REO Property, of the
related Mortgage Loan, the Loan Group to which it relates, the amount of
Liquidation Proceeds and/or other amounts, if any, received thereon
during such Collection Period and the portion thereof included in the
Available Distribution Amount for the immediately succeeding
Distribution Date, and any resulting Realized Loss;
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(x) the aggregate Stated Principal Balance of the Mortgage Pool
at the close of business on such Determination Date and the aggregate
Stated Principal Balance of the Mortgage Pool that will be outstanding
after the immediately following Distribution Date;
(xi) the aggregate amount of Realized Losses on the Mortgage Pool
for the Collection Period ending on such Determination Date (and the
portions allocable to principal and interest);
(xii) the aggregate amount of the Additional Trust Fund Expenses
(broken down by type) withdrawn from the Certificate Account during the
Collection Period ending on such Determination Date;
(xiii) such other information on a Mortgage Loan-by-Mortgage Loan
or REO Property-by-REO Property basis as the Trustee or the Depositor
shall reasonably request in writing (including, without limitation,
information with respect to any modifications of any Mortgage Loan, any
Mortgage Loans in default or foreclosure, the operation and disposition
of REO Property and the assumption of any Mortgage Loan); and
(xiv) such additional information as is contemplated on page B-8
of the Prospectus Supplement.
On the date on which the report described above is delivered to
the Trustee, the Master Servicer shall also deliver or cause to be delivered to
the Trustee a report, in writing and in a computer-readable medium, in form
reasonably acceptable to the Trustee, containing the information with respect to
the Mortgage Pool and each Loan Group necessary for the Trustee to prepare with
respect to the Mortgage Pool and each Loan Group the additional schedules and
tables required to be made available by the Trustee pursuant to Section 4.02(a)
in substantially the same formats set forth under the caption "Annex A: Certain
Characteristics of the Mortgage Loans" in the Prospectus Supplement, as well as
to prepare an updated Mortgage Loan Schedule, in each case reflecting the
changes in the Mortgage Pool during the related Collection Period.
Not later than the first day of the calendar month following each
Master Servicer Remittance Date, the Master Servicer shall forward to the
Trustee a statement, setting forth the status of the Certificate Account as of
the close of business on such Master Servicer Remittance Date, stating that all
distributions required by this Agreement to be made by the Master Servicer have
been made (or, in the case of any required distribution that has not been made
by the Master Servicer, specifying the nature and status thereof) and showing,
for the period from the preceding Master Servicer Remittance Date (or, in the
case of the first Master Servicer Remittance Date, from the Cut-Off Date) to
such Master Servicer Remittance Date, the aggregate of deposits into and
withdrawals from the Certificate Account for each category of deposit specified
in Section 3.04(a) and each category of withdrawal specified in Section 3.05(a).
The Master Servicer shall also deliver to the Trustee, upon reasonable request
of the Trustee, any and all additional information relating to the Mortgage
Loans (which information shall be
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based upon reports delivered to the Master Servicer by the Special Servicer with
respect to Specially Serviced Mortgage Loans and REO Properties).
The Master Servicer shall use its reasonable efforts to obtain
from the related Mortgagor and, within 30 days of receipt, deliver to the
Trustee, the Depositor and any other Person designated by either of them, copies
of all of the quarterly and annual operating statements and rent rolls for each
Mortgaged Property, regardless of whether the related Mortgage Loan documents
require the Mortgagor to provide such information. The Special Servicer shall,
pursuant to 4.02(c) below, deliver to the Master Servicer (and, within 30 days
of receipt, the Master Servicer shall deliver to the Trustee) any such operating
statements and rent rolls collected by the Special Servicer with respect to
Specially Serviced Mortgage Loans and REO Property.
Within 120 days following the end of each calendar quarter,
commencing with the calendar quarter ended September 30, 1996, the Master
Servicer shall deliver to the Trustee, with respect to each Mortgaged Property
and REO Property, a report (an "Operating Statement Analysis") containing
revenue, expense and net operating income information normalized using the
methodology described in Annex A of the Prospectus Supplement as of the end of
such calendar quarter. The requirement that the Master Servicer deliver each
Operating Statement Analysis is subject to the Master Servicer having received
the related operating statements and rent rolls from the related Mortgagor.
The Master Servicer, on each Determination Date, shall forward
(for delivery on such Determination Date) to the Special Servicer all
information collected by the Master Servicer which the Special Servicer is
required to include in the Special Servicer Loan Status Report. Further, the
Master Servicer shall cooperate with the Special Servicer and provide the
Special Servicer with the information in the possession of the Master Servicer
reasonably requested by the Special Servicer, in writing, to the extent required
to allow the Special Servicer to perform its obligations under this Agreement
with respect to those Mortgage Loans serviced by the Master Servicer.
The Master Servicer shall use its reasonable efforts to notify
the Rating Agencies in a timely manner of any change in the identity of either
of the two largest tenants of any retail Mortgaged Property, subject to its
becoming aware of such change.
(c) On the second Business Day after each Determination Date, the
Special Servicer shall forward to the Master Servicer (A) the Special Servicer
Loan Status Report and (B) all information the Master Servicer will be required
to include in the Collection Report that the Master Servicer is obligated to
deliver to the Trustee, to the extent such information relates to any Specially
Serviced Mortgage Loan or any REO Property. The Special Servicer shall also
deliver to the Master Servicer and the Trustee, upon the reasonable written
request of either of them, any and all additional information in the possession
of the Special Servicer relating to the Specially Serviced Mortgage Loans and
the REO Properties.
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The Special Servicer shall use its reasonable efforts to obtain
(from the related Mortgagor in the case of Specially Serviced Mortgage Loans)
and, within ten days of receipt, review and deliver to the Master Servicer with
respect to each Specially Serviced Mortgage Loan and REO Property, copies of all
quarterly and annual operating statements and quarterly and annual rent rolls
for the related Mortgaged Property or such REO Property, as the case may be.
The Special Servicer shall cooperate with the Master Servicer and
provide the Master Servicer with the information in the possession of the
Special Servicer reasonably requested by the Master Servicer, in writing, to the
extent required to allow the Master Servicer to perform its obligations under
this Agreement with respect to the Specially Serviced Mortgage Loans and REO
Properties. Additional information regarding the Specially Serviced Mortgage
Loans, including, without limitation, any financial or occupancy information
(including lease summaries) provided to the Special Servicer by the Mortgagors
or otherwise obtained, shall be delivered to the Master Servicer, within ten
days of receipt.
SECTION 4.03. P&I Advances .
(a) On or before 1:00 p.m., New York City time, on each Master
Servicer Remittance Date, the Master Servicer shall either (i) deposit into the
Distribution Account from its own funds an amount equal to the aggregate amount
of P&I Advances, if any, to be made in respect of the related Distribution Date,
(ii) apply amounts held in the Certificate Account for future distribution to
Certificateholders in subsequent months in discharge of any such obligation to
make P&I Advances, or (iii) make P&I Advances in the form of any combination of
(i) and (ii) aggregating the total amount of P&I Advances to be made. Any
amounts held in the Certificate Account for future distribution and so used to
make P&I Advances shall be appropriately reflected in the Master Servicer's
records and replaced by the Master Servicer by deposit in the Certificate
Account on or before the next succeeding Determination Date (to the extent not
previously replaced through the deposit of Late Collections of the delinquent
principal and interest in respect of which such P&I Advances were made). If, as
of 3:00 p.m., New York City time, on any Master Servicer Remittance Date, the
Master Servicer shall not have made any P&I Advance required to be made on such
date pursuant to this Section 4.03(a) (and shall not have delivered to the
Trustee the requisite Officer's Certificate and documentation related to a
determination of nonrecoverability of a P&I Advance), then the Trustee shall
provide notice of such failure to a Servicing Officer of the Master Servicer by
facsimile transmission sent to telecopy no. (312) 845-8617 (or such alternative
number provided by the Master Servicer to the Trustee in writing) and by
telephone at telephone no. (312) 845-8580 (or such alternative number provided
by the Master Servicer to the Trustee in writing) as soon as possible, but in
any event before 10:00 a.m., New York City time, on the next Business Day. If
after such notice the Trustee does not receive the full amount of such P&I
Advances by 11:00 a.m., New York City time, on the Business Day immediately
following such Master Servicer Remittance Date, then (i) the Trustee shall make
the portion of such P&I Advances that was required to be, but was not, made by
the Master Servicer on such Master Servicer Remittance Date and (ii) such
failure shall constitute an Event of Default on the part of the Master Servicer.
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(b) The aggregate amount of P&I Advances to be made by the Master
Servicer in respect of the Mortgage Loans (including, without limitation,
Balloon Mortgage Loans delinquent as to their respective Balloon Payments) and
any REO Loans for any Distribution Date shall equal, subject to subsection (c)
below, the aggregate of all Scheduled Payments (other than Balloon Payments) and
any Assumed Scheduled Payments, in each case net of related Master Servicing
Fees and Workout Fees payable hereunder, that were due or deemed due, as the
case may be, in respect thereof on their respective Due Dates during the related
Collection Period and that were not paid by or on behalf of the related
Mortgagors or otherwise collected as of the close of business on the last day of
the related Collection Period; provided that, if an Appraisal Reduction Amount
exists with respect to any Required Appraisal Loan, then, in the event of
subsequent delinquencies thereon, the interest portion of the P&I Advance in
respect of such Required Appraisal Loan for the related Distribution Date shall
be reduced (it being herein acknowledged that there shall be no reduction in the
principal portion of such P&I Advance) to equal the product of (i) the amount of
the interest portion of such P&I Advance for such Required Appraisal Loan for
such Distribution Date without regard to this proviso, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which is equal to the
Stated Principal Balance of such Required Appraisal Loan immediately prior to
such Distribution Date, net of the related Appraisal Reduction Amount, if any,
and the denominator of which is equal to the Stated Principal Balance of such
Required Appraisal Loan immediately prior to such Distribution Date.
(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. In addition, Nonrecoverable P&I
Advances shall be reimbursable pursuant to Section 3.05(a)(vii) out of general
collections on the Mortgage Pool on deposit in the Certificate Account. The
determination by the Master Servicer or, if applicable, the Trustee, 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
Officer's Certificate delivered promptly (and, in any event, in the case of a
proposed P&I Advance, no less than 5 Business Days prior to the related Master
Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby)
and the Sponsor, setting forth the basis for such determination, together with
(if such determination is prior to the liquidation of the related Mortgage Loan
or REO Property) a copy of an Appraisal of the related Mortgaged Property or REO
Property, as the case may be, which shall have been performed within the twelve
months preceding such determination, and further accompanied by any other
information that the Master Servicer or the Special Servicer may have obtained
and that supports such determination. If such an Appraisal shall not have been
required and performed pursuant to the terms of this Agreement, the Master
Servicer or the Special Servicer, as the case may be, may, subject to its
reasonable and good faith determination that such Appraisal will demonstrate the
nonrecoverability of the related Advance, obtain an Appraisal for such purpose
at the expense of the Trust Fund. The Trustee shall be entitled to rely on any
determination of nonrecoverability that may have been made by the Master
Servicer or the Special Servicer with respect to a particular P&I Advance, and
the Master Servicer shall be entitled to rely on any determination of
nonrecoverability that may have been made by the Special Servicer with respect
to a particular P&I Advance.
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(d) As and to the extent permitted by Section 3.05(a), the Master
Servicer and the Trustee shall each be entitled to receive interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of each
P&I Advance made thereby (out of its own funds) for so long as such P&I Advance
is outstanding. 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 are deposited in the Certificate Account.
SECTION 4.04. Allocation of Realized Losses
and Additional Trust Fund Expenses .
(a) On each Distribution Date, following the payments deemed to
be made to REMIC II in respect of the REMIC I Regular Interests on such date
pursuant to Section 4.01(a), the Trustee shall determine: (i) the amount, if
any, by which (A) the then Uncertificated Principal Balance of REMIC I Regular
Interest LG1, exceeds (B) an amount equal to 99.9% of the aggregate Stated
Principal Balance of Loan Group 1 that will be outstanding immediately following
such Distribution Date; and (ii) the amount, if any, by which (A) the then
Uncertificated Principal Balance of REMIC I Regular Interest LG2, exceeds (B) an
amount equal to 99.9% of the aggregate Stated Principal Balance of Loan Group 2
that will be outstanding immediately following such Distribution Date. If any
such excess exists with respect to either such REMIC I Regular Interest, then
the Uncertificated Principal Balance of such REMIC I Regular Interest shall be
reduced until such excess no longer exists. All such reductions in the
Uncertificated Principal Balances of such REMIC I Regular Interests shall be
deemed to be allocations of Realized Losses and Additional Trust Fund Expenses.
On each Distribution Date, following the payments deemed to be
made to REMIC II in respect of the REMIC I Regular Interests on such date
pursuant to Section 4.01(a), the Trustee shall also determine the amount, if
any, by which (i) the then aggregate Uncertificated Principal Balance of REMIC I
Regular Interests A-1, A-2A, A-2B, B, C, D, E, F, G, H, J and K, exceeds (ii) an
amount equal to 0.1% of the aggregate Stated Principal Balance of the Mortgage
Pool that will be outstanding immediately following such Distribution Date. If
such excess does exist, then the respective Uncertificated Principal Balances of
such REMIC I Regular Interests (other than REMIC I Regular Interests A-1, A-2A
and A-2B) shall be reduced sequentially, in reverse alphabetical order of letter
designation, in each case, until the first to occur of such excess being reduced
to zero or the Uncertificated Principal Balance of such REMIC I Regular Interest
being reduced to zero. If, after the foregoing reductions, the amount described
in clause (i) of the second preceding sentence still exceeds the amount
described in clause (ii) of the second preceding sentence, then the respective
Uncertificated Principal Balances of REMIC I Regular Interests A-1, A-2A and
A-2B shall be reduced, pro rata in accordance with the relative sizes of the
then outstanding Uncertificated Principal Balances of such REMIC I Regular
Interests, until the first to occur of such excess being reduced to zero or each
such Uncertificated Principal Balance being reduced to zero. Such reductions in
the Uncertificated Principal Balances of such REMIC I Regular Interests shall be
deemed to be allocations of Realized Losses and Additional Trust Fund Expenses.
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(b) On each Distribution Date, following the distributions to be
made to the Certificateholders on such date pursuant to Section 4.01(b), the
Trustee shall determine the amount, if any, by which (i) the then aggregate
Certificate Principal Balance of the Sequential Pay Certificates, exceeds (ii)
the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the Class K, Class J, Class H, Class
G, Class F, Class E, Class D, Class C and Class B Certificates shall be reduced
sequentially, in that order, in each case, until the first to occur of such
excess being reduced to zero or the related Class Principal Balance being
reduced to zero. If, after the foregoing reductions, the amount described in
clause (i) of the second preceding sentence still exceeds the amount described
in clause (ii) of the second preceding sentence, then the respective Class
Principal Balances of the Class A-1, Class A-2A and Class A-2B Certificates
shall be reduced, pro rata in accordance with the relative sizes of the then
outstanding Class Principal Balances of such Classes of Certificates, until the
first to occur of such excess being reduced to zero or each such Class Principal
Balance being reduced to zero. Such reductions in the Class Principal Balances
of the respective Classes of the Sequential Pay Certificates shall be deemed to
be allocations of Realized Losses and Additional Trust Fund Expenses.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates .
(a) The Certificates will be substantially in the respective
forms annexed hereto as Exhibits A-1, A-2, A-3, A-4, A-5, A-6, A-7, A-8, A-9,
A-10, A-11, A-12, A-13, A-14, A-15 and A-16. 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
Certificates will be issuable in denominations corresponding to initial
Certificate Principal Balances, Certificate Notional Amounts or Effective
Certificate Notional Amounts, as the case may be, as of the Closing Date of not
less than $100,000 (or, with respect to an Interest Only Certificate,
$5,000,000) and any whole dollar denomination in excess thereof; provided,
however, that a single Certificate of each Class thereof may be issued in a
different denomination. Each Class of Residual Certificates will be issuable
only in denominations representing Percentage Interests of not less than 5.0%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized officer. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee 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
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication;
provided that the Certificates issued on the Closing Date shall be dated the
Closing Date.
SECTION 5.02. Registration of Transfer and Exchange of Certificates .
(a) At all times during the term of this Agreement, there shall
be maintained at the office of the Certificate Registrar a Certificate Register
in which, subject to such reasonable regulations as the Certificate Registrar
may prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. For so long as the Trustee acts as Certificate Registrar, its
Corporate Trust Office shall constitute the office of the
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Certificate Registrar maintained for such purposes. The Trustee may appoint, by
a written instrument delivered to the Sponsor, the Master Servicer, the Special
Servicer and the REMIC Administrator, any other bank or trust company to act as
Certificate Registrar under such conditions as the predecessor Certificate
Registrar may prescribe, provided that the Trustee shall not be relieved of any
of its duties or responsibilities hereunder as Certificate Registrar 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
predecessor's duties as Certificate Registrar. The Sponsor, the Master Servicer,
the Special Servicer and the REMIC Administrator 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.
If three or more Certificateholders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and such application states that
the applicants desire to communicate with other Certificateholders 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, afford such applicants access during normal business hours to
the most recent list of Certificateholders held by the Trustee. If the Trustee
is no longer the Certificate Registrar and such a list is as of a date more than
90 days prior to the date of receipt of such applicants' request, the Trustee
shall promptly request from the Certificate Registrar a current list as provided
above, and shall afford such applicants access to such list promptly upon
receipt.
Every Certificateholder, by receiving and holding such list,
agrees with the Certificate Registrar and the Trustee that neither the
Certificate Registrar nor the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
(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 which does not
require such registration or qualification. In the event such a transfer of any
Non-Registered Certificate (other than in connection with the initial issuance
thereof or the initial transfer thereof by the Sponsor or any Affiliate of the
Sponsor) is to be made without registration under the Securities Act, the
Certificate Registrar shall refuse to register such transfer unless it receives
the following: (i) a certificate from the Certificateholder desiring to effect
such transfer substantially in the form attached as Exhibit B-1 hereto; or (ii)
a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit B-2 hereto and a certificate from
such Certificateholder's prospective transferee substantially in the form
attached either as Exhibit B-3 or Exhibit B-4 hereto; or (iii) 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 Sponsor,
the Mortgage Loan Seller, the Master Servicer, the Special
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Servicer, the Trustee, the REMIC Administrator 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 Sponsor, 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 does hereby agree to, indemnify the Sponsor, the
Trustee and the Certificate Registrar 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 under any circumstances (i) 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 Code (each, a "Plan"), or (ii) to any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan, unless: (x) in the
case of a Subordinated Certificate that constitutes a Book-Entry Certificate,
the purchase and holding of such Certificate or interest therein is exempt from
the prohibited transaction provisions of Section 406 of ERISA and Section 4975
of the Code under Prohibited Transaction Class Exemption 95-60; or (y) in the
case of a Subordinated Certificate that is held as a Definitive Certificate, the
prospective transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel 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 cause the Master Servicer,
the Special Servicer or the Trustee to be deemed a fiduciary of such Plan or
result in the imposition of an excise tax under Section 4975 of the Code. Each
Person who acquires any Subordinated Certificate or interest therein (unless it
shall have delivered the certification of facts and Opinion of Counsel referred
to in the preceding sentence) shall be deemed to have certified that it is
neither a Plan nor 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 (or, alternatively, in the case of a
Book-Entry Certificate or interest therein, that the purchase and holding of
such Certificate or interest therein is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Prohibited
Transaction Class Exemption 95-60).
(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 Trustee under clause
(ii)(A) below to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee 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
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necessary in connection with any such sale. The rights of each Person acquiring
any Ownership Interest in a Residual Certificate are expressly subject to the
following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and a United States Person and shall promptly
notify the Master Servicer, the Trustee and the REMIC
Administrator of any change or impending change in its
status as a Permitted Transferee or United States
Person.
(B) In connection with any proposed Transfer of
any Ownership Interest in a Residual Certificate (other
than in connection with the initial issuance thereof or
the transfer thereof among the Sponsor and its
Affiliates), 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 C-1 (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 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, that
it is a United States Person 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 the Certificate Registrar has
actual knowledge that the proposed Transferee is not a
Permitted Transferee and a United States Person, no
Transfer of an Ownership Interest in a Residual
Certificate to such proposed Transferee shall be
effected.
(D) Except in connection with the initial issuance
of the Residual Certificates or any transfer thereof
among the Sponsor and its Affiliates, 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 C-2 stating that, among other
things, it has no actual knowledge that such prospective
Transferee is not a Permitted Transferee and a United
States Person.
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(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 and the REMIC Administrator written notice
that it is a "pass-through interest holder" within the
meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Residual Certificate, if it is,
or is holding an Ownership Interest in a Residual
Certificate on behalf of, a "pass-through interest
holder".
(ii) (A) If any purported Transferee shall become a
Holder of a Residual Certificate in violation of the provisions
of this Section 5.02(d), then the last preceding Holder of such
Residual Certificate that was in compliance with the provisions
of this Section 5.02(d) shall be restored, to the extent
permitted by law, to all rights as Holder thereof retroactive to
the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer, the
Special Servicer, the REMIC Administrator 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 Trustee shall have
the right, without notice to the Holder or any prior Holder of
such Residual Certificate, to sell such Residual Certificate to a
purchaser selected by the Trustee on such terms as the Trustee
may choose. Such purported Transferee shall promptly endorse and
deliver such Residual Certificate in accordance with the
instructions of the Trustee. Such purchaser may be the Trustee
itself or any Affiliate of the Trustee. The proceeds of such
sale, net of the commissions (which may include commissions
payable to the Trustee or its Affiliates), expenses and taxes
due, if any, will be remitted by the Trustee 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
Trustee, and the Trustee shall not be liable to any Person having
an Ownership Interest in a Residual Certificate as a result of
its exercise of such discretion. In establishing such terms and
conditions, however, the Trustee may consult with a
representative of the REMIC Administrator, and the REMIC
Administrator shall make available such representative upon
reasonable advance notice.
(iii) The REMIC Administrator shall make available to
the Internal Revenue Service and those Persons specified by the
REMIC Provisions all information necessary to compute any tax
imposed (A) as a result of the Transfer
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of an Ownership Interest in a Residual Certificate to any Person who is not
a Permitted Transferee or a United States Person, including the information
described in Treasury regulations sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate and (B) as a result of any regulated investment company, real
estate investment trust, common trust fund, partnership, trust, estate or
organization described in Section 1381 of the Code that holds an Ownership
Interest in a Residual Certificate having as among its record holders at
any time any Person which is not a Permitted Transferee. The Person holding
such Ownership Interest shall be responsible for the reasonable
compensation of the REMIC Administrator for providing such information.
(iv) The provisions of this Section 5.02(d) set forth
prior to this subsection (iv) may be modified, added to or
eliminated, provided that there shall have been delivered to the
Trustee and the REMIC Administrator the following:
(A) written notification 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 Trustee and the REMIC Administrator,
to the effect that such modification of, addition to or
elimination of such provisions will not cause either
REMIC I or REMIC II 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 and a United States
Person, 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
which is not a Permitted Transferee and a United States
Person.
(e) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at the offices of the Certificate
Registrar maintained for such purpose, the Trustee shall execute and the
Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of authorized
denominations 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 Trustee
shall execute and the Certificate Registrar shall authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
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(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or
exchange of Certificates, but the Trustee or 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) Subsequent to the initial issuance of the Certificates, the
Trustee shall be responsible for the preparation of physical Certificates in
connection with any transfer or exchange; provided that the correct form of
Certificate of each Class shall be provided by the Sponsor to the Trustee on
diskette on or about the Closing Date. All Certificates surrendered for transfer
and exchange shall be physically canceled by the Certificate Registrar, and the
Certificate Registrar shall hold such canceled Certificates in accordance with
its standard procedures.
(j) The Certificate Registrar shall be required to provide the
Sponsor, the Master Servicer, the Special Servicer and the REMIC Administrator
with notice of each transfer of a Certificate and to provide each such Person
with an updated copy of the Certificate Register on or about January 1 and July
1 of each year, commencing January 1, 1997.
SECTION 5.03 Book-Entry Certificates .
(a) The Registered Certificates shall, in the case of each Class
thereof, initially be issued as one or more Certificates registered in the name
of the Depository or its nominee and, except as provided in subsection (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 subsection (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. Neither the Certificate Registrar nor the Trustee shall have
any responsibility to monitor or restrict the transfer of Ownership Interests in
Certificates through the book-entry facilities of the Depository.
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(b) The Sponsor, the Mortgage Loan Seller, the Trustee, the
Master Servicer, the Special Servicer, the REMIC Administrator 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.
If any party hereto requests from the Depository a list of the Depository
Participants in respect of any Class or Classes of the Book-Entry Certificates,
the cost thereof shall be borne by the party on whose behalf such request is
made (but in no event shall any such cost be borne by the Trustee).
(c) If (i)(A) the Sponsor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to any Class of the
Book-Entry Certificates, and (B) the Sponsor is unable to locate a qualified
successor, or (ii) the Sponsor 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 any Class of the 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 any Class of the
Book-Entry Certificates by the Depository, accompanied by registration
instructions from the Sponsor for registration of transfer, the Trustee shall
execute, and the Certificate Registrar shall authenticate and deliver, the
Definitive Certificates to the Certificate Owners identified in such
instructions. None of the Sponsor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator 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
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of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar 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
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar and any agents
of any of them may treat the person in whose name any Certificate is registered
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 4.01 and for all other purposes whatsoever, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any agent of
any of them shall be affected by notice to the contrary.
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ARTICLE VI
THE SPONSOR, THE MORTGAGE LOAN SELLER, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01. Liability of the Sponsor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer and the REMIC Administrator .
The Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer and the REMIC Administrator shall be liable in accordance
herewith only to the extent of the respective obligations specifically imposed
upon and undertaken by the Sponsor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer and the REMIC Administrator herein.
SECTION 6.02. Merger, Consolidation or Conversion of the Sponsor, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer or the REMIC
Administrator .
Subject to the following paragraph, the Sponsor, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer and the REMIC
Administrator each will keep in full effect its existence, rights and franchises
as a corporation or other business organization under the laws of the
jurisdiction of its organization, and each will obtain and preserve its
qualification to do business as a foreign corporation or otherwise 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 Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer and the REMIC Administrator each may be merged or consolidated
with or into any Person, or transfer all or substantially all of its assets
(which, as to the Master Servicer and the Special Servicer, may be limited to
all or substantially all of its assets relating to the business of mortgage loan
servicing) to any Person, in which case any Person resulting from any merger or
consolidation to which the Sponsor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or the REMIC Administrator shall be a party, or
any Person succeeding to the business of the Sponsor, the Mortgage Loan Seller,
the Master Servicer, the Special Servicer or the REMIC Administrator, shall be
the successor of the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer or the REMIC Administrator, 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 such succession
will not result in any withdrawal, downgrade or qualification of the rating then
assigned by either Rating Agency to any Class of Certificates (as confirmed in
writing).
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SECTION 6.03. Limitation on Liability of the
Sponsor, the Master Servicer, the Special
Servicer, the REMIC Administrator and
Others .
None of the Sponsor, the Master Servicer, the Special Servicer,
the REMIC Administrator or any director, officer, employee or agent of any of
the foregoing shall be under any liability to the Trust Fund 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 Sponsor, the Master Servicer, the Special
Servicer, the REMIC Administrator or any such other Person against any breach of
a representation or warranty made herein, or against any expense or liability
specifically required to be borne thereby 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, or by reason of reckless disregard of such obligations and duties.
The Sponsor, the Master Servicer, the Special Servicer, the REMIC Administrator
and any director, officer, employee or agent of any of the foregoing 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
Sponsor, the Master Servicer, the Special Servicer, the REMIC Administrator and
any director, officer, employee or agent of any of the foregoing shall be
indemnified and held harmless by the Trust Fund against any loss, liability or
expense incurred in connection with any legal action relating to this Agreement,
the Certificates or any asset of the Trust Fund, other than any loss, liability
or expense: (i) specifically required to be borne by such Person pursuant to the
terms hereof; (ii) which constitutes a Servicing Advance (and is otherwise
specifically reimbursable hereunder); (iii) which would otherwise constitute a
Servicing Advance but for its failure to be customary, reasonable and necessary;
(iv) which is specifically excluded from the definition of "Servicing Advance"
by the terms of the proviso thereto; or (v) which was incurred in connection
with claims against such party resulting from (A) any breach of a representation
or warranty made herein by such party, (B) willful misfeasance, bad faith or
negligence in the performance of obligations or duties hereunder by such party,
or from reckless disregard of such obligations or duties, or (C) any violation
by such party of any state or federal securities law. None of the Sponsor, the
Master Servicer, the Special Servicer or the REMIC Administrator shall be under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its respective duties under this Agreement and, except in
the case of a legal action contemplated by Section 3.22, in its opinion does not
involve it in any ultimate expense or liability; provided, however, that the
Sponsor, the Master Servicer, the Special Servicer or the REMIC Administrator
may in its discretion undertake any such action which it may deem necessary or
desirable with respect to the enforcement and/or protection of the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action, and any
liability resulting therefrom, shall be expenses, costs and liabilities of the
Trust Fund, and the Sponsor, the Master Servicer, the Special Servicer and the
REMIC Administrator each shall be entitled to the direct payment of such
expenses or to be reimbursed therefor from the Certificate Account as provided
in Section 3.05(a).
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SECTION 6.04. Master Servicer, Special Servicer and REMIC Administrator Not to
Resign .
None of the Master Servicer, the Special Servicer or the REMIC
Administrator shall be permitted to resign from the obligations and duties
hereby imposed on it, except (i) upon the appointment of, and the acceptance of
such appointment by, a successor thereto which is reasonably acceptable to the
Trustee and the receipt by the Trustee of written confirmation from each Rating
Agency that such resignation and appointment will not result in the downgrade,
qualification or withdrawal of the rating then assigned by either Rating Agency
to any Class of Certificates, or (ii) upon determination that such obligations
and 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, Special Servicer or REMIC
Administrator, as the case may be, so causing such a conflict being of a type
and nature carried on by the Master Servicer, Special Servicer or REMIC
Administrator, as the case may be, at the date of this Agreement. Any such
determination of the nature described in clause (ii) of the preceding sentence
permitting the resignation of the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, shall be evidenced by an Opinion of
Counsel to such effect which shall be rendered by Independent counsel and
addressed and delivered to the Trustee. No such resignation for either reason
shall become effective until the Trustee or other successor shall have assumed
the responsibilities and obligations of the resigning party hereunder.
Consistent with the foregoing, none of the Master Servicer, the
Special Servicer or the REMIC Administrator shall be permitted, except as
expressly provided herein, to assign or transfer any of its rights, benefits or
privileges hereunder to any other Person, or delegate to or subcontract with, or
authorize or appoint any other Person to perform any of the duties, covenants or
obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer, the Special Servicer or the REMIC
Administrator are transferred to a successor thereto, the entire amount of
compensation payable to the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, pursuant hereto shall thereafter be payable
to such successor.
SECTION 6.05. Rights of the Sponsor and the Trustee
in Respect of the Master Servicer , the
Special Servicer and the REMIC
Administrator.
The Master Servicer, the Special Servicer and the REMIC
Administrator each shall afford the Sponsor and the Trustee, upon reasonable
notice, during normal business hours access to all records maintained by the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, in respect of its rights and obligations hereunder and access to such of
its officers as are responsible for such obligations. Upon reasonable request,
the Master Servicer, the Special Servicer and the REMIC Administrator each shall
furnish the Sponsor and the Trustee with its most recent financial statements
and such other information as it possesses, and which it is not prohibited by
law or, to the extent applicable, binding
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obligations to third parties with respect to confidentiality from disclosing,
regarding its business, affairs, property and condition, financial or otherwise.
The Sponsor may, but is not obligated to, enforce the obligations of the Master
Servicer, the Special Servicer and the REMIC Administrator hereunder and may,
but is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder or, in connection with a default thereby, exercise the
rights of the Master Servicer, the Special Servicer or the REMIC Administrator
hereunder; provided, however, that none of the Master Servicer, the Special
Servicer or the REMIC Administrator shall be relieved of any of its obligations
hereunder by virtue of such performance by the Sponsor or its designee. The
Sponsor shall not have any responsibility or liability for any action or failure
to act by the Master Servicer, the Special Servicer or the REMIC Administrator
and is not obligated to supervise the performance of the Master Servicer, the
Special Servicer or the REMIC Administrator under this Agreement or otherwise.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default .
(a) "Event of Default", wherever used herein, unless the context
otherwise requires, means any one of the following events:
(i) any failure by the Master Servicer to deposit into the
Certificate Account any amount required to be so deposited under this
Agreement which continues unremedied for two Business Days following the
date on which such deposit was first required to be made, or any failure
by the Master Servicer to deposit into, or to remit to the Trustee for
deposit into, the Distribution Account the full amount of any Master
Servicer Remittance Amount required to be so deposited or remitted under
this Agreement, which failure continues unremedied until 11:00 a.m. (New
York City time) on the Business Day immediately preceding the related
Distribution Date; or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Master Servicer for deposit into, the Certificate Account
or the REO Account any amount required to be so deposited or remitted
under this Agreement which continues unremedied for two Business Days
following the date on which such deposit or remittance was first
required to be made; or
(iii) any failure by the Master Servicer to remit to the Trustee
for deposit into the Distribution Account, on any Master Servicer
Remittance Date, the full amount of P&I Advances required to be made on
such date, which failure continues unremedied until 11:00 a.m. (New York
City time) on the Business Day immediately preceding the related
Distribution Date; or
(iv) any failure by the Master Servicer or the Special Servicer
to timely make any Servicing Advance required to be made by it pursuant
to this Agreement which continues unremedied for a period of three days
following the date on which notice shall have been given to the Master
Servicer or the Special Servicer, as the case may be, by the Trustee as
provided in Section 3.11(e); or
(v) 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 thereof contained in this Agreement which
continues unremedied for a period of 30 days (or, in the case of payment
of insurance premiums, for a period of 15 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 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,
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with a copy to each other party hereto, by the Holders of Certificates
entitled to at least 25% of the Voting Rights; or
(vi) any failure on the part of the REMIC Administrator duly to
observe or perform in any material respect any of the covenants or
agreements thereof 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 REMIC Administrator by any other party hereto, or to
the REMIC Administrator, with a copy to each other party hereto, by the
Holders of Certificates entitled to at least 25% of the Voting Rights;
or
(vii) any breach on the part of the Master Servicer, the Special
Servicer or the REMIC Administrator of any representation or warranty
thereof contained in this Agreement which 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, the Special Servicer or the REMIC
Administrator, as the case may be, by any other party hereto, or to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, with a copy to each other party hereto, by the Holders of
Certificates entitled to at least 25% of the Voting Rights; or
(viii) 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, marshalling 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, the Special Servicer or the REMIC
Administrator and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(ix) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator,
receiver, liquidator, trustee or similar official in any bankruptcy,
insolvency, readjustment of debt, marshalling 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
(x) the Master Servicer, the Special Servicer or the REMIC
Administrator 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
(xi) the Trustee shall have received written notice from either
Rating Agency that the continuation of the Master Servicer or the
Special Servicer in such capacity
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would result in a downgrade, qualification or withdrawal of any
rating then assigned by such Rating Agency to any Class of Certificates.
Each Event of Default listed above as items (iv) - (xi) shall constitute an
Event of Default only with respect to the relevant party; provided that if a
single entity acts or any two or more Affiliates act as Master Servicer, Special
Servicer and REMIC Administrator, or in any two or more of the foregoing
capacities, an Event of Default in one capacity will constitute an Event of
Default in each capacity.
(b) If any Event of Default with respect to the Master Servicer
or the Special Servicer (in either case, for purposes of this Section 7.01(b),
the "Defaulting Party") shall occur and be continuing, then, and in each and
every such case, so long as the Event of Default shall not have been remedied,
the Sponsor or the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 51% of the Voting Rights or if the relevant
Event of Default is the one described in clause (xi) of subsection (a) above,
the Trustee shall, terminate, by notice in writing to the Defaulting Party (with
a copy of such notice to each other party hereto), all of the rights and
obligations (accruing from and after such notice) of the Defaulting Party under
this Agreement and in and to the Mortgage Loans and the proceeds thereof. From
and after the receipt by the Defaulting Party of such written notice, all
authority and power of the Defaulting Party under this Agreement, whether with
respect to the Certificates (other than as a Holder of any Certificate) or the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant
to and under this Section, and, without limitation, the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of and at the expense
of the Defaulting Party, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise. The Master Servicer and the Special
Servicer each agree that, if it is terminated pursuant to this Section 7.01(b),
it shall promptly (and in any event no later than ten Business Days subsequent
to its receipt of the notice of termination) provide the Trustee with all
documents and records 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, the
transfer within two Business Days to the Trustee for administration by it of all
cash amounts which shall at the time be or should have been credited by the
Master Servicer to the Certificate Account, the Distribution Account, any
Servicing Account or any Reserve Account (if it is the Defaulting Party) or by
the Special Servicer to the REO Account, the Certificate Account, any Servicing
Account or any Reserve Account (if it is the Defaulting Party) or thereafter be
received with respect to the Mortgage Loans and any REO Properties (provided,
however, that the Master Servicer and the Special Servicer each shall, if
terminated pursuant to this Section 7.01(b), continue to be obligated for or
entitled to receive all amounts accrued or owing by or to it under this
Agreement on or prior to the date of such termination, whether in respect of
Advances or otherwise, and it and its directors, officers,
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employees and agents shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such termination).
(c) If any Event of Default with respect to the REMIC Administrator
shall occur and be continuing, then, and in each and every such case, so long as
the Event of Default shall not have been remedied, the Sponsor or the Trustee
may, and at the written direction of the Holders of Certificates entitled to at
least 51% of the Voting Rights, the Trustee (or, if the Trustee is also the
REMIC Administrator, the Master Servicer) shall, terminate, by notice in writing
to the REMIC Administrator (with a copy to each of the other parties hereto),
all of the rights and obligations of the REMIC Administrator under this
Agreement. From and after the receipt by the REMIC Administrator of such written
notice (or if the Trustee is also the REMIC Administrator, from and after such
time as another successor appointed as contemplated by Section 7.02 accepts such
appointment), all authority and power of the REMIC Administrator under this
Agreement shall pass to and be vested in the Trustee (or such other successor)
pursuant to and under this Section, and, without limitation, the Trustee (or
such other successor) is hereby authorized and empowered to execute and deliver,
on behalf of and at the expense of the REMIC Administrator, 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. The REMIC Administrator agrees promptly
(and in any event no later than ten Business Days subsequent to its receipt of
the notice of the termination) to provide the Trustee (or, if the Trustee is
also the REMIC Administrator, such other successor appointed as contemplated by
Section 7.02) with all documents and records requested thereby to enable the
Trustee (or such other successor) to assume the REMIC Administrator's functions
hereunder, and to cooperate with the Trustee (or such other successor) in
effecting the termination of the REMIC Administrator's responsibilities and
rights hereunder (provided, however, that the REMIC Administrator shall continue
to be obligated for or entitled to receive all amounts accrued or owing by or to
it under this Agreement on or prior to the date of such termination, and it and
its directors, officers, employees and agents shall continue to be entitled to
the benefits of Section 6.03 notwithstanding any such termination).
SECTION 7.02. Trustee to Act; Appointment of Successor .
On and after the time the Master Servicer, the Special Servicer
or the REMIC Administrator resigns pursuant to clause (ii) of the first sentence
of 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, the
Special Servicer or (unless it has also been acting as such) the REMIC
Administrator, as the case may be, in its capacity as such under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, by the terms and provisions hereof,
including, without limitation, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances;
provided that any failure to perform such duties or responsibilities caused by
the Master Servicer's, the Special Servicer's or the REMIC Administrator's, as
the case may be, failure to cooperate or to provide information or monies
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required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee nor any other successor be required to
purchase any Mortgage Loan hereunder. As compensation therefor, the Trustee
shall be entitled to all fees and other compensation which the resigning or
terminated party would have been entitled to for future services rendered if the
resigning or terminated party had continued to act hereunder. Notwithstanding
the above, the Trustee may, if it shall be unwilling to so act, or shall, if it
is unable to so act or if the Holders of Certificates entitled to at least 51%
of the Voting Rights or either Rating Agency so request in writing to the
Trustee or if the REMIC Administrator is the resigning or terminated party and
the Trustee had been acting in such capacity, promptly appoint, or petition a
court of competent jurisdiction to appoint, any established and qualified
institution as the successor to the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, hereunder in the assumption of all or
any part of the responsibilities, duties or liabilities of the Master Servicer,
the Special Servicer or the REMIC Administrator, as the case may be, hereunder;
provided that such appointment does not result in the downgrading, qualification
or withdrawal of any rating then assigned by either Rating Agency to any Class
of Certificates (as evidenced by written confirmation thereof from each Rating
Agency). No appointment of a successor to the Master Servicer, the Special
Servicer or the REMIC Administrator hereunder shall be effective until the
assumption of the successor to such party of all its responsibilities, duties
and liabilities hereunder. Pending appointment of a successor to the Master
Servicer, the Special Servicer or the REMIC Administrator hereunder, the Trustee
shall act in such capacity as hereinabove provided. 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 or in
respect of the Mortgage Loans or otherwise 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. The Sponsor, the Trustee,
such successor and each other party 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, the Special
Servicer or the REMIC Administrator pursuant to Section 6.04, any termination of
the Master Servicer, the Special Servicer or the REMIC Administrator pursuant to
Section 7.01 or any appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator pursuant to Section 6.04 or Section
7.02, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence
of any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the other
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non-defaulting parties hereto and all Certificateholders notice of such
occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default .
The Holders entitled to at least 51% of the Voting Rights
allocated to each of the Classes of Certificates affected by any Event of
Default hereunder may waive such Event of Default, except that prior to any
waiver of an Event of Default arising from a failure to make P&I Advances, the
Trustee shall be reimbursed all amounts which it has advanced. 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 Sponsor or any Affiliate of the Sponsor (provided that neither
the Sponsor nor any Affiliate thereof is the party in respect of which such
Event of Default exists) shall be entitled to the same Voting Rights with
respect to the matters described above as they would if any other Person held
such Certificates.
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default .
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee .
(a) The Trustee, prior to the occurrence of an Event of Default
hereunder and after the curing or waiver of all such Events of Default and
defaults 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 hereunder occurs and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs. Any permissive right of the
Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform in form to the requirements of this Agreement. If
any such instrument is found not to so 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, but may assume and rely upon, the accuracy and content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Sponsor, the Master Servicer, the Special Servicer
or the REMIC Administrator 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 willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default
hereunder, 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;
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(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; and
(iii) The Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by
it in good faith in accordance with the direction of Holders of
Certificates entitled to at least 25% (or, as to any particular
matter, any higher percentage as may be specifically provided for
hereunder) of the Voting Rights relating to the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement.
SECTION 8.02. Certain Matters Affecting the 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, Officer's
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 to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby; the Trustee shall not be required
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default hereunder which has not been
cured, to exercise such of the rights and powers vested in it by
this Agreement and to use
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the same degree of care and skill in their exercise as a prudent
man would exercise or use under the circumstances in the conduct
of his own affairs;
(iv) The Trustee shall not be personally liable for any
action reasonably taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default
hereunder, and after the curing of all such 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-in-fact, provided that the use of
any such agent or attorney-in-fact shall not relieve the Trustee
from any of its obligations hereunder, and the Trustee shall
remain responsible for all acts and omissions of any such agent
or attorney-in-fact;
(vii) For all purposes under this Agreement, the Trustee
shall not be deemed to have notice of any Event of Default
hereunder unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is
in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(viii)The Trustee shall not be responsible for any act
or omission of the Master Servicer, the Special Servicer or the
REMIC Administrator (unless the Trustee is acting as Master
Servicer, Special Servicer or REMIC Administrator, as the case
may be) or for any act or omission of the Sponsor or the Mortgage
Loan Seller.
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SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of Certificates or
Mortgage Loans .
The recitals contained herein and in the Certificates, other than
the representations and warranties of, and the other statements attributed to,
the Trustee in Article II and the certificate of authentication executed by the
Trustee as Certificate Registrar set forth on each outstanding Certificate,
shall be taken as the statements of the Sponsor, the Mortgage Loan Seller, the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Agreement (other than as specifically set forth in Section 2.08) 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 Sponsor 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 Sponsor or the Mortgage Loan Seller 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 Sponsor, the Master Servicer, the Special Servicer or the REMIC
Administrator. 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 Sponsor, the Master Servicer, the Special
Servicer or the REMIC Administrator and accepted by the Trustee in good faith,
pursuant to this Agreement.
SECTION 8.04. Trustee May Own Certificates .
The Trustee, in its individual or any other capacity, may become
the owner or pledgee of Certificates with the same rights it would have if it
were not Trustee.
SECTION 8.05. Fees of Trustee; Indemnification of Trustee .
(a) The Master Servicer covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, reasonable
compensation (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) (as set forth in a written
agreement between the Trustee and the Master Servicer) for all services rendered
by it 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.
(b) The Trustee and any director, officer, employee or agent of
the Trustee shall be entitled to be indemnified and held harmless by the Trust
Fund (to the extent of amounts on deposit in the Distribution Account from time
to time) against any loss, liability or 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, any legal actions relating to the exercise and performance of
any of the powers and duties of the Trustee hereunder; 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 (i) allocable
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overhead, (ii) expenses or disbursements incurred or made by or on behalf of the
Trustee in the normal course of the Trustee's performing its routine duties in
accordance with any of the provisions hereof, (iii) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof, or (iv)
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 by reason of reckless disregard of such obligations or duties, or
as may arise from a breach of any representation, warranty or covenant of the
Trustee made herein. The provisions of this Section 8.05(b) shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
SECTION 8.06. Eligibility Requirements for Trustee .
The Trustee hereunder shall at all times be a corporation, a
trust company, a bank or an association: (i) organized and doing business under
the laws of the United States of America or any State thereof or the District of
Columbia; (ii) authorized under such laws to exercise trust powers; (iii) having
a combined capital and surplus of at least $50,000,000 and possessing a
long-term bank deposit or unsecured debt rating of at least "AA" from each
Rating Agency; and (iv) subject to supervision or examination by federal or
state authority. If such corporation, trust company, bank or association
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. 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. The corporation, trust company, bank or association
serving as Trustee may have normal banking and trust relationships with the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the REMIC Administrator and their respective Affiliates.
SECTION 8.07. Resignation and Removal of the Trustee .
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Sponsor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the REMIC
Administrator and to all Certificateholders. Upon receiving such notice of
resignation, the Sponsor 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 Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the REMIC Administrator and the
Certificateholders by the Sponsor. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
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(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 Sponsor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Sponsor may remove the Trustee and appoint a successor
trustee acceptable to the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Certificateholders by the Sponsor.
(c) The Holders of Certificates entitled to at least 33 1/3% of
the Voting Rights may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Master Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed; provided
that the Master Servicer, the Sponsor and the remaining Certificateholders shall
have been notified; and provided further that other Holders of the Certificates
entitled to a greater percentage of the Voting Rights shall not have objected to
such removal in writing to the Master Servicer and the Sponsor within 30 days of
their receipt of notice thereof. A copy of such instrument shall be delivered to
the Sponsor, the Mortgage Loan Seller, the Special Servicer, the REMIC
Administrator and the remaining Certificateholders by the Master Servicer.
(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; and no such resignation or removal of the Trustee
and/or appointment of a successor trustee shall be permitted if it would result
in the downgrading or withdrawal of the rating assigned by either Rating Agency
to any Class of Certificates.
SECTION 8.08. Successor Trustee .
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Sponsor, the Mortgage Loan Seller,
the Master Servicer, the Special Servicer, the REMIC Administrator and to its
predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The predecessor trustee shall deliver to the successor
trustee all Mortgage Files and related documents and statements held by it
hereunder (other than any Mortgage Files and related documents and statements at
the time held on its behalf by a Custodian, which Custodian shall become the
agent of the successor trustee), and the Sponsor, the Mortgage Loan Seller, the
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Master Servicer, the Special Servicer, the REMIC Administrator 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, the Master Servicer shall mail notice of the
succession of such trustee hereunder to the Sponsor and the Certificateholders.
If the Master Servicer fails to mail such notice within 10 days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Master Servicer.
SECTION 8.09. Merger or Consolidation of Trustee .
Any entity into which the Trustee may be merged or converted or
with which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such entity shall be eligible under
the provisions of Section 8.06, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee .
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
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(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, the Special Servicer or the REMIC
Administrator hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign 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, with the consent of the Master Servicer, appoint
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 subject to
supervision by federal or state authority, shall have combined capital and
surplus (or shall have its performance guaranteed by an Affiliate with a
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 Sponsor or any Affiliate of the Sponsor. Each Custodian shall be subject
to the same obligations and standard of care as would be imposed on the Trustee
hereunder in connection with the retention of Mortgage Files directly by the
Trustee. 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.
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SECTION 8.12. Access to Certain Information .
(a) The Trustee shall provide or cause to be provided to the
Sponsor, the Master Servicer, and the Special Servicer, and to the OTS, the
FDIC, and any other federal or state banking or insurance regulatory authority
that may exercise authority over any Certificateholder, access to the Mortgage
Files and any other documentation regarding the Mortgage Loans and the Trust
Fund within its control which may be required 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.
(b) Promptly following the first sale of any Non-Registered
Certificate to an Independent third party, the Sponsor shall provide to the
Trustee 10 copies of any private placement memorandum or other disclosure
document used by the Sponsor or its Affiliate in connection with the offer and
sale of the Class of Certificates to which such Non-Registered Certificate
belongs. In addition, if any such private placement memorandum or disclosure
document is revised, amended or supplemented at any time following the delivery
thereof to the Trustee, the Sponsor promptly shall inform the Trustee of such
event and shall deliver to the Trustee 10 copies of the private placement
memorandum or disclosure document, as revised, amended or supplemented. The
Trustee shall maintain at its Corporate Trust Office and shall on behalf of the
Sponsor, upon reasonable advance written notice, make available during normal
business hours for review by any Certificateholder or any Certificate Owner or
any Person identified to the Trustee as a prospective transferee of a
Certificate or interest therein, originals or copies of the following items: (i)
in the case of a Holder or prospective transferee of a Non-Registered
Certificate, any private placement memorandum or other disclosure document
relating to the Class of Certificates to which such Non-Registered Certificate
belongs, in the form most recently provided to the Trustee; and (ii) in all
cases, (A) this Agreement and the Sub-Servicing Agreements, and any amendments
hereto or thereto, (B) all statements and reports required to be delivered to
Holders of the relevant Class of Certificates pursuant to Section 4.02(a) since
the Closing Date, (C) all reports delivered to the Trustee since the Closing
Date pursuant to Section 4.02(b) and Section 4.02(c), (D) all Officer's
Certificates delivered to the Trustee since the Closing Date pursuant to Section
3.13, (E) all accountants' reports delivered to the Trustee since the Closing
Date pursuant to Section 3.14, (F) the most recent inspection report prepared by
the Master Servicer or Special Servicer, as the case may be, and delivered to
the Trustee in respect of each Mortgaged Property pursuant to Section 3.12(a),
(G) all Mortgagor financial statements and Mortgaged Property operating
statements and rent rolls delivered to the Trustee by the Master Servicer or the
Special Servicer pursuant to Section 3.12(b), (H) any and all notices and
reports delivered to the Trustee with respect to any Mortgaged Property securing
a defaulted Mortgage Loan as to which the environmental testing contemplated by
Section 3.09(c) revealed that either of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof was not satisfied or that any remedial,
corrective or other further action contemplated in such clauses is required (but
only for so long as such Mortgaged Property or the related Mortgage Loan is part
of the Trust Fund), and (I) all documents constituting the Mortgage Files,
including, without limitation, any and all modifications, waivers and amendments
of the terms of a
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Mortgage Loan entered into by the Master Servicer or the Special Servicer and
delivered to the Trustee pursuant to Section 3.20 (but, in each case, only for
so long as the related Mortgage Loan is part of the Trust Fund). Copies of any
and all of the foregoing items are to be available from the Trustee upon
request; however, the Trustee shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such service.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Trustee may require (a) in the case of
Certificate Owners, a written confirmation executed by the requesting Person, in
form reasonably satisfactory to the Trustee, generally to the effect that such
Person is a beneficial holder of Certificates, is requesting the information
solely for use in evaluating such Person's investment in the Certificates and
will otherwise keep such information confidential and (b) in the case of a
prospective purchaser, a written confirmation executed by the requesting Person,
in form reasonably satisfactory 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 solely for use in evaluating a possible investment
in Certificates and will otherwise keep such information confidential. All
Certificateholders, by the acceptance of their Certificates, shall be deemed to
have agreed to keep such information confidential. Notwithstanding the foregoing
provisions of this Section 8.12(b), the Trustee shall have no responsibility for
the accuracy, completeness or sufficiency for any purpose of any information so
made available or furnished by it pursuant to this Section 8.12(b).
SECTION 8.13. Massachusetts Filings .
The Trustee shall make all filings contemplated by Massachusetts
General Laws Chapter 182, Sections 2 and 12.
SECTION 8.14. Filings with the Securities and Exchange Commission .
The Trustee shall prepare for filing, execute and properly file
with the Commission, any and all reports, statements and information, including,
without limitation, Distribution Date Statements, Delinquent Loan Status
Reports, REO Status Reports, Historical Loan Modification Reports, Special
Servicer Loan Status Reports, Historical Loss Reports and Operating Statement
Analyses, respecting the Trust Fund and/or the Certificates required or
specifically provided herein to be filed on behalf of the Trust Fund under the
Exchange Act. The Sponsor 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 Commission regarding the usual
and customary exemption from certain reporting requirements granted to issuers
of securities similar to the Certificates.
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<PAGE>
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 Sponsor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator (other than the obligations of the Trustee to provide
for and make payments to Certificateholders as hereafter set forth) shall
terminate upon payment (or provision for payment) 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 (i) the purchase
by the Master Servicer or by any Majority Certificateholder of the Controlling
Class (other than the Sponsor or the Mortgage Loan Seller) of all Mortgage Loans
and each REO Property remaining in REMIC I at a price (to be calculated by the
Master Servicer and the Trustee as of the close of business on the third
Business Day preceding the date upon which notice of any such purchase is
furnished to Certificateholders pursuant to the third paragraph of this Section
9.01 and as if the purchase was to occur on such Business Day) equal to (A) the
aggregate Purchase Price of all the Mortgage Loans included in REMIC I, plus (B)
the appraised value of each REO Property, if any, included in REMIC I (such
appraisal to be conducted by an Independent MAI-designated appraiser selected by
the Master Servicer and approved by the Trustee), minus (C) if such purchase is
being made by the Master Servicer, the aggregate amount of unreimbursed Advances
made by the Master Servicer, together with any Advance Interest payable to the
Master Servicer in respect of such Advances and any unpaid Master Servicing Fees
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Master Servicer in connection with such purchase), and (ii)
the final payment or other liquidation (or any advance with respect thereto) of
the last Mortgage Loan or REO Property remaining in REMIC I; provided, however,
that in no event shall the trust created hereby continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the Court of St. James,
living on the date hereof.
The Majority Certificateholder of the Controlling Class (other
than the Sponsor or the Mortgage Loan Seller) has the right, and if the Majority
Certificateholder of the Controlling Class fails to exercise such right, the
Master Servicer has the right, 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 the
Master Servicer and any Majority Certificateholder of the Controlling Class
(other than the Sponsor or the Mortgage Loan Seller) each may so elect to
purchase all of the Mortgage Loans and each REO Property remaining in REMIC I
only if the aggregate Stated Principal Balance of the Mortgage Pool at the time
of such election is less than 1.0% of the initial aggregate Stated Principal
Balance of the Mortgage Pool set forth in the Preliminary Statement. In the
event that the
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Master Servicer or any Majority Certificateholder of the Controlling Class
(other than the Sponsor or the Mortgage Loan Seller) elects to purchase all of
the Mortgage Loans and each REO Property remaining in REMIC I in accordance with
the preceding sentence, the Master Servicer or such Majority Certificateholder,
as applicable, shall deposit in the Distribution Account not later than the
Master Servicer Remittance 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 (exclusive of any
portion thereof payable to any Person other than the Certificateholders pursuant
to Section 3.05(a), which portion shall be deposited in the Certificate
Account). In addition, the Master Servicer shall transfer all amounts required
to be transferred to the Distribution Account on such Master Servicer Remittance
Date from the Certificate Account pursuant to the first paragraph of Section
3.04(b). Upon confirmation that such final deposits have been made, the Trustee
shall release or cause to be released to the purchaser or its designee, the
Mortgage Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the
purchaser, as shall be necessary to effectuate transfer of the Mortgage Loans
and REO Properties remaining in REMIC I.
Notice of any termination shall be given promptly by the Trustee
by letter to Certificateholders and, if not previously notified pursuant to the
preceding paragraph, to the other parties hereto mailed (a) in the event such
notice is given in connection with a purchase by the Master Servicer or any
Majority Certificateholder of the Controlling Class (other than the Sponsor or
the Mortgage Loan Seller) of all 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 5th day of such month, in each case specifying (i) the Distribution
Date upon which the Trust Fund will terminate and final payment on 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.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the Available
Distribution Amount for such date that is allocable to payments on the relevant
Class in accordance with Section 4.01(b).
Any funds not distributed to any Holder or Holders of
Certificates of any Class on the Final 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 Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates
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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 Trustee, 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 by the second anniversary of
the delivery of such second notice, all of the Certificates shall not have been
surrendered for cancellation, the Class R-II Certificateholders shall be
entitled to all unclaimed funds and other assets which remain subject thereto.
SECTION 9.02. Additional Termination Requirements .
(a) In the event the Master Servicer or a Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) 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 and REMIC II) shall be terminated in accordance with the
following additional requirements, unless the Master Servicer or such Majority
Certificateholder, as applicable, obtains at its own expense and delivers to the
Trustee and the REMIC Administrator an Opinion of Counsel, addressed to the
Trustee and the REMIC Administrator, 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 or REMIC II as
defined in Section 860F of the Code or cause REMIC I or REMIC II 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 and REMIC II pursuant to Treasury
regulation Section 1.860F-1 and shall satisfy all requirements of a
qualified liquidation under Section 860F of the Code and any regulations
thereunder;
(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 Majority Certificateholder of the Controlling Class, as
applicable, for cash; and
(iii) at the time of the making of the final payment on
the Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the applicable Class of
Residual Certificates all cash on hand (other than cash retained to meet
claims), and each of REMIC I and REMIC II shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the REMIC Administrator to adopt a plan of complete
liquidation of each of REMIC I
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and REMIC II in accordance with the terms and conditions of this Agreement,
which authorization shall be binding upon all successor Certificateholders.
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ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration .
(a) The REMIC Administrator shall elect to treat each of REMIC I
and REMIC II as a REMIC under the Code and, if necessary, under Applicable State
Law. Each 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 are hereby designated as the
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the Class R-I Certificates are hereby designated as the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC I.
The Class X-1, Class X-2, Class A-1, Class A-2A, Class A-2B, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J and Class K Certificates,
are hereby designated as the "regular interests" (within the meaning of Section
860G(a)(1) of the Code), and the Class R-II Certificates are hereby designated
as the sole class of "residual interests" (within the meaning of Section
860G(a)(2) of the Code), in REMIC II. None of the REMIC Administrator, the
Master Servicer, the Special Servicer or the Trustee shall, to the extent it is
within the control of such Person, create or permit the creation of any other
"interests" in either REMIC I or REMIC II (within the meaning of Treasury
regulation Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of
each of REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the
Code.
(d) The REMIC Administrator is hereby designated as agent for the
Tax Matters Person of each of REMIC I and REMIC II and shall: act on behalf of
the Trust Fund in relation to any tax matter or controversy, represent the Trust
Fund in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority, request an administrative adjustment
as to any taxable year of REMIC I or REMIC II, seek private letter rulings from
the IRS in accordance with Section 10.01(g), enter into settlement agreements
with any governmental taxing agency, extend any statute of limitations relating
to any tax item of REMIC I or REMIC II, and otherwise act on behalf of REMIC I
and REMIC II in relation to any tax matter or controversy involving such REMIC.
By their acceptance thereof, the Holders of the Residual Certificates hereby
agree to irrevocably appoint the REMIC Administrator as their agent to perform
all of the duties of the Tax Matters Person for REMIC I and REMIC II. The legal
expenses and costs of any action described in this subsection (d) and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the REMIC Administrator shall be entitled to be reimbursed
therefor out of any amounts on deposit in the Distribution Account as provided
by Section 3.05(b) unless such legal expenses and costs are incurred by reason
of the REMIC Administrator's willful misfeasance, bad faith
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or gross negligence or are expressly provided by this Agreement to be borne by
any party hereto.
(e) The REMIC Administrator shall prepare and file, and the
Trustee shall sign, all of the Tax Returns in respect of each of REMIC I and
REMIC II. The expenses of preparing and filing such returns shall be borne by
the REMIC Administrator without any right of reimbursement therefor.
(f) The REMIC Administrator shall perform on behalf of each of
REMIC I and REMIC II 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 IRS or any other taxing authority under
Applicable State Law. 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); and (iii) the IRS, the name, title, address
and telephone number of the Person who will serve as the representative of each
of REMIC I and REMIC II.
(g) The REMIC Administrator shall perform its duties more
specifically set forth hereunder in a manner consistent with maintaining the
status of each of REMIC I and REMIC II as a REMIC under the REMIC Provisions
(and each of the other parties hereto shall assist it, to the extent reasonably
requested by it). The REMIC Administrator shall not knowingly take (or cause
either REMIC I or REMIC II to take) any action or fail to take (or fail to cause
to be taken) any action within the scope of its duties more specifically set
forth hereunder that, under the REMIC Provisions, if taken or not taken, as the
case may be, could result in an Adverse REMIC Event with respect to either such
REMIC, unless the REMIC Administrator has received an Opinion of Counsel or an
IRS private letter ruling to the effect that the contemplated action will not
result in an Adverse REMIC Event. None of the other parties hereto shall take
any action (whether or not authorized hereunder) as to which the REMIC
Administrator has advised it in writing that it has received an Opinion of
Counsel or an IRS private letter ruling 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 or REMIC II, or causing REMIC I or REMIC II to
take any action, that is not expressly permitted under the terms of this
Agreement, each of the other parties hereto will consult with the REMIC
Administrator, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur. None of the parties hereto shall take any such
action or cause REMIC I or REMIC II to take any such action as to which the
REMIC Administrator has advised it in writing that an Adverse REMIC Event could
occur. The REMIC Administrator may consult with counsel or seek an IRS private
letter ruling to make such written advice, and the cost of same shall be borne:
(i) if such action that is not expressly permitted by this Agreement would be of
a material benefit to or otherwise in the best interests of the
Certificateholders as a whole,
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by the Trust Fund and shall be paid by the Trustee at the direction of the REMIC
Administrator out of amounts on deposit in the Distribution Account; and (ii)
otherwise by the party seeking to take the action not permitted by this
Agreement. Without limiting the respective duties and obligations of the parties
hereto, the parties hereto may act hereunder in reliance on any IRS private
letter ruling so obtained by the REMIC Administrator.
(h) In the event that any tax is imposed on REMIC I or REMIC II,
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 or REMIC II after the Startup Day pursuant to Section 860G(d) of the
Code, and any other tax imposed by the Code or any applicable provisions of
state or local tax laws (other than any tax permitted to be incurred by the
Special Servicer pursuant to Section 3.17(a)), such tax, together with all
incidental costs and expenses (including, without limitation, penalties and
reasonable attorneys' fees), shall be charged to and paid by: (i) the REMIC
Administrator, if such tax arises out of or results from a breach by the REMIC
Administrator of any of its obligations under this Article X; (ii) 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; (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 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; or (v) the Trust Fund in all
other instances. Any tax permitted to be incurred by the Special Servicer
pursuant to Section 3.17(a) shall be charged to and paid by the Trust Fund. Any
such amounts payable by the Trust Fund in respect of taxes shall be paid by the
Trustee at the direction of the REMIC Administrator out of amounts on deposit in
the Distribution Account.
(i) The REMIC Administrator and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each of REMIC I and REMIC II on a calendar year and on
an accrual basis.
(j) Following the Startup Day therefor, the Trustee shall not
accept any contributions of assets to REMIC I or REMIC II unless it shall have
received an Opinion of Counsel (at the expense of the party seeking to cause
such contribution) 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.
(k) None of the REMIC Administrator, the Master Servicer, the
Special Servicer or the Trustee 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) a breach of any representation or
warranty of the Mortgage Loan Seller regarding the Mortgage Loans or as
otherwise provided for in Section 2.03, (B) the foreclosure, default or imminent
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default 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, (C)
the bankruptcy of REMIC I or REMIC II, or (D) the termination of the Trust Fund
pursuant to Article IX of this Agreement); (ii) the sale or disposition of any
investments in the Distribution Account, the Certificate Account or the REO
Account for gain; or (iii) the acquisition of any assets for the Trust Fund
(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
Distribution Account, the Certificate 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) to the effect that such
sale, disposition, or acquisition will not cause: (x) REMIC I or REMIC II 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 or REMIC II under the REMIC Provisions
or other applicable provisions of federal, state and local law or ordinances.
(l) Except as otherwise permitted by Section 3.17(a), none of the
REMIC Administrator, the Master Servicer, the Special Servicer or the Trustee
shall enter into any arrangement by which REMIC I or REMIC II will receive a fee
or other compensation for services or, to the extent it is within the control of
such Person, permit REMIC I or REMIC II 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. 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 and
REMIC II 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.
SECTION 10.02. Sponsor, Master Servicer, Special Servicer
and Trustee to Cooperate with REMIC Administrator .
(a) The Sponsor shall provide or cause to be provided to the
REMIC Administrator, within ten (10) days after the Closing Date, all
information or data that the REMIC Administrator reasonably determines to be
relevant for tax purposes as to the valuations and issue prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flow of the Certificates.
(b) The Master Servicer, the Special Servicer and the Trustee
shall each furnish such reports, certifications and information, and access to
such books and records maintained thereby, as may relate to the Certificates or
the Trust Fund and as shall be reasonably requested by the REMIC Administrator
in order to enable it to perform its duties hereunder.
SECTION 10.03. Fees of the REMIC Administrator .
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In the event the Trustee and the REMIC Administrator are not the
same Person, the Trustee covenants and agrees to pay to the REMIC Administrator
from time to time, and the REMIC Administrator shall be entitled to, reasonable
compensation (as set forth in a written agreement between the Trustee and the
REMIC Administrator) for all services rendered by it in the exercise and
performance of any of the obligations and duties of the REMIC Administrator
hereunder.
SECTION 10.04. Use of Agents .
The REMIC Administrator may execute any of its obligations and
duties hereunder either directly or by or through agents or attorneys-in-fact
consented to by the Trustee, which consent shall not be unreasonably withheld;
provided that the REMIC Administrator shall not be relieved of its obligations
hereunder by reason of the use of any such agent or attorney-in-fact.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment .
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, 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 defective or 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; (v) if such amendment,
as evidenced by an Opinion of Counsel delivered to the Trustee and the REMIC
Administrator, 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 REMIC I
or REMIC II 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 REMIC I or REMIC II; (vi) to modify, add to or eliminate any
provisions of Section 5.02(d)(i), (ii) and (iii) as provided in Section
5.02(d)(iv); or (vii) for any other purpose; provided that such amendment (other
than any amendment for the specific purposes described in clauses (v) and (vi)
above) shall not, as evidenced by an Opinion of Counsel obtained by or delivered
to the Trustee, adversely affect in any material respect the interests of any
Certificateholder; and provided further that such amendment (other than any
amendment for any of the specific purposes described in clauses (i) through (vi)
above) shall not result in a downgrade, qualification or withdrawal of any
rating assigned to any Class of Certificates by either Rating Agency (as
evidenced by written confirmation to such effect from each Rating Agency
obtained by or delivered to the Trustee).
(b) This Agreement may also be amended from time to time by the
mutual agreement of the parties hereto, 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 the Mortgage Loans and any REO Properties
which are required to be distributed on any Certificate without the consent of
the Holder of such Certificate, (ii) adversely affect in any material respect
the interests of the Holders of any Class of Certificates in a manner other than
as described in (i) without the consent of the Holders of all Certificates of
such Class, or (iii) modify the provisions of this Section 11.01 without the
consent of the Holders of all Certificates then outstanding. Notwithstanding any
other provision
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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 Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer
or any of their respective Affiliates shall be entitled to the same Voting
Rights with respect to matters described above as they would if any other Person
held such Certificates.
(c) Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the REMIC Administrator shall consent to any amendment
to this Agreement unless it shall first have obtained or been furnished with an
Opinion of Counsel to the effect that such amendment or the exercise of any
power granted to any party hereto in accordance with such amendment will not
result in the imposition of a tax on REMIC I or REMIC II pursuant to the REMIC
Provisions or cause REMIC I or REMIC II to fail to qualify as a REMIC at any
time that any Certificates are outstanding.
(d) Promptly after the execution of any such amendment, the
Trustee shall furnish a copy of the amendment to each Certificateholder.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant
to Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
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 Distribution Account.
SECTION 11.02. Recordation of Agreement; Counterparts .
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund on direction by
the Trustee, but only upon direction accompanied by an Opinion of Counsel (the
reasonable cost of which may be paid out of the Distribution Account) to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders.
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(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders .
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and (except in the case of a default by the Trustee)
the Holders of Certificates entitled to at least 25% of the Voting Rights shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each 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 11.03(c), each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
<PAGE>
184
SECTION 11.04. Governing Law .
This Agreement and the Certificates shall be construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
SECTION 11.05. Notices .
Any communications provided for or permitted hereunder shall be
in writing and, unless otherwise expressly provided herein, shall be deemed to
have been duly given when delivered to: (i) in the case of the Sponsor, Mortgage
Capital Funding, Inc., 399 Park Avenue, 3rd Floor, New York, New York 10043,
Attention: Mortgage Finance, telecopy number: (212) 793-5602 (with copies to
Stephen E. Dietz, Esq., Associate General Counsel, Citibank, N.A., 425 Park
Avenue, New York, New York 10043, telecopy number: (212) 793-4401); (ii) in the
case of the Mortgage Loan Seller, Citibank, N.A., 399 Park Avenue, 3rd Floor,
New York, New York 10043, Attention: Mortgage Finance, telecopy number: (212)
793-5602 (with copies to Stephen E. Dietz, Esq., Associate General Counsel,
Citibank, N.A., 425 Park Avenue, New York, New York 10043, telecopy number:
(212) 793-4401); (iii) in the case of the Master Servicer, GMAC Commercial
Mortgage Corporation, 650 Dresher Road, P.O. Box 1015, Horsham, Pennsylvania
19044, Attention: Servicing Manager, telecopy number: (215) 682-1796 (with
copies to Glen Snyder, General Counsel, at 100 Witmer Road, P.O. Box 963,
Horsham, Pennsylvania 19044, telecopy number (215) 682-1467); (iv) in the case
of the Special Servicer, Hanford/Healy Asset Management Company, 550 California
Street, 12th Floor, San Francisco, California 94104, Attention: Trish Healy;
telecopy number: (415) 391-2949; (v) in the case of the Trustee and the REMIC
Administrator, State Street Bank and Trust Company, Two International Place, 5th
Floor, Boston, Massachusetts 02110, Attention: Corporate Trust Department,
Mortgage Capital Funding, Inc., Series 1996-MC1, telecopy number: (617)
664-5367; and (vi) in the case of the Rating Agencies, (A) Standard & Poor's
Ratings Services, 25 Broadway, New York, New York 10004, Attention: Commercial
Mortgage Surveillance, telecopy number: (212) 412-0597; and (B) Fitch Investors
Service, L.P., One State Street Plaza, New York, New York 10004, Attention:
Commercial Mortgage Surveillance, telecopy number: (212) 635-0295; 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
<PAGE>
185
of the other provisions of this Agreement or of the Certificates or the rights
of the Holders thereof.
SECTION 11.07. 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.
Except as specifically contemplated by Sections 6.03 and 8.05, no other person,
including, without limitation, any Mortgagor, shall be entitled to any benefit
or equitable right, remedy or claim under this Agreement.
SECTION 11.08. 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 11.09. Notices to the 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 hereunder
that has not been cured;
(iii) the resignation or termination of the Master
Servicer, the Special Servicer or the REMIC Administrator and the
appointment of a successor;
(iv) any change in the location of the Distribution
Account;
(v) the final payment to any Class of
Certificateholders; and
(vi) the repurchase of Mortgage Loans by the Mortgage
Loan Seller pursuant to Section 2.03.
(b) The Master Servicer shall promptly provide notice to each
Rating Agency with respect to each of the following of which it has actual
knowledge:
(i) the resignation or removal of the Trustee
and the appointment of a successor;
(ii) any change in the location of the Certificate
Account; and
<PAGE>
186
(iii) any event that would result in the voluntary or
involuntary termination of any insurance of the accounts of
the Trustee.
(c) Each of the Master Servicer and the Special Servicer, as the
case may be, shall furnish to each Rating Agency such information with respect
to the Mortgage Loans as the Rating Agency shall reasonably request and which
the Master Servicer or the Special Servicer, as the case may be, can reasonably
provide.
(d) Each of the Master Servicer and the Special Servicer shall
promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance
described in Section 3.13; and
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.14, if any.
In addition, upon request, each of the Master Servicer and the Special Servicer
shall promptly furnish to each Rating Agency copies or summaries (in such format
as will be acceptable to the Rating Agency) of any of the written reports
(including, without limitation, reports regarding property inspections)
prepared, and any of the annual operating statements, rent rolls and financial
statements collected, by it pursuant to Section 3.12.
(e) The Trustee shall promptly furnish to each Rating Agency on a
monthly basis copies of the statements to the Holders of the REMIC II Regular
Certificates required by the first paragraph of Section 4.02(a).
<PAGE>
187
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.
MORTGAGE CAPITAL FUNDING,
INC.,
Sponsor
By: /s/ Richard L. Jarocki, Jr.
Name: Richard L. Jarocki, Jr.
Title: Vice President
CITIBANK, N.A.,
Mortgage Loan Seller
By: /s/ Gary L. Greenberg
Name: Gary L. Greenberg
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer
By: /s/ Kathryn Marquardt
Name: K. Marquardt
Title: Vice President
HANFORD/HEALY ASSET MANAGEMENT COMPANY,
Special Servicer
By: /s/ Patricia R. Healy
Name: Patricia R. Healy
Title: Managing Principal
STATE STREET BANK AND TRUST COMPANY,
Trustee and REMIC Administrator
By: /s/ William G. Swan
Name: William G. Swan
Title: Assistant Vice President
<PAGE>
188
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 10th day of July, 1996 before me, a notary public in and
for said State, personally appeared Richard L. Jarocki, Jr. known to me to be a
Vice President of MORTGAGE CAPITAL FUNDING, INC., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Heidi Kahn
Notary Public
Heidi M. Kahn
Notary Public, State of New York
No. 02KA5046954
Qualified in New York County
Commission Expires July 24, 1997
<PAGE>
189
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 10th day of July, 1996, before me, a notary public in and
for said State, personally appeared Gary L. Greenberg known to me to be a Vice
President of CITIBANK, N.A., one of the entities that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entity, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Heidi Kahn
Notary Public
Heidi M. Kahn
Notary Public, State of New York
No. 02KA5046954
Qualified in New York County
Commission Expires July 24, 1997
<PAGE>
190
STATE OF PENNSYLVANIA )
) ss.:
COUNTY OF MONTGOMERY )
On the 9th day of July, 1996 before me, a notary public in and
for said State, personally appeared Kathryn Marquardt known to me to be a Vice
President of GMAC COMMERCIAL MORTGAGE CORPORATION, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Joan Frezza
Notary Public
NOTARIAL SEAL
JOAN FREZZA, Notary Public
Horsham Twp., Montgomery County
My Commission Expires April 24, 2000
<PAGE>
191
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On the 9TH day of July 1996 before me, a notary public in and for
said State, personally appeared Patricia R. Healy known to me to be a Managing
Principal of HANFORD/HEALY ASSET MANAGEMENT COMPANY, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Stacey Jefferson
Notary Public
STACEY JEFFERSON
COMM.# 1057207
Notary Public - California
SAN FRANCISCO COUNTY
My Comm. Expires MAY 21, 1999
<PAGE>
192
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 10th day of July 1996 before me, a notary public in and
for said State, personally appeared William G. Swan known to me to be an
Assistant Vice President of STATE STREET BANK AND TRUST COMPANY, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Heidi Kahn
Notary Public
Heidi M. Kahn
Notary Public, State of New York
No. 02KA5046954
Qualified in New York County
Commission Expires July 24, 1997
<PAGE>
EXHIBIT A-1
FORM OF CLASS X-1 CERTIFICATE
CLASS X-1 MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-MC1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial "whole" mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
MORTGAGE CAPITAL FUNDING, INC.
Effective Pass-Through Rate: Variable Effective Certificate Notional Amount
of this Class X-1 Certificate as of
the Issue Date:
$-------------------
Date of Pooling and Servicing Effective Class Notional Amount of all
Agreement: July 1, 1996 the Class X-1 Certificates as of the Issue
Date: $29,966,951
Cut-off Date: July 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: July 10, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date:
August 15, 1996 $482,357,812
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Special Servicer: Mortgage Loan Seller:
Hanford/Healy Asset Management Company Citibank, N.A.
Certificate No. X-1-__ CUSIP No. 61910D BE 1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE SPONSOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER
<PAGE>
2
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
MORTGAGE CAPITAL FUNDING, INC., CITIBANK, N.A., HANFORD/HEALY ASSET MANAGEMENT
COMPANY, STATE STREET BANK AND TRUST COMPANY, GMAC COMMERCIAL MORTGAGE
CORPORATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE 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 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 JULY 10, 1996. ASSUMING THAT
THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN
THE MEANING OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 0%
(THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE
THAN $____________ OF OID PER $100,000 OF EFFECTIVE 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 $100,000
OF EFFECTIVE 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
DOES NOT ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER
HEREOF WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN ON THE EFFECTIVE CERTIFICATE
NOTIONAL AMOUNT OF THIS CERTIFICATE, WHICH 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 X-1 Certificate (obtained by
dividing the effective notional principal amount of this Class X-1 Certificate
(its
<PAGE>
3
"Effective Certificate Notional Amount") as of the Issue Date by the effective
aggregate notional principal balance of all the Class X-1 Certificates (their
"Effective Class Notional Amount") as of the Issue Date) in that certain
beneficial ownership interest evidenced by all the Class X-1 Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Mortgage Capital Funding, Inc., as
Sponsor, Citibank, N.A., as Mortgage Loan Seller, GMAC Commercial Mortgage
Corporation, as Master Servicer, Hanford/Healy Asset Management Company, as
Special Servicer, and State Street Bank and Trust Company, as Trustee and REMIC
Administrator. 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 (as to the Class
X-1 Certificates, 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 X-1 Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on any Class X-1 Certificate will be made by the Trustee by wire
transfer in 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 Trustee with wiring instructions
no less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions as well) and such Certificateholder is the
registered owner of all the Class X-1 Certificates, or otherwise by check mailed
to the address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice.
The Sponsor's Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (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 X-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 X-1 Certificates are exchangeable for
<PAGE>
4
new Class X-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 X-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 X-1 Certificates, but the Trustee or 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 X-1 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 initial aggregate Stated Principal Balance of
the Mortgage Pool specified on the face hereof.
<PAGE>
5
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Sponsor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund 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>
6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
State Street Bank And Trust Company,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-1 Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
7
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
Multifamily/Commercial Mortgage Pass-Through Certificate and hereby authorize(s)
the registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new
Multifamily/Commercial Mortgage Pass-Through Certificate of a like Percentage
Interest and Class to the above named assignee and delivery of such
Multifamily/Commercial Mortgage Pass-Through Certificate to the following
address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_______________________________________________________________
_________________________________________________________________ for the
account of
- -------------------------------------------------------------------------.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________
- -------------------------------------------------------------------.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-2
FORM OF CLASS X-2 CERTIFICATE
CLASS X-2 MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-MC1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial "whole" mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Variable Certificate Notional Amount of this
Class X-2 Certificate as of the Issue Date:
$-------------------
Date of Pooling and Servicing Class Notional Amount of all the Class
Agreement: July 1, 1996 X-2 Certificates as of the Issue Date:
$481,875,454.19
Cut-off Date: July 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: July 10, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date:
August 15, 1996 $482,357,812
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Special Servicer: Mortgage Loan Seller:
Hanford/Healy Asset Management Company Citibank, N.A.
Certificate No. X-2-__ CUSIP No. 61910D BF 8
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE SPONSOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER
<PAGE>
2
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
MORTGAGE CAPITAL FUNDING, INC., CITIBANK, N.A., HANFORD/HEALY ASSET MANAGEMENT
COMPANY, STATE STREET BANK AND TRUST COMPANY, GMAC COMMERCIAL MORTGAGE
CORPORATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE 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 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 JULY 10, 1996. ASSUMING THAT
THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN
THE MEANING OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 0%
(THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE
THAN $____________ OF OID PER $100,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT,
THE YIELD TO MATURITY IS _____% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $_____ PER $100,000 OF INITIAL
CERTIFICATE NOTIONAL AMOUNT, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION
IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT
ASSUMPTION OR AT ANY OTHER RATE.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND
DOES NOT ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER
HEREOF WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL
AMOUNT OF THIS CERTIFICATE, WHICH 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 X-2 Certificate (obtained by
dividing the notional principal amount of this Class X-2 Certificate (its
"Certificate Notional Amount") as of the Issue Date by the aggregate notional
principal balance of all the Class X-2 Certificates (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the
<PAGE>
3
Class X-2 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage
Capital Funding, Inc., as Sponsor, Citibank, N.A., as Mortgage Loan Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer, Hanford/Healy Asset
Management Company, as Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator. 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 (as to the Class
X-2 Certificates, 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 X-2 Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on any Class X-2 Certificate will be made by the Trustee by wire
transfer in 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 Trustee with wiring instructions
no less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions as well) and such Certificateholder is the
registered owner of all the Class X-2 Certificates, or otherwise by check mailed
to the address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice.
The Sponsor's Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (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 X-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 X-2 Certificates are exchangeable for new Class X-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
<PAGE>
4
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 X-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 X-2 Certificates, but the Trustee or 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 X-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 initial aggregate Stated Principal Balance of
the Mortgage Pool 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
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Sponsor,
<PAGE>
5
the Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee
and the REMIC Administrator 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
circumstances, including any amendment necessary to maintain the status of
designated portions of the Trust Fund 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>
6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
State Street Bank And Trust Company,
as Trustee
By:
Authorized Officer
<PAGE>
7
CERTIFICATE OF AUTHENTICATION
This is one of the Class X-2 Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
8
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
Multifamily/Commercial Mortgage Pass-Through Certificate and hereby authorize(s)
the registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new
Multifamily/Commercial Mortgage Pass-Through Certificate of a like Percentage
Interest and Class to the above named assignee and delivery of such
Multifamily/Commercial Mortgage Pass-Through Certificate to the following
address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_______________________________________________________________
_________________________________________________________________ for the
account of
- -------------------------------------------------------------------------.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________
- -------------------------------------------------------------------.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-MC1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial "whole" mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Variable Certificate Principal Balance of this
A-1 Certificate as of the Issue Date: Class
$----------------
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: July 1, 1996 A-1 Certificates as of the Issue Date:
$29,966,951
Cut-off Date: July 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: July 10, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date:
August 15, 1996 $482,357,812
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Special Servicer: Mortgage Loan Seller:
Hanford/Healy Asset Management Company Citibank, N.A.
Certificate No. A-1-__ CUSIP No. 61910D BG 6
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE
SPONSOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER
<PAGE>
2
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
MORTGAGE CAPITAL FUNDING, INC., CITIBANK, N.A., HANFORD/HEALY ASSET MANAGEMENT
COMPANY, STATE STREET BANK AND TRUST COMPANY, GMAC COMMERCIAL MORTGAGE
CORPORATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE 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 CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING
THE DATE ON WHICH 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 MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. 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 balance of this Class A-1 Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class A-1 Certificates (their "Class Principal Balance") as of the Issue
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 Mortgage Capital
Funding, Inc., as Sponsor, Citibank, N.A., as Mortgage Loan Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer, Hanford/Healy Asset
Management Company, as Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator. 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
<PAGE>
3
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 fifth day of the month of such distribution or,
if such fifth day is not a Business Day, the Business Day immediately preceding
(solely with respect to the Class A-1 Certificates, 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 any Class A-1
Certificate will be made by the Trustee by wire transfer in 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 Trustee with wiring instructions no less than five Business
Days prior to the Record Date for such distribution (which wiring instructions
may be in the form of a standing order applicable to all subsequent
distributions as well) and such Certificateholder is the registered owner of
Certificates the aggregate initial Certificate Principal Balance of which is at
least $1,000,000, or otherwise by check mailed to the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
above, 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 after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. 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 appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
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 Sponsor's Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (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 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
<PAGE>
4
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 Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class A-1 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 initial aggregate Stated Principal Balance of
the Mortgage Pool specified on the face hereof.
<PAGE>
5
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Sponsor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund 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>
6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
State Street Bank and Trust Company,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
7
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
Multifamily/Commercial Mortgage Pass-Through Certificate and hereby authorize(s)
the registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new
Multifamily/Commercial Mortgage Pass-Through Certificate of a like Percentage
Interest and Class to the above named assignee and delivery of such
Multifamily/Commercial Mortgage Pass-Through Certificate to the following
address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_______________________________________________________________
_________________________________________________________________ for the
account of
- -------------------------------------------------------------------------.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________
- -------------------------------------------------------------------.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-4
FORM OF CLASS A-2A CERTIFICATE
CLASS A-2A MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-MC1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial "whole" mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Certificate Principal Balance of this
7.35% per annum Class A-2A Certificate as of
the Issue Date:
$----------------
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: July 1, 1996 A-2A Certificates as of the Issue Date:
$150,000,000
Cut-off Date: July 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: July 10, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date:
August 15, 1996 $482,357,812
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Special Servicer: Mortgage Loan Seller:
Hanford/Healy Asset Management Company Citibank, N.A.
Certificate No. A-2A-__ CUSIP No. 61910D BH 4
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE
SPONSOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER
<PAGE>
2
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
MORTGAGE CAPITAL FUNDING, INC., CITIBANK, N.A., HANFORD/HEALY ASSET MANAGEMENT
COMPANY, STATE STREET BANK AND TRUST COMPANY, GMAC COMMERCIAL MORTGAGE
CORPORATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE 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 CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING
THE DATE ON WHICH 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 MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. 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-2A Certificate (obtained by
dividing the principal balance of this Class A-2A Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class A-2A Certificates (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest evidenced by all the
Class A-2A Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage
Capital Funding, Inc., as Sponsor, Citibank, N.A., as Mortgage Loan Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer, Hanford/Healy Asset
Management Company, as Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator. 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
<PAGE>
3
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 (as to the Class A-2A Certificates, 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-2A Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on any
Class A-2A Certificate will be made by the Trustee by wire transfer in
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 Trustee with wiring instructions no
less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions as well) and such Certificateholder is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $1,000,000, or otherwise by check mailed to the
address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, 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 after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice. 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 appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
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 Sponsor's Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (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 A-2A 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-2A Certificates are exchangeable for
<PAGE>
4
new Class A-2A 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-2A 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-2A Certificates, but the Trustee or 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-2A 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.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 initial aggregate Stated Principal Balance of
the Mortgage Pool specified on the face hereof.
<PAGE>
5
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Sponsor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund 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>
6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
State Street Bank and Trust Company,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2A Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
7
- -
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
Multifamily/Commercial Mortgage Pass-Through Certificate and hereby authorize(s)
the registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new
Multifamily/Commercial Mortgage Pass-Through Certificate of a like Percentage
Interest and Class to the above named assignee and delivery of such
Multifamily/Commercial Mortgage Pass-Through Certificate to the following
address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_______________________________________________________________
_________________________________________________________________ for the
account of
- -------------------------------------------------------------------------.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________
- -------------------------------------------------------------------.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-5
FORM OF CLASS A-2B CERTIFICATE
CLASS A-2B MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-MC1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial "whole" mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Certificate Principal Balance of this Class
7.90% per annum A-2B Certificate as of the Issue Date: $_________
Date of Pooling and Servicing Class Principal Balance of all the Class
Agreement: July 1, 1996 A-2B Certificates as of the Issue Date:
$145,624,000
Cut-off Date: July 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: July 10, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date:
August 15, 1996 $482,357,812
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Special Servicer: Mortgage Loan Seller:
Hanford/Healy Asset Management Company Citibank, N.A.
Certificate No. A-2B-__ CUSIP No. 61910D BJ 0
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE
SPONSOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER
<PAGE>
2
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
MORTGAGE CAPITAL FUNDING, INC., CITIBANK, N.A., HANFORD/HEALY ASSET MANAGEMENT
COMPANY, STATE STREET BANK AND TRUST COMPANY, GMAC COMMERCIAL MORTGAGE
CORPORATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE 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 CODE.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. IN ADDITION, FOLLOWING
THE DATE ON WHICH 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 MAY BE REDUCED IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. 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-2B Certificate (obtained by
dividing the principal balance of this Class A-2B Certificate (its "Certificate
Principal Balance") as of the Issue Date by the aggregate principal balance of
all the Class A-2B Certificates (their "Class Principal Balance") as of the
Issue Date) in that certain beneficial ownership interest evidenced by all the
Class A-2B Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Mortgage
Capital Funding, Inc., as Sponsor, Citibank, N.A., as Mortgage Loan Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer, Hanford/Healy Asset
Management Company, as Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator. 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
<PAGE>
3
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 (as to the Class A-2B Certificates, 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-2B Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on any
Class A-2B Certificate will be made by the Trustee by wire transfer in
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 Trustee with wiring instructions no
less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions as well) and such Certificateholder is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $1,000,000, or otherwise by check mailed to the
address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, 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 after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice. 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 appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
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 Sponsor's Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (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 A-2B 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-2B Certificates are exchangeable for
<PAGE>
4
new Class A-2B 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-2B 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-2B Certificates, but the Trustee or 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-2B 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.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 initial aggregate Stated Principal Balance of
the Mortgage Pool specified on the face hereof.
<PAGE>
5
The Agreement permits, with certain exceptions therein provided,
the amendment thereof, and the modification of the rights and obligations of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Sponsor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund 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>
6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
State Street Bank and Trust Company,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2B Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
7
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
Multifamily/Commercial Mortgage Pass-Through Certificate and hereby authorize(s)
the registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new
Multifamily/Commercial Mortgage Pass-Through Certificate of a like Percentage
Interest and Class to the above named assignee and delivery of such
Multifamily/Commercial Mortgage Pass-Through Certificate to the following
address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_______________________________________________________________
_________________________________________________________________ for the
account of
- -------------------------------------------------------------------------.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________
- -------------------------------------------------------------------.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-6
FORM OF CLASS B CERTIFICATE
CLASS B MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-MC1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial "whole" mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Certificate Principal Balance of this Class
7.90% per annum B Certificate as of the Issue Date: $_____
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: July 1, 1996 Class B Certificates as of the Issue Date:
$14,470,000
Cut-off Date: July 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: July 10, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date:
August 15, 1996 $482,357,812
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Special Servicer: Mortgage Loan Seller:
Hanford/Healy Asset Management Company Citibank, N.A.
Certificate No. B-__ CUSIP No. 61910D BK 7
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE
SPONSOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER
<PAGE>
2
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
MORTGAGE CAPITAL FUNDING, INC., CITIBANK, N.A., HANFORD/HEALY ASSET MANAGEMENT
COMPANY, STATE STREET BANK AND TRUST COMPANY, GMAC COMMERCIAL MORTGAGE
CORPORATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE 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-2A, CLASS
A-2B, CLASS X-1 AND CLASS X-2 CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
THIS CERTIFICATE OR ANY INTEREST HEREIN 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.
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.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF
THE CLASS A-1, CLASS A-2A AND CLASS A-2B CERTIFICATES OF THE SAME SERIES. IN
ADDITION, FOLLOWING THE DATE ON WHICH 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 IN CONNECTION WITH LOSSES
ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
<PAGE>
3
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class B Certificate (obtained by dividing
the principal balance of this Class B Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class B Certificates (their "Class Principal Balance") as of the Issue 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 Mortgage Capital
Funding, Inc., as Sponsor, Citibank, N.A., as Mortgage Loan Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer, Hanford/Healy Asset
Management Company, as Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator. 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 (as to the Class
B Certificates, 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 any Class B Certificate will be made by the Trustee by wire
transfer in 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 Trustee with wiring instructions
no less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions as well) and such Certificateholder is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $1,000,000, or otherwise by check mailed to the
address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, 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 after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice. 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 appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
<PAGE>
4
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 Sponsor's Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (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 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 under any circumstances (i) 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
Code (each, a "Plan"), or (ii) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan, unless: (x) in the case of a Class
B Certificate that constitutes a Book-Entry Certificate, the purchase and
holding of such Certificate or interest therein is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Prohibited Transaction Class Exemption 95-60; or (y) in the case of a
Class B Certificate that is held as a Definitive Certificate, the prospective
transferee provides the Certificate Registrar with a certification of facts and
an Opinion of Counsel 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 cause the Master Servicer, the Special
Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the
imposition of an excise tax under Section 4975 of the Code. Each Person who
acquires any Class B Certificate or interest therein (unless it shall have
delivered the certification of facts and Opinion of Counsel referred
<PAGE>
5
to in the preceding sentence) shall be deemed to have certified that it is
neither a Plan nor any Person who is directly or indirectly purchasing such
Class B Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan (or, alternatively, for so long as the
Class B Certificates constitute Book-Entry Certificates, that the purchase and
holding of such Certificate or interest therein is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Prohibited Transaction Class Exemption 95-60).
No service charge will be imposed for any registration of
transfer or exchange of Class B Certificates, but the Trustee or 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.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the; Trust Fund all Mortgage Loans and any REO
Properties 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 initial aggregate Stated Principal Balance of
the Mortgage Pool 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
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Sponsor,
<PAGE>
6
the Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee
and the REMIC Administrator 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
circumstances, including any amendment necessary to maintain the status of
designated portions of the Trust Fund 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>
7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
State Street Bank and Trust Company,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
8
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
Multifamily/Commercial Mortgage Pass-Through Certificate and hereby authorize(s)
the registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new
Multifamily/Commercial Mortgage Pass-Through Certificate of a like Percentage
Interest and Class to the above named assignee and delivery of such
Multifamily/Commercial Mortgage Pass-Through Certificate to the following
address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_______________________________________________________________
_________________________________________________________________ for the
account of
- -------------------------------------------------------------------------.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________
- -------------------------------------------------------------------.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-7
FORM OF CLASS C CERTIFICATE
CLASS C MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-MC1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial "whole" mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Certificate Principal Balance of this Class
7.80% per annum C Certificate as of the Issue Date: $_____
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: July 1, 1996 Class C Certificates as of the Issue Date:
$31,353,000
Cut-off Date: July 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: July 10, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date:
August 15, 1996 $482,357,812
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Special Servicer: Mortgage Loan Seller:
Hanford/Healy Asset Management Company Citibank, N.A.
Certificate No. C-__ CUSIP No. 61910D BL 5
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE
SPONSOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER
<PAGE>
2
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
MORTGAGE CAPITAL FUNDING, INC., CITIBANK, N.A., HANFORD/HEALY ASSET MANAGEMENT
COMPANY, STATE STREET BANK AND TRUST COMPANY, GMAC COMMERCIAL MORTGAGE
CORPORATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE 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-2A, CLASS
A-2B, CLASS X-1, CLASS X-2 AND CLASS B CERTIFICATES OF THE SAME SERIES, AS AND
TO THE EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
THIS CERTIFICATE OR ANY INTEREST HEREIN 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.
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.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF
THE CLASS A-1, CLASS A-2A, CLASS A-2B AND CLASS B CERTIFICATES OF THE SAME
SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH 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 IN CONNECTION WITH LOSSES
ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
<PAGE>
3
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class C Certificate (obtained by dividing
the principal balance of this Class C Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class C Certificates (their "Class Principal Balance") as of the Issue 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 Mortgage Capital
Funding, Inc., as Sponsor, Citibank, N.A., as Mortgage Loan Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer, Hanford/Healy Asset
Management Company, as Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator. 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 (as to the Class
C Certificates, 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 any Class C Certificate will be made by the Trustee by wire
transfer in 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 Trustee with wiring instructions
no less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions as well) and such Certificateholder is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $1,000,000, or otherwise by check mailed to the
address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, 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 after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice. 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 appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
<PAGE>
4
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 Sponsor's Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (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 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 under any circumstances (i) 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
Code (each, a "Plan"), or (ii) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan, unless: (x) in the case of a Class
C Certificate that constitutes a Book-Entry Certificate, the purchase and
holding of such Certificate or interest therein is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Prohibited Transaction Class Exemption 95-60; or (y) in the case of a
Class C Certificate that is held as a Definitive Certificate, the prospective
transferee provides the Certificate Registrar with a certification of facts and
an Opinion of Counsel 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 cause the Master Servicer, the Special
Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the
imposition of an excise tax under Section 4975 of the Code. Each Person who
acquires any Class C Certificate or interest therein (unless it shall have
delivered the certification of facts and Opinion of Counsel referred
<PAGE>
5
to in the preceding sentence) shall be deemed to have certified that it is
neither a Plan nor any Person who is directly or indirectly purchasing such
Class C Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan (or, alternatively, for so long as the
Class C Certificates constitute Book-Entry Certificates, that the purchase and
holding of such Certificate or interest therein is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Prohibited Transaction Class Exemption 95-60).
No service charge will be imposed for any registration of
transfer or exchange of Class C Certificates, but the Trustee or 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.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, the Certificate Registrar or any such
agent shall be affected by notice to the contrary.
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 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 by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 initial aggregate Stated Principal Balance of
the Mortgage Pool 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
Sponsor,
<PAGE>
6
the Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee
and the REMIC Administrator thereunder and the rights of the Certificateholders
thereunder, at any time by the Sponsor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator 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 circumstances, including any amendment necessary to maintain
the status of designated portions of the Trust Fund 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>
7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
State Street Bank and Trust Company,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
8
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
Multifamily/Commercial Mortgage Pass-Through Certificate and hereby authorize(s)
the registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new
Multifamily/Commercial Mortgage Pass-Through Certificate of a like Percentage
Interest and Class to the above named assignee and delivery of such
Multifamily/Commercial Mortgage Pass-Through Certificate to the following
address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_______________________________________________________________
_________________________________________________________________ for the
account of
- -------------------------------------------------------------------------.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________
- -------------------------------------------------------------------.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-8
FORM OF CLASS D CERTIFICATE
CLASS D MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-MC1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial "whole" mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Certificate Principal Balance of this Class
7.80% per annum D Certificate as of the Issue Date: $_____
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: July 1, 1996 Class D Certificates as of the Issue Date:
$19,294,000
Cut-off Date: July 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: July 10, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date:
August 15, 1996 $482,357,812
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Special Servicer: Mortgage Loan Seller:
Hanford/Healy Asset Management Company Citibank, N.A.
Certificate No. D-__ CUSIP No. 61910D BM 3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE
SPONSOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER
<PAGE>
2
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
MORTGAGE CAPITAL FUNDING, INC., CITIBANK, N.A., HANFORD/HEALY ASSET MANAGEMENT
COMPANY, STATE STREET BANK AND TRUST COMPANY, GMAC COMMERCIAL MORTGAGE
CORPORATION, OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE 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-2A, CLASS
A-2B, CLASS X-1, CLASS X-2, CLASS B AND CLASS C CERTIFICATES OF THE SAME SERIES,
AS AND TO THE EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
THIS CERTIFICATE OR ANY INTEREST HEREIN 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.
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.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF
THE CLASS A-1, CLASS A-2A, CLASS A-2B, CLASS B AND CLASS C CERTIFICATES OF THE
SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH 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 IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
<PAGE>
3
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class D Certificate (obtained by dividing
the principal balance of this Class D Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class D Certificates (their "Class Principal Balance") as of the Issue 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 Mortgage Capital
Funding, Inc., as Sponsor, Citibank, N.A., as Mortgage Loan Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer, Hanford/Healy Asset
Management Company, as Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator. 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 (as to the Class
D Certificates, 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 any Class D Certificate will be made by the Trustee by wire
transfer in 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 Trustee with wiring instructions
no less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions as well) and such Certificateholder is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $1,000,000, or otherwise by check mailed to the
address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, 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 after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice. 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 appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
<PAGE>
4
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 Sponsor's Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (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 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 under any circumstances (i) 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
Code (each, a "Plan"), or (ii) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan, unless: (x) in the case of a Class
D Certificate that constitutes a Book-Entry Certificate, the purchase and
holding of such Certificate or interest therein is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Prohibited Transaction Class Exemption 95-60; or (y) in the case of a
Class D Certificate that is held as a Definitive Certificate, the prospective
transferee provides the Certificate Registrar with a certification of facts and
an Opinion of Counsel 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 cause the Master Servicer, the Special
Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the
imposition of an excise tax under Section 4975 of the Code. Each Person who
acquires any Class D Certificate or interest therein (unless it shall have
delivered the certification of facts and Opinion of Counsel referred
<PAGE>
5
to in the preceding sentence) shall be deemed to have certified that it is
neither a Plan nor any Person who is directly or indirectly purchasing such
Class D Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan (or, alternatively, for so long as the
Class D Certificates constitute Book-Entry Certificates, that the purchase and
holding of such Certificate or interest therein is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Prohibited Transaction Class Exemption 95-60).
No service charge will be imposed for any registration of
transfer or exchange of Class D Certificates, but the Trustee or 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.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 initial aggregate Stated Principal Balance of
the Mortgage Pool 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
Sponsor, the
<PAGE>
6
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee and
the REMIC Administrator thereunder and the rights of the Certificateholders
thereunder, at any time by the Sponsor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Trustee and the REMIC Administrator 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 circumstances, including any amendment necessary to maintain
the status of designated portions of the Trust Fund 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>
7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
State Street Bank and Trust Company,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
8
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
Multifamily/Commercial Mortgage Pass-Through Certificate and hereby authorize(s)
the registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new
Multifamily/Commercial Mortgage Pass-Through Certificate of a like Percentage
Interest and Class to the above named assignee and delivery of such
Multifamily/Commercial Mortgage Pass-Through Certificate to the following
address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_______________________________________________________________
_________________________________________________________________ for the
account of
- -------------------------------------------------------------------------.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________
- -------------------------------------------------------------------.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-9
FORM OF CLASS E CERTIFICATE
CLASS E MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-MC1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial "whole" mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Certificate Principal Balance of this Class
7.70% per annum E Certificate as of the Issue Date: $_______
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: July 1, 1996 Class E Certificates as of the Issue Date:
$16,882,000
Cut-off Date: July 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: July 10, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date:
August 15, 1996 $482,357,812
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Special Servicer: Mortgage Loan Seller:
Hanford/Healy Asset Management Company Citibank, N.A.
Certificate No. E-__ CUSIP No. 61910D BN 1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE
SPONSOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER
<PAGE>
2
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
MORTGAGE CAPITAL FUNDING, INC., CITIBANK, N.A., HANFORD/HEALY ASSET MANAGEMENT
COMPANY, GMAC COMMERCIAL MORTGAGE CORPORATION, STATE STREET BANK AND TRUST
COMPANY OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
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-2A, CLASS
A-2B, CLASS X-1, CLASS X-2, CLASS B, CLASS C AND CLASS D CERTIFICATES OF THE
SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
THIS CERTIFICATE OR ANY INTEREST HEREIN 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.
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 JULY 10, 1996. ASSUMING THAT
THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN
THE MEANING OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 0%
(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
<PAGE>
3
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 HEREIN FOLLOWING RETIREMENT OF
THE CLASS A-1, CLASS A-2A, CLASS A-2B, CLASS B, CLASS C AND CLASS D CERTIFICATES
OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH 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 IN CONNECTION WITH LOSSES
ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. 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 balance of this Class E Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class E Certificates (their "Class Principal Balance") as of the Issue 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 Mortgage Capital
Funding, Inc., as Sponsor, Citibank, N.A., as Mortgage Loan Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer, Hanford/Healy Asset
Management Company, as Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator. 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 (as to the Class
E Certificates, 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 any Class E Certificate will be made by the Trustee by wire
transfer in 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 Trustee with wiring instructions
no less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions as well) and such Certificateholder is the
registered
<PAGE>
4
owner of Certificates the aggregate initial Certificate Principal Balance of
which is at least $1,000,000, or otherwise by check mailed to the address of
such Certificateholder appearing in the Certificate Register. Notwithstanding
the above, 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 after due
notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar appointed as provided in the Agreement or such other location as may
be specified in such notice. 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 appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
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 Sponsor's Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (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 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.
<PAGE>
5
No transfer of a Class E Certificate or any interest therein
shall be made under any circumstances (i) 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
Code (each, a "Plan"), or (ii) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan, unless: (x) in the case of a Class
E Certificate that constitutes a Book-Entry Certificate, the purchase and
holding of such Certificate or interest therein is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Prohibited Transaction Class Exemption 95-60; or (y) in the case of a
Class E Certificate that is held as a Definitive Certificate, the prospective
transferee provides the Certificate Registrar with a certification of facts and
an Opinion of Counsel 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 cause the Master Servicer, the Special
Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the
imposition of an excise tax under Section 4975 of the Code. Each Person who
acquires any Class E Certificate or interest therein (unless it shall have
delivered the certification of facts and Opinion of Counsel referred to in the
preceding sentence) shall be deemed to have certified that it is neither a Plan
nor any Person who is directly or indirectly purchasing such Class E Certificate
or interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan (or, alternatively, for so long as the Class E Certificates
constitute Book-Entry Certificates, that the purchase and holding of such
Certificate or interest therein is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Prohibited
Transaction Class Exemption 95-60).
No service charge will be imposed for any registration of
transfer or exchange of Class E Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class E Certificates.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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
<PAGE>
6
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 by
any Majority Certificateholder of the Controlling Class (other than the Sponsor
or the Mortgage Loan Seller) at a price determined as provided in the Agreement
of all Mortgage Loans and any REO Properties remaining in the Trust Fund. The
Agreement permits, but does not require, any such Majority Certificateholder or
the Master Servicer to purchase from the Trust Fund all Mortgage Loans and any
REO Properties 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 initial aggregate Stated Principal Balance of
the Mortgage Pool 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
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Sponsor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund 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>
7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
State Street Bank and Trust Company,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
8
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
Multifamily/Commercial Mortgage Pass-Through Certificate and hereby authorize(s)
the registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new
Multifamily/Commercial Mortgage Pass-Through Certificate of a like Percentage
Interest and Class to the above named assignee and delivery of such
Multifamily/Commercial Mortgage Pass-Through Certificate to the following
address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_______________________________________________________________
_________________________________________________________________ for the
account of
- -------------------------------------------------------------------------.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________
- -------------------------------------------------------------------.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-10
FORM OF CLASS F CERTIFICATE
CLASS F MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-MC1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial "whole" mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Certificate Principal Balance of this Class
7.70% per annum F Certificate as of the Issue Date: $________
Date of Pooling and Servicing
Agreement: July 1, 1996 Class Principal Balance of all the
Class F Certificates as of the Issue
Date: $7,235,000
Cut-off Date: July 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: July 10, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date:
August 15, 1996 $482,357,812
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Special Servicer: Mortgage Loan Seller:
Hanford/Healy Asset Management Company Citibank, N.A.
Certificate No. F-__ CUSIP No. 61910D BP 6
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE SPONSOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN
<PAGE>
2
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 MORTGAGE
CAPITAL FUNDING, INC., CITIBANK, N.A., HANFORD/HEALY ASSET MANAGEMENT COMPANY,
GMAC COMMERCIAL MORTGAGE CORPORATION, STATE STREET BANK AND TRUST COMPANY OR ANY
OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE 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-2A, CLASS A-2B, CLASS
X-1, CLASS X-2, CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES OF THE SAME
SERIES, AS AND TO THE EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN TO AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN 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.
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 JULY 10, 1996. ASSUMING THAT THE MORTGAGE
LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN THE MEANING OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 0% (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,
<PAGE>
3
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 HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2A, CLASS A-2B, CLASS B, CLASS C, CLASS D AND CLASS E
CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON WHICH 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 IN CONNECTION WITH LOSSES
ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class F Certificate (obtained by dividing
the principal balance of this Class F Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class F Certificates (their "Class Principal Balance") as of the Issue 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 Mortgage Capital
Funding, Inc., as Sponsor, Citibank, N.A., as Mortgage Loan Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer, Hanford/Healy Asset
Management Company, as Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator. 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 (as to the Class
F Certificates, 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 any Class F Certificate will be made by the Trustee by wire
transfer in 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 Trustee with wiring instructions
no less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order
<PAGE>
4
applicable to all subsequent distributions as well) and such Certificateholder
is the registered owner of Certificates the aggregate initial Certificate
Principal Balance of which is at least $1,000,000, or otherwise by check mailed
to the address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, 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 after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice. 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 appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
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 Sponsor's Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (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 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.
<PAGE>
5
No transfer of a Class F Certificate or any interest therein
shall be made under any circumstances (i) 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
Code (each, a "Plan"), or (ii) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan, unless: (x) in the case of a Class
F Certificate that constitutes a Book-Entry Certificate, the purchase and
holding of such Certificate or interest therein is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Prohibited Transaction Class Exemption 95-60; or (y) in the case of a
Class F Certificate that is held as a Definitive Certificate, the prospective
transferee provides the Certificate Registrar with a certification of facts and
an Opinion of Counsel 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 cause the Master Servicer, the Special
Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the
imposition of an excise tax under Section 4975 of the Code. Each Person who
acquires any Class F Certificate or interest therein (unless it shall have
delivered the certification of facts and Opinion of Counsel referred to in the
preceding sentence) shall be deemed to have certified that it is neither a Plan
nor any Person who is directly or indirectly purchasing such Class F Certificate
or interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan (or, alternatively, for so long as the Class F Certificates
constitute Book-Entry Certificates, that the purchase and holding of such
Certificate or interest therein is exempt from the prohibited transaction
provisions of Section 406 of ERISA and Section 4975 of the Code under Prohibited
Transaction Class Exemption 95-60).
No service charge will be imposed for any registration of
transfer or exchange of Class F Certificates, but the Trustee or 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.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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
<PAGE>
6
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 by
any Majority Certificateholder of the Controlling Class (other than the Sponsor
or the Mortgage Loan Seller) at a price determined as provided in the Agreement
of all Mortgage Loans and any REO Properties remaining in the Trust Fund. The
Agreement permits, but does not require, any such Majority Certificateholder or
the Master Servicer to purchase from the Trust Fund all Mortgage Loans and any
REO Properties 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 initial aggregate Stated Principal Balance of
the Mortgage Pool 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
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Sponsor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund 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>
7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
State Street Bank and Trust Company,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
8
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
Multifamily/Commercial Mortgage Pass-Through Certificate and hereby authorize(s)
the registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new
Multifamily/Commercial Mortgage Pass-Through Certificate of a like Percentage
Interest and Class to the above named assignee and delivery of such
Multifamily/Commercial Mortgage Pass-Through Certificate to the following
address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_______________________________________________________________
_________________________________________________________________ for the
account of
- -------------------------------------------------------------------------.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________
- -------------------------------------------------------------------.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-11
FORM OF CLASS G CERTIFICATE
CLASS G MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-MC1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial "whole" mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Certificate Principal Balance of this Class
7.15% per annum G Certificate as of the Issue Date: $______
Date of the Pooling and Servicing Class Principal Balance of all the
Agreement: July 1, 1996 Class G Certificates as of the Issue Date:
$32,559,000
Cut-off Date: July 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: July 10, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date:
August 15, 1996 $482,357,812
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Special Servicer: Mortgage Loan Seller:
Hanford/Healy Asset Management Company Citibank, N.A.
Certificate No. G-__ CUSIP No. 61910D BQ 4
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE CAPITAL FUNDING, INC., CITIBANK, N.A., HANFORD/HEALY ASSET MANAGEMENT
COMPANY, STATE STREET BANK AND TRUST COMPANY, GMAC COMMERCIAL MORTGAGE
CORPORATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
<PAGE>
2
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2A, CLASS
A-2B, CLASS X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E AND CLASS F
CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN 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 TO AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
THIS CERTIFICATE OR ANY INTEREST HEREIN 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.
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 JULY 10, 1996. ASSUMING THAT
THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN
THE MEANING OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 0%
(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 ASSETS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT
ASSUMPTION OR AT ANY OTHER RATE.
<PAGE>
3
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF
THE CLASS A-1, CLASS A-2A, CLASS A-2B, CLASS B, CLASS C, CLASS D, CLASS E AND
CLASS F CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE ON
WHICH 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 IN CONNECTION WITH LOSSES
ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. 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 balance of this Class G Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class G Certificates (their "Class Principal Balance") as of the Issue 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 Mortgage Capital
Funding, Inc., as Sponsor, Citibank, N.A., as Mortgage Loan Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer, Hanford/Healy Asset
Management Company, as Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator. 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 (as to the Class
G Certificates, 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 any Class G Certificate will be made by the Trustee by wire
transfer in 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 Trustee with wiring instructions
no less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions as well) and such Certificateholder is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $1,000,000, or otherwise by check mailed to the
address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
<PAGE>
4
(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 after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice. 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 appeared in the Certificate Register or to any such
other address of which the Trustee is subsequently notified in writing.
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 Sponsor's Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (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 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 of any Class G Certificate
(other than in connection with the initial issuance thereof or the initial
transfer thereof by the Sponsor
<PAGE>
5
or any Affiliate of the Sponsor) is to be made without registration under the
Securities Act, then the Certificate Registrar shall refuse to register such
transfer until it receives the following: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit B-1 to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form of
Exhibit B-2 to the Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as Exhibit B-3 or
Exhibit B-4 to the Agreement; or (iii) 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 Sponsor, the Mortgage Loan Seller, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator 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 Sponsor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class G Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class G Certificate without
registration or qualification. Any Class G Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class G Certificate agrees
to, indemnify the Sponsor, the Trustee and the Certificate Registrar 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 G Certificate or any interest therein
shall be made to (A) 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 Code (each, a
"Plan") or (B) any Person who is directly or indirectly purchasing the Class G
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan, unless the prospective transferee provides the
Certificate Registrar with a certification of facts and an Opinion of Counsel
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 cause the Master Servicer, the Special Servicer or the Trustee to
be deemed a fiduciary of such Plan or result in the imposition of an excise tax
under Section 4975 of the Code. Each Person who acquires any Class G Certificate
or interest therein without delivery of the certification of facts and Opinion
of Counsel referred to in the preceding sentence shall be deemed to have
certified that it is neither a Plan nor any Person who is directly or indirectly
purchasing such Class G Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of
transfer or exchange of Class G Certificates, but the Trustee or 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.
<PAGE>
6
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 initial aggregate Stated Principal Balance of
the Mortgage Pool 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
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Sponsor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund 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>
7
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>
8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
State Street Bank and Trust Company,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
9
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
Multifamily/Commercial Mortgage Pass-Through Certificate and hereby authorize(s)
the registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new
Multifamily/Commercial Mortgage Pass-Through Certificate of a like Percentage
Interest and Class to the above named assignee and delivery of such
Multifamily/Commercial Mortgage Pass-Through Certificate to the following
address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_______________________________________________________________
_________________________________________________________________ for the
account of
- -------------------------------------------------------------------------.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________
- -------------------------------------------------------------------.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-12
FORM OF CLASS H CERTIFICATE
CLASS H MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-MC1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial "whole" mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Certificate Principal Balance of this Class
5.70% per annum H Certificate as of the Issue Date: $_______
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: July 1, 1996 Class H Certificates as of the Issue
Date: $18,088,000
Cut-off Date: July 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: July 10, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date:
August 15, 1996 $482,357,812
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Special Servicer: Mortgage Loan Seller:
Hanford/Healy Asset Management Company Citibank, N.A.
Certificate No. H-__ CUSIP No. 61910D BR 2
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE CAPITAL FUNDING, INC., CITIBANK, N.A., HANFORD/HEALY ASSET MANAGEMENT
COMPANY, STATE STREET BANK AND TRUST COMPANY, GMAC COMMERCIAL MORTGAGE
CORPORATION OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
<PAGE>
2
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2A, CLASS
A-2B, CLASS X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F AND
CLASS G CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN 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 TO AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
THIS CERTIFICATE OR ANY INTEREST HEREIN 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.
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 JULY 10, 1996. ASSUMING THAT
THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE
PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN
THE MEANING OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 0%
(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 ASSETS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT
ASSUMPTION OR AT ANY OTHER RATE.
<PAGE>
3
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF
THE CLASS A-1, CLASS A-2A, CLASS A-2B, CLASS B, CLASS C, CLASS D, CLASS E, CLASS
F AND CLASS G CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE DATE
ON WHICH 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 IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. 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 balance of this Class H Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class H Certificates (their "Class Principal Balance") as of the Issue 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 Mortgage Capital
Funding, Inc., as Sponsor, Citibank, N.A., as Mortgage Loan Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer, Hanford/Healy Asset
Management Company, as Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator. 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 (as to the Class
H Certificates, 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 any Class H Certificate will be made by the Trustee by wire
transfer in 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 Trustee with wiring instructions
no less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions as well) and such Certificateholder is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $1,000,000, or otherwise by check mailed to the
address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
<PAGE>
4
(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 after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice. 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 appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
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 Sponsor's Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (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 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 of any Class H Certificate
<PAGE>
5
(other than in connection with the initial issuance thereof or the initial
transfer thereof by the Sponsor or any Affiliate of the Sponsor) is to be made
without registration under the Securities Act, then the Certificate Registrar
shall refuse to register such transfer until it receives the following: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit B-1 to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form of Exhibit B-2 to the Agreement and a certificate from
such Certificateholder's prospective transferee substantially in the form
attached as Exhibit B-3 or Exhibit B-4 to the Agreement; or (iii) 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 Sponsor,
the Mortgage Loan Seller, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator 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 Sponsor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class H
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 by the
acceptance of its Class H Certificate agrees to, indemnify the Sponsor, the
Trustee and the Certificate Registrar 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 H Certificate or any interest therein
shall be made to (A) 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 Code (each, a
"Plan") or (B) any Person who is directly or indirectly purchasing the Class H
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan, unless the prospective transferee provides the
Certificate Registrar with a certification of facts and an Opinion of Counsel
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 cause the Master Servicer, the Special Servicer or the Trustee to
be deemed a fiduciary of such Plan or result in the imposition of an excise tax
under Section 4975 of the Code. Each Person who acquires any Class H Certificate
or interest therein without delivery of the certification of facts and Opinion
of Counsel referred to in the preceding sentence shall be deemed to have
certified that it is neither a Plan nor any Person who is directly or indirectly
purchasing such Class H Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of
transfer or exchange of Class H Certificates, but the Trustee or 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.
<PAGE>
6
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 initial aggregate Stated Principal Balance of
the Mortgage Pool 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
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Sponsor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund 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>
7
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>
8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
State Street Bank and Trust Company,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
9
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
Multifamily/Commercial Mortgage Pass-Through Certificate and hereby authorize(s)
the registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new
Multifamily/Commercial Mortgage Pass-Through Certificate of a like Percentage
Interest and Class to the above named assignee and delivery of such
Multifamily/Commercial Mortgage Pass-Through Certificate to the following
address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_______________________________________________________________
_________________________________________________________________ for the
account of
- -------------------------------------------------------------------------.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________
- -------------------------------------------------------------------.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-13
FORM OF CLASS J CERTIFICATE
CLASS J MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-MC1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial "whole" mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Certificate Principal Balance of this Class
5.70% per annum J Certificate as of the Issue Date: $_______
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: July 1, 1996 Class J Certificates as of the Issue
Date: $3,617,000
Cut-off Date: July 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: July 10, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date:
August 15, 1996 $482,357,812
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Special Servicer: Mortgage Loan Seller:
Hanford/Healy Asset Management Company Citibank, N.A.
Certificate No. J-__ CUSIP No. 61910D BS 0
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE CAPITAL FUNDING, INC., CITIBANK, N.A., HANFORD/HEALY ASSET MANAGEMENT
COMPANY, STATE STREET BANK AND TRUST COMPANY, GMAC COMMERCIAL MORTGAGE
CORPORATION, OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
<PAGE>
2
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2A, CLASS A-2B,
CLASS X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G AND
CLASS H CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT PROVIDED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN 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 TO AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
THIS CERTIFICATE OR ANY INTEREST HEREIN 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.
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 JULY 10, 1996. ASSUMING THAT THE MORTGAGE
LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN THE MEANING OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 0% (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 ASSETS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT
ANY OTHER RATE.
<PAGE>
3
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2A, CLASS A-2B, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G AND CLASS H CERTIFICATES OF THE SAME SERIES. IN ADDITION, FOLLOWING THE
DATE ON WHICH 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 IN CONNECTION WITH LOSSES ON THE
MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES. 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 balance of this Class J Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class J Certificates (their "Class Principal Balance") as of the Issue 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 Mortgage Capital
Funding, Inc., as Sponsor, Citibank, N.A., as Mortgage Loan Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer, Hanford/Healy Asset
Management Company, as Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator. 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 (as to the Class
J Certificates, 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 any Class J Certificate will be made by the Trustee by wire
transfer in 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 Trustee with wiring instructions
no less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions as well) and such Certificateholder is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $1,000,000, or otherwise by check mailed to the
address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
<PAGE>
4
(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 after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice. 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 appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
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 Sponsor's Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (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 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 of any Class J Certificate
(other than
<PAGE>
5
in connection with the initial issuance thereof or the initial
transfer thereof by the Sponsor or any Affiliate of the Sponsor) is to be made
without registration under the Securities Act, then the Certificate Registrar
shall refuse to register such transfer until it receives the following: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit B-1 to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form of Exhibit B-2 to the Agreement and a certificate from
such Certificateholder's prospective transferee substantially in the form
attached as Exhibit B-3 or Exhibit B-4 to the Agreement; or (iii) 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 Sponsor,
the Mortgage Loan Seller, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator 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 Sponsor, 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 by the
acceptance of its Class J Certificate agrees to, indemnify the Sponsor, the
Trustee and the Certificate Registrar 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 J Certificate or any interest therein
shall be made to (A) 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 Code (each, a
"Plan") or (B) any Person who is directly or indirectly purchasing the Class J
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan, unless the prospective transferee provides the
Certificate Registrar with a certification of facts and an Opinion of Counsel
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 cause the Master Servicer, the Special Servicer or the Trustee to
be deemed a fiduciary of such Plan or result in the imposition of an excise tax
under Section 4975 of the Code. Each Person who acquires any Class J Certificate
or interest therein without delivery of the certification of facts and Opinion
of Counsel referred to in the preceding sentence shall be deemed to have
certified that it is neither a Plan nor any Person who is directly or indirectly
purchasing such Class J Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of
transfer or exchange of Class J Certificates, but the Trustee or 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.
<PAGE>
6
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 initial aggregate Stated Principal Balance of
the Mortgage Pool 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
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Sponsor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund 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>
7
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>
8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
State Street Bank and Trust Company,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
9
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
Multifamily/Commercial Mortgage Pass-Through Certificate and hereby authorize(s)
the registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new
Multifamily/Commercial Mortgage Pass-Through Certificate of a like Percentage
Interest and Class to the above named assignee and delivery of such
Multifamily/Commercial Mortgage Pass-Through Certificate to the following
address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_______________________________________________________________
_________________________________________________________________ for the
account of
- -------------------------------------------------------------------------.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________
- -------------------------------------------------------------------.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-14
FORM OF CLASS K CERTIFICATE
CLASS K MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-MC1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial "whole" mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
MORTGAGE CAPITAL FUNDING, INC.
Pass-Through Rate: Certificate Principal Balance of this Class
5.70% per annum K Certificate as of the Issue Date: $_______
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: July 1, 1996 Class K Certificates as of the Issue
Date: $13,268,861
Cut-off Date: July 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: July 10, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date:
August 15, 1996 $482,357,812
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Special Servicer: Mortgage Loan Seller:
Hanford/Healy Asset Management Company Citibank, N.A.
Certificate No. K-__ CUSIP No. 61910D BT 6
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE CAPITAL FUNDING, INC., CITIBANK, N.A., HANFORD/HEALY ASSET MANAGEMENT
COMPANY, STATE STREET BANK AND TRUST COMPANY, GMAC COMMERCIAL MORTGAGE
CORPORATION, OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
<PAGE>
2
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2A, CLASS A-2B,
CLASS X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H AND CLASS J CERTIFICATES OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN 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 TO AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
THIS CERTIFICATE OR ANY INTEREST HEREIN 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.
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 JULY 10, 1996. ASSUMING THAT THE MORTGAGE
LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR THE PURPOSES OF
APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR (WITHIN THE MEANING OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN) OF 0% (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 ASSETS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT
ANY OTHER RATE.
<PAGE>
3
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN FOLLOWING RETIREMENT OF THE
CLASS A-1, CLASS A-2A, CLASS A-2B, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F
CLASS G, CLASS H AND CLASS J CERTIFICATES OF THE SAME SERIES. IN ADDITION, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED IN CONNECTION
WITH LOSSES ON THE MORTGAGE LOANS AND CERTAIN UNANTICIPATED EXPENSES.
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 balance of this Class K Certificate (its "Certificate Principal
Balance") as of the Issue Date by the aggregate principal balance of all the
Class K Certificates (their "Class Principal Balance") as of the Issue 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 Mortgage Capital
Funding, Inc., as Sponsor, Citibank, N.A., as Mortgage Loan Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer, Hanford/Healy Asset
Management Company, as Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator. 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 (as to the Class
K Certificates, 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 any Class K Certificate will be made by the Trustee by wire
transfer in 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 Trustee with wiring instructions
no less than five Business Days prior to the Record Date for such distribution
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions as well) and such Certificateholder is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $1,000,000, or otherwise by check mailed to the
address of such Certificateholder appearing in the Certificate Register.
Notwithstanding the above, 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 after due
<PAGE>
4
notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar appointed as provided in the Agreement or such other location as may
be specified in such notice. 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 appeared in the Certificate Register or to any such
other address of which the Trustee is subsequently notified in writing.
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 Sponsor's Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (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 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 of any Class K Certificate
(other than in connection with the initial issuance thereof or the initial
transfer thereof by the Sponsor or any Affiliate of the Sponsor) is to be made
without registration under the Securities Act, then the Certificate Registrar
shall refuse to register such transfer unless it receives the following: (i)
<PAGE>
5
a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit B-1 to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form of Exhibit B-2 to the Agreement and a certificate from
such Certificateholder's prospective transferee substantially in the form
attached as Exhibit B-3 or Exhibit B-4 to the Agreement; or (iii) 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 Sponsor,
the Mortgage Loan Seller, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator 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 Sponsor, 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 by the
acceptance of its Class K Certificate agrees to, indemnify the Sponsor, the
Trustee and the Certificate Registrar 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 K Certificate or any interest therein
shall be made to (A) 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 Code (each, a
"Plan") or (B) any Person who is directly or indirectly purchasing the Class K
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan, unless the prospective transferee provides the
Certificate Registrar with a certification of facts and an Opinion of Counsel
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 cause the Master Servicer, the Special Servicer or the Trustee to
be deemed a fiduciary of such Plan or result in the imposition of an excise tax
under Section 4975 of the Code. Each Person who acquires any Class K Certificate
or interest therein without delivery of the certification of facts and Opinion
of Counsel referred to in the preceding sentence shall be deemed to have
certified that it is neither a Plan nor any Person who is directly or indirectly
purchasing such Class K Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of
transfer or exchange of Class K Certificates, but the Trustee or 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.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the
<PAGE>
6
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Sponsor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator, 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 by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 initial aggregate Stated Principal Balance of
the Mortgage Pool 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
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Sponsor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of designated portions
of the Trust Fund 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>
7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
State Street Bank and Trust Company,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
8
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
Multifamily/Commercial Mortgage Pass-Through Certificate and hereby authorize(s)
the registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new
Multifamily/Commercial Mortgage Pass-Through Certificate of a like Percentage
Interest and Class to the above named assignee and delivery of such
Multifamily/Commercial Mortgage Pass-Through Certificate to the following
address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
_______________________________________________________________
_________________________________________________________________ for the
account of
- -------------------------------------------------------------------------.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to _____________________________
- -------------------------------------------------------------------.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT A-15
FORM OF CLASS R-I CERTIFICATE
CLASS R-I MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-MC1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial "whole" mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
MORTGAGE CAPITAL FUNDING, INC.
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: July 1, 1996 this Certificate in the related Class: ___%
Cut-off Date: July 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: July 10, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date:
August 15, 1996 $482,357,812
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Special Servicer: Mortgage Loan Seller:
Hanford/Healy Asset Management Company Citibank, N.A.
Certificate No. R-I-__
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE CAPITAL FUNDING, INC., CITIBANK, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, HANFORD/HEALY ASSET MANAGEMENT COMPANY, STATE STREET BANK AND TRUST
COMPANY OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
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-2A, CLASS A-2B,
CLASS X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J AND CLASS K CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
<PAGE>
2
THIS CERTIFICATE HAS NOT BEEN 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 TO AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
THIS CERTIFICATE OR ANY INTEREST HEREIN 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.
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.
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 Mortgage Capital
Funding, Inc., as Sponsor, Citibank, N.A., as Mortgage Loan Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer, Hanford/Healy Asset
Management Company, as Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator. 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
<PAGE>
3
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
upon 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 (as to the
Class R-I Certificates, 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 R-I Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on any Class R-I Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice.
The Sponsor's Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (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,
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-I Certificates are issuable in fully registered form
only without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-I Certificates are exchangeable for new
Class R-I Certificates in authorized denominations evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-I Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-I Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not
<PAGE>
4
require such registration or qualification. If such a transfer of any Class R-I
Certificate (other than in connection with the initial issuance thereof or the
initial transfer thereof by the Sponsor or any Affiliate of the Sponsor) is to
be made without registration under the Securities Act, then the Certificate
Registrar shall refuse to register such transfer unless it receives the
following: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit B-1 to the Agreement; or
(ii) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form of Exhibit B-2 to the Agreement and a certificate from
such Certificateholder's prospective transferee substantially in the form
attached as Exhibit B-3 or Exhibit B-4 to the Agreement; or (iii) 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 Sponsor,
the Mortgage Loan Seller, the Master Servicer, the Special Servicer, the
Trustee, the REMIC Administrator 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 Sponsor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class R-I
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class R-I Certificate without registration or qualification. Any Class R-I
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-I Certificate agrees to, indemnify the Sponsor, the
Trustee and the Certificate Registrar 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) 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 Code (each, a
"Plan") or (B) any Person who is directly or indirectly purchasing the Class R-I
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan, unless the prospective transferee provides the
Certificate Registrar with a certification of facts and an Opinion of Counsel
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 cause the Master Servicer, the Special Servicer or the Trustee to
be deemed a fiduciary of such Plan or result in the imposition of an excise tax
under Section 4975 of the Code.
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 the Trustee 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 Trustee 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
<PAGE>
5
a Permitted Transferee and a United States Person and shall promptly notify the
Master Servicer, the Trustee and the REMIC Administrator of any change or
impending change in its status as a Permitted Transferee or United States
Person. 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 C-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 and a United States Person, 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 or is not a United States Person, that for so long
as it retains its Ownership Interest in this Certificate, it will endeavor to
remain a Permitted Transferee and a United States Person, 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 the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted Transferee or is not a
United States Person, the Certificate Registrar shall not register the Transfer
of an Ownership Interest in this Certificate to such proposed Transferee.
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 C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee or is not a
United States Person. Each Person holding or acquiring an Ownership Interest in
this Certificate, by purchasing such Ownership Interest herein, agrees to give
the Trustee and the REMIC Administrator written notice that it is a
"pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership
Interest, if it is, or is holding such Ownership Interest on behalf of, a
"pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee and the REMIC Administrator the following: (a) written
notification 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 withdraw, qualify or downgrade its then-current rating of any Class of
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Trustee and the REMIC Administrator, to the effect that such modification
of, addition to or elimination of such provisions will not cause either REMIC I
or REMIC II 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 a United States Person, 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 or a United States Person.
<PAGE>
6
A "Permitted Transferee" is any Transferee other than (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 FHLMC, a majority of its board of directors is
not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (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(a)(2)(C) of the Code and (v) any other
Person so designated by the REMIC Administrator based upon an Opinion of Counsel
that the holding of an Ownership Interest in a Class R-I Certificate by such
Person may cause the Trust Fund or any Person having an Ownership Interest in
any Class of Certificates (other than such Person) to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Class R-I Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
No service charge will be imposed for any registration of
transfer or exchange of Class R-I Certificates, but the Trustee or 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.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
<PAGE>
7
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 initial aggregate Stated Principal Balance of
the Mortgage Pool 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
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Sponsor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
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>
8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
State Street Bank and Trust Company,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
9
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
Multifamily/Commercial Mortgage Pass-Through Certificate and hereby authorize(s)
the registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new
Multifamily/Commercial Mortgage Pass-Through Certificate of a like Percentage
Interest and Class to the above named assignee and delivery of such
Multifamily/Commercial Mortgage Pass-Through Certificate to the following
address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be by check made payable to
__________________________________ and mailed to
____________________________________________________________________.
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 CERTIFICATE
CLASS R-II MULTIFAMILY/COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 1996-MC1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool (the "Mortgage Pool") of multifamily and
commercial "whole" mortgage loans (the "Mortgage Loans"), such pool being formed
and sold by
MORTGAGE CAPITAL FUNDING, INC.
Date of Pooling and Servicing Percentage Interest evidenced by
Agreement: July 1, 1996 this Certificate in the related Class: ___%
Cut-off Date: July 1, 1996 Aggregate unpaid principal
balance of the Mortgage Pool
Issue Date: July 10, 1996 as of the Cut-off Date, after
deducting payments of principal
First Distribution Date: due on or before such date:
August 15, 1996 $482,357,812
Master Servicer: Trustee and REMIC Administrator:
GMAC Commercial Mortgage Corporation State Street Bank and Trust Company
Special Servicer: Mortgage Loan Seller:
Hanford/Healy Asset Management Company Citibank, N.A.
Certificate No. R-II-__
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
MORTGAGE CAPITAL FUNDING, INC., CITIBANK, N.A., GMAC COMMERCIAL MORTGAGE
CORPORATION, HANFORD/HEALY ASSET MANAGEMENT COMPANY, STATE STREET BANK AND TRUST
COMPANY OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
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-2A, CLASS A-2B,
CLASS X-1, CLASS X-2, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J AND CLASS K CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
<PAGE>
2
THIS CERTIFICATE HAS NOT BEEN 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 TO AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE
OF 1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
THIS CERTIFICATE OR ANY INTEREST HEREIN 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.
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.
This certifies that _____________ is the registered owner of the
Percentage Interest evidenced by 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 Mortgage Capital
Funding, Inc., as Sponsor, Citibank, N.A., as Mortgage Loan Seller, GMAC
Commercial Mortgage Corporation, as Master Servicer, Hanford/Healy Asset
Management Company, as Special Servicer, and State Street Bank and Trust
Company, as Trustee and REMIC Administrator. 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
<PAGE>
3
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
upon 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 (as to the
Class R-II Certificates, 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 R-II Certificates on the
applicable Distribution Date pursuant to the Agreement. All distributions made
under the Agreement on any Class R-II Certificate will be made by the Trustee by
check mailed to the address of the Person entitled thereto, as such name and
address appear in the Certificate Register. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the offices of the Certificate Registrar appointed as
provided in the Agreement or such other location as may be specified in such
notice.
The Sponsor's Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1 (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 R-II Certificates are issuable in fully registered form
only without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-II Certificates are exchangeable for new
Class R-II Certificates in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-II Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-II Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration
<PAGE>
4
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 of any Class R-II Certificate (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Sponsor or any
Affiliate of the Sponsor) is to be made without registration under the
Securities Act, then the Certificate Registrar shall refuse to register such
transfer unless it receives the following: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit B-1 to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form of
Exhibit B-2 to the Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as Exhibit B-3 or
Exhibit B-4 to the Agreement; or (iii) 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 Sponsor, the Mortgage Loan Seller, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator 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 Sponsor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class R-II Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class R-II
Certificate without registration or qualification. Any Class R-II
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-II Certificate agrees to, indemnify the Sponsor, the
Trustee and the Certificate Registrar 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) 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 Code (each, 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, unless the prospective transferee provides
the Certificate Registrar with a certification of facts and an Opinion of
Counsel 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 cause the Master Servicer, the Special Servicer or the
Trustee to be deemed a fiduciary of such Plan or result in the imposition of an
excise tax under Section 4975 of the Code.
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 the Trustee 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 Trustee 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
<PAGE>
5
such sale. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and a United States Person and shall
promptly notify the Master Servicer, the Trustee and the REMIC Administrator of
any change or impending change in its status as a Permitted Transferee or United
States Person. 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 C-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 and a United States Person, 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 or is not a United States Person, that
for so long as it retains its Ownership Interest in this Certificate, it will
endeavor to remain a Permitted Transferee and a United States Person, 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 the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted Transferee or is not a
United States Person, the Certificate Registrar shall not register the Transfer
of an Ownership Interest in this Certificate to such proposed Transferee.
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 C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee or is not a
United States Person. Each Person holding or acquiring an Ownership Interest in
this Certificate, by purchasing such Ownership Interest herein, agrees to give
the Trustee and the REMIC Administrator written notice that it is a
"pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership
Interest, if it is, or is holding such Ownership Interest on behalf of, a
"pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee and the REMIC Administrator the following: (a) written
notification 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 withdraw, qualify or downgrade its then-current rating of any Class of
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Trustee and the REMIC Administrator, to the effect that such modification
of, addition to or elimination of such provisions will not cause either REMIC I
or REMIC II 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 a United States Person, 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 or a United States Person.
<PAGE>
6
A "Permitted Transferee" is any Transferee other than (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 FHLMC, a majority of its board of directors is
not selected by such governmental unit), (ii) a foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (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(a)(2)(C) of the Code and (v) any other
Person so designated by the REMIC Administrator based upon an Opinion of Counsel
that the holding of an Ownership Interest in a Class R-II Certificate by such
Person may cause the Trust Fund or any Person having an Ownership Interest in
any Class of Certificates (other than such Person) to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Class R-II Certificate to such
Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof, or an
estate or trust whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States.
No service charge will be imposed for any registration of
transfer or exchange of Class R-II Certificates, but the Trustee or 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-II Certificates.
Prior to due presentment of this Certificate for registration of
transfer, the Sponsor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar and any agents of any of them may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee, the REMIC Administrator, 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 by any Majority
Certificateholder of the Controlling Class (other than the Sponsor or the
Mortgage Loan Seller) at a price determined as provided in the Agreement of all
<PAGE>
7
Mortgage Loans and any REO Properties remaining in the Trust Fund. The Agreement
permits, but does not require, any such Majority Certificateholder or the Master
Servicer to purchase from the Trust Fund all Mortgage Loans and any REO
Properties 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 initial aggregate Stated Principal Balance of
the Mortgage Pool 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
Sponsor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
the Trustee and the REMIC Administrator thereunder and the rights of the
Certificateholders thereunder, at any time by the Sponsor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator 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 circumstances,
including any amendment necessary to maintain the status of REMIC I or REMIC II
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>
8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
State Street Bank and Trust Company,
as Trustee
By:
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
Dated:
State Street Bank and Trust Company,
as Certificate Registrar
By:
Authorized Officer
<PAGE>
9
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
Multifamily/Commercial Mortgage Pass-Through Certificate and hereby authorize(s)
the registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust Fund.
I (we) further direct the issuance of a new
Multifamily/Commercial Mortgage Pass-Through Certificate of a like Percentage
Interest and Class to the above named assignee and delivery of such
Multifamily/Commercial Mortgage Pass-Through Certificate to the following
address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be by check made payable to
__________________________________ and mailed to
____________________________________________________________________.
Applicable statements and notices should be mailed to__________________
- ------------------------------------.
This information is provided by ___________________________, the
assignee named above, or ____________________________________, as its agent.
<PAGE>
EXHIBIT B-1
FORM I OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(b)(i)
_____________, 19__
State Street Bank and Trust Company
Two International Place, 5th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Re: Mortgage Capital Funding, Inc.,
Multifamily/Commercial Mortgage Pass-Through
Certificate, Series 1996-MC1, Class [G] [H] [J]
[K] [R-I] [R-II], [having an initial principal
balance as of August __, 1996 (the "Issue Date")
of $__________] [evidencing a ____% percentage
interest in the Class to which it belongs]
Dear Sirs:
This letter is delivered to you in connection with the transfer
by _________________ (the "Transferor") to _________________ (the "Transferee")
of the captioned Certificate (the "Certificate"), pursuant to Section 5.02 of
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of July 1, 1996, among Mortgage Capital Funding, Inc., as Sponsor,
Citibank, N.A., as Mortgage Loan Seller, GMAC Commercial Mortgage Corporation,
as Master Servicer, Hanford/Healy Asset Management Company, as Special Servicer,
and State Street Bank and Trust Company, as Trustee and REMIC Administrator. All
terms used herein and not otherwise defined shall have the respective 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 Certificate with
the full right to transfer the 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 the
Certificate, any interest in the Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a transfer, pledge or other disposition of the Certificate, any
interest in the Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to the Certificate, any interest in the Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to the Certificate, any interest in the
Certificate or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with
respect to the Certificate, any interest in the Certificate or
<PAGE>
2
any other similar security, which (in the case of any of the acts described
in clauses (a) through (e) hereof) would constitute a distribution under the
Securities Act of 1933 (the "Securities Act"), or would render the disposition
of the Certificate a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of the
Certificate pursuant to the Securities Act or any state securities laws.
3. The Transferor and any person acting on behalf of the
Transferor in this matter reasonably believe that the Transferee is a
"qualified institutional buyer" (as that term is defined in Rule 144A
("Rule 144A") under the Securities Act) purchasing for its own account.
In determining whether the Transferee is a "qualified institutional
buyer", the Transferor and any person acting on behalf of the Transferor
in this matter has relied upon the following method(s) of establishing
the Transferee's ownership and discretionary investments of securities
(check one or more):
___ (a) The Transferee's most recent publicly available
financial statements, which statements present the
information as of a date within 16 months preceding the
date of sale of the Certificate in the case of a U.S.
purchaser and within 18 months preceding such date of
sale for a foreign purchaser; or
___ (b) The most recent publicly available information
appearing in documents filed by the Transferee with the
Securities and Exchange Commission or another United
States federal, state, or local governmental agency or
self-regulatory organization, or with a foreign
governmental agency or self-regulatory organization,
which information is as of a date within 16 months
preceding the date of sale of the Certificate in the case
of a U.S. purchaser and within 18 months preceding such
date of sale for a foreign purchaser; or
___ (c) The most recent publicly available information
appearing in a recognized securities manual, which
information is as of a date within 16 months preceding
the date of sale of the Certificate in the case of a U.S.
purchaser and within 18 months preceding such date of
sale for a foreign purchaser; or
___ (d) A certification by the chief financial officer, a
person fulfilling an equivalent function, or other
executive officer of the Transferee, specifying the
amount of securities owned and invested on a
discretionary basis by the Transferee as of a specific
date on or since the close of the Transferee's most
recent fiscal year, or, in the case of a Transferee that
is a member of a "family of investment companies", as
that term is defined in Rule 144A, a certification by an
executive officer of the investment adviser specifying
the amount of securities owned by the "family of
investment companies" as of a specific date on or since
the close of the Transferee's most recent fiscal year.
<PAGE>
3
4. The Transferor and any person acting on behalf of the
Transferor understand that in determining the aggregate amount of
securities owned and invested on a discretionary basis by an entity for
purposes of establishing whether such entity is a "qualified
institutional buyer":
(a) the following instruments and interests shall be
excluded: securities of issuers that are affiliated with
the Transferee; securities that are part of an unsold
allotment to or subscription by the Transferee, if the
Transferee is a dealer; securities of issuers that are
part of the Transferee's "family of investment
companies", if the Transferee is a registered investment
company; bank deposit notes and certificates of deposit;
loan participations; repurchase agreements; securities
owned but subject to a repurchase agreement; and
currency, interest rate and commodity swaps;
(b) the aggregate value of the securities shall be the
cost of such securities, except where the entity 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 may be
valued at market;
(c) securities owned by subsidiaries of the entity that
are consolidated with the entity in its financial
statements prepared in accordance with generally accepted
accounting principles may be included if the investments
of such subsidiaries are managed under the direction of
the entity, except that, unless the entity is a reporting
company under Section 13 or 15(d) of the Securities
Exchange Act of 1934, securities owned by such
subsidiaries may not be included if the entity itself is
a majority-owned subsidiary that would be included in the
consolidated financial statements of another enterprise.
5. The Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the
Transferor is relying on the exemption from the provisions of Section 5
of the Securities Act provided by Rule 144A.
6. The Transferor or a person acting on its behalf has
furnished, or caused to be furnished, to the Transferee all information
regarding (a) the Certificate and distributions
<PAGE>
4
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 Certificate, that the
Transferee has requested.
Very truly yours,
(Transferor)
By:
Name:
Title:
<PAGE>
EXHIBIT B-2
FORM II OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(b)
_____________, 19__
State Street Bank and Trust Company
Two International Place, 5th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Re: Mortgage Capital Funding, Inc.,
Multifamily/Commercial Mortgage Pass-Through
Certificate, Series 1996-MC1, Class [G] [H] [J]
[K] [R-I] [R-II], [having an initial principal
balance as of August __, 1996 (the "Issue Date")
of $__________] [evidencing a ____% percentage
interest in the Class to which it belongs]
Dear Sirs:
This letter is delivered to you in connection with the transfer
by _________________ (the "Transferor") to _________________ (the "Transferee")
of the captioned Certificate (the "Certificate"), pursuant to Section 5.02 of
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of July 1, 1996, among Mortgage Capital Funding, Inc., as Sponsor,
Citibank, N.A., as Mortgage Loan Seller, GMAC Commercial Mortgage Corporation,
as Master Servicer, Hanford/Healy Asset Management Company, as Special Servicer,
and State Street Bank and Trust Company, as Trustee and REMIC Administrator. All
terms used herein and not otherwise defined shall have the respective 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 Certificate with
the full right to transfer the 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 the
Certificate, any interest in the Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a transfer, pledge or other disposition of the Certificate, any
interest in the Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to the Certificate, any interest in the Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to the Certificate, any interest in the
Certificate or any
<PAGE>
2
other similar security by means of general
advertising or in any other manner, or (e) taken any other action with
respect to the Certificate, any interest in the Certificate or any other
similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution under
the Securities Act of 1933 (the "Securities Act"), or would render the
disposition of the Certificate a violation of Section 5 of the
Securities Act or any state securities laws, or would require
registration or qualification of the Certificate pursuant to the
Securities Act or any state securities laws.
Very truly yours,
(Transferor)
By:
Name:
Title:
<PAGE>
EXHIBIT B-3
FORM I OF TRANSFEREE CERTIFICATE
PURSUANT TO SECTION 5.02(b)
[FOR QIBs]
_____________, 19__
State Street Bank and Trust Company
Two International Place, 5th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Re: Mortgage Capital Funding, Inc.,
Multifamily/Commercial Mortgage Pass-Through
Certificate, Series 1996-MC1, Class [G] [H] [J]
[K] [R-I] [R-II], having an initial principal
balance as of August __, 1996 (the "Issue Date")
of $__________] [evidencing a ____% percentage
interest in the Class to which it belongs]
Dear Sirs:
This letter is delivered to you in connection with the transfer
by _________________ (the "Transferor") to _________________ (the "Transferee")
of the captioned Certificate (the "Certificate"), pursuant to Section 5.02 of
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of July 1, 1996, among Mortgage Capital Funding, Inc., as Sponsor,
Citibank, N.A., as Mortgage Loan Seller, GMAC Commercial Mortgage Corporation,
as Master Servicer, Hanford/Healy Asset Management Company, as Special Servicer,
and State Street Bank and Trust Company, as Trustee and REMIC Administrator. All
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A ("Rule 144A") under the Securities Act of
1933 (the "Securities Act") and has completed one of the forms of
certification to that effect attached hereto as Annex 1 and Annex 2. The
Transferee is aware that the sale to it is being made in reliance on
Rule 144A. The Transferee is acquiring the 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 (a) to a person reasonably believed to be a qualified institutional
buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale,
pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities
Act.
<PAGE>
2
2. The Transferee has been furnished with all information
regarding (a) the Certificate 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 Certificate, that it has requested.
3. If the Transferee proposes that the Certificate be registered
in the name of a nominee, such nominee has completed the Nominee Acknowledgement
below.
Very truly yours,
(Transferee)
By:
Name:
Title:
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Certificate being registered in its name, the sole beneficial owner thereof is
and shall be _____________ _____________________, the Transferee identified
above, for whom the undersigned is acting as nominee.
(Nominee)
By:
Name:
Title:
<PAGE>
ANNEX 1 TO EXHIBIT B-3
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and [name of Certificate Registrar], as
Certificate Registrar, with respect to the mortgage pass-through certificate
(the "Certificate") described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933 ("Rule 144A")
because (i) the Transferee owned and/or invested on a
in securities (other than the excluded securities referred to below) as of the
end of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. bank, and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
___ 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
<PAGE>
2
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.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ 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.
___ 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.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
<PAGE>
3
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 Transferor and other parties related to the Certificate
are relying and will continue to rely on the statements made herein because one
or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Certificate
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the 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:
<PAGE>
ANNEX 2 TO EXHIBIT B-3
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and [name of Certificate Registrar], as
Certificate Registrar, with respect to the mortgage pass-through certificate
(the "Certificate") described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Certificate (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933 ("Rule 144A") because the Transferee is
part of a Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined
in Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ 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 is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment 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).
<PAGE>
2
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Certificate
Yes No 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.
<PAGE>
3
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the 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:
<PAGE>
EXHIBIT B-4
FORM II OF TRANSFEREE CERTIFICATE
PURSUANT TO SECTION 5.02(b)
[FOR INSTITUTIONAL ACCREDITED INVESTORS]
_____________, 19__
State Street Bank and Trust Company
Two International Place, 5th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Re: Mortgage Capital Funding, Inc.,
Multifamily/Commercial Mortgage Pass-Through
Certificate, Series 1996-MC1, Class [G] [H] [J]
[K] [R-I] [R-II], having an initial principal
balance as of July 10, 1996 (the "Issue Date") of
$__________] [evidencing a ____% percentage
interest in the Class to which it belongs]
Dear Sirs:
This letter is delivered to you in connection with the transfer
by _________________ (the "Transferor") to _________________ (the "Transferee")
of the captioned Certificate (the "Certificate"), pursuant to Section 5.02 of
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of July 1, 1996, among Mortgage Capital Funding, Inc. as Sponsor,
Citibank, N.A. as Mortgage Loan Seller, GMAC Commercial Mortgage Corporation as
Master Servicer, Hanford/Healy Asset Management Company as Special Servicer and
State Street Bank and Trust Company as Trustee and REMIC Administrator. All
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is acquiring the 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 Certificate has not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) neither the Sponsor
nor the Trustee is obligated so to register or qualify the Certificate and (c)
neither the Certificate nor any security issued in exchange therefor or inlieu
<PAGE>
2
thereof may be resold or transferred unless it is (i) registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable state
securities laws or (ii) sold or transferred in a transaction which is exempt
from such registration and qualification and the Certificate Registrar has
received (A) a certificate from the prospective transferor substantially in the
form attached as Exhibit B-1 to the Pooling and Servicing Agreement, or (B) a
certificate from the prospective transferor substantially in the form attached
as Exhibit B-2 to the Pooling and Servicing Agreement and a certificate from the
prospective transferee substantially in the form attached either as Exhibit B-3
or Exhibit B-4 to the Pooling and Servicing Agreement, or (C) an Opinion of
Counsel satisfactory to the Certificate Registrar that the transfer may be made
without registration under the Securities Act, together with the written
certification(s) as to the facts surrounding the transfer from the prospective
transferor and/or prospective transferee upon which such Opinion of Counsel is
based.
3. The Transferee understands that it may not sell or otherwise
transfer the Certificate, any security issued in exchange therefor or in lieu
thereof or any interest in the foregoing 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 Certificate will bear legends
substantially to the following effect:
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.
- AND -
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS
OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred the Certificate,
any interest in the 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 the Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
<PAGE>
3
negotiated with respect to the Certificate, any interest in the Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of the
Certificate under the Securities Act, would render the disposition of the
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 the Certificate, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing.
5. The Transferee has been furnished with all information
regarding (a) the Sponsor, (b) the Certificates and distributions thereon, (c)
the Mortgage Loans, (d) the Pooling and Servicing Agreement, and (e) all related
matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning
of paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act and
has such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of an investment in the Certificates;
the Transferee has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision; and the Transferee
is able to bear the economic risks of such an investment and can afford a
complete loss of such investment.
Very truly yours,
(Transferee)
By:
Name:
Title:
<PAGE>
EXHIBIT C-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(B)
STATE OF )
) participation.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says that:
1. He is the [Title of Officer] of [Name of Prospective
Transferee] (the prospective transferee (the "Transferee") of a Mortgage Capital
Funding, Inc., Class R-[I] [II] Multifamily/Commercial Mortgage Pass-Through
Certificate, Series 1996-MC1, evidencing a ____% Percentage Interest in the
Class to which it belongs (the "Residual Certificate")), a
________________________ duly organized and validly existing under the laws of
[the State of ] [the United States], on behalf of which he makes this affidavit.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Pooling and Servicing Agreement pursuant to which the
Residual Certificate was issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is [and, as of [date of transfer], will be]
a "Permitted Transferee" and will endeavor to remain a "Permitted Transferee"
for so long as it holds the Residual Certificate, and (ii) is acquiring the
Residual Certificate for its own account or for the account of another
prospective transferee 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 possession of the United States. (For
this purpose, a "disqualified organization" means the United States, any state
or political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality, all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income.
3. The Transferee is aware (i) of the tax that would be imposed
on transfers of the Residual Certificate to "disqualified organizations" under
the Internal Revenue Code of 1986, as amended, that applies to all transfers of
the Residual Certificate after March 31, 1988; (ii) that such tax would be on
the transferor, or, if such transfer is through an agent (which person includes
a broker, nominee or middleman) for a non-Permitted 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 a Permitted Transferee and, at the time of transfer, such
person does not have actual knowledge that the affidavit is false; and (iv) that
the Residual Certificate may be a "noneconomic residual interest" within the
<PAGE>
2
meaning of Treasury regulation section 1.860E-1(c) 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. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificate if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass- through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will
not register any transfer of the Residual Certificate by the Transferee unless
the Transferee's transferee, or such transferee's agent, delivers to the
Certificate Registrar, among other things, an affidavit and agreement in
substantially the same form as this affidavit and agreement. The Transferee
expressly agrees that it will not consummate any such transfer if it knows or
believes that any representation contained in such affidavit and agreement is
false.
6. The Transferee 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 Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is _________.
8. The Transferee has reviewed the provisions of Section 5.02(d)
of the Pooling and Servicing Agreement, a description of which provisions is set
forth in the Residual Certificate (in particular, clause (ii)(A) of Section
5.02(d) which authorizes the Trustee to deliver payments on the Residual
Certificate to a person other than the Transferee and clause (ii)(B) of Section
5.02(d) which authorizes the Trustee to negotiate a mandatory sale of the
Residual Certificate, in either case, in the event that the Transferee holds
such Residual Certificate in violation of Section 5.02(d)); and the Transferee
expressly agrees to the bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or
any sale of the Residual Certificate is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of
the transferor that the Transferee intends to pay any taxes associated with
holding the Residual Certificate as they become due, fully understanding that it
may incur tax liabilities in excess of any cash flows generated by the Residual
Certificate.
11. The Transferee will, in connection with any transfer that it
makes of the Residual Certificate, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit C-2 to the Agreement
in which it will represent and warrant, among other
<PAGE>
3
things, that it is not transferring the Residual Certificate to
impede the assessment or collection of any tax and that it has at the time of
such transfer conducted a reasonable investigation of the financial condition of
the proposed transferee as contemplated by Treasury regulation section
1.860E-1(c)(4)(i) and has satisfied the requirements of such provision. 12. The
Transferee is a citizen or resident of the United States, a corporation, a
partnership or other entity created or organized in, or under the laws of, the
United States or any political subdivision thereof, or an estate or trust whose
income from sources without the United States is includable in gross income for
United States federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States.
<PAGE>
4
IN WITNESS WHEREOF, the Transferee has caused this instrument
to be executed on its behalf, pursuant to the authority of its Board of
Directors, by its [Title of Officer] and its corporate seal to be hereunto
attached, attested by its [Assistant] Secretary, this day of , 199__.
[NAME OF TRANSFEREE]
By:
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[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 the [Title of Officer] of the Transferee, and acknowledged
to me that he executed the same as his free act and deed and the free act and
deed of the Transferee
Subscribed and sworn before me this day of _____________________, 199__.
NOTARY PUBLIC
COUNTY OF
STATE OF
My Commission expires the
_________ day of ___________, 19__.
<PAGE>
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
__________________, 19___
State Street Bank and Trust Company
Two International Place, 5th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Re: Mortgage Capital Funding, Inc., Multifamily/Commercial Mortgage
Pass-Through Certificate, Series 1996-MC1, Class R-[I] [II], evidencing a
__% percentage interest in the Class to which it belongs
Dear Sirs:
This letter is delivered to you in connection with the transfer
by (the "Transferor") to (the "Transferee") of the captioned Class R-[I] [II]
Certificate (the "Residual Certificate"), pursuant to Section 5.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of July 1, 1996, among Mortgage Capital Funding, Inc., as Sponsor, Citibank,
N.A., as Mortgage Loan Seller, GMAC Commercial Mortgage Corporation, as Master
Servicer, Hanford/Healy Asset Management Company, as Special Servicer, and State
Street Bank and Trust Company, as Trustee and REMIC Administrator. All terms
used herein and not otherwise defined shall have the respective 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
Residual Certificate by the Transferor to the Transferee is or will be to impede
the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered
to you a Transfer Affidavit and Agreement in the form attached to the Pooling
and Servicing Agreement as Exhibit C-1. The Transferor does not know or believe
that any representation contained therein is false.
<PAGE>
2
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 Residual Certificate 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:
<PAGE>
EXHIBIT D
REQUEST FOR RELEASE
____________________, 19___
State Street Bank and Trust Company
Two International Place, 5th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
In connection with the administration of the Mortgage Files held
by or on behalf of you as Trustee under a certain Pooling and Servicing
Agreement dated as of July 1, 1996 (the "Pooling and Servicing Agreement"), by
and among Mortgage Capital Funding, Inc., as Sponsor, Citibank, N.A., as
Mortgage Loan Seller, GMAC Commercial Mortgage Corporation, as Master Servicer,
Hanford/Healy Asset Management Company, as Special Servicer, and you, as Trustee
and REMIC Administrator, the undersigned hereby requests a release of the
Mortgage File (or the portion thereof specified below) held by or on behalf of
you as Trustee 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.
The undersigned 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. The Mortgage Loan is being foreclosed.
______ 3. 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
<PAGE>
2
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, or 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.
<PAGE>
[GMAC COMMERCIAL MORTGAGE CORPORATION]
[HANFORD/HEALY ASSET MANAGEMENT
COMPANY]
By:
Name:
Title:
<PAGE>
EXHIBIT E
<TABLE>
FORM OF REO STATUS REPORT
MORTGAGE CAPITAL FUNDING, INC.
REO STATUS REPORT
<CAPTION>
Receipts Net Income
Offering REO Collected Included In Net Income
Circular Conversion Property REO REO Curent Available
Control # Date Type State Appraised Value Book Value Period Distribution
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
REO CONVERSIONS REPORT (for current Collection Period)
Offering REO Stated REO
Circular Conversion Property Principal Conversion
Control # Date Type State Balance Balance(1)
(1) Unpaid principal balance of the mortgage loan as of the REO conversion date.
REO DISPOSITION SUMMARY
Net Proceeds
Offering Included Final Recovery
Circular Property Liquidation In Available Determination
Control # Type State Proceeds(1) Distribution Date
(1) Includes liquidation proceeds and any other amounts received during the
current collection period.
<PAGE>
SCHEDULE I
MORTGAGE LOAN SCHEDULE
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
Counter Control Loan Property Property
Number Number Number Name Address City State Zip
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Group 1
1 CO1 04-1000001 Woodhaven 625 S Redwood Road Salt Lake City UT 84104
2 CO2 04-1000009 Sandstone 405 East Prince Road Tuscon AZ 85032
3 CO3 06-1000001 Green Tree 50 Jadwin Avenue Richland WA 99352
4 CO4 04-1000002 Hunters Glen 1201 Bacon Ranch Road Killeen TX 76542
5 CO5 04-1000012 Oak Hollow 2601 Bill Owens Parkway Longview TX 75601
6 CO6 04-1000003 Stone Ridge 1000 South Danville Road Kilgore TX 75662
7 CO7 06-1000004 Holme Circle 2740-2800 Axe Factory Road Philadelphia PA 19152
8 CO8 06-1000003 Washington Crossing 614-15 E. Mosser Street Allentown PA 18103
Group 2
9A 2A 643802-5 Ginger Creek Apartments 2800 Springfield Avenue Champaign IL 61821
9B 2B 643802-5 Continental Plaza Apartments 907 South Mattis Avenue Champaign IL 61821
9C 2C 643802-5 Stoneleigh Court 800 South Mattis Avenue Champaign IL 61821
9D 2D 643802-5 Colonial Village Apartments 1003 South Mattis Avenue Champaign IL 61821
9E 2E 643802-5 Healey Street Apartments 607,609,611,613 West Healey St Champaign IL 61820
9F 2F 643802-5 Clark Street Apartments 307,311,312,402 West Clark St Champaign IL 61820
9G 2G 643802-5 Green Street Apartments 507-509 West Green Street Champaign IL 61820
9H 2H 643802-5 Anthony Drive Apartments 1500 Anthony Drive Champaign IL 61821
9I 2I 643802-5 Colonial South Apartments 1101 South Mattis Avenue Champaign IL 61821
10 3 644135-5 Hampton Court Apartments 3955 Swenson Ave Las Vegas NV 89119
11 4 650901-9 Eagle Court Apartments 215 West 84th St New York NY 10024
12 6 644111-9 Latham Village Apartments Latham Village Lane Latham NY 12110
13 7 643277-5 Navajo Bluffs Apartments 6575 Jaffe Court San Diego CA 92119
14 9 650647-8 Lantana Apartments 4103 Wesley Club Drive Atlanta GA 30034
15 10 650565-7 Bren Mar Apartments 6374 Beryl Road Alexandria VA 23212
16 11 644048-2 Newport Apartments 415 South Pine Island Rd Plantation FL 33324
17 12 642968-1 Wyoga Lake Apartments 4260-4261 Americana Drive Cuyahoga Falls OH 44224
18 13 2 Greenbriar Village Township Line Road Bath (Allentown) PA 18104
19 14 642996-6 Winbranch Apaprtments 3551 Dalebranch Drive Memphis TN 38116
20 15 643812-2 Crystal Village 2610-A Camellia Street Durham NC 27705
21 16 650675-3 Saratoga Lake Apartments 3552 Panthersville Road Decatur GA 30034
22 17 643000-7 Trenton Place Apartments 34188 Euclid Avenue Willoughby OH 44094
23 18 644109-6 Prospect Point Apts 200-300 West Curtis Savoy IL 68121
24 20 642952-6 Garden Village Apartments 2000 North Mattis Ave Champaign IL 61821
25 21 642000-4 City Terrace Apartments 425 East 3rd Street Long Beach CA 90802
26 22 644143-6 Hidden Oaks Apartments 1329 Northwest Military Highwy San Antonio TX 78231
27 23 644122-9 Foxglove Apartments 210 Redd Road El Paso TX 79932
28 24 650513-6 Shannon View Apartments University Drive Fort Lauderdale FL 33324
29A 25A 642885-7 Brighton Properties I 88 Washington Street Boston MA 02135
29B 25B 642885-7 Brighton Properties II 119-127 Sutherland Road Boston MA 02135
29C 25C 642885-7 Brighton Properties III 1687 Commonwealth Ave. Boston MA 02135
30 27 650518-1 Courtyard Apartments 3222-3294 E. Dakota Avenue Fresno CA 93726
31 28 650553-4 Montrose Square Apartments 6531 Emmons Drive Fort Wayne IN 46255
32 30 650570-9 Hunter Chase Apartments 1897 Madison Street Clarksville TN 37043
33 32 643773-8 Wildwood East Apartments 2237 East 56th Avenue Anchorage AK 99502
34 91 11 Fairfield Apartments 18 Country Club Drive Newark DE 19711
35 35 650800-7 Bedford Crossing Apartments 550 Old Hickory Blvd Jackson TN 38301
<CAPTION>
Counter Control Loan Original Cut-Off-Date Cut-Off-Date
Number Number Number Balance UPB Rate Note Date
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Group 1
1 CO1 04-1000001 7,951,729 7,844,670 8.21 9/9/94
2 CO2 04-1000009 6,540,454 6,452,395 8.21 9/9/94
3 CO3 06-1000001 4,950,000 4,836,173 8.00 8/23/94
4 CO4 04-1000002 3,645,692 3,596,608 8.21 9/9/94
5 CO5 04-1000012 3,195,112 3,152,094 8.21 9/9/94
6 CO6 04-1000003 1,818,466 1,793,983 8.21 9/9/94
7 CO7 06-1000004 1,300,000 1,275,221 8.43 11/30/94
8 CO8 06-1000003 1,030,000 1,015,808 8.62 11/28/94
Group 2
9A 2A 643802-5 3,885,000 3,874,468 8.00 2/28/96
9B 2B 643802-5 2,200,000 2,194,036 8.00 2/28/96
9C 2C 643802-5 1,200,000 1,196,747 8.00 2/28/96
9D 2D 643802-5 1,140,000 1,136,910 8.00 2/28/96
9E 2E 643802-5 1,040,000 1,037,181 8.00 2/28/96
9F 2F 643802-5 810,000 807,804 8.00 2/28/96
9G 2G 643802-5 750,000 747,967 8.00 2/28/96
9H 2H 643802-5 625,000 623,306 8.00 2/28/96
9I 2I 643802-5 400,000 398,916 8.00 2/28/96
10 3 644135-5 11,000,000 10,979,492 8.41 3/21/96
11 4 650901-9 10,000,000 9,978,364 7.84 4/5/96
12 6 644111-9 8,000,000 7,967,186 7.99 12/21/95
13 7 643277-5 7,200,000 7,172,731 7.46 1/5/96
14 9 650647-8 6,155,000 6,147,877 8.74 4/17/96
15 10 650565-7 5,350,000 5,336,072 8.20 2/22/96
16 11 644048-2 5,100,000 5,090,036 8.18 3/28/96
17 12 642968-1 5,300,000 5,207,443 8.11 12/4/95
18 13 2 5,000,000 4,991,089 8.63 3/28/96
19 14 642996-6 4,800,000 4,763,898 7.99 11/22/95
20 15 643812-2 4,400,000 4,380,950 7.72 12/28/95
21 16 650675-3 4,300,000 4,295,024 8.74 4/17/96
22 17 643000-7 4,200,000 4,173,057 8.00 12/7/95
23 18 644109-6 4,000,000 3,985,119 7.55 1/25/96
24 20 642952-6 3,650,000 3,636,742 7.67 1/23/96
25 21 642000-4 3,500,000 3,477,330 7.94 12/1/95
26 22 644143-6 3,400,000 3,390,072 7.63 2/15/96
27 23 644122-9 3,300,000 3,293,190 7.91 3/8/96
28 24 650513-6 3,225,300 3,223,444 8.75 5/9/96
29A 25A 642885-7 825,000 815,803 9.00 6/22/95
29B 25B 642885-7 1,350,000 1,334,951 9.00 6/22/95
29C 25C 642885-7 1,012,500 1,001,213 9.00 6/22/95
30 27 650518-1 3,154,000 3,148,573 8.80 3/26/96
31 28 650553-4 2,800,000 2,792,172 8.78 3/21/96
32 30 650570-9 2,500,000 2,495,456 8.91 4/3/96
33 32 643773-8 1,950,000 1,936,150 7.36 12/8/95
34 91 11 1,900,000 1,898,333 9.10 5/30/96
35 35 650800-7 1,875,000 1,873,277 8.82 5/24/96
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
Counter Control Loan Property Property
Number Number Number Name Address City State Zip
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
36 36 643766-0 Silver Terrace Apartments 4697 Rose Coral Drive Orlando FL 32808
37 37 643018-8 Flamingo Apartments 1650 West 44th Place Hialeah FL 33012
38 38 643099-7 Torrey Pines Apartments 45235 7Th Street East Lancaster CA 93535
39 40 650785-9 Cedarwood Apartments 2880 Beverly Hills Rd. Memphis TN 38128
40 41 642944-5 Colebrook Manor 2456 Iverson Street Temple Hills MD 20748
41 42 644046-3 Valley View 5,6,8 &11 Secora Raod Monsey NY 10952
42 43 650692-8 Quarry Apartments 270 Quarry Street Quincy MA 02171
43 45 650693-1 Park Drive Limited Partnership 149-151 Park Drive Boston MA 02115
44 46 643232-2 Haven Manor Apartments 905 West 26th Street Lynn Haven FL 32444
45 47 643765-7 Willow Trail Apartments 4801 Clyde Morris Blvd Port Orange FL 32119
46 48 643051-5 One And Only Apartments 3602/3619 Bolivar Drive Dallas TX 75220
47 49 650795-6 Pratton Arms Apartments 20 Eames Street Framingham MA 01701
48 50 642967-8 Quilliams Noble Apartments 2481-2487 Noble Road Cleveland Heights OH 44121
49 51 643775-4 Chugach South Apartments 9540 & 9600 Morningside Loop Anchorage AK 99502
50 52 8 Lakeview Manor 1700 Newcombtown Road Millville NJ 8332
51 53 643774-1 Chugach West Apartments 1340 & 1402 West 26th Avenue Anchorage AK 99503
52 54 3 Eldorado Gardens 200 Mill Street Belleville NJ 7109
53 55 650694-4 Pembroke Apartments 2051-2061 NW 81 Street Pembroke Pines FL 33024
54 90 650523-3 Great Northeast Plaza 2201-2235 Cottman Avenue and
2290 Bleigh Street Philadelphia PA 19149
55 56 642895-4 Village Square at Kiln Creek 5007 Victory Blvd. York County VA 23602
56 57 644081-9 Promenade Shopping Center 9810 Alternate Route A1A Palm Beach Gardens FL 33410
57 59 643091-3 Escada 7 East 57th Street New York NY 10022
58 60 650656-2 Santa Fe Springs Market Place Washington Blvd./Norwalk Blvd. Santa Fe Springs CA 90605
59 61 642963-6 Plaza Del Rienzi North Canal Blvd/Rue London Thibodaux LA 70301
60 62 650578-3 Battlefield Plaza 313 East Battlefield Road Springfield MO 65807
61 63 643327-9 Harnett Crossing Shopping Center 2106-2330 Cumberland Street Dunn NC 28334
62 65 650460-3 Grand Union Shopping Center 402-430 Union Blvd West Islip NY 11795
63 67 643016-2 Village II (Indian Wells) Highway 111 Indian Wells CA 92210
64 68 642940-3 Eckerd Plaza N.E.Corner Of Golden Gate Pkwy Naples FL 33999
65 70 650698-6 MVP Sports 1207 Washington Street (Route 53) Hanover MA 01887
66 71 650695-7 IRG Waltham Limited 101 First Avenue Waltham MA 02154
67 72 643017-5 Ritchey Business Centre 1831 S. Ritchey St. Santa Ana CA 92705
68 73 643015-9 Highland Plaza Sc 3001-3051 Nicollet Avenue Minneapolis MN 55408
69 74 643789-3 Regency Pointe 940 Arlington Expressway Jackonsonville FL 75231
70 75 643186-0 Cohaire Plaza Inter.Of Westover Rd & Sunset Clinton NC 28328
71 76 650867-0 Tokeneke Center 23-25 Tokeneke Road Darien CT 06490
72 77 650796-9 Quincy Flagship/Mithell 625 Southern Artery Quincy MA 02169
73 78 643762-8 Ecor Rouge Shopping Center 49 North Greeno Road Fairhope AL 36532
74 79 650874-8 Great Falls Shopping Center Highway 158 Roanoke Rapids NC 27870
75 80 643085-8 Yancey Commons Shopping Center Us Highway 19E/Dogwood Lane Burnsville NC 28714
76 81 643790-3 Foxmoor Center 5660 Foxmoor Bayshore Road, N. North Ft. Meyers FL 15212
77 82 650797-2 Eleven Hurley 11 Hurley Street Cambridge MA 02141
78 83 4 University Plaza Highway 22 Martin TN 38237
79 84 650696-0 Dudley Plaza Realty Airport Road Dudley MA 01571
80 85 642962-3 Parkside Plaza Highway 15 & West 10th Street Laurel MS 39441
81 86 642947-4 Heritage Plaza Shopping Center 2410 North Heritage St. Kinston NC 28502
82 87 643792-9 Everything Organized 310 North Pointe Parkway Alpharetta GA 30202
83 88 650697-3 CVS Clinton 14-16 East Main Street Clinton CT 06413
<CAPTION>
Counter Control Loan Original Cut-Off-Date Cut-Off-Date
Number Number Number Balance UPB Rate Note Date
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
36 36 643766-0 1,867,500 1,857,858 8.310% 10/18/95
37 37 643018-8 1,750,000 1,735,499 8.240% 10/6/95
38 38 643099-7 1,650,000 1,640,952 8.010% 10/4/95
39 40 650785-9 1,525,000 1,523,587 8.770% 5/24/96
40 41 642944-5 1,465,000 1,447,496 8.120% 11/30/95
41 42 644046-3 1,450,000 1,441,783 8.260% 5/1/96
42 43 650692-8 1,450,000 1,437,907 8.200% 10/31/95
43 45 650693-1 1,350,000 1,332,144 9.820% 2/15/95
44 46 643232-2 1,275,000 1,269,592 8.010% 2/12/96
45 47 643765-7 1,233,000 1,231,614 8.880% 4/29/96
46 48 643051-5 1,275,000 1,263,400 9.080% 8/21/95
47 49 650795-6 1,026,000 1,019,301 7.890% 12/21/95
48 50 642967-8 975,000 957,914 8.070% 12/4/95
49 51 643775-4 950,000 943,617 7.710% 12/8/95
50 52 8 900,000 898,394 9.020% 4/25/96
51 53 643774-1 835,000 829,478 7.810% 12/8/95
52 54 3 825,000 823,583 9.250% 5/1/96
53 55 650694-4 750,000 741,218 8.700% 6/8/95
54 90 650523-3 18,000,000 17,990,250 9.040% 5/17/96
55 56 642895-4 15,375,000 15,314,180 8.170% 12/26/95
56 57 644081-9 13,160,671 12,423,775 9.000% 12/29/92
57 59 643091-3 10,600,000 10,475,650 8.270% 11/13/95
58 60 650656-2 7,475,000 7,471,197 9.340% 5/10/96
59 61 642963-6 6,270,000 6,263,528 9.290% 4/30/96
60 62 650578-3 6,225,000 6,186,080 8.160% 12/15/95
61 63 643327-9 6,200,000 6,189,109 8.700% 3/18/96
62 65 650460-3 5,750,000 5,726,697 8.050% 12/18/95
63 67 643016-2 4,750,000 4,726,315 8.410% 1/3/96
64 68 642940-3 4,200,000 4,176,487 8.840% 12/19/95
65 70 650698-6 3,650,000 3,625,239 8.630% 11/10/95
66 71 650695-7 3,100,000 3,065,527 9.020% 6/23/95
67 72 643017-5 3,080,000 3,071,460 8.830% 3/26/96
68 73 643015-9 3,000,000 2,984,523 8.200% 1/24/96
69 74 643789-3 3,000,000 2,515,288 9.375% 8/17/93
70 75 643186-0 2,475,000 2,461,855 8.020% 1/19/96
71 76 650867-0 2,250,000 2,231,265 8.960% 9/28/95
72 77 650796-9 1,810,000 1,795,214 8.420% 1/17/96
73 78 643762-8 1,800,000 1,794,934 8.740% 3/7/96
74 79 650874-8 1,800,000 1,793,007 8.550% 3/5/96
75 80 643085-8 1,750,000 1,738,659 8.910% 11/30/95
76 81 643790-3 1,600,000 1,384,229 9.000% 11/29/93
77 82 650797-2 1,400,000 1,388,858 8.630% 1/30/96
78 83 4 1,440,000 1,438,839 9.600% 5/23/96
79 84 650696-0 1,330,000 1,319,225 8.380% 10/19/95
80 85 642962-3 1,180,000 1,178,142 9.766% 4/30/96
81 86 642947-4 1,135,000 1,129,482 8.565% 1/11/96
82 87 643792-9 1,100,000 1,067,363 9.740% 7/22/94
83 88 650697-3 840,000 831,767 8.450% 12/14/95
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
Counter Control Loan Property Property
Number Number Number Name Address City State Zip
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
84 89 643722-0 Bonnie Brea Shopping Center 5030-5080 Benita Road/5037
Central Avenue San Diego CA 91902
85 CO9 P00676 Mott - 76 S. Bergen Place 76 S. Bergen Place Freeport NY 11520
86 CO10 P00722 Mott - 655 Nassau Road 655 Nassau Road Hempstead NY 11550
87 CO11 P00686 Mott - 45 Broadway 45 Broadway Freeport NY 11520
88 CO12 P00670 Mott - 35 N. Long Beach Avenue 35 N. Long Beach Avenue Freeport NY 11520
89 CO13 P00692 Mott - 56 N. Long Beach Avenue 56 N. Long Beach Avenue Freeport NY 11520
90 CO14 P00720 Mott - 27 Attorney Street 27 Attorney Street Hempstead NY 11550
91 CO15 P00682 Mott - 95 Jerusalem Avenue 95 Jerusalem Avenue Hempstead NY 11550
92 CO16 P00708 Mott - 271 Washington Street 271 Washington Street Hempstead NY 11550
93 CO17 P00678 Mott - 155 Pine Street 155 Pine Street Freeport NY 11520
94 CO18 P00690 Mott - 40 Graffing Place 40 Graffing Place Freeport NY 11520
95 CO19 P00704 Mott - 260 Belmont Parkway 260 Belmont Parkway Hempstead NY 11550
96 CO20 P00710 Mott - 360 Washington Street 360 Washington Street Hempstead NY 11530
97 CO21 P00706 Mott - 55 Nassau Place 55 Nassau Place Hempstead NY 11550
98 CO22 P00714 Mott - 25 Peninsula Boulevard 25-27 Peninsula Boulevard Hempstead NY 11550
99 CO23 P00684 Mott - 1100 Ward Place 1100 Ward Place Woodmere NY 11598
100 CO24 P00610 Ridgecrest Retirement Center 1900 Highway 6 West Waco TX 76712
101 CO25 941-0103 Morningstar Mini - Charlotte 3912 Wilkinson Boulevard Charlotte NC 28208
102 CO26 941-0095 Morningstar Mini - Hickory 1970 Tate Boulevard S.E. Hickory NC 28601
103 CO27 941-0104 Morningstar Mini - Winston Salem 5713 Robin Wood Lane Winston-Salem NC 27105
104 CO28 941-0094 Morningstar Mini - Florence 753 N. Cashua Drive Florence SC 29502
105 CO29 941-0096 Morningstar Mini - Lexington 951 N. Main Street Lexington NC 27292
106 CO30 941-0097 Morningstar Mini - Sumter 1277 Camden Highway Sumter SC 29150
107 CO31 941-0086 Thousand Oaks Self Storage 3485 Old Conejo Road Thousand Oaks CA 91320
108 CO32 P00638 King Shopping Center 7001-7101 Martin Luther
King, Jr. Hwy. Palmer Park MD 20875
109 CO33 941-0062 Starr Avenue 30-28 Starr Avenue Long Island City NY 11101
110A CO34a P00630 Kmart/Elizabeth City 683 South Hughes Blvd. Elizabeth City NC 27909
110B CO34b P00628 Kmart/Rocky Mount 720 Sutters Creek Boulevard Rocky Mount NC 27804
111 CO35 P00664 Regency Park-El Molino 245 South El Molino Avenue Pasadena CA 91101
112 CO36 P00640 Millburn Common 225 Millburn Avenue Millburn NJ 7041
113A CO37a 941-0075 Sentry SS - Williamsburg 5393 Moorestown Road Williamsburg VA 23188
113B CO37b 941-0075 Sentry SS - Chesapeake 4815 Station House Road Chesapeake VA 23321
113C CO37c 941-0075 Sentry SS - Newport 5868 Jefferson Avenue Newport News VA 23605
113D CO37d 941-0075 Sentry SS - Whitestone Eastside Route 3 White Stone VA 22578
114 CO38 P00578 The Drake Tower Apartments 1512-1514 Spruce Street Philadelphia PA 19102
115 CO39 941-0061 Snyder Avenue 40 Snyder Avenue Brooklyn NY 11226
116 CO40 941-0063 Diamond Mini Storage 7741 Brayton Drive Anchorage AK 99507
117 CO41 941-0064 International Self Storage 130 & 150 West International
Airport Road Anchorage AK 99518
118 CO42 P00540 Eastgate Shopping Center 2830 North Avenue Grand Junction CO 81501
119 CO43 941-0090 AZ Storage Inns - Country Club 1750 N. Country Club Drive Mesa AZ 85201
120 CO44 941-0091 AZ Storage Inns - Greenfield 139 North Greenfield Road Mesa AZ 85205
121 CO45 941-0089 AZ Storage Inns - Broadway 837 East Broadway Road Mesa AZ 85204
122 CO46 98-1000159 Sterling Meadows Apartments 33433 Schoenherr Road Sterling Heights MI 48312
123 CO47 941-0074 Coldwater Self Storage 7215 Coldwater Canyon Avenue North Hollywood CA 91605
124 CO48 P00658 Picador Plaza 1270 - 1290 Picador Boulevard San Diego CA 92154
125 CO49 941-0116 Security Public Storage 471 C Street Chula Vista CA 91910
126 CO50 P00626 Cedar Grove Apartments 800 E. South Street Alvin TX 77511
127 CO51 P00612 Canyon Pointe Apartmens 3621 N. Black Canyon Hwy. Phoenix AZ 85015
<CAPTION>
Counter Control Loan Original Cut-Off-Date Cut-Off-Date
Number Number Number Balance UPB Rate Note Date
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
84 89 643722-0 4,015,000 4,011,605 9.320% 5/16/96
85 CO9 P00676 3,232,500 3,219,268 8.000% 12/21/95
86 CO10 P00722 2,238,750 2,229,586 8.000% 12/21/95
87 CO11 P00686 2,045,560 2,037,186 8.000% 12/21/95
88 CO12 P00670 1,279,000 1,273,764 8.000% 12/21/95
89 CO13 P00692 1,106,250 1,101,721 8.000% 12/21/95
90 CO14 P00720 648,750 646,094 8.000% 12/21/95
91 CO15 P00682 570,000 567,667 8.000% 12/21/95
92 CO16 P00708 529,500 527,332 8.000% 12/21/95
93 CO17 P00678 502,500 500,443 8.000% 12/21/95
94 CO18 P00690 450,000 448,158 8.000% 12/21/95
95 CO19 P00704 392,250 390,644 8.000% 12/21/95
96 CO20 P00710 390,000 388,404 8.000% 12/21/95
97 CO21 P00706 378,000 376,453 8.000% 12/21/95
98 CO22 P00714 351,750 350,310 8.000% 12/21/95
99 CO23 P00684 316,800 315,503 8.000% 12/21/95
100 CO24 P00610 9,300,000 9,227,221 10.000% 8/3/95
101 CO25 941-0103 2,150,000 2,134,249 9.000% 10/31/95
102 CO26 941-0095 1,875,000 1,861,376 9.050% 10/31/95
103 CO27 941-0104 1,800,000 1,786,813 9.000% 10/31/95
104 CO28 941-0094 1,481,000 1,470,239 9.050% 10/31/95
105 CO29 941-0096 990,000 982,807 9.050% 10/31/95
106 CO30 941-0097 911,250 904,629 9.050% 10/31/95
107 CO31 941-0086 7,400,000 7,341,236 9.250% 9/27/95
108 CO32 P00638 7,200,000 7,163,256 8.250% 1/12/96
109 CO33 941-0062 7,150,000 7,113,352 9.375% 12/21/95
110A CO34a P00630 3,575,000 3,551,698 8.875% 11/14/95
110B CO34b P00628 3,425,000 3,402,676 8.875% 11/14/95
111 CO35 P00664 6,000,000 5,947,602 9.375% 12/21/95
112 CO36 P00640 5,500,000 5,474,056 8.750% 1/15/96
113A CO37a 941-0075 1,896,000 1,881,846 9.625% 9/27/95
113B CO37b 941-0075 1,206,000 1,196,997 9.625% 9/27/95
113C CO37c 941-0075 1,146,000 1,137,445 9.625% 9/27/95
113D CO37d 941-0075 222,000 220,343 9.625% 9/27/95
114 CO38 P00578 4,250,000 4,199,631 8.625% 6/23/95
115 CO39 941-0061 4,100,000 4,059,534 9.750% 6/15/95
116 CO40 941-0063 2,200,000 2,178,701 10.375% 5/23/95
117 CO41 941-0064 1,550,000 1,534,994 10.375% 5/23/95
118 CO42 P00540 3,400,000 3,366,058 9.125% 7/28/95
119 CO43 941-0090 1,400,000 1,389,627 9.670% 9/27/95
120 CO44 941-0091 1,050,000 1,042,220 9.670% 9/27/95
121 CO45 941-0089 900,000 893,331 9.670% 9/27/95
122 CO46 98-1000159 3,059,000 3,034,000 10.220% 12/28/94
123 CO47 941-0074 2,910,000 2,886,749 9.875% 8/23/95
124 CO48 P00658 2,900,000 2,882,839 8.500% 12/13/95
125 CO49 941-0116 2,600,000 2,585,822 9.000% 12/18/95
126 CO50 P00626 2,560,000 2,549,781 8.125% 12/8/95
127 CO51 P00612 2,450,000 2,441,842 8.125% 1/3/96
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
Counter Control Loan Property Property
Number Number Number Name Address City State Zip
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
128 CO52 941-0085 Central Avenue Self Storage 3399 Central Avenue Riverside CA 92506
129 CO53 P00660 Country Brook Apartments 5 Country Brook Lane Rochester NH 3839
130 CO54 941-0099 Atlantic Self Storage 2401 Build America Drive Hampton VA 23666
131 CO55 P00546 Delicare Convalescent Center 1340 East Madison Avenue El Cajon CA 92021
132 CO56 P00642 Midwest Distribution Center 3300 Lockbourne Road Columbus OH 43207
133 CO57 941-0073 Ranchos Stor-All 813 Short Court Gardnerville NV 89410
134 CO58 941-0072 Stor-All 3395 West T. Quarter Circle Road Winnemucca NV 89445
135 CO59 941-0106 Morningstar Mini - Charlotte 5301 North Sharon Amity Road Charlotte NC 28215
136 CO60 P00534 215 East Gunhill 215 East Gunhill Road Bronx NY 10467
137 CO61 P00155 The Corners Apartments 4150 Winchester Road Memphis TN 38115
138 CO62 941-0088 Palo Verde Mini Storage 255 McKellips Road Mesa AZ 85201
139 CO63 941-0071 Stop & Stor 1700 Shore Parkway Brooklyn NY 11214
140 CO64 P00150 Urbanwood Apartments 3816 106th Street Urbandale IA 50322
141 CO65 P00514 Lexington Avenue Apartments 801 Lexington Avenue Lakewood NJ 8701
142 CO66 P00512 485 Front Street 485 Front Street Hempstead NY 11550
143 CO67 941-0068 Safeguard Self Storage #11 300 23rd Street Kenner LA 70062
144 CO68 941-0102 AZ Storage Inns - Apache Trails 5253 East Main Street Mesa AZ 85204
145 CO69 P00582 Longwood Retirement Village 480 East Church Avenue Longwood FL 32750
146 CO70 P00614 Euclid Convalescent Center 1350 Euclid Avenue San Diego CA 92105
147 CO71 941-0058 Safeguard 9642/9705 South Padre Island
Drive Corpus Christi TX 78418
148 CO72 P00588 Homeland Grocery Store 12508 North May Avenue Oklahoma City OK 73120
149 CO73 941-0098 Conyers Self Storage 1840 Iris Drive Conyers GA 30207
150 CO74 P00648 Le Shoppe 90 W. Mount Pleasant Avenue Livingston NJ 7039
151 CO75 P00502 Briarwood Apartments 13600 Horizon Boulevard El Paso TX 79927
152 CO76 P00503 Lakeway Apartments 1600 McMahon Avenue & 14790
Breaux Street El Paso TX 79927
153 CO77 941-0082 Regency Mini Storage 8740 Atlantic Boulevard Jacksonville FL 32211
154 CO78 98-1000160 Bellamar Apartments 1470 West 40th Street Hialeah FL 33012
155 CO79 941-0083 Normandy Mini Storage 8204 Normandy Boulevard Jacksonville FL 32221
156 CO80 941-0114 Stor-A-Lot Self Storage 17108 Main Street Hesperia CA 92345
157 CO81 P00646 Perth Amboy Industrial Center 31-63 Pennsylvania Avenue Kearny NJ 7032
158 CO82 941-0105 Handy Mini Storage 2445 Main Street Chula Vista CA 91911
159 CO83 941-0107 Morningstar Mini - Matthews 10716 Monroe Road Matthews NC 28105
160 CO84 941-0057 A Storage #2 7413 W. Saint Bernard Highway Arabi LA 70032
161 CO85 941-0093 Ironwood Self Storage 1678 West Superstition Boulevard Apache Junction AZ 85220
162 CO86 P00272 Carriage House Apartments 131-139 North Bend Road Baltimore MD 21229
- ------------------------------------------------------------------------------------------------------------------------------------
176
====================================================================================================================================
<CAPTION>
Counter Control Loan Original Cut-Off-Date Cut-Off-Date
Number Number Number Balance UPB Rate Note Date
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
128 CO52 941-0085 2,450,000 2,440,995 9.300% 11/20/95
129 CO53 P00660 2,400,000 2,391,840 8.000% 1/8/96
130 CO54 941-0099 2,400,000 2,380,941 9.250% 9/26/95
131 CO55 P00546 2,250,000 2,211,352 10.375% 5/12/95
132 CO56 P00642 2,200,000 2,169,162 8.500% 1/15/96
133 CO57 941-0073 1,200,000 1,181,298 9.750% 7/17/95
134 CO58 941-0072 1,000,000 984,895 10.000% 7/26/95
135 CO59 941-0106 2,000,000 1,987,017 8.900% 11/28/95
136 CO60 P00534 2,000,000 1,975,349 10.250% 2/27/95
137 CO61 P00155 2,100,000 1,856,915 10.000% 8/16/94
138 CO62 941-0088 1,750,000 1,737,695 9.250% 10/3/95
139 CO63 941-0071 1,700,000 1,684,039 9.500% 7/5/95
140 CO64 P00150 1,700,000 1,668,577 9.875% 8/11/94
141 CO65 P00514 1,650,000 1,634,562 10.375% 9/30/94
142 CO66 P00512 1,636,000 1,614,114 10.875% 11/10/94
143 CO67 941-0068 1,550,000 1,534,994 10.375% 5/8/95
144 CO68 941-0102 1,500,000 1,490,087 9.625% 10/11/95
145 CO69 P00582 1,500,000 1,488,569 9.500% 9/22/95
146 CO70 P00614 1,500,000 1,484,169 9.125% 11/29/95
147 CO71 941-0058 1,450,000 1,429,684 9.875% 1/27/95
148 CO72 P00588 1,300,000 1,288,799 8.750% 9/27/95
149 CO73 941-0098 1,200,000 1,191,734 9.375% 10/26/95
150 CO74 P00648 1,200,000 1,182,994 8.375% 1/15/96
151 CO75 P00502 805,000 791,417 10.125% 9/6/94
152 CO76 P00503 360,000 353,926 10.125% 9/8/94
153 CO77 941-0082 1,120,000 1,100,168 9.750% 11/30/95
154 CO78 98-1000160 1,097,558 1,088,476 10.160% 12/30/94
155 CO79 941-0083 1,100,000 1,080,522 9.750% 11/30/95
156 CO80 941-0114 1,025,000 1,019,411 9.000% 12/19/95
157 CO81 P00646 1,000,000 983,119 8.500% 12/27/95
158 CO82 941-0105 930,000 925,133 9.250% 12/19/95
159 CO83 941-0107 900,000 894,158 8.900% 11/27/95
160 CO84 941-0057 850,000 837,934 9.750% 1/30/95
161 CO85 941-0093 600,000 587,808 9.750% 10/27/95
162 CO86 P00272 547,000 536,043 10.250% 5/10/94
- ---------------------------------------------------------------------------------------
486,998,842 482,357,812 8.685%
=======================================================================================
</TABLE>
Footnote - The adjustment dates for the floating rate loans are as follows:
* For 6 Month Libor index floaters, April 1, and October 1, are the
interest rate adjustment dates with payment adjustment dates of May 1,
and November 1, respectively. The first interest rate adjustment date
is October 1, 1996.
* For 1 Month Libor index floaters, the interest rate adjustment date is
two business days prior to the beginning of each calendar month, with
interest paid in arrears by the first of the subsequent calendar month
(e.g. June 27th rate set is for July payment due on August 1 etc.)
<PAGE>
<TABLE>
<CAPTION>
Related
Monthly Monthly Maturity Remaining Mortgage Loan
Loan Number Property Name Due Date Payment Date Term Loans Type Index
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
04-1000001 Woodhaven 1st 59,623.15 0/1/04 99 No Floating 6 mo Libor
04-1000009 Sandstone 1st 49,041.22 0/1/04 99 No Floating 6 mo Libor
06-1000001 Green Tree 1st 38,276.64 9/1/01 62 No Floating 6 mo Libor
04-1000002 Hunters Glen 1st 27,335.89 0/1/04 99 No Floating 6 mo Libor
04-1000012 Oak Hollow 1st 23,957.38 0/1/04 99 No Floating 6 mo Libor
04-1000003 Stone Ridge 1st 13,635.11 0/1/04 99 No Floating 6 mo Libor
06-1000004 Holme Circle 1st 10,421.37 2/1/01 65 No Floating 6 mo Libor
06-1000003 Washington Crossing 1st 7,996.60 2/1/01 65 No Floating 6 mo Libor
643802-5 Ginger Creek Apartments 1st 28,506.77 3/1/06 116 Yes(i) Fixed
643802-5 Continental Plaza Apartments 1st 16,142.83 3/1/06 116 Yes(i) Fixed
643802-5 Stoneleigh Court 1st 8,805.18 3/1/06 116 Yes(i) Fixed
643802-5 Colonial Village Apartments 1st 8,364.92 3/1/06 116 Yes(i) Fixed
643802-5 Healey Street Apartments 1st 7,631.15 3/1/06 116 Yes(i) Fixed
643802-5 Clark Street Apartments 1st 5,943.50 3/1/06 116 Yes(i) Fixed
643802-5 Green Street Apartments 1st 5,503.24 3/1/06 116 Yes(i) Fixed
643802-5 Anthony Drive Apartments 1st 4,586.03 3/1/06 116 Yes(i) Fixed
643802-5 Colonial South Apartments 1st 2,935.06 3/1/06 116 Yes(i) Fixed
644135-5 Hampton Court Apartments 1st 83,879.86 4/1/06 117 No Fixed
650901-9 Eagle Court Apartments 1st 76,157.65 5/1/06 118 No Fixed
644111-9 Latham Village Apartments 1st 58,645.41 12/31/10 174 No Fixed
643277-5 Navajo Bluffs Apartments 1st 50,146.38 2/1/06 115 No Fixed
650647-8 Lantana Apartments 1st 48,377.46 5/1/06 118 No Fixed
650565-7 Bren Mar Apartments 1st 40,004.87 3/1/06 116 No Fixed
644048-2 Newport Apartments 1st 38,063.91 4/1/06 117 No Fixed
642968-1 Wyoga Lake Apartments 1st 50,986.70 1/1/11 174 No Fixed
2 Greenbriar Village 1st 38,907.28 4/1/06 117 No Fixed
642996-6 Winbranch Apaprtments 1st 37,015.39 12/1/05 113 No Fixed
643812-2 Crystal Village 1st 31,430.97 1/1/06 114 No Fixed
650675-3 Saratoga Lake Apartments 1st 33,797.41 5/1/06 118 No Fixed
643000-7 Trenton Place Apartments 1st 32,416.28 1/1/03 78 No Fixed
644109-6 Prospect Point Apts 1st 28,105.66 2/1/06 115 No Fixed
642952-6 Garden Village Apartments 1st 25,947.56 2/1/06 115 No Fixed
642000-4 City Terrace Apartments 1st 26,874.60 1/1/06 114 No Fixed
644143-6 Hidden Oaks Apartments 1st 24,076.68 3/1/06 116 No Fixed
644122-9 Foxglove Apartments 1st 24,007.50 4/1/03 81 No Fixed
650513-6 Shannon View Apartments 1st 25,373.45 6/1/06 119 No Fixed
642885-7 Brighton Properties I 1st 6,926.20 7/1/05 108 Yes(j) Fixed
642885-7 Brighton Properties II 1st 11,333.77 7/1/05 108 Yes(j) Fixed
642885-7 Brighton Properties III 1st 8,500.33 7/1/05 108 Yes(j) Fixed
650518-1 Courtyard Apartments 1st 24,925.25 4/1/06 117 No Fixed
650553-4 Montrose Square Apartments 1st 23,077.12 4/1/06 117 No Fixed
650570-9 Hunter Chase Apartments 1st 20,826.05 5/1/06 118 No Fixed
643773-8 Wildwood East Apartments 1st 14,233.22 1/1/11 174 Yes(k) Fixed
11 Fairfield Apartments 1st 16,075.04 6/1/06 119 No Fixed
650800-7 Bedford Crossing Apartments 1st 15,504.47 6/1/06 119 No Fixed
<CAPTION>
Maximum Minimum
Interest Interest Master, Trustee &
Loan Number Margin Rate Rate Special Servicer Fees Loan Group
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
04-1000001 2.750% 11.750% 6.000% 0.270% 1
04-1000009 2.750% 11.750% 6.000% 0.270% 1
06-1000001 2.750% 12.560% 7.813% 0.270% 1
04-1000002 2.750% 11.750% 6.000% 0.270% 1
04-1000012 2.750% 11.750% 6.000% 0.270% 1
04-1000003 2.750% 11.750% 6.000% 0.270% 1
06-1000004 2.750% 12.630% 6.375% 0.270% 1
06-1000003 2.750% 12.880% 8.625% 0.270% 1
643802-5 0.185% 2
643802-5 0.185% 2
643802-5 0.185% 2
643802-5 0.185% 2
643802-5 0.185% 2
643802-5 0.185% 2
643802-5 0.185% 2
643802-5 0.185% 2
643802-5 0.185% 2
644135-5 0.185% 2
650901-9 0.140% 2
644111-9 0.185% 2
643277-5 0.185% 2
650647-8 0.185% 2
650565-7 0.185% 2
644048-2 0.185% 2
642968-1 0.185% 2
2 0.185% 2
642996-6 0.185% 2
643812-2 0.185% 2
650675-3 0.185% 2
643000-7 0.185% 2
644109-6 0.185% 2
642952-6 0.185% 2
642000-4 0.185% 2
644143-6 0.185% 2
644122-9 0.185% 2
650513-6 0.185% 2
642885-7 0.185% 2
642885-7 0.185% 2
642885-7 0.185% 2
650518-1 0.185% 2
650553-4 0.185% 2
650570-9 0.185% 2
643773-8 0.185% 2
11 0.185% 2
650800-7 0.185% 2
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Related
Monthly Monthly Maturity Remaining Mortgage Loan
Loan Number Property Name Due Date Payment Date Term Loans Type Index
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
643766-0 Silver Terrace Apartments 1st 14,108.75 11/1/05 112 No Fixed
643018-8 Flamingo Apartments 1st 13,786.19 11/1/05 112 No Fixed
643099-7 Torrey Pines Apartments 1st 12,118.62 11/1/05 112 No Fixed
650785-9 Cedarwood Apartments 1st 12,558.42 6/1/06 119 No Fixed
642944-5 Colebrook Manor 1st 12,363.48 12/1/05 113 No Fixed
644046-3 Valley View 1st 14,075.47 5/1/11 178 No Fixed
650692-8 Quarry Apartments 1st 11,384.12 10/1/02 75 No Fixed
650693-1 Park Drive Limited Partnership 1st 12,096.58 3/1/02 68 No Fixed
643232-2 Haven Manor Apartments 1st 9,849.11 3/1/06 116 No Fixed
643765-7 Willow Trail Apartments 1st 9,814.72 5/1/06 118 No Fixed
643051-5 One And Only Apartments 1st 10,767.69 9/1/05 110 No Fixed
650795-6 Pratton Arms Apartments 1st 7,844.22 1/1/03 78 No Fixed
642967-8 Quilliams Noble Apartments 1st 9,357.05 1/1/11 174 No Fixed
643775-4 Chugach South Apartments 1st 7,150.69 1/1/11 174 Yes(k) Fixed
8 Lakeview Manor 1st 7,565.10 5/1/06 118 No Fixed
643774-1 Chugach West Apartments 1st 6,339.92 1/1/11 174 Yes(k) Fixed
3 Eldorado Gardens 1st 7,065.15 5/1/06 118 No Fixed
650694-4 Pembroke Apartments 1st 6,140.62 6/1/05 107 No Fixed
650523-3 Great Northeast Plaza 1st 145,350.43 6/1/06 119 No Fixed
642895-4 Village Square at Kiln Creek 1st 114,643.68 12/31/05 114 No Fixed
644081-9 Promenade Shopping Center 1st 107,110.37 1/1/00 42 No Fixed
643091-3 Escada 1st 90,452.07 12/1/02 77 No Fixed
650656-2 Santa Fe Springs Market Place 1st 61,983.11 6/1/06 119 No Fixed
642963-6 Plaza Del Rienzi 1st 51,763.60 5/1/06 118 No Fixed
650578-3 Battlefield Plaza 1st 48,707.22 1/1/06 114 No Fixed
643327-9 Harnett Crossing Shopping Center 1st 48,554.19 4/1/06 117 No Fixed
650460-3 Grand Union Shopping Center 1st 42,392.06 1/1/06 114 No Fixed
643016-2 Village II (Indian Wells) 1st 37,960.63 2/1/06 115 No Fixed
642940-3 Eckerd Plaza 1st 34,787.22 1/1/06 114 No Fixed
650698-6 MVP Sports 1st 29,711.24 12/1/05 113 No Fixed
650695-7 IRG Waltham Limited 1st 26,057.56 7/1/05 108 No Fixed
643017-5 Ritchey Business Centre 1st 25,489.64 4/1/06 117 No Fixed
643015-9 Highland Plaza Sc 1st 23,553.35 2/1/06 115 No Fixed
643789-3 Regency Pointe 1st 34,165.78 9/1/05 110 No Fixed
643186-0 Cohaire Plaza 1st 19,135.25 2/1/06 115 No Fixed
650867-0 Tokeneke Center 1st 18,820.13 10/1/02 75 No Fixed
650796-9 Quincy Flagship/Mithell 1st 15,616.07 2/1/03 79 No Fixed
643762-8 Ecor Rouge Shopping Center 1st 14,786.36 4/1/06 117 No Fixed
650874-8 Great Falls Shopping Center 1st 14,554.79 3/1/06 116 No Fixed
643085-8 Yancey Commons Shopping Center 1st 14,578.23 12/1/05 113 No Fixed
643790-3 Foxmoor Center 1st 18,208.49 12/1/05 113 No Fixed
650797-2 Eleven Hurley 1st 12,264.96 2/1/06 115 No Fixed
4 University Plaza 1st 12,681.48 6/1/06 119 No Fixed
650696-0 Dudley Plaza Realty 1st 10,602.18 11/1/05 112 No Fixed
642962-3 Parkside Plaza 1st 10,528.64 5/1/06 118 No Fixed
642947-4 Heritage Plaza Shopping Center 1st 9,189.10 2/1/06 115 No Fixed
643792-9 Everything Organized 1st 10,479.72 2/1/05 103 No Fixed
650697-3 CVS Clinton 1st 7,263.15 12/1/05 113 No Fixed
<CAPTION>
Maximum Minimum
Interest Interest Master, Trustee &
Loan Number Margin Rate Rate Special Servicer Fees Loan Group
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
643766-0 0.185% 2
643018-8 0.185% 2
643099-7 0.185% 2
650785-9 0.185% 2
642944-5 0.185% 2
644046-3 0.185% 2
650692-8 0.185% 2
650693-1 0.185% 2
643232-2 0.185% 2
643765-7 0.185% 2
643051-5 0.185% 2
650795-6 0.185% 2
642967-8 0.185% 2
643775-4 0.185% 2
8 0.310% 2
643774-1 0.185% 2
3 0.310% 2
650694-4 0.185% 2
650523-3 0.185% 2
642895-4 0.185% 2
644081-9 0.160% 2
643091-3 0.185% 2
650656-2 0.185% 2
642963-6 0.185% 2
650578-3 0.185% 2
643327-9 0.185% 2
650460-3 0.185% 2
643016-2 0.185% 2
642940-3 0.185% 2
650698-6 0.185% 2
650695-7 0.185% 2
643017-5 0.185% 2
643015-9 0.185% 2
643789-3 0.465% 2
643186-0 0.185% 2
650867-0 0.185% 2
650796-9 0.185% 2
643762-8 0.185% 2
650874-8 0.185% 2
643085-8 0.185% 2
643790-3 0.560% 2
650797-2 0.185% 2
4 0.210% 2
650696-0 0.185% 2
642962-3 0.185% 2
642947-4 0.185% 2
643792-9 2.005% 2
650697-3 0.185% 2
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
Related
Monthly Monthly Maturity Remaining Mortgage Loan
Loan Number Property Name Due Date Payment Date Term Loans Type Index
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
643722-0 Bonnie Brea Shopping Center 1st 34,577.87 6/1/06 119 No Fixed
P00676 Mott - 76 S. Bergen Place 1st 23,718.94 1/1/06 114 Yes(c) Fixed
P00722 Mott - 655 Nassau Road 1st 16,427.15 1/1/06 114 Yes(c) Fixed
P00686 Mott - 45 Broadway 1st 15,009.59 1/1/06 114 Yes(c) Fixed
P00670 Mott - 35 N. Long Beach Avenue 1st 9,384.85 1/1/06 114 Yes(c) Fixed
P00692 Mott - 56 N. Long Beach Avenue 1st 8,117.27 1/1/06 114 Yes(c) Fixed
P00720 Mott - 27 Attorney Street 1st 4,760.30 1/1/06 114 Yes(c) Fixed
P00682 Mott - 95 Jerusalem Avenue 1st 4,182.46 1/1/06 114 Yes(c) Fixed
P00708 Mott - 271 Washington Street 1st 3,885.28 1/1/06 114 Yes(c) Fixed
P00678 Mott - 155 Pine Street 1st 3,687.17 1/1/06 114 Yes(c) Fixed
P00690 Mott - 40 Graffing Place 1st 3,301.94 1/1/06 114 Yes(c) Fixed
P00704 Mott - 260 Belmont Parkway 1st 2,878.19 1/1/06 114 Yes(c) Fixed
P00710 Mott - 360 Washington Street 1st 2,861.68 1/1/06 114 Yes(c) Fixed
P00706 Mott - 55 Nassau Place 1st 2,773.63 1/1/06 114 Yes(c) Fixed
P00714 Mott - 25 Peninsula Boulevard 1st 2,581.02 1/1/06 114 Yes(c) Fixed
P00684 Mott - 1100 Ward Place 1st 2,324.57 1/1/06 114 Yes(c) Fixed
P00610 Ridgecrest Retirement Center 1st 84,509.17 9/1/05 110 No Fixed
941-0103 Morningstar Mini - Charlotte 1st 18,042.72 12/1/05 113 Yes(h) Fixed
941-0095 Morningstar Mini - Hickory 1st 15,799.18 12/1/05 113 Yes(h) Fixed
941-0104 Morningstar Mini - Winston Salem 1st 15,105.53 12/1/05 113 Yes(h) Fixed
941-0094 Morningstar Mini - Florence 1st 12,479.25 12/1/05 113 Yes(h) Fixed
941-0096 Morningstar Mini - Lexington 1st 8,341.97 12/1/05 113 Yes(h) Fixed
941-0097 Morningstar Mini - Sumter 1st 7,678.40 12/1/05 113 Yes(h) Fixed
941-0086 Thousand Oaks Self Storage 1st 63,372.26 11/1/05 112 No Fixed
P00638 King Shopping Center 1st 56,748.41 2/1/06 115 No Fixed
941-0062 Starr Avenue 1st 61,849.17 2/1/06 115 No Fixed
P00630 Kmart/Elizabeth City 1st 29,695.85 12/1/10 173 Yes(a) Fixed
P00628 Kmart/Rocky Mount 1st 28,449.87 12/1/10 173 Yes(a) Fixed
P00664 Regency Park-El Molino 1st 55,439.02 1/1/06 114 No Fixed
P00640 Millburn Common 1st 45,217.90 2/1/06 115 No Fixed
941-0075 Sentry SS - Williamsburg 1st 16,730.33 11/1/02 76 Yes(f) Fixed
941-0075 Sentry SS - Chesapeake 1st 10,641.76 11/1/02 76 Yes(f) Fixed
941-0075 Sentry SS - Newport 1st 10,112.32 11/1/02 76 Yes(f) Fixed
941-0075 Sentry SS - Whitestone 1st 1,958.93 11/1/02 76 Yes(f) Fixed
P00578 The Drake Tower Apartments 1st 34,580.90 7/1/02 72 No Fixed
941-0061 Snyder Avenue 1st 36,536.63 6/15/05 108 No Fixed
941-0063 Diamond Mini Storage 1st 20,575.90 5/16/05 107 Yes(d) Fixed
941-0064 International Self Storage 1st 14,496.66 5/16/05 107 Yes(d) Fixed
P00540 Eastgate Shopping Center 1st 28,824.27 8/1/02 73 No Fixed
941-0090 AZ Storage Inns - Country Club 1st 12,397.60 11/1/05 112 Yes(g) Fixed
941-0091 AZ Storage Inns - Greenfield 1st 9,298.20 11/1/05 112 Yes(g) Fixed
941-0089 AZ Storage Inns - Broadway 1st 7,969.89 11/1/05 112 Yes(g) Fixed
98-1000159 Sterling Meadows Apartments 1st 27,343.54 1/1/02 66 No Fixed
941-0074 Coldwater Self Storage 1st 26,187.20 10/1/05 111 No Fixed
P00658 Picador Plaza 1st 23,351.59 1/1/03 78 No Fixed
941-0116 Security Public Storage 1st 21,819.11 2/1/06 115 No Fixed
P00626 Cedar Grove Apartments 1st 19,007.93 1/1/03 78 No Fixed
P00612 Canyon Pointe Apartmens 1st 18,191.18 2/1/06 115 No Fixed
<CAPTION>
Maximum Minimum
Interest Interest Master, Trustee &
Loan Number Margin Rate Rate Special Servicer Fees Loan Group
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
643722-0 0.185% 2
P00676 0.270% 2
P00722 0.270% 2
P00686 0.270% 2
P00670 0.270% 2
P00692 0.270% 2
P00720 0.270% 2
P00682 0.270% 2
P00708 0.270% 2
P00678 0.270% 2
P00690 0.270% 2
P00704 0.270% 2
P00710 0.270% 2
P00706 0.270% 2
P00714 0.270% 2
P00684 0.270% 2
P00610 0.270% 2
941-0103 0.270% 2
941-0095 0.270% 2
941-0104 0.270% 2
941-0094 0.270% 2
941-0096 0.270% 2
941-0097 0.270% 2
941-0086 0.270% 2
P00638 0.270% 2
941-0062 0.270% 2
P00630 0.270% 2
P00628 0.270% 2
P00664 0.270% 2
P00640 0.270% 2
941-0075 0.270% 2
941-0075 0.270% 2
941-0075 0.270% 2
941-0075 0.270% 2
P00578 0.270% 2
941-0061 0.270% 2
941-0063 0.270% 2
941-0064 0.270% 2
P00540 0.270% 2
941-0090 0.270% 2
941-0091 0.270% 2
941-0089 0.270% 2
98-1000159 0.270% 2
941-0074 0.270% 2
P00658 0.270% 2
941-0116 0.270% 2
P00626 0.270% 2
P00612 0.270% 2
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
Related
Monthly Monthly Maturity Remaining Mortgage Loan
Loan Number Property Name Due Date Payment Date Term Loans Type Index
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
941-0085 Central Avenue Self Storage 1st 20,244.38 1/1/06 114 No Fixed
P00660 Country Brook Apartments 1st 17,610.35 2/1/03 79 No Fixed
941-0099 Atlantic Self Storage 1st 20,553.16 11/1/05 112 No Fixed
P00546 Delicare Convalescent Center 1st 22,274.94 6/1/02 71 No Fixed
P00642 Midwest Distribution Center 1st 21,664.27 2/1/06 115 No Fixed
941-0073 Ranchos Stor-All 1st 11,382.20 8/1/05 109 Yes(e) Fixed
941-0072 Stor-All 1st 9,650.22 8/1/05 109 Yes(e) Fixed
941-0106 Morningstar Mini - Charlotte 1st 16,647.18 1/1/06 114 No Fixed
P00534 215 East Gunhill 1st 18,527.67 3/1/02 68 No Fixed
P00155 The Corners Apartments 1st 19,082.72 9/1/01 62 No Fixed
941-0088 Palo Verde Mini Storage 1st 14,986.68 12/1/05 113 No Fixed
941-0071 Stop & Stor 1st 14,852.84 6/30/02 72 No Fixed
P00150 Urbanwood Apartments 1st 15,298.37 9/1/00 50 No Fixed
P00514 Lexington Avenue Apartments 1st 14,939.22 10/1/01 63 No Fixed
P00512 485 Front Street 1st 15,887.02 12/1/04 101 No Fixed
941-0068 Safeguard Self Storage #11 1st 14,496.66 5/7/02 71 No Fixed
941-0102 AZ Storage Inns - Apache Trails 1st 13,236.02 12/1/05 113 No Fixed
P00582 Longwood Retirement Village 1st 13,105.45 10/1/05 111 No Fixed
P00614 Euclid Convalescent Center 1st 13,616.71 12/1/05 113 No Fixed
941-0058 Safeguard 1st 13,048.28 1/26/02 67 No Floating 1 mo Libor
P00588 Homeland Grocery Store 1st 10,687.87 10/1/05 111 No Fixed
941-0098 Conyers Self Storage 1st 10,380.28 12/1/05 113 No Fixed
P00648 Le Shoppe 1st 11,729.11 2/1/06 115 No Fixed
P00502 Briarwood Apartments 1st 7,386.09 10/1/19 279 Yes(b) Fixed
P00503 Lakeway Apartments 1st 3,303.10 10/1/19 279 Yes(b) Fixed
941-0082 Regency Mini Storage 1st 11,864.86 1/1/11 174 No Fixed
98-1000160 Bellamar Apartments 1st 9,761.88 1/1/02 66 No Fixed
941-0083 Normandy Mini Storage 1st 11,652.99 1/1/11 174 No Fixed
941-0114 Stor-A-Lot Self Storage 1st 8,601.76 2/1/03 79 No Fixed
P00646 Perth Amboy Industrial Center 1st 9,847.40 1/1/06 114 No Fixed
941-0105 Handy Mini Storage 1st 7,964.35 2/1/03 79 No Fixed
941-0107 Morningstar Mini - Matthews 1st 7,491.23 1/1/06 114 No Fixed
941-0057 A Storage #2 1st 7,575.27 1/29/02 67 No Floating 1 mo Libor
941-0093 Ironwood Self Storage 1st 6,356.18 12/1/10 173 No Fixed
P00272 Carriage House Apartments 1st 5,067.32 6/1/01 59 No Fixed
- ------------------------------------------------------------------------------------------------------------------------------------
3,964,097.68
====================================================================================================================================
<CAPTION>
Maximum Minimum
Interest Interest Master, Trustee &
Loan Number Margin Rate Rate Special Servicer Fees Loan Group
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
941-0085 0.270% 2
P00660 0.270% 2
941-0099 0.270% 2
P00546 0.270% 2
P00642 0.270% 2
941-0073 0.270% 2
941-0072 0.270% 2
941-0106 0.270% 2
P00534 0.270% 2
P00155 0.270% 2
941-0088 0.270% 2
941-0071 0.270% 2
P00150 0.270% 2
P00514 0.270% 2
P00512 0.270% 2
941-0068 0.270% 2
941-0102 0.270% 2
P00582 0.270% 2
P00614 0.270% 2
941-0058 3.750% 13.880% 9.875% 0.270% 2
P00588 0.270% 2
941-0098 0.270% 2
P00648 0.270% 2
P00502 0.270% 2
P00503 0.270% 2
941-0082 0.270% 2
98-1000160 0.270% 2
941-0083 0.270% 2
941-0114 0.270% 2
P00646 0.270% 2
941-0105 0.270% 2
941-0107 0.270% 2
941-0057 3.750% 13.750% 9.750% 0.270% 2
941-0093 0.270% 2
P00272 0.270% 2
- ---------------------------------------------------------------------------------------------
=============================================================================================
</TABLE>
Footnote - The adjustment dates for the floating rate loans are as
follows:
* For 6 Month Libor index floaters, April 1, and October 1, are the
interest rate adjustment dates with payment adjustment dates of
May 1, and November 1, respectively. The first interest rate
adjustment date is October 1, 1996.
* For 1 Month Libor index floaters, the interest rate adjustment
date is two business days prior to the beginning of each calendar
month, with interest paid in arrears by the first of the
subsequent calendar month (e.g. June 27th rate set is for July
payment due on August 1 etc.)
8
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of June 27, 1996, between Citibank, N.A. as seller (the "Seller")
and Mortgage Capital Funding, Inc. as purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey
to or at the direction of the Purchaser, and the Purchaser desires to purchase
(for its own benefit or on behalf of the Trust Fund (as defined below)), subject
to the terms and conditions set forth herein, the multifamily and commercial
mortgage loans (the "Mortgage Loans") identified on the schedule annexed hereto
as Exhibit A (the "Mortgage Loan Schedule"), as such schedule may be amended
from time to time pursuant to the terms hereof. Certain of the Mortgage Loans
(the "PNC Mortgage Loans") were purchased by the Seller from PNC Bank, National
Association ("PNC Bank") pursuant to a mortgage loan purchase agreement, dated
the date hereof (the "PNC Mortgage Loan Purchase Agreement"), between PNC Bank
and the Seller. Certain of the Mortgage Loans (the "CTS Mortgage Loans"; all
Mortgage Loans which are not CTS Mortgage Loans and PNC Mortgage Loans, the
"Citibank Mortgage Loans") were purchased by the Seller from ContiTrade Services
L.L.C. ("CTS") pursuant to a mortgage loan purchase agreement, dated the date
hereof (the "CTS Mortgage Loan Purchase Agreement"), between CTS and the Seller.
The Purchaser intends to create a trust fund (the "Trust Fund"),
the primary assets of which will be the Mortgage Loans, and beneficial ownership
of which will be evidenced by a series of mortgage pass-through certificates
(the "Certificates"). Certain classes of the Certificates will be rated by
Standard & Poor's Ratings Services and/or Fitch Investor's Services, L.P.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust Fund will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement, dated
as of July 1, 1996 (the "Pooling and Servicing Agreement"), among the Purchaser
as sponsor, the Seller as mortgage loan seller, GMAC Commercial Mortgage
Corporation as master servicer, Hanford/Healy Asset Management Company as
special servicer (the "Special Servicer") and State Street Bank and Trust
Company as trustee (in such capacity, the "Trustee") and REMIC administrator (in
such capacity, the "REMIC Administrator"). Capitalized terms used but not
otherwise defined herein have the respective meanings assigned to them in the
Pooling and Servicing Agreement.
The Purchaser intends to sell the Certificates to the Seller and
Goldman, Sachs & Co. ("Goldman") pursuant to, in the case of the Registered
Certificates, an underwriting agreement dated the date hereof (the "Underwriting
Agreement") and, in the case of the remaining Certificates (the "Non-Registered
Certificates"), a certificate purchase agreement dated the date hereof (the
"Certificate Purchase Agreement").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
<PAGE>
SECTION 1. Agreement to Purchase.
(a) The Seller agrees to sell, assign, transfer and otherwise
convey to or at the direction of the Purchaser, and the Purchaser agrees to
purchase (for its own benefit or on behalf of the Trust Fund), the Mortgage
Loans. The purchase and sale of the Mortgage Loans shall take place on July 10,
1996 or such other date as shall be mutually acceptable to the parties hereto
(the "Closing Date"). As of the close of business on July 1, 1996 (the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal balance (the
"Initial Pool Balance"), after application of all payments of principal due
thereon on or before such date, whether or not received, of $482,357,812,
subject to a variance of plus or minus 5%. The purchase price for the Mortgage
Loans shall be equal to 99.91% of the Initial Pool Balance ($481,921,743), plus
accrued interest in an amount equal to $966,683, and shall be paid to the Seller
by wire transfer in immediately available funds on the Closing Date (or by such
other method as the Purchaser and the Seller may agree).
(b) Pursuant to the Pooling and Servicing Agreement, the
Purchaser will assign, or will direct the Seller to assign, to the Trustee, and
the Trustee will succeed to, all of the right, title and interest of the
assigning party in and to the Mortgage Loans.
SECTION 2. Conveyance of Mortgage Loans.
(a) On the Closing Date, subject only to receipt of the purchase
price referred to in Section 1 hereof, the Seller shall transfer, assign, set
over and otherwise convey to the Purchaser or, if so directed, to the Trustee,
without recourse, all the right, title and interest of the Seller in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of such date. The
Mortgage Loan Schedule, as it may be amended, shall conform to the requirements
set forth in this Agreement and the Pooling and Servicing Agreement.
(b) The Purchaser or the Trustee, as the case may be, shall be
entitled to receive all scheduled payments of principal and interest due on the
Mortgage Loans after the Cut-off Date, and all other recoveries of principal and
interest collected thereon after the Cut-off Date. All scheduled payments of
principal and interest due thereon on or before the Cut-off Date and collected
after the Cut-off Date shall belong to the Seller.
(c) On or before the Closing Date, the Seller shall deliver or
cause to be delivered to the Trustee or to a custodian designated by the Trustee
(a "Custodian") all documents required to be delivered by the Seller under the
Pooling and Servicing Agreement and shall otherwise comply with all conveyance
requirements thereof.
(d) The Seller's records will reflect the transfer of the
Mortgage Loans to the Purchaser or the Trustee, as the case may be, as a sale.
2
<PAGE>
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the
Mortgage Files and Servicing Files for the Mortgage Loans that may be undertaken
by or on behalf of the Purchaser. The fact that the Purchaser has conducted or
has failed to conduct any partial or complete examination of the Mortgage Files
and/or Servicing Files relating to the Mortgage Loans shall not affect the
Purchaser's or the Trustee's right to pursue any remedy available in equity or
at law for a breach of the Seller's representations and warranties contemplated
by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller shall make such representations and warranties
regarding itself and the Mortgage Loans as are required under the Pooling and
Servicing Agreement.
(b) In addition, the Seller hereby represents and warrants
to, and covenants with, the Purchaser as of the date hereof that:
(i) The Seller is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States, and is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller,
and the performance and compliance with the terms of this Agreement by
the Seller, will not violate the Seller's articles of association and
by-laws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iii) The Seller has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller 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 Seller 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 Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement or
the financial condition of the Seller
(vi) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which would prohibit the Seller
from entering into this Agreement or, in the Seller's good faith and
reasonable judgment, is likely
3
<PAGE>
to materially and adversely affect either the ability of the
Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vii) To the extent of the information included therein in
reliance on the Seller's Information, none of the Prospectus, the
Memorandum 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, contains any untrue statement of a material
fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (in the case of
any Computational Materials or ABS Term Sheets, when read in conjunction
with the Prospectus and, in the case of the Memorandum, when read
together with the other information specified therein as being available
for review by investors). (Prospectus, Memorandum, Registration
Statement, No-Action Letters, Computational Materials, ABS Term Sheets
and Seller's Information are each defined in Section 8.)
SECTION 5. Repurchases.
The Seller shall repurchase (or cause an affiliate to purchase)
any Mortgage Loan required to be repurchased by it under, and in accordance
with, the Pooling and Servicing Agreement.
SECTION 6. Closing.
The closing of the sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Thacher Proffitt & Wood, Two World Trade Center,
New York, New York 10048 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and arranties of the
Seller specified herein and in the Pooling and Servicing
Agreement shall be true and correct as of the Closing Date;
(ii) All documents specified in Section 7 of this
Agreement (the "Closing Documents"), in such forms as are agreed
upon and acceptable to the Purchaser, shall be duly executed and
delivered by all signatories as required pursuant to the
respective terms thereof;
4
<PAGE>
(iii) The Seller shall have delivered and released to
the Trustee, the Master Servicer or a Custodian, as applicable,
all documents and funds required to be so delivered pursuant to
the Pooling and Servicing Agreement;
(iv) The result of any examination of the Mortgage
Files and Servicing Files performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory to
the Purchaser in its sole determination;
(v) All other terms and conditions of this Agreement
required to be complied with on or before the Closing Date shall
have been complied with, and the Seller shall have the ability to
comply with all terms and conditions and perform all duties and
obligations required to be complied with or performed after the
Closing Date;
(vi) The Seller shall have paid all fees and expenses
payable by it to the Purchaser or otherwise pursuant to this
Agreement; and
(vii) Neither the Underwriting Agreement nor the
Certificate Purchase Agreement shall have been terminated in
accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser
and the Seller, and the Pooling and Servicing Agreement duly executed and
delivered by the Purchaser, the Seller and the other parties thereto;
(b) An Officer's Certificate substantially in the form of Exhibit
B-1 hereto, executed by the Secretary or an assistant secretary of the Seller,
in his or her individual capacity, and dated the Closing Date, and upon which
the Purchaser and each underwriter or other initial purchaser of the
Certificates (each, a "Certificate Purchaser") may rely, attaching thereto as
exhibits the articles of association and by-laws of the Seller;
(c) A certificate of good standing regarding the Seller from the
Comptroller of the Currency, dated not earlier than 45 days prior to the Closing
Date;
(d) A certificate of the Seller substantially in the form of
Exhibit B-2 hereto, executed by an executive officer or authorized signatory of
the Seller and dated the Closing Date, and upon which the Purchaser and each
Certificate Purchaser may rely;
(e) A written opinion of Stephen E. Dietz, Esq., counsel for the
Seller, substantially in the form of Exhibit B-3 hereto (with any modifications
required by either Rating Agency,
5
<PAGE>
and subject to such reasonable assumptions and qualifications as may be
requested by counsel for the Seller and acceptable to counsel for the
Purchaser), dated the Closing Date and addressed to the Purchaser, each
Certificate Purchaser and each Rating Agency, together with such other written
opinions as may be required by a Rating Agency;
(f) One or more accountant's comfort letters relating to the
information regarding the Mortgage Loans contained in the Offering Documents
that is of a statistical nature; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 8. Indemnification.
(a) The Seller agrees to indemnify and hold harmless the
Purchaser, its officers and directors, and each person, if any, who controls the
Purchaser within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
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 Securities
Act, the Exchange Act or other federal or state statutory law or regulation, at
common law, by contractual arrangement or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Prospectus or the Memorandum,
or in any revision or amendment thereof or supplement thereto, or in any other
filing incorporated by reference therein, or arise out of or are based upon the
omission or alleged omission (in the case of any Computational Materials or ABS
Term Sheets, when read in conjunction with the Prospectus and, in the case of
the Memorandum, when read together with the other information specified therein
as being available for review by investors) to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; but only
if and to the extent that such untrue statement, alleged untrue statement,
omission or alleged omission was made in reliance upon (i) written or oral
information regarding the Mortgage Loans, the related Mortgaged Properties or
the related Mortgagors, furnished to the Purchaser and/or Goldman, directly or
indirectly, by the Seller or approved by the Seller and used in connection with
the preparation of the Memorandum, the Prospectus or any Computational Materials
or ABS Term Sheets with respect to the Registered Certificates or (ii) any
documents delivered to the Purchaser and/or Goldman, directly or indirectly, by
the Seller or (iii) any representations, warranties, statements or covenants of
the Seller contained in this Agreement or any document or certificate delivered
pursuant hereto (the foregoing items (i), (ii) and (iii), the "Sellers
Information"). For purposes of the foregoing, "Registration Statement" shall
mean collectively the registration statement No. 33-25068 filed by MCFI on Form
S-11 and declared effective on October 25, 1988 and the registration statement
No. 33-63924 filed by MCFI on Form S-3 and declared effective on August 24,
1993; "Prospectus" shall mean the prospectus dated June 18, 1996, as
supplemented by the prospectus supplement dated June 27, 1996, relating to the
Registered Certificates; "Memorandum" shall mean the private placement
memorandum dated June 27, 1996, relating to the Non-Registered Certificates;
"Computational Materials" shall have the meaning assigned thereto in the
no-action letter dated May 20, 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 May 27, 1994 issued
by the Division
6
<PAGE>
of Corporation Finance of the Commission to the Public Securities Association
(together, the "Kidder Letters"); and "ABS Term Sheets" shall have the meaning
assigned thereto in the no-action letter dated February 17, 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"). This indemnity agreement will be in addition to any
liability which the Seller may otherwise have.
(b) Promptly after receipt by any person entitled to
indemnification under this Section 8 (each, an "indemnified party") of notice of
the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against the Seller (the "indemnifying party")
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission to notify the indemnifying party will not
relieve it from any liability that it may have to any indemnified party
otherwise than under this Section 8; provided, however, that any increase in
such liability as a result of such failure to notify shall not be an expense of
the indemnifying party. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Purchaser, representing all the indemnified
parties under Section 8(a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall only be in respect of the counsel referred to in such
clause (i) or (iii).
(c) If the indemnification provided for in this Section 8 is due
in accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as
7
<PAGE>
a result of such losses, claims, damages or liabilities, in such proportion as
is appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just
and equitable if contribution pursuant to Section 8(c) were determined by pro
rata allocation or by any other method of allocation that does not take account
of the considerations referred to in Section 8(c) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 8 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 8, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 8 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Purchaser,
any of its directors or officers, or any person controlling the Purchaser and
(iii) acceptance of and payment for any of the Certificates.
SECTION 9. Costs.
All costs and expenses in connection with the transactions
contemplated hereunder (including without limitation, the issuance of the
Certificates as contemplated by the Pooling and Servicing Agreement) shall be
paid in accordance with the Allocation Agreement, dated as of June 27, 1996 (the
"Allocation Agreement"), between ContiTrade Services L.L.C. and Citibank, N.A.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, or transmitted by telex or
telegraph and confirmed by a similar mailed writing, if to the Purchaser,
addressed to the Purchaser at 399 Park Avenue, New York, New York 10043,
Attention: Mortgage Finance, or such other address as may hereafter be furnished
to the Seller in writing by the Purchaser; and if to the Seller, addressed to
the Seller at 399 Park
8
<PAGE>
Avenue, New York, New York 10043, Attention: Mr. Richard Jarocki, or to such
other address as the Seller may designate in writing to the Purchaser.
SECTION 11. Representations, Warranties and
Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND
THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW
SHALL
APPLY TO THIS AGREEMENT.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
9
<PAGE>
The rights and obligations of the Seller under this Agreement
shall not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. The Purchaser has the right to assign its
interest under this Agreement, in whole or in part, as may be required to effect
the purposes of the Pooling and Servicing Agreement, and the assignee shall, to
the extent of such assignment, succeed to the rights and obligations hereunder
of the Purchaser. Subject to the foregoing, this Agreement shall bind and inure
to the benefit of and be enforceable by the Seller and the Purchaser, and their
permitted successors and assigns, and the officers, directors and controlling
persons referred to in Section 8.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced.
10
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed hereto by their respective duly authorized officers as
of the date first above written.
CITIBANK, N.A.
By: /s/ Gary L. Greenberg
Name: Gary L. Greenberg
Title: Vice President
MORTGAGE CAPITAL FUNDING, INC.
By: /s/ Richard L. Jarocki, Jr.
Name: Richard L. Jarocki, Jr.
Title: Vice President
11
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
Counter Control Loan Property Property
Number Number Number Name Address City State Zip
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Group 1
1 CO1 04-1000001 Woodhaven 625 S Redwood Road Salt Lake City UT 84104
2 CO2 04-1000009 Sandstone 405 East Prince Road Tuscon AZ 85032
3 CO3 06-1000001 Green Tree 50 Jadwin Avenue Richland WA 99352
4 CO4 04-1000002 Hunters Glen 1201 Bacon Ranch Road Killeen TX 76542
5 CO5 04-1000012 Oak Hollow 2601 Bill Owens Parkway Longview TX 75601
6 CO6 04-1000003 Stone Ridge 1000 South Danville Road Kilgore TX 75662
7 CO7 06-1000004 Holme Circle 2740-2800 Axe Factory Road Philadelphia PA 19152
8 CO8 06-1000003 Washington Crossing 614-15 E. Mosser Street Allentown PA 18103
Group 2
9A 2A 643802-5 Ginger Creek Apartments 2800 Springfield Avenue Champaign IL 61821
9B 2B 643802-5 Continental Plaza Apartments 907 South Mattis Avenue Champaign IL 61821
9C 2C 643802-5 Stoneleigh Court 800 South Mattis Avenue Champaign IL 61821
9D 2D 643802-5 Colonial Village Apartments 1003 South Mattis Avenue Champaign IL 61821
9E 2E 643802-5 Healey Street Apartments 607,609,611,613 West Healey St Champaign IL 61820
9F 2F 643802-5 Clark Street Apartments 307,311,312,402 West Clark St Champaign IL 61820
9G 2G 643802-5 Green Street Apartments 507-509 West Green Street Champaign IL 61820
9H 2H 643802-5 Anthony Drive Apartments 1500 Anthony Drive Champaign IL 61821
9I 2I 643802-5 Colonial South Apartments 1101 South Mattis Avenue Champaign IL 61821
10 3 644135-5 Hampton Court Apartments 3955 Swenson Ave Las Vegas NV 89119
11 4 650901-9 Eagle Court Apartments 215 West 84th St New York NY 10024
12 6 644111-9 Latham Village Apartments Latham Village Lane Latham NY 12110
13 7 643277-5 Navajo Bluffs Apartments 6575 Jaffe Court San Diego CA 92119
14 9 650647-8 Lantana Apartments 4103 Wesley Club Drive Atlanta GA 30034
15 10 650565-7 Bren Mar Apartments 6374 Beryl Road Alexandria VA 23212
16 11 644048-2 Newport Apartments 415 South Pine Island Rd Plantation FL 33324
17 12 642968-1 Wyoga Lake Apartments 4260-4261 Americana Drive Cuyahoga Falls OH 44224
18 13 2 Greenbriar Village Township Line Road Bath (Allentown) PA 18104
19 14 642996-6 Winbranch Apaprtments 3551 Dalebranch Drive Memphis TN 38116
20 15 643812-2 Crystal Village 2610-A Camellia Street Durham NC 27705
21 16 650675-3 Saratoga Lake Apartments 3552 Panthersville Road Decatur GA 30034
22 17 643000-7 Trenton Place Apartments 34188 Euclid Avenue Willoughby OH 44094
23 18 644109-6 Prospect Point Apts 200-300 West Curtis Savoy IL 68121
24 20 642952-6 Garden Village Apartments 2000 North Mattis Ave Champaign IL 61821
25 21 642000-4 City Terrace Apartments 425 East 3rd Street Long Beach CA 90802
26 22 644143-6 Hidden Oaks Apartments 1329 Northwest Military Highwy San Antonio TX 78231
27 23 644122-9 Foxglove Apartments 210 Redd Road El Paso TX 79932
28 24 650513-6 Shannon View Apartments University Drive Fort Lauderdale FL 33324
29A 25A 642885-7 Brighton Properties I 88 Washington Street Boston MA 02135
29B 25B 642885-7 Brighton Properties II 119-127 Sutherland Road Boston MA 02135
29C 25C 642885-7 Brighton Properties III 1687 Commonwealth Ave. Boston MA 02135
30 27 650518-1 Courtyard Apartments 3222-3294 E. Dakota Avenue Fresno CA 93726
31 28 650553-4 Montrose Square Apartments 6531 Emmons Drive Fort Wayne IN 46255
32 30 650570-9 Hunter Chase Apartments 1897 Madison Street Clarksville TN 37043
33 32 643773-8 Wildwood East Apartments 2237 East 56th Avenue Anchorage AK 99502
34 91 11 Fairfield Apartments 18 Country Club Drive Newark DE 19711
35 35 650800-7 Bedford Crossing Apartments 550 Old Hickory Blvd Jackson TN 38301
<CAPTION>
Counter Control Loan Original Cut-Off-Date Cut-Off-Date
Number Number Number Balance UPB Rate Note Date
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Group 1
1 CO1 04-1000001 7,951,729 7,844,670 8.21 9/9/94
2 CO2 04-1000009 6,540,454 6,452,395 8.21 9/9/94
3 CO3 06-1000001 4,950,000 4,836,173 8.00 8/23/94
4 CO4 04-1000002 3,645,692 3,596,608 8.21 9/9/94
5 CO5 04-1000012 3,195,112 3,152,094 8.21 9/9/94
6 CO6 04-1000003 1,818,466 1,793,983 8.21 9/9/94
7 CO7 06-1000004 1,300,000 1,275,221 8.43 11/30/94
8 CO8 06-1000003 1,030,000 1,015,808 8.62 11/28/94
Group 2
9A 2A 643802-5 3,885,000 3,874,468 8.00 2/28/96
9B 2B 643802-5 2,200,000 2,194,036 8.00 2/28/96
9C 2C 643802-5 1,200,000 1,196,747 8.00 2/28/96
9D 2D 643802-5 1,140,000 1,136,910 8.00 2/28/96
9E 2E 643802-5 1,040,000 1,037,181 8.00 2/28/96
9F 2F 643802-5 810,000 807,804 8.00 2/28/96
9G 2G 643802-5 750,000 747,967 8.00 2/28/96
9H 2H 643802-5 625,000 623,306 8.00 2/28/96
9I 2I 643802-5 400,000 398,916 8.00 2/28/96
10 3 644135-5 11,000,000 10,979,492 8.41 3/21/96
11 4 650901-9 10,000,000 9,978,364 7.84 4/5/96
12 6 644111-9 8,000,000 7,967,186 7.99 12/21/95
13 7 643277-5 7,200,000 7,172,731 7.46 1/5/96
14 9 650647-8 6,155,000 6,147,877 8.74 4/17/96
15 10 650565-7 5,350,000 5,336,072 8.20 2/22/96
16 11 644048-2 5,100,000 5,090,036 8.18 3/28/96
17 12 642968-1 5,300,000 5,207,443 8.11 12/4/95
18 13 2 5,000,000 4,991,089 8.63 3/28/96
19 14 642996-6 4,800,000 4,763,898 7.99 11/22/95
20 15 643812-2 4,400,000 4,380,950 7.72 12/28/95
21 16 650675-3 4,300,000 4,295,024 8.74 4/17/96
22 17 643000-7 4,200,000 4,173,057 8.00 12/7/95
23 18 644109-6 4,000,000 3,985,119 7.55 1/25/96
24 20 642952-6 3,650,000 3,636,742 7.67 1/23/96
25 21 642000-4 3,500,000 3,477,330 7.94 12/1/95
26 22 644143-6 3,400,000 3,390,072 7.63 2/15/96
27 23 644122-9 3,300,000 3,293,190 7.91 3/8/96
28 24 650513-6 3,225,300 3,223,444 8.75 5/9/96
29A 25A 642885-7 825,000 815,803 9.00 6/22/95
29B 25B 642885-7 1,350,000 1,334,951 9.00 6/22/95
29C 25C 642885-7 1,012,500 1,001,213 9.00 6/22/95
30 27 650518-1 3,154,000 3,148,573 8.80 3/26/96
31 28 650553-4 2,800,000 2,792,172 8.78 3/21/96
32 30 650570-9 2,500,000 2,495,456 8.91 4/3/96
33 32 643773-8 1,950,000 1,936,150 7.36 12/8/95
34 91 11 1,900,000 1,898,333 9.10 5/30/96
35 35 650800-7 1,875,000 1,873,277 8.82 5/24/96
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
Counter Control Loan Property Property
Number Number Number Name Address City State Zip
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
36 36 643766-0 Silver Terrace Apartments 4697 Rose Coral Drive Orlando FL 32808
37 37 643018-8 Flamingo Apartments 1650 West 44th Place Hialeah FL 33012
38 38 643099-7 Torrey Pines Apartments 45235 7Th Street East Lancaster CA 93535
39 40 650785-9 Cedarwood Apartments 2880 Beverly Hills Rd. Memphis TN 38128
40 41 642944-5 Colebrook Manor 2456 Iverson Street Temple Hills MD 20748
41 42 644046-3 Valley View 5,6,8 &11 Secora Raod Monsey NY 10952
42 43 650692-8 Quarry Apartments 270 Quarry Street Quincy MA 02171
43 45 650693-1 Park Drive Limited Partnership 149-151 Park Drive Boston MA 02115
44 46 643232-2 Haven Manor Apartments 905 West 26th Street Lynn Haven FL 32444
45 47 643765-7 Willow Trail Apartments 4801 Clyde Morris Blvd Port Orange FL 32119
46 48 643051-5 One And Only Apartments 3602/3619 Bolivar Drive Dallas TX 75220
47 49 650795-6 Pratton Arms Apartments 20 Eames Street Framingham MA 01701
48 50 642967-8 Quilliams Noble Apartments 2481-2487 Noble Road Cleveland Heights OH 44121
49 51 643775-4 Chugach South Apartments 9540 & 9600 Morningside Loop Anchorage AK 99502
50 52 8 Lakeview Manor 1700 Newcombtown Road Millville NJ 8332
51 53 643774-1 Chugach West Apartments 1340 & 1402 West 26th Avenue Anchorage AK 99503
52 54 3 Eldorado Gardens 200 Mill Street Belleville NJ 7109
53 55 650694-4 Pembroke Apartments 2051-2061 NW 81 Street Pembroke Pines FL 33024
54 90 650523-3 Great Northeast Plaza 2201-2235 Cottman Avenue and
2290 Bleigh Street Philadelphia PA 19149
55 56 642895-4 Village Square at Kiln Creek 5007 Victory Blvd. York County VA 23602
56 57 644081-9 Promenade Shopping Center 9810 Alternate Route A1A Palm Beach Gardens FL 33410
57 59 643091-3 Escada 7 East 57th Street New York NY 10022
58 60 650656-2 Santa Fe Springs Market Place Washington Blvd./Norwalk Blvd. Santa Fe Springs CA 90605
59 61 642963-6 Plaza Del Rienzi North Canal Blvd/Rue London Thibodaux LA 70301
60 62 650578-3 Battlefield Plaza 313 East Battlefield Road Springfield MO 65807
61 63 643327-9 Harnett Crossing Shopping Center 2106-2330 Cumberland Street Dunn NC 28334
62 65 650460-3 Grand Union Shopping Center 402-430 Union Blvd West Islip NY 11795
63 67 643016-2 Village II (Indian Wells) Highway 111 Indian Wells CA 92210
64 68 642940-3 Eckerd Plaza N.E.Corner Of Golden Gate Pkwy Naples FL 33999
65 70 650698-6 MVP Sports 1207 Washington Street (Route 53) Hanover MA 01887
66 71 650695-7 IRG Waltham Limited 101 First Avenue Waltham MA 02154
67 72 643017-5 Ritchey Business Centre 1831 S. Ritchey St. Santa Ana CA 92705
68 73 643015-9 Highland Plaza Sc 3001-3051 Nicollet Avenue Minneapolis MN 55408
69 74 643789-3 Regency Pointe 940 Arlington Expressway Jackonsonville FL 75231
70 75 643186-0 Cohaire Plaza Inter.Of Westover Rd & Sunset Clinton NC 28328
71 76 650867-0 Tokeneke Center 23-25 Tokeneke Road Darien CT 06490
72 77 650796-9 Quincy Flagship/Mithell 625 Southern Artery Quincy MA 02169
73 78 643762-8 Ecor Rouge Shopping Center 49 North Greeno Road Fairhope AL 36532
74 79 650874-8 Great Falls Shopping Center Highway 158 Roanoke Rapids NC 27870
75 80 643085-8 Yancey Commons Shopping Center Us Highway 19E/Dogwood Lane Burnsville NC 28714
76 81 643790-3 Foxmoor Center 5660 Foxmoor Bayshore Road, N. North Ft. Meyers FL 15212
77 82 650797-2 Eleven Hurley 11 Hurley Street Cambridge MA 02141
78 83 4 University Plaza Highway 22 Martin TN 38237
79 84 650696-0 Dudley Plaza Realty Airport Road Dudley MA 01571
80 85 642962-3 Parkside Plaza Highway 15 & West 10th Street Laurel MS 39441
81 86 642947-4 Heritage Plaza Shopping Center 2410 North Heritage St. Kinston NC 28502
82 87 643792-9 Everything Organized 310 North Pointe Parkway Alpharetta GA 30202
83 88 650697-3 CVS Clinton 14-16 East Main Street Clinton CT 06413
<CAPTION>
Counter Control Loan Original Cut-Off-Date Cut-Off-Date
Number Number Number Balance UPB Rate Note Date
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
36 36 643766-0 1,867,500 1,857,858 8.310% 10/18/95
37 37 643018-8 1,750,000 1,735,499 8.240% 10/6/95
38 38 643099-7 1,650,000 1,640,952 8.010% 10/4/95
39 40 650785-9 1,525,000 1,523,587 8.770% 5/24/96
40 41 642944-5 1,465,000 1,447,496 8.120% 11/30/95
41 42 644046-3 1,450,000 1,441,783 8.260% 5/1/96
42 43 650692-8 1,450,000 1,437,907 8.200% 10/31/95
43 45 650693-1 1,350,000 1,332,144 9.820% 2/15/95
44 46 643232-2 1,275,000 1,269,592 8.010% 2/12/96
45 47 643765-7 1,233,000 1,231,614 8.880% 4/29/96
46 48 643051-5 1,275,000 1,263,400 9.080% 8/21/95
47 49 650795-6 1,026,000 1,019,301 7.890% 12/21/95
48 50 642967-8 975,000 957,914 8.070% 12/4/95
49 51 643775-4 950,000 943,617 7.710% 12/8/95
50 52 8 900,000 898,394 9.020% 4/25/96
51 53 643774-1 835,000 829,478 7.810% 12/8/95
52 54 3 825,000 823,583 9.250% 5/1/96
53 55 650694-4 750,000 741,218 8.700% 6/8/95
54 90 650523-3 18,000,000 17,990,250 9.040% 5/17/96
55 56 642895-4 15,375,000 15,314,180 8.170% 12/26/95
56 57 644081-9 13,160,671 12,423,775 9.000% 12/29/92
57 59 643091-3 10,600,000 10,475,650 8.270% 11/13/95
58 60 650656-2 7,475,000 7,471,197 9.340% 5/10/96
59 61 642963-6 6,270,000 6,263,528 9.290% 4/30/96
60 62 650578-3 6,225,000 6,186,080 8.160% 12/15/95
61 63 643327-9 6,200,000 6,189,109 8.700% 3/18/96
62 65 650460-3 5,750,000 5,726,697 8.050% 12/18/95
63 67 643016-2 4,750,000 4,726,315 8.410% 1/3/96
64 68 642940-3 4,200,000 4,176,487 8.840% 12/19/95
65 70 650698-6 3,650,000 3,625,239 8.630% 11/10/95
66 71 650695-7 3,100,000 3,065,527 9.020% 6/23/95
67 72 643017-5 3,080,000 3,071,460 8.830% 3/26/96
68 73 643015-9 3,000,000 2,984,523 8.200% 1/24/96
69 74 643789-3 3,000,000 2,515,288 9.375% 8/17/93
70 75 643186-0 2,475,000 2,461,855 8.020% 1/19/96
71 76 650867-0 2,250,000 2,231,265 8.960% 9/28/95
72 77 650796-9 1,810,000 1,795,214 8.420% 1/17/96
73 78 643762-8 1,800,000 1,794,934 8.740% 3/7/96
74 79 650874-8 1,800,000 1,793,007 8.550% 3/5/96
75 80 643085-8 1,750,000 1,738,659 8.910% 11/30/95
76 81 643790-3 1,600,000 1,384,229 9.000% 11/29/93
77 82 650797-2 1,400,000 1,388,858 8.630% 1/30/96
78 83 4 1,440,000 1,438,839 9.600% 5/23/96
79 84 650696-0 1,330,000 1,319,225 8.380% 10/19/95
80 85 642962-3 1,180,000 1,178,142 9.766% 4/30/96
81 86 642947-4 1,135,000 1,129,482 8.565% 1/11/96
82 87 643792-9 1,100,000 1,067,363 9.740% 7/22/94
83 88 650697-3 840,000 831,767 8.450% 12/14/95
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
Counter Control Loan Property Property
Number Number Number Name Address City State Zip
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
84 89 643722-0 Bonnie Brea Shopping Center 5030-5080 Benita Road/5037
Central Avenue San Diego CA 91902
85 CO9 P00676 Mott - 76 S. Bergen Place 76 S. Bergen Place Freeport NY 11520
86 CO10 P00722 Mott - 655 Nassau Road 655 Nassau Road Hempstead NY 11550
87 CO11 P00686 Mott - 45 Broadway 45 Broadway Freeport NY 11520
88 CO12 P00670 Mott - 35 N. Long Beach Avenue 35 N. Long Beach Avenue Freeport NY 11520
89 CO13 P00692 Mott - 56 N. Long Beach Avenue 56 N. Long Beach Avenue Freeport NY 11520
90 CO14 P00720 Mott - 27 Attorney Street 27 Attorney Street Hempstead NY 11550
91 CO15 P00682 Mott - 95 Jerusalem Avenue 95 Jerusalem Avenue Hempstead NY 11550
92 CO16 P00708 Mott - 271 Washington Street 271 Washington Street Hempstead NY 11550
93 CO17 P00678 Mott - 155 Pine Street 155 Pine Street Freeport NY 11520
94 CO18 P00690 Mott - 40 Graffing Place 40 Graffing Place Freeport NY 11520
95 CO19 P00704 Mott - 260 Belmont Parkway 260 Belmont Parkway Hempstead NY 11550
96 CO20 P00710 Mott - 360 Washington Street 360 Washington Street Hempstead NY 11530
97 CO21 P00706 Mott - 55 Nassau Place 55 Nassau Place Hempstead NY 11550
98 CO22 P00714 Mott - 25 Peninsula Boulevard 25-27 Peninsula Boulevard Hempstead NY 11550
99 CO23 P00684 Mott - 1100 Ward Place 1100 Ward Place Woodmere NY 11598
100 CO24 P00610 Ridgecrest Retirement Center 1900 Highway 6 West Waco TX 76712
101 CO25 941-0103 Morningstar Mini - Charlotte 3912 Wilkinson Boulevard Charlotte NC 28208
102 CO26 941-0095 Morningstar Mini - Hickory 1970 Tate Boulevard S.E. Hickory NC 28601
103 CO27 941-0104 Morningstar Mini - Winston Salem 5713 Robin Wood Lane Winston-Salem NC 27105
104 CO28 941-0094 Morningstar Mini - Florence 753 N. Cashua Drive Florence SC 29502
105 CO29 941-0096 Morningstar Mini - Lexington 951 N. Main Street Lexington NC 27292
106 CO30 941-0097 Morningstar Mini - Sumter 1277 Camden Highway Sumter SC 29150
107 CO31 941-0086 Thousand Oaks Self Storage 3485 Old Conejo Road Thousand Oaks CA 91320
108 CO32 P00638 King Shopping Center 7001-7101 Martin Luther
King, Jr. Hwy. Palmer Park MD 20875
109 CO33 941-0062 Starr Avenue 30-28 Starr Avenue Long Island City NY 11101
110A CO34a P00630 Kmart/Elizabeth City 683 South Hughes Blvd. Elizabeth City NC 27909
110B CO34b P00628 Kmart/Rocky Mount 720 Sutters Creek Boulevard Rocky Mount NC 27804
111 CO35 P00664 Regency Park-El Molino 245 South El Molino Avenue Pasadena CA 91101
112 CO36 P00640 Millburn Common 225 Millburn Avenue Millburn NJ 7041
113A CO37a 941-0075 Sentry SS - Williamsburg 5393 Moorestown Road Williamsburg VA 23188
113B CO37b 941-0075 Sentry SS - Chesapeake 4815 Station House Road Chesapeake VA 23321
113C CO37c 941-0075 Sentry SS - Newport 5868 Jefferson Avenue Newport News VA 23605
113D CO37d 941-0075 Sentry SS - Whitestone Eastside Route 3 White Stone VA 22578
114 CO38 P00578 The Drake Tower Apartments 1512-1514 Spruce Street Philadelphia PA 19102
115 CO39 941-0061 Snyder Avenue 40 Snyder Avenue Brooklyn NY 11226
116 CO40 941-0063 Diamond Mini Storage 7741 Brayton Drive Anchorage AK 99507
117 CO41 941-0064 International Self Storage 130 & 150 West International
Airport Road Anchorage AK 99518
118 CO42 P00540 Eastgate Shopping Center 2830 North Avenue Grand Junction CO 81501
119 CO43 941-0090 AZ Storage Inns - Country Club 1750 N. Country Club Drive Mesa AZ 85201
120 CO44 941-0091 AZ Storage Inns - Greenfield 139 North Greenfield Road Mesa AZ 85205
121 CO45 941-0089 AZ Storage Inns - Broadway 837 East Broadway Road Mesa AZ 85204
122 CO46 98-1000159 Sterling Meadows Apartments 33433 Schoenherr Road Sterling Heights MI 48312
123 CO47 941-0074 Coldwater Self Storage 7215 Coldwater Canyon Avenue North Hollywood CA 91605
124 CO48 P00658 Picador Plaza 1270 - 1290 Picador Boulevard San Diego CA 92154
125 CO49 941-0116 Security Public Storage 471 C Street Chula Vista CA 91910
126 CO50 P00626 Cedar Grove Apartments 800 E. South Street Alvin TX 77511
127 CO51 P00612 Canyon Pointe Apartmens 3621 N. Black Canyon Hwy. Phoenix AZ 85015
<CAPTION>
Counter Control Loan Original Cut-Off-Date Cut-Off-Date
Number Number Number Balance UPB Rate Note Date
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
84 89 643722-0 4,015,000 4,011,605 9.320% 5/16/96
85 CO9 P00676 3,232,500 3,219,268 8.000% 12/21/95
86 CO10 P00722 2,238,750 2,229,586 8.000% 12/21/95
87 CO11 P00686 2,045,560 2,037,186 8.000% 12/21/95
88 CO12 P00670 1,279,000 1,273,764 8.000% 12/21/95
89 CO13 P00692 1,106,250 1,101,721 8.000% 12/21/95
90 CO14 P00720 648,750 646,094 8.000% 12/21/95
91 CO15 P00682 570,000 567,667 8.000% 12/21/95
92 CO16 P00708 529,500 527,332 8.000% 12/21/95
93 CO17 P00678 502,500 500,443 8.000% 12/21/95
94 CO18 P00690 450,000 448,158 8.000% 12/21/95
95 CO19 P00704 392,250 390,644 8.000% 12/21/95
96 CO20 P00710 390,000 388,404 8.000% 12/21/95
97 CO21 P00706 378,000 376,453 8.000% 12/21/95
98 CO22 P00714 351,750 350,310 8.000% 12/21/95
99 CO23 P00684 316,800 315,503 8.000% 12/21/95
100 CO24 P00610 9,300,000 9,227,221 10.000% 8/3/95
101 CO25 941-0103 2,150,000 2,134,249 9.000% 10/31/95
102 CO26 941-0095 1,875,000 1,861,376 9.050% 10/31/95
103 CO27 941-0104 1,800,000 1,786,813 9.000% 10/31/95
104 CO28 941-0094 1,481,000 1,470,239 9.050% 10/31/95
105 CO29 941-0096 990,000 982,807 9.050% 10/31/95
106 CO30 941-0097 911,250 904,629 9.050% 10/31/95
107 CO31 941-0086 7,400,000 7,341,236 9.250% 9/27/95
108 CO32 P00638 7,200,000 7,163,256 8.250% 1/12/96
109 CO33 941-0062 7,150,000 7,113,352 9.375% 12/21/95
110A CO34a P00630 3,575,000 3,551,698 8.875% 11/14/95
110B CO34b P00628 3,425,000 3,402,676 8.875% 11/14/95
111 CO35 P00664 6,000,000 5,947,602 9.375% 12/21/95
112 CO36 P00640 5,500,000 5,474,056 8.750% 1/15/96
113A CO37a 941-0075 1,896,000 1,881,846 9.625% 9/27/95
113B CO37b 941-0075 1,206,000 1,196,997 9.625% 9/27/95
113C CO37c 941-0075 1,146,000 1,137,445 9.625% 9/27/95
113D CO37d 941-0075 222,000 220,343 9.625% 9/27/95
114 CO38 P00578 4,250,000 4,199,631 8.625% 6/23/95
115 CO39 941-0061 4,100,000 4,059,534 9.750% 6/15/95
116 CO40 941-0063 2,200,000 2,178,701 10.375% 5/23/95
117 CO41 941-0064 1,550,000 1,534,994 10.375% 5/23/95
118 CO42 P00540 3,400,000 3,366,058 9.125% 7/28/95
119 CO43 941-0090 1,400,000 1,389,627 9.670% 9/27/95
120 CO44 941-0091 1,050,000 1,042,220 9.670% 9/27/95
121 CO45 941-0089 900,000 893,331 9.670% 9/27/95
122 CO46 98-1000159 3,059,000 3,034,000 10.220% 12/28/94
123 CO47 941-0074 2,910,000 2,886,749 9.875% 8/23/95
124 CO48 P00658 2,900,000 2,882,839 8.500% 12/13/95
125 CO49 941-0116 2,600,000 2,585,822 9.000% 12/18/95
126 CO50 P00626 2,560,000 2,549,781 8.125% 12/8/95
127 CO51 P00612 2,450,000 2,441,842 8.125% 1/3/96
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
Counter Control Loan Property Property
Number Number Number Name Address City State Zip
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
128 CO52 941-0085 Central Avenue Self Storage 3399 Central Avenue Riverside CA 92506
129 CO53 P00660 Country Brook Apartments 5 Country Brook Lane Rochester NH 3839
130 CO54 941-0099 Atlantic Self Storage 2401 Build America Drive Hampton VA 23666
131 CO55 P00546 Delicare Convalescent Center 1340 East Madison Avenue El Cajon CA 92021
132 CO56 P00642 Midwest Distribution Center 3300 Lockbourne Road Columbus OH 43207
133 CO57 941-0073 Ranchos Stor-All 813 Short Court Gardnerville NV 89410
134 CO58 941-0072 Stor-All 3395 West T. Quarter Circle Road Winnemucca NV 89445
135 CO59 941-0106 Morningstar Mini - Charlotte 5301 North Sharon Amity Road Charlotte NC 28215
136 CO60 P00534 215 East Gunhill 215 East Gunhill Road Bronx NY 10467
137 CO61 P00155 The Corners Apartments 4150 Winchester Road Memphis TN 38115
138 CO62 941-0088 Palo Verde Mini Storage 255 McKellips Road Mesa AZ 85201
139 CO63 941-0071 Stop & Stor 1700 Shore Parkway Brooklyn NY 11214
140 CO64 P00150 Urbanwood Apartments 3816 106th Street Urbandale IA 50322
141 CO65 P00514 Lexington Avenue Apartments 801 Lexington Avenue Lakewood NJ 8701
142 CO66 P00512 485 Front Street 485 Front Street Hempstead NY 11550
143 CO67 941-0068 Safeguard Self Storage #11 300 23rd Street Kenner LA 70062
144 CO68 941-0102 AZ Storage Inns - Apache Trails 5253 East Main Street Mesa AZ 85204
145 CO69 P00582 Longwood Retirement Village 480 East Church Avenue Longwood FL 32750
146 CO70 P00614 Euclid Convalescent Center 1350 Euclid Avenue San Diego CA 92105
147 CO71 941-0058 Safeguard 9642/9705 South Padre Island
Drive Corpus Christi TX 78418
148 CO72 P00588 Homeland Grocery Store 12508 North May Avenue Oklahoma City OK 73120
149 CO73 941-0098 Conyers Self Storage 1840 Iris Drive Conyers GA 30207
150 CO74 P00648 Le Shoppe 90 W. Mount Pleasant Avenue Livingston NJ 7039
151 CO75 P00502 Briarwood Apartments 13600 Horizon Boulevard El Paso TX 79927
152 CO76 P00503 Lakeway Apartments 1600 McMahon Avenue & 14790
Breaux Street El Paso TX 79927
153 CO77 941-0082 Regency Mini Storage 8740 Atlantic Boulevard Jacksonville FL 32211
154 CO78 98-1000160 Bellamar Apartments 1470 West 40th Street Hialeah FL 33012
155 CO79 941-0083 Normandy Mini Storage 8204 Normandy Boulevard Jacksonville FL 32221
156 CO80 941-0114 Stor-A-Lot Self Storage 17108 Main Street Hesperia CA 92345
157 CO81 P00646 Perth Amboy Industrial Center 31-63 Pennsylvania Avenue Kearny NJ 7032
158 CO82 941-0105 Handy Mini Storage 2445 Main Street Chula Vista CA 91911
159 CO83 941-0107 Morningstar Mini - Matthews 10716 Monroe Road Matthews NC 28105
160 CO84 941-0057 A Storage #2 7413 W. Saint Bernard Highway Arabi LA 70032
161 CO85 941-0093 Ironwood Self Storage 1678 West Superstition Boulevard Apache Junction AZ 85220
162 CO86 P00272 Carriage House Apartments 131-139 North Bend Road Baltimore MD 21229
- ------------------------------------------------------------------------------------------------------------------------------------
176
====================================================================================================================================
<CAPTION>
Counter Control Loan Original Cut-Off-Date Cut-Off-Date
Number Number Number Balance UPB Rate Note Date
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
128 CO52 941-0085 2,450,000 2,440,995 9.300% 11/20/95
129 CO53 P00660 2,400,000 2,391,840 8.000% 1/8/96
130 CO54 941-0099 2,400,000 2,380,941 9.250% 9/26/95
131 CO55 P00546 2,250,000 2,211,352 10.375% 5/12/95
132 CO56 P00642 2,200,000 2,169,162 8.500% 1/15/96
133 CO57 941-0073 1,200,000 1,181,298 9.750% 7/17/95
134 CO58 941-0072 1,000,000 984,895 10.000% 7/26/95
135 CO59 941-0106 2,000,000 1,987,017 8.900% 11/28/95
136 CO60 P00534 2,000,000 1,975,349 10.250% 2/27/95
137 CO61 P00155 2,100,000 1,856,915 10.000% 8/16/94
138 CO62 941-0088 1,750,000 1,737,695 9.250% 10/3/95
139 CO63 941-0071 1,700,000 1,684,039 9.500% 7/5/95
140 CO64 P00150 1,700,000 1,668,577 9.875% 8/11/94
141 CO65 P00514 1,650,000 1,634,562 10.375% 9/30/94
142 CO66 P00512 1,636,000 1,614,114 10.875% 11/10/94
143 CO67 941-0068 1,550,000 1,534,994 10.375% 5/8/95
144 CO68 941-0102 1,500,000 1,490,087 9.625% 10/11/95
145 CO69 P00582 1,500,000 1,488,569 9.500% 9/22/95
146 CO70 P00614 1,500,000 1,484,169 9.125% 11/29/95
147 CO71 941-0058 1,450,000 1,429,684 9.875% 1/27/95
148 CO72 P00588 1,300,000 1,288,799 8.750% 9/27/95
149 CO73 941-0098 1,200,000 1,191,734 9.375% 10/26/95
150 CO74 P00648 1,200,000 1,182,994 8.375% 1/15/96
151 CO75 P00502 805,000 791,417 10.125% 9/6/94
152 CO76 P00503 360,000 353,926 10.125% 9/8/94
153 CO77 941-0082 1,120,000 1,100,168 9.750% 11/30/95
154 CO78 98-1000160 1,097,558 1,088,476 10.160% 12/30/94
155 CO79 941-0083 1,100,000 1,080,522 9.750% 11/30/95
156 CO80 941-0114 1,025,000 1,019,411 9.000% 12/19/95
157 CO81 P00646 1,000,000 983,119 8.500% 12/27/95
158 CO82 941-0105 930,000 925,133 9.250% 12/19/95
159 CO83 941-0107 900,000 894,158 8.900% 11/27/95
160 CO84 941-0057 850,000 837,934 9.750% 1/30/95
161 CO85 941-0093 600,000 587,808 9.750% 10/27/95
162 CO86 P00272 547,000 536,043 10.250% 5/10/94
- ---------------------------------------------------------------------------------------
486,998,842 482,357,812 8.685%
=======================================================================================
</TABLE>
Footnote - The adjustment dates for the floating rate loans are as follows:
* For 6 Month Libor index floaters, April 1, and October 1, are the
interest rate adjustment dates with payment adjustment dates of May 1,
and November 1, respectively. The first interest rate adjustment date
is October 1, 1996.
* For 1 Month Libor index floaters, the interest rate adjustment date is
two business days prior to the beginning of each calendar month, with
interest paid in arrears by the first of the subsequent calendar month
(e.g. June 27th rate set is for July payment due on August 1 etc.)
<PAGE>
<TABLE>
<CAPTION>
Related
Monthly Monthly Maturity Remaining Mortgage Loan
Loan Number Property Name Due Date Payment Date Term Loans Type Index
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
04-1000001 Woodhaven 1st 59,623.15 0/1/04 99 No Floating 6 mo Libor
04-1000009 Sandstone 1st 49,041.22 0/1/04 99 No Floating 6 mo Libor
06-1000001 Green Tree 1st 38,276.64 9/1/01 62 No Floating 6 mo Libor
04-1000002 Hunters Glen 1st 27,335.89 0/1/04 99 No Floating 6 mo Libor
04-1000012 Oak Hollow 1st 23,957.38 0/1/04 99 No Floating 6 mo Libor
04-1000003 Stone Ridge 1st 13,635.11 0/1/04 99 No Floating 6 mo Libor
06-1000004 Holme Circle 1st 10,421.37 2/1/01 65 No Floating 6 mo Libor
06-1000003 Washington Crossing 1st 7,996.60 2/1/01 65 No Floating 6 mo Libor
643802-5 Ginger Creek Apartments 1st 28,506.77 3/1/06 116 Yes(i) Fixed
643802-5 Continental Plaza Apartments 1st 16,142.83 3/1/06 116 Yes(i) Fixed
643802-5 Stoneleigh Court 1st 8,805.18 3/1/06 116 Yes(i) Fixed
643802-5 Colonial Village Apartments 1st 8,364.92 3/1/06 116 Yes(i) Fixed
643802-5 Healey Street Apartments 1st 7,631.15 3/1/06 116 Yes(i) Fixed
643802-5 Clark Street Apartments 1st 5,943.50 3/1/06 116 Yes(i) Fixed
643802-5 Green Street Apartments 1st 5,503.24 3/1/06 116 Yes(i) Fixed
643802-5 Anthony Drive Apartments 1st 4,586.03 3/1/06 116 Yes(i) Fixed
643802-5 Colonial South Apartments 1st 2,935.06 3/1/06 116 Yes(i) Fixed
644135-5 Hampton Court Apartments 1st 83,879.86 4/1/06 117 No Fixed
650901-9 Eagle Court Apartments 1st 76,157.65 5/1/06 118 No Fixed
644111-9 Latham Village Apartments 1st 58,645.41 12/31/10 174 No Fixed
643277-5 Navajo Bluffs Apartments 1st 50,146.38 2/1/06 115 No Fixed
650647-8 Lantana Apartments 1st 48,377.46 5/1/06 118 No Fixed
650565-7 Bren Mar Apartments 1st 40,004.87 3/1/06 116 No Fixed
644048-2 Newport Apartments 1st 38,063.91 4/1/06 117 No Fixed
642968-1 Wyoga Lake Apartments 1st 50,986.70 1/1/11 174 No Fixed
2 Greenbriar Village 1st 38,907.28 4/1/06 117 No Fixed
642996-6 Winbranch Apaprtments 1st 37,015.39 12/1/05 113 No Fixed
643812-2 Crystal Village 1st 31,430.97 1/1/06 114 No Fixed
650675-3 Saratoga Lake Apartments 1st 33,797.41 5/1/06 118 No Fixed
643000-7 Trenton Place Apartments 1st 32,416.28 1/1/03 78 No Fixed
644109-6 Prospect Point Apts 1st 28,105.66 2/1/06 115 No Fixed
642952-6 Garden Village Apartments 1st 25,947.56 2/1/06 115 No Fixed
642000-4 City Terrace Apartments 1st 26,874.60 1/1/06 114 No Fixed
644143-6 Hidden Oaks Apartments 1st 24,076.68 3/1/06 116 No Fixed
644122-9 Foxglove Apartments 1st 24,007.50 4/1/03 81 No Fixed
650513-6 Shannon View Apartments 1st 25,373.45 6/1/06 119 No Fixed
642885-7 Brighton Properties I 1st 6,926.20 7/1/05 108 Yes(j) Fixed
642885-7 Brighton Properties II 1st 11,333.77 7/1/05 108 Yes(j) Fixed
642885-7 Brighton Properties III 1st 8,500.33 7/1/05 108 Yes(j) Fixed
650518-1 Courtyard Apartments 1st 24,925.25 4/1/06 117 No Fixed
650553-4 Montrose Square Apartments 1st 23,077.12 4/1/06 117 No Fixed
650570-9 Hunter Chase Apartments 1st 20,826.05 5/1/06 118 No Fixed
643773-8 Wildwood East Apartments 1st 14,233.22 1/1/11 174 Yes(k) Fixed
11 Fairfield Apartments 1st 16,075.04 6/1/06 119 No Fixed
650800-7 Bedford Crossing Apartments 1st 15,504.47 6/1/06 119 No Fixed
<CAPTION>
Maximum Minimum
Interest Interest Master, Trustee &
Loan Number Margin Rate Rate Special Servicer Fees Loan Group
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
04-1000001 2.750% 11.750% 6.000% 0.270% 1
04-1000009 2.750% 11.750% 6.000% 0.270% 1
06-1000001 2.750% 12.560% 7.813% 0.270% 1
04-1000002 2.750% 11.750% 6.000% 0.270% 1
04-1000012 2.750% 11.750% 6.000% 0.270% 1
04-1000003 2.750% 11.750% 6.000% 0.270% 1
06-1000004 2.750% 12.630% 6.375% 0.270% 1
06-1000003 2.750% 12.880% 8.625% 0.270% 1
643802-5 0.185% 2
643802-5 0.185% 2
643802-5 0.185% 2
643802-5 0.185% 2
643802-5 0.185% 2
643802-5 0.185% 2
643802-5 0.185% 2
643802-5 0.185% 2
643802-5 0.185% 2
644135-5 0.185% 2
650901-9 0.140% 2
644111-9 0.185% 2
643277-5 0.185% 2
650647-8 0.185% 2
650565-7 0.185% 2
644048-2 0.185% 2
642968-1 0.185% 2
2 0.185% 2
642996-6 0.185% 2
643812-2 0.185% 2
650675-3 0.185% 2
643000-7 0.185% 2
644109-6 0.185% 2
642952-6 0.185% 2
642000-4 0.185% 2
644143-6 0.185% 2
644122-9 0.185% 2
650513-6 0.185% 2
642885-7 0.185% 2
642885-7 0.185% 2
642885-7 0.185% 2
650518-1 0.185% 2
650553-4 0.185% 2
650570-9 0.185% 2
643773-8 0.185% 2
11 0.185% 2
650800-7 0.185% 2
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Related
Monthly Monthly Maturity Remaining Mortgage Loan
Loan Number Property Name Due Date Payment Date Term Loans Type Index
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
643766-0 Silver Terrace Apartments 1st 14,108.75 11/1/05 112 No Fixed
643018-8 Flamingo Apartments 1st 13,786.19 11/1/05 112 No Fixed
643099-7 Torrey Pines Apartments 1st 12,118.62 11/1/05 112 No Fixed
650785-9 Cedarwood Apartments 1st 12,558.42 6/1/06 119 No Fixed
642944-5 Colebrook Manor 1st 12,363.48 12/1/05 113 No Fixed
644046-3 Valley View 1st 14,075.47 5/1/11 178 No Fixed
650692-8 Quarry Apartments 1st 11,384.12 10/1/02 75 No Fixed
650693-1 Park Drive Limited Partnership 1st 12,096.58 3/1/02 68 No Fixed
643232-2 Haven Manor Apartments 1st 9,849.11 3/1/06 116 No Fixed
643765-7 Willow Trail Apartments 1st 9,814.72 5/1/06 118 No Fixed
643051-5 One And Only Apartments 1st 10,767.69 9/1/05 110 No Fixed
650795-6 Pratton Arms Apartments 1st 7,844.22 1/1/03 78 No Fixed
642967-8 Quilliams Noble Apartments 1st 9,357.05 1/1/11 174 No Fixed
643775-4 Chugach South Apartments 1st 7,150.69 1/1/11 174 Yes(k) Fixed
8 Lakeview Manor 1st 7,565.10 5/1/06 118 No Fixed
643774-1 Chugach West Apartments 1st 6,339.92 1/1/11 174 Yes(k) Fixed
3 Eldorado Gardens 1st 7,065.15 5/1/06 118 No Fixed
650694-4 Pembroke Apartments 1st 6,140.62 6/1/05 107 No Fixed
650523-3 Great Northeast Plaza 1st 145,350.43 6/1/06 119 No Fixed
642895-4 Village Square at Kiln Creek 1st 114,643.68 12/31/05 114 No Fixed
644081-9 Promenade Shopping Center 1st 107,110.37 1/1/00 42 No Fixed
643091-3 Escada 1st 90,452.07 12/1/02 77 No Fixed
650656-2 Santa Fe Springs Market Place 1st 61,983.11 6/1/06 119 No Fixed
642963-6 Plaza Del Rienzi 1st 51,763.60 5/1/06 118 No Fixed
650578-3 Battlefield Plaza 1st 48,707.22 1/1/06 114 No Fixed
643327-9 Harnett Crossing Shopping Center 1st 48,554.19 4/1/06 117 No Fixed
650460-3 Grand Union Shopping Center 1st 42,392.06 1/1/06 114 No Fixed
643016-2 Village II (Indian Wells) 1st 37,960.63 2/1/06 115 No Fixed
642940-3 Eckerd Plaza 1st 34,787.22 1/1/06 114 No Fixed
650698-6 MVP Sports 1st 29,711.24 12/1/05 113 No Fixed
650695-7 IRG Waltham Limited 1st 26,057.56 7/1/05 108 No Fixed
643017-5 Ritchey Business Centre 1st 25,489.64 4/1/06 117 No Fixed
643015-9 Highland Plaza Sc 1st 23,553.35 2/1/06 115 No Fixed
643789-3 Regency Pointe 1st 34,165.78 9/1/05 110 No Fixed
643186-0 Cohaire Plaza 1st 19,135.25 2/1/06 115 No Fixed
650867-0 Tokeneke Center 1st 18,820.13 10/1/02 75 No Fixed
650796-9 Quincy Flagship/Mithell 1st 15,616.07 2/1/03 79 No Fixed
643762-8 Ecor Rouge Shopping Center 1st 14,786.36 4/1/06 117 No Fixed
650874-8 Great Falls Shopping Center 1st 14,554.79 3/1/06 116 No Fixed
643085-8 Yancey Commons Shopping Center 1st 14,578.23 12/1/05 113 No Fixed
643790-3 Foxmoor Center 1st 18,208.49 12/1/05 113 No Fixed
650797-2 Eleven Hurley 1st 12,264.96 2/1/06 115 No Fixed
4 University Plaza 1st 12,681.48 6/1/06 119 No Fixed
650696-0 Dudley Plaza Realty 1st 10,602.18 11/1/05 112 No Fixed
642962-3 Parkside Plaza 1st 10,528.64 5/1/06 118 No Fixed
642947-4 Heritage Plaza Shopping Center 1st 9,189.10 2/1/06 115 No Fixed
643792-9 Everything Organized 1st 10,479.72 2/1/05 103 No Fixed
650697-3 CVS Clinton 1st 7,263.15 12/1/05 113 No Fixed
<CAPTION>
Maximum Minimum
Interest Interest Master, Trustee &
Loan Number Margin Rate Rate Special Servicer Fees Loan Group
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
643766-0 0.185% 2
643018-8 0.185% 2
643099-7 0.185% 2
650785-9 0.185% 2
642944-5 0.185% 2
644046-3 0.185% 2
650692-8 0.185% 2
650693-1 0.185% 2
643232-2 0.185% 2
643765-7 0.185% 2
643051-5 0.185% 2
650795-6 0.185% 2
642967-8 0.185% 2
643775-4 0.185% 2
8 0.310% 2
643774-1 0.185% 2
3 0.310% 2
650694-4 0.185% 2
650523-3 0.185% 2
642895-4 0.185% 2
644081-9 0.160% 2
643091-3 0.185% 2
650656-2 0.185% 2
642963-6 0.185% 2
650578-3 0.185% 2
643327-9 0.185% 2
650460-3 0.185% 2
643016-2 0.185% 2
642940-3 0.185% 2
650698-6 0.185% 2
650695-7 0.185% 2
643017-5 0.185% 2
643015-9 0.185% 2
643789-3 0.465% 2
643186-0 0.185% 2
650867-0 0.185% 2
650796-9 0.185% 2
643762-8 0.185% 2
650874-8 0.185% 2
643085-8 0.185% 2
643790-3 0.560% 2
650797-2 0.185% 2
4 0.210% 2
650696-0 0.185% 2
642962-3 0.185% 2
642947-4 0.185% 2
643792-9 2.005% 2
650697-3 0.185% 2
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
Related
Monthly Monthly Maturity Remaining Mortgage Loan
Loan Number Property Name Due Date Payment Date Term Loans Type Index
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
643722-0 Bonnie Brea Shopping Center 1st 34,577.87 6/1/06 119 No Fixed
P00676 Mott - 76 S. Bergen Place 1st 23,718.94 1/1/06 114 Yes(c) Fixed
P00722 Mott - 655 Nassau Road 1st 16,427.15 1/1/06 114 Yes(c) Fixed
P00686 Mott - 45 Broadway 1st 15,009.59 1/1/06 114 Yes(c) Fixed
P00670 Mott - 35 N. Long Beach Avenue 1st 9,384.85 1/1/06 114 Yes(c) Fixed
P00692 Mott - 56 N. Long Beach Avenue 1st 8,117.27 1/1/06 114 Yes(c) Fixed
P00720 Mott - 27 Attorney Street 1st 4,760.30 1/1/06 114 Yes(c) Fixed
P00682 Mott - 95 Jerusalem Avenue 1st 4,182.46 1/1/06 114 Yes(c) Fixed
P00708 Mott - 271 Washington Street 1st 3,885.28 1/1/06 114 Yes(c) Fixed
P00678 Mott - 155 Pine Street 1st 3,687.17 1/1/06 114 Yes(c) Fixed
P00690 Mott - 40 Graffing Place 1st 3,301.94 1/1/06 114 Yes(c) Fixed
P00704 Mott - 260 Belmont Parkway 1st 2,878.19 1/1/06 114 Yes(c) Fixed
P00710 Mott - 360 Washington Street 1st 2,861.68 1/1/06 114 Yes(c) Fixed
P00706 Mott - 55 Nassau Place 1st 2,773.63 1/1/06 114 Yes(c) Fixed
P00714 Mott - 25 Peninsula Boulevard 1st 2,581.02 1/1/06 114 Yes(c) Fixed
P00684 Mott - 1100 Ward Place 1st 2,324.57 1/1/06 114 Yes(c) Fixed
P00610 Ridgecrest Retirement Center 1st 84,509.17 9/1/05 110 No Fixed
941-0103 Morningstar Mini - Charlotte 1st 18,042.72 12/1/05 113 Yes(h) Fixed
941-0095 Morningstar Mini - Hickory 1st 15,799.18 12/1/05 113 Yes(h) Fixed
941-0104 Morningstar Mini - Winston Salem 1st 15,105.53 12/1/05 113 Yes(h) Fixed
941-0094 Morningstar Mini - Florence 1st 12,479.25 12/1/05 113 Yes(h) Fixed
941-0096 Morningstar Mini - Lexington 1st 8,341.97 12/1/05 113 Yes(h) Fixed
941-0097 Morningstar Mini - Sumter 1st 7,678.40 12/1/05 113 Yes(h) Fixed
941-0086 Thousand Oaks Self Storage 1st 63,372.26 11/1/05 112 No Fixed
P00638 King Shopping Center 1st 56,748.41 2/1/06 115 No Fixed
941-0062 Starr Avenue 1st 61,849.17 2/1/06 115 No Fixed
P00630 Kmart/Elizabeth City 1st 29,695.85 12/1/10 173 Yes(a) Fixed
P00628 Kmart/Rocky Mount 1st 28,449.87 12/1/10 173 Yes(a) Fixed
P00664 Regency Park-El Molino 1st 55,439.02 1/1/06 114 No Fixed
P00640 Millburn Common 1st 45,217.90 2/1/06 115 No Fixed
941-0075 Sentry SS - Williamsburg 1st 16,730.33 11/1/02 76 Yes(f) Fixed
941-0075 Sentry SS - Chesapeake 1st 10,641.76 11/1/02 76 Yes(f) Fixed
941-0075 Sentry SS - Newport 1st 10,112.32 11/1/02 76 Yes(f) Fixed
941-0075 Sentry SS - Whitestone 1st 1,958.93 11/1/02 76 Yes(f) Fixed
P00578 The Drake Tower Apartments 1st 34,580.90 7/1/02 72 No Fixed
941-0061 Snyder Avenue 1st 36,536.63 6/15/05 108 No Fixed
941-0063 Diamond Mini Storage 1st 20,575.90 5/16/05 107 Yes(d) Fixed
941-0064 International Self Storage 1st 14,496.66 5/16/05 107 Yes(d) Fixed
P00540 Eastgate Shopping Center 1st 28,824.27 8/1/02 73 No Fixed
941-0090 AZ Storage Inns - Country Club 1st 12,397.60 11/1/05 112 Yes(g) Fixed
941-0091 AZ Storage Inns - Greenfield 1st 9,298.20 11/1/05 112 Yes(g) Fixed
941-0089 AZ Storage Inns - Broadway 1st 7,969.89 11/1/05 112 Yes(g) Fixed
98-1000159 Sterling Meadows Apartments 1st 27,343.54 1/1/02 66 No Fixed
941-0074 Coldwater Self Storage 1st 26,187.20 10/1/05 111 No Fixed
P00658 Picador Plaza 1st 23,351.59 1/1/03 78 No Fixed
941-0116 Security Public Storage 1st 21,819.11 2/1/06 115 No Fixed
P00626 Cedar Grove Apartments 1st 19,007.93 1/1/03 78 No Fixed
P00612 Canyon Pointe Apartmens 1st 18,191.18 2/1/06 115 No Fixed
<CAPTION>
Maximum Minimum
Interest Interest Master, Trustee &
Loan Number Margin Rate Rate Special Servicer Fees Loan Group
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
643722-0 0.185% 2
P00676 0.270% 2
P00722 0.270% 2
P00686 0.270% 2
P00670 0.270% 2
P00692 0.270% 2
P00720 0.270% 2
P00682 0.270% 2
P00708 0.270% 2
P00678 0.270% 2
P00690 0.270% 2
P00704 0.270% 2
P00710 0.270% 2
P00706 0.270% 2
P00714 0.270% 2
P00684 0.270% 2
P00610 0.270% 2
941-0103 0.270% 2
941-0095 0.270% 2
941-0104 0.270% 2
941-0094 0.270% 2
941-0096 0.270% 2
941-0097 0.270% 2
941-0086 0.270% 2
P00638 0.270% 2
941-0062 0.270% 2
P00630 0.270% 2
P00628 0.270% 2
P00664 0.270% 2
P00640 0.270% 2
941-0075 0.270% 2
941-0075 0.270% 2
941-0075 0.270% 2
941-0075 0.270% 2
P00578 0.270% 2
941-0061 0.270% 2
941-0063 0.270% 2
941-0064 0.270% 2
P00540 0.270% 2
941-0090 0.270% 2
941-0091 0.270% 2
941-0089 0.270% 2
98-1000159 0.270% 2
941-0074 0.270% 2
P00658 0.270% 2
941-0116 0.270% 2
P00626 0.270% 2
P00612 0.270% 2
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
Related
Monthly Monthly Maturity Remaining Mortgage Loan
Loan Number Property Name Due Date Payment Date Term Loans Type Index
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
941-0085 Central Avenue Self Storage 1st 20,244.38 1/1/06 114 No Fixed
P00660 Country Brook Apartments 1st 17,610.35 2/1/03 79 No Fixed
941-0099 Atlantic Self Storage 1st 20,553.16 11/1/05 112 No Fixed
P00546 Delicare Convalescent Center 1st 22,274.94 6/1/02 71 No Fixed
P00642 Midwest Distribution Center 1st 21,664.27 2/1/06 115 No Fixed
941-0073 Ranchos Stor-All 1st 11,382.20 8/1/05 109 Yes(e) Fixed
941-0072 Stor-All 1st 9,650.22 8/1/05 109 Yes(e) Fixed
941-0106 Morningstar Mini - Charlotte 1st 16,647.18 1/1/06 114 No Fixed
P00534 215 East Gunhill 1st 18,527.67 3/1/02 68 No Fixed
P00155 The Corners Apartments 1st 19,082.72 9/1/01 62 No Fixed
941-0088 Palo Verde Mini Storage 1st 14,986.68 12/1/05 113 No Fixed
941-0071 Stop & Stor 1st 14,852.84 6/30/02 72 No Fixed
P00150 Urbanwood Apartments 1st 15,298.37 9/1/00 50 No Fixed
P00514 Lexington Avenue Apartments 1st 14,939.22 10/1/01 63 No Fixed
P00512 485 Front Street 1st 15,887.02 12/1/04 101 No Fixed
941-0068 Safeguard Self Storage #11 1st 14,496.66 5/7/02 71 No Fixed
941-0102 AZ Storage Inns - Apache Trails 1st 13,236.02 12/1/05 113 No Fixed
P00582 Longwood Retirement Village 1st 13,105.45 10/1/05 111 No Fixed
P00614 Euclid Convalescent Center 1st 13,616.71 12/1/05 113 No Fixed
941-0058 Safeguard 1st 13,048.28 1/26/02 67 No Floating 1 mo Libor
P00588 Homeland Grocery Store 1st 10,687.87 10/1/05 111 No Fixed
941-0098 Conyers Self Storage 1st 10,380.28 12/1/05 113 No Fixed
P00648 Le Shoppe 1st 11,729.11 2/1/06 115 No Fixed
P00502 Briarwood Apartments 1st 7,386.09 10/1/19 279 Yes(b) Fixed
P00503 Lakeway Apartments 1st 3,303.10 10/1/19 279 Yes(b) Fixed
941-0082 Regency Mini Storage 1st 11,864.86 1/1/11 174 No Fixed
98-1000160 Bellamar Apartments 1st 9,761.88 1/1/02 66 No Fixed
941-0083 Normandy Mini Storage 1st 11,652.99 1/1/11 174 No Fixed
941-0114 Stor-A-Lot Self Storage 1st 8,601.76 2/1/03 79 No Fixed
P00646 Perth Amboy Industrial Center 1st 9,847.40 1/1/06 114 No Fixed
941-0105 Handy Mini Storage 1st 7,964.35 2/1/03 79 No Fixed
941-0107 Morningstar Mini - Matthews 1st 7,491.23 1/1/06 114 No Fixed
941-0057 A Storage #2 1st 7,575.27 1/29/02 67 No Floating 1 mo Libor
941-0093 Ironwood Self Storage 1st 6,356.18 12/1/10 173 No Fixed
P00272 Carriage House Apartments 1st 5,067.32 6/1/01 59 No Fixed
- ------------------------------------------------------------------------------------------------------------------------------------
3,964,097.68
====================================================================================================================================
<CAPTION>
Maximum Minimum
Interest Interest Master, Trustee &
Loan Number Margin Rate Rate Special Servicer Fees Loan Group
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
941-0085 0.270% 2
P00660 0.270% 2
941-0099 0.270% 2
P00546 0.270% 2
P00642 0.270% 2
941-0073 0.270% 2
941-0072 0.270% 2
941-0106 0.270% 2
P00534 0.270% 2
P00155 0.270% 2
941-0088 0.270% 2
941-0071 0.270% 2
P00150 0.270% 2
P00514 0.270% 2
P00512 0.270% 2
941-0068 0.270% 2
941-0102 0.270% 2
P00582 0.270% 2
P00614 0.270% 2
941-0058 3.750% 13.880% 9.875% 0.270% 2
P00588 0.270% 2
941-0098 0.270% 2
P00648 0.270% 2
P00502 0.270% 2
P00503 0.270% 2
941-0082 0.270% 2
98-1000160 0.270% 2
941-0083 0.270% 2
941-0114 0.270% 2
P00646 0.270% 2
941-0105 0.270% 2
941-0107 0.270% 2
941-0057 3.750% 13.750% 9.750% 0.270% 2
941-0093 0.270% 2
P00272 0.270% 2
- ---------------------------------------------------------------------------------------------
=============================================================================================
</TABLE>
Footnote - The adjustment dates for the floating rate loans are as
follows:
* For 6 Month Libor index floaters, April 1, and October 1, are the
interest rate adjustment dates with payment adjustment dates of
May 1, and November 1, respectively. The first interest rate
adjustment date is October 1, 1996.
* For 1 Month Libor index floaters, the interest rate adjustment
date is two business days prior to the beginning of each calendar
month, with interest paid in arrears by the first of the
subsequent calendar month (e.g. June 27th rate set is for July
payment due on August 1 etc.)
8
<PAGE>
EXHIBIT B-1
FORM OF CERTIFICATE OF AN ASSISTANT SECRETARY OF CITIBANK, N.A.
MORTGAGE CAPITAL FUNDING, INC.
Multifamily/Commercial Mortgage Pass-Through Certificates
Series 1996-MC1
Certificate of Assistant Secretary of Citibank, N.A.
I, ___________________, a ____________________________ of
Citibank, N.A. ("Citibank"), hereby certify as follows:
1. Citibank is a national banking association duly organized and
validly existing under the laws of the United States.
2. Attached hereto as Exhibit I are true and correct copies of
the Articles of Association and By-Laws of Citibank, which Articles of
Association and By-Laws are on the date hereof, and have been at all times from
and including September 24, 1985, except as amended effective December 21, 1993,
in the case of the Articles of Association, and January 15, 1991, except as
amended effective April 18, 1994, in the case of the By-Laws, in full force and
effect.
3. To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of Citibank are pending or contemplated.
4. Each person listed below is and has been the duly elected and
qualified officer or authorized signatory of Citibank and his genuine signature
is set forth opposite his name:
Name Office
Signature
5. Each person listed above who signed, either manually or by
facsimile signature, (a) the mortgage loan purchase agreement, dated as of June
27, 1996, between PNC Bank, National Association ("PNC Bank") and Citibank,
providing for the purchase by Citibank from PNC Bank of certain of the Mortgage
Loans, (b) the mortgage loan purchase agreement, dated as of June 27, 1996,
between ContiTrade Services L.L.C. ("CTS") and Citibank, providing for the
purchase by Citibank from CTS of certain of the Mortgage Loans, (c) the mortgage
loan purchase agreement, dated as of June 27, 1996, between Mortgage Capital
Funding, Inc. ("MCFI") and Citibank, providing for the purchase by MCFI from
Citibank of the Mortgage Loans, (d) the Pooling and Servicing Agreement, dated
as of July 1, 1996 (the
2
<PAGE>
"Pooling Agreement"), among MCFI as sponsor, Citibank as mortgage loan seller,
GMAC Commercial Mortgage Corporation as master servicer, Hanford/Healy Asset
Management Company as special servicer and State Street Bank and Trust Company
as trustee and REMIC administrator, (e) the Underwriting Agreement, dated June
27, 1996, among MCFI, Citibank and Goldman, Sachs & Co. ("Goldman"), providing
for the purchase by Citibank and Goldman from MCFI of the Class X-1, Class X-2,
Class A-1, Class A-2A, Class A-2B, Class B, Class C, Class D, Class E and Class
F Certificates, (f) the Certificate Purchase Agreement, dated June 27, 1996,
among MCFI, Citibank and Goldman providing for the purchase by Citibank and
Goldman from MCFI of the Class G, Class H, Class J, Class K, Class R-I and Class
R-II Certificates, and (g) any other document delivered prior hereto or on the
date hereof in connection with the transactions contemplated by the foregoing
agreements was, at the respective times of such signing and delivery, duly
authorized or appointed to execute such documents in such capacity, and the
signatures of such persons or facsimiles thereof appearing on such documents are
their genuine signatures.
Capitalized terms used but not otherwise defined herein have the
respective meanings assigned to them in the Pooling Agreement.
3
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate
as of July 10, 1996.
By:
Name:
Title:
I, _______________________, a _____________________________ of
Citibank, hereby certify that ___________________ is duly elected or appointed,
as the case may be, qualified and acting ___________________ of Citibank and
that the signature appearing above is such officer's genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate
as of July 10, 1996.
By:
Name:
Title:
4
<PAGE>
EXHIBIT B-2
FORM OF CERTIFICATE OF CITIBANK, N.A.
MORTGAGE CAPITAL FUNDING, INC.
Multifamily/Commercial Mortgage Pass-Through Certificates
Series 1996-MC1
Certificate of Citibank, N.A.
In connection with the execution and delivery by Citibank, N.A.
("Citibank") of, and the consummation of the various transactions contemplated
by, (a) the Mortgage Loan Purchase Agreement, dated as of June 27, 1996 (the
"Mortgage Loan Purchase Agreement"), between Mortgage Capital Funding, Inc.
("MCFI") and Citibank, providing for the purchase by MCFI from Citibank of the
Mortgage Loans, and (b) the Pooling and Servicing Agreement, dated as of July 1,
1996 (the "Pooling Agreement" and, together with the Mortgage Loan Purchase
Agreement, the "Agreements"), among the MCFI as sponsor, Citibank as mortgage
loan seller, GMAC Commercial Mortgage Corporation as master servicer,
Hanford/Healy Asset Management Company as special servicer and State Street Bank
and Trust Company as trustee and REMIC administrator, Citibank hereby certifies
that (i) the representations and warranties of Citibank in the Agreements are
true and correct in all material respects at and as of the date hereof with the
same effect as if made on the date hereof, and (ii) Citibank has, in all
material respects, complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the date
hereof. Capitalized terms used but not otherwise defined herein have the
respective meanings assigned to them in the Agreements.
Certified this 10th day of July, 1996.
CITIBANK, N.A.
By:
Name:
Title:
<PAGE>
EXHIBIT B-3
FORM OF OPINION OF COUNSEL TO CITIBANK, N.A.
July 10, 1996
Mortgage Capital Funding, Inc. Citibank, N.A.
399 Park Avenue 399 Park Avenue
New York, New York 10043 New York, New York 10043
Goldman, Sachs & Co. Fitch Investors Services, L.P.
85 Broad Street One State Street Plaza
New York, New York 10004 New York, New York 10004
Standard & Poor's Ratings Services
26 Broadway
New York, New York 10004
Re: Mortgage Capital Funding, Inc.
Multifamily/Commercial Mortgage Pass-Through
Certificates, Series 1996-MC1
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as an
Associate General Counsel of Citibank, N.A. (the "Bank") pursuant to Section
7(e) of the Mortgage Loan Purchase Agreement, dated as of June 27, 1996 (the
"Purchase Agreement"), between Mortgage Capital Funding, Inc. ("MCFI") as
purchaser and the Bank as seller, and the Pooling and Servicing Agreement
referenced therein (together with the Purchase Agreement, the "Agreements")
relating to the sale by the Bank of certain mortgage loans and various other
related transactions pursuant to and as contemplated by the Purchase Agreement.
Capitalized terms used but not otherwise defined herein have the meanings set
forth in the Purchase Agreement.
I (or attorneys under my supervision) have examined originals or
copies, certified or otherwise identified to my satisfaction, of such corporate
records of the Bank, certificates of public officials, officers of the Bank and
other persons and other documents, agreements and instruments and have made such
other investigations as I have deemed necessary or appropriate for purposes of
this opinion.
Based upon the foregoing, I am of the opinion that:
<PAGE>
2
1. The Bank is a national banking association validly existing under
the laws of the United States, with full power authority under
such laws to own its properties and assets and to conduct its
business as contemplated in the Agreements and to enter into and
perform its obligations under the Agreements.
2. Each Agreement has been duly authorized, executed and
delivered by the Bank and, upon due authorization, execution and
delivery by the other parties thereto, will constitute a valid,
legal and binding agreement of the Bank, enforceable against the
Bank in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws relating to or
affecting the enforcement of creditors rights generally, and the
rights of creditors of banks in particular, and general
principles of equity, whether enforcement is sought in a
proceeding in equity or at law.
3. Based upon my review of the laws, rules and regulations
of the State of New York and the securities laws, rules and
regulations of the United States which, in my experience, are
normally applicable to transactions of the type provided for by
the Agreements, no consent, approval, authorization or order of
any court, governmental agency or body is required in connection
with the execution and delivery by the Bank of the Agreements,
except for those consents, approvals, authorizations or orders
that previously have been obtained.
4. Neither the transfer of the Mortgage Loans as provided in
the Agreements, nor the fulfillment of the terms of or the
consummation of any other of the transactions contemplated by the
Agreements, will conflict with or result in a violation of the
Articles of Association or the By-laws of the Bank or any
agreement or instrument, order, writ, judgment or decree known to
me to which the Bank is a party or is subject.
5. To the best of my knowledge, there are no actions or
proceedings against the Bank, pending or overtly threatened in
writing before any court, governmental agency or arbitrator which
(i) affect the enforceability of any of the Agreements or (ii)
either individually or in the aggregate, would result in any
material adverse change in the business, operations, financial
condition, properties or assets of the Bank or in any material
impairment of any of the right or ability of the Bank to carry on
its business substantially as now conducted, or which would draw
into question the validity of any of the Agreements or of any
action to be taken in connection with its obligations
contemplated therein, or which would materially impair its
ability to perform under the terms of any of the Agreements.
The opinions expressed herein are limited to the laws of the
State of New York and the Federal law of the United States.
<PAGE>
3
This opinion is given to you for your sole benefit, and no other
person or entity is entitled to rely hereon without my express written consent.
Very truly yours,
Stephen E. Dietz, Esq.
