XXXXXX STRUCTURED SECURITIES CORP.,
DEPOSITOR
AND
STATE STREET BANK AND TRUST COMPANY,
TRUSTEE
TRUST AGREEMENT
Dated as of October 1, 1996
$[ ]
Commercial Mortgage Pass-Through Certificates,
Series 1996-1
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.....................................................
Section 1.02. Interest Calculation; Certificate Principal Balances............
ARTICLE II
CONVEYANCE OF THE UNDERLYING CERTIFICATES AND THE ORIGINAL ISSUANCE OF
CERTIFICATES
Section 2.01. Conveyance of the Underlying Certificates.......................
Section 2.02. Issuance of Certificates........................................
Section 2.03. REMIC Designations and Related Matters..........................
Section 2.04. Representations and Warranties of the Depositor.................
ARTICLE III
ADMINISTRATION OF THE UNDERLYING CERTIFICATES
Section 3.01. Collection of Payments on Underlying Certificates;
Certificate Account; Trustee Obligation To Forward Funds........
Section 3.02. Distributions...................................................
Section 3.03. Statements to Certificateholders................................
Section 3.04. Reduction of Certificate Principal Balances Due
to Underlying Certificate
Realized Losses and Realized Losses.............................
Section 3.05. Addition to Certificate Principal Balance Due to Underlying
Deferred Interest...............................................
Section 3.06. Notices to Trustee..............................................
ARTICLE IV
THE CERTIFICATES
Section 4.01. The Certificates...............................................
Section 4.02. Registration of and Limitations on Transfer and Exchange of
Certificates....................................................
Section 4.03. Mutilated, Destroyed, Lost or Stolen Certificates...............
Section 4.04. Persons Deemed Owners...........................................
Section 4.05. Definitive Certificates.........................................
Section 4.06. Notices to Clearing Agency......................................
ARTICLE V
THE TRUSTEE
Section 5.01. Representations and Warranties of the Trustee...................
Section 5.02. Directions to Trustee...........................................
Section 5.03. Liability of the Trustee........................................
Section 5.04. Returns.........................................................
Section 5.05. Election of REMIC Status........................................
Section 5.06. Compliance with REMIC Provisions................................
Section 5.07. Trustee May Own Certificates....................................
Section 5.08. Limitation on Liability of the Trustee and Others...............
Section 5.09. Delegation of Duty by Trustee...................................
Section 5.10. Trustee's Expenses..............................................
Section 5.11. Eligibility Requirements for Trustee............................
Section 5.12. Resignation and Removal of the Trustee..........................
Section 5.13. Successor Trustee...............................................
Section 5.14. Merger or Consolidation of the Trustee..........................
Section 5.15. Appointment of Co-Trustee or Separate Trustee...................
ARTICLE VI
TERMINATION
Section 6.01. Termination Upon Distribution to Certificateholders.............
Section 6.02. Failure of Certificateholders to Surrender Certificates.........
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment.......................................................
Section 7.02. Limitation on Rights of Certificateholders......................
Section 7.03. Limitation on Liability of the Depositor and Others.............
Section 7.04. Governing Law...................................................
Section 7.05. Notices.........................................................
Section 7.06. Severability of Provisions......................................
Section 7.07. Certificates Nonassessable and Fully Paid.......................
Section 7.08. Execution in Counterparts.......................................
EXHIBITS
Exhibit A-1 Form of Class E-1 Certificate
Exhibit A-2 Form of Class E-2 Certificate
Exhibit A-R Form of Class R Certificate
Exhibit B Class R Transferee Affidavit
Exhibit C Class R Transferor Letter
Exhibit D Class E-2 Transferee Affidavit
-1-
This Trust Agreement ("Trust Agreement"), dated as of October 1, 1996, by
and among XXXXXX STRUCTURED SECURITIES CORP., as Depositor and STATE STREET BANK
AND TRUST COMPANY, as Trustee (the "Trustee").
WITNESSETH THAT:
In consideration of the mutual agreements herein contained, the Depositor
and the Trustee agree as follows:
ARTICLE I
DEFINITIONS;
Section 1.01. Definitions: Whenever used in this Trust Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Act: As defined in Section 4.02(c).
Agreement: This Trust Agreement.
Available Distribution Amount: As to any Distribution Date, the difference
between (a) the sum of (i) the aggregate distributions in respect of the
Underlying Certificates for such Distribution Date and (ii) the proceeds of any
repurchase of the Underlying Certificates pursuant to Section 2.04 of this Trust
Agreement, and (b) the sum of (i) the Trustee Fee with respect to such
Distribution Date, (ii) the amount of any taxes payable by the Trust REMIC that
are reimbursable to the Trustee pursuant to Section 5.06 and (iii) any amounts
withheld by the Trustee from such distributions pursuant to Sections 3.01 and
5.08 not otherwise withheld pursuant to this clause (b).
Beneficial Owner: With respect to a Book-Entry Certificate, the Person who
is the beneficial owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an account
with such Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency), as the case may be.
Book-Entry Certificate: Any of the Class E-1 Certificates, beneficial
ownership and transfers of which shall be evidenced by, and made through, book
entries by the Clearing Agency as described in Section 4.01(b).
Business Day: Any day that is not a Saturday, Sunday, holiday, or other day
on which commercial banking institutions in New York, New York or Boston,
Massachusetts or the city and state in which the Underlying Trustee's corporate
trust office is located are authorized or obligated by law or executive order to
be closed.
Certificate: Any one of the Class E-1, Class E-2, or Class R Certificates
executed by the Trustee in substantially the form set forth in Exhibit X-0,
Xxxxxxx X-0 or Exhibit A-R, respectively, hereto.
Certificate Account: The account established and maintained pursuant to
Section 3.01. The Certificate Account shall be an Eligible Account. Funds
deposited in the Certificate Account shall be held in trust for the benefit of
the Certificateholders for the uses and purposes set forth in Article III
hereof.
Certificate Principal Balance: As to the first Distribution Date, the
Original Certificate Principal Balance of any Certificate, and as to any
succeeding Distribution Date, the Original Certificate Principal Balance thereof
reduced by (i) all amounts previously distributed to such Certificate on account
of principal pursuant to Section 3.02(a) and (ii) the aggregate amount of the
Underlying Certificate Realized Loss Amount and Realized Loss Amount allocated
to reduce the Certificate Principal Balance of such Certificate pursuant to
Section 3.04, and increased by the amount of Underlying Deferred Interest
allocated to such Certificate pursuant to Section 3.05.
Certificate Register: The register maintained pursuant to Section 4.02.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent or direction pursuant to this Agreement, any Certificate
registered in the name of the Depositor or the Trustee or any affiliate of
either shall be deemed not to be outstanding, unless 100% of the Percentage
Interests of such Class is held by one or both of such Persons.
Class: Any of the Class E-1, Class E-2 or Class R Certificates.
Class E Certificate: Any of the Class E-1 or Class E-2 Certificates.
Class E-1 Certificate: A Certificate designated as a Class E-1 Certificate,
substantially in the form attached as Exhibit A-1 hereto.
Class E-2 Certificate: A Certificate designated as a Class E-2 Certificate,
substantially in the form attached as Exhibit A-2 hereto.
Class R Certificate: The Certificate designated as the Class R Certificate,
substantially in the form attached as Exhibit A-R hereto.
Clearing Agency: An organization registered as a "clearing agency" pursuant
to Section 17A of the Securities Exchange Act of 1934, as amended, and as
defined in Section 8-102(3) of the Uniform Commercial Code. The initial Clearing
Agency shall be The Depository Trust Company.
Clearing Agency Participant: A broker, dealer, bank, financial institution
or other Person for whom a Clearing Agency effects book-entry transfers of
securities deposited with the Clearing Agency.
Closing Date: October [ ], 1996.
Code: The Internal Revenue Code of 1986, as it may be amended from time to
time, any successor statutes thereto, and applicable U.S. Department of the
Treasury temporary or final regulations promulgated thereunder.
Commission: The Securities and Exchange Commission.
Corporate Trust Office: The principal office of the Trustee and Registrar
at which at any particular time its corporate trust business shall be
administered, which office at the Closing Date is located at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
Cut-off Date: September 1, 1996.
Definitive Certificates: As defined in Section 4.01(b).
Depositor: Xxxxxx Structured Securities Corp., a Delaware corporation, or
its successor in interest.
Distribution Date: The 25th day of each month, or if such 25th day is not a
Business Day, the Business Day succeeding such 25th day, beginning on October
25, 1996.
Eligible Account: Either (a) an account or accounts maintained with a
federal or state chartered depository institution or trust company the long-term
unsecured debt obligations of which (or, in the case of a depository institution
or trust company that is the principal subsidiary of a holding company, the
long-term unsecured debt obligations of such holding company) are rated by each
Rating Agency in one of its two highest long-term rating categories at the time
any amounts are held in deposit therein, or (b) a segregated trust account or
accounts (each of which shall be a "special deposit account") maintained with
the corporate trust department of a federal or state chartered depository
institution or trust company, acting in its fiduciary capacity and subject to
regulations regarding fiduciary funds on deposit similar to Title 12 of the Code
of Federal Regulations Section 9.10(b). Eligible Accounts may be, if otherwise
qualified, accounts maintained with the Trustee.
ERISA: Employee Retirement Income Security Act of 1974, as amended, and the
rules and regulations promulgated thereunder.
ERISA Prohibited Holder: As defined in Section 4.02(d).
Excess Interest Amount: With respect to any Distribution Date and any
Class, an amount equal to the excess interest distributed with respect to the
Underlying Certificates, as specified on the distribution date statement with
respect to the Underlying Certificates for such Distribution Date.
Final Distribution Date: The Distribution Date set forth in the notice
delivered by the Trustee of the final distribution on the Certificates pursuant
to Section 6.01.
Holder: See "Certificateholder."
Interest Accrual Amount: As to any Distribution Date and any Class, an
amount equal to (a) the product of (i) one-twelfth of the Pass-Through Rate for
such Class and (ii) the Certificate Principal Balance of such Class less (b)
such Class's allocable share of the Underlying Certificate Interest Shortfall
Amount. The Underlying Certificate Interest Shortfall Amount will be allocated
to each Class pro rata based on the Interest Accrual Amounts for such Class
before reduction pursuant to clause (b) of the preceding sentence.
Interest Shortfall Amount: With respect to any Distribution Date and Class,
the amount by which the aggregate of the Interest Accrual Amounts for such Class
in respect of all prior Distribution Dates is greater than amounts actually
distributed in respect of interest on such prior Distribution Dates pursuant to
Section 3.02 of this Trust Agreement, plus interest accrued thereon at the
applicable Pass-Through Rate, compounded monthly as of the end of each calendar
month, to the end of the calendar month preceding the Distribution Date when
paid.
Master Servicer: Midland Data Systems, Inc., or its successor in interest
in its capacity as master servicer under the Underlying Trust Agreement, or any
successor master servicer appointed as therein provided.
Mortgage Loans: Certain adjustable and fixed rate, amortizing and balloon
payment, conventional mortgage loans secured by first liens on commercial,
multifamily residential, and mixed residential commercial properties and certain
mortgage loans secured by junior liens on such types of properties, which have
been transferred to the trust fund formed by the Underlying Trust Agreement.
Non-permitted Foreign Holder: As defined in Section 4.02(d).
Non-U.S. Person: As defined in Section 3.02(b).
Officer's Certificate: With respect to any Person, a certificate signed by
the Chairman of the Board, the President, or a Vice President (however
denominated), and by the Treasurer, the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of such Person (or, in the case of a Person
which is not a corporation, signed by the person or persons having like
responsibilities).
Opinion of Counsel: A written opinion of counsel, who may be counsel for
the Depositor, or the Trustee.
Original Certificate Principal Balance: With respect to:
(i) the Class E-1 Certificates, $ .
(ii) the Class E-2 Certificates, $ .
(iii) the Class R Certificate, $0.
Pass-Through Rate: With respect to the Class E-1 Certificates and the Class
E-2 Certificates, a rate per annum equal to 7.995%.
Percentage Interest: As to any Class E Certificate, the percentage obtained
by dividing the Certificate Principal Balance of such Certificate on the Closing
Date by the Original Certificate Principal Balance of such Class of
Certificates. As to the Class R Certificate, 100%.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Plan: An employee benefit plan within the meaning of Section 3(3) of ERISA
that is subject to the fiduciary responsibility provisions of ERISA or Section
4975 of the Code or a governmental plan, as defined in Section 3(32) of ERISA,
subject to any federal, state or local law which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code.
Principal Distribution Amount: With respect to any Distribution Date, an
amount equal to the aggregate amount distributed in respect of principal on the
Underlying Certificates with respect to such Distribution Date.
Prohibited Transaction: Has the meaning assigned to it in Section 860F of
the Code.
Qualified Institutional Buyer: A "qualified institutional buyer," as
defined in Rule 144A under the Securities Act.
Rating Agency: Either Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or Duff & Xxxxxx Credit Rating Co., or their
respective successors in interest.
Realized Loss Amount: With respect to each Distribution Date, the
difference between the aggregate Certificate Principal Balance of the
Certificates and the aggregate unpaid certificate principal balance of the
Underlying Certificates, after giving effect to the distribution to be made on
such Distribution Date.
Record Date: With respect to each Distribution Date, the close of business
on the last Business Day of the month immediately preceding the month in which
such Distribution Date occurs. The initial Record Date shall be October 30,
1996.
Registrar: Initially the Trustee, in its capacity as Registrar, or any
successor to the Trustee in such capacity.
REMIC: A "real estate mortgage investment conduit" as defined in Section
860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to
REMICs, which appear at Sections 860A through 860G of Part IV of Subchapter M of
Chapter 1 of Subtitle A of the Code, and related provisions, and U.S. Department
of the Treasury temporary, proposed or final regulations promulgated thereunder,
as the foregoing may be in effect (or with respect to proposed regulations, are
proposed to be in effect) from time to time.
REMIC Returns: As defined in Section 5.04.
Responsible Officer: With respect to the Trustee, any officer in its
corporate trust department and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
Single Certificate: In the case of the Class E-1 Certificates, a
Certificate with an initial Certificate Principal Balance of $100,000. In the
case of the Class E-2 Certificates, a Certificate with an initial Certificate
Principal Balance of $250,000. In the case of the Class R Certificate, a single
Certificate representing the entire principal balance of the Class.
Special Servicer: Banc One Management and Consulting Corporation, or its
successor in interest in its capacity as special servicer under the Underlying
Trust Agreement, or any successor special servicer appointed as therein
provided.
Startup Day: As defined in Section 2.03(b).
Trust: The trust created by this Agreement.
Trustee: State Street Bank and Trust Company, a Massachusetts banking
corporation, in its capacity as trustee or its successor in interest hereunder,
or any successor trustee appointed as herein provided.
Trustee Fee: With respect to any Distribution Date, the fee payable monthly
to the Trustee that accrues at an annual rate equal to 0.005% on the unpaid
principal balance of the Underlying Certificates as in effect immediately prior
to the next preceding Distribution Date, plus interest accrued thereon at the
applicable Pass-Through Rate, compounded monthly as of the end of each calendar
month, to the end of the calendar month preceding the Distribution Date when
paid.
Trust Fund: The corpus of the Trust consisting of (i) the Underlying
Certificates, (ii) all distributions on the Underlying Certificates payable
after October 1, 1996 and (iii) amounts held from time to time by the Trustee in
the Certificate Account.
Trust REMIC: The REMIC consisting of the Trust.
Underlying Certificate Realized Loss Amount: With respect to any
Distribution Date, the aggregate amount of principal losses on the Mortgage
Loans allocated to the Underlying Certificates with respect to such Distribution
Date.
Underlying Certificates: The Resolution Trust Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1994-C1, Class E certificates with an
aggregate unpaid principal balance as of the Cut-off Date of $ , being
transferred to the Trustee pursuant to Section 2.01.
Underlying Certificate Interest Shortfall Amount: With respect to any
Distribution Date, the aggregate amount of interest shortfalls on the Mortgage
Loans allocated to the Underlying Certificates with respect to such Distribution
Date.
Underlying Certificate Statement: With respect to the Underlying
Certificates, the periodic reports provided to holders of such Underlying
Certificates pursuant to the Underlying Trust Agreement.
Underlying Deferred Interest: With respect to any Distribution Date, the
amount of deferred interest allocated to the Underlying Certificates in
connection with such Distribution Date. For the purposes hereof, "deferred
interest" shall mean, with respect to any Mortgage Loan, the excess of (x)
interest accrued on such Mortgage Loan at the annual rate at which interest
accrues on the principal balance of such Mortgage Loan over (y) accrued interest
due on such Mortgage Loan at the rate at which interest is paid on such Mortgage
Loan.
Underlying Trust Agreement: The Pooling and Servicing Agreement, dated as
of September 1, 1994, among the Resolution Trust Corporation, as seller, Midland
Data Systems, Inc., as master servicer, Banc One Management and Consulting
Corporation, as special servicer, and State Street Bank and Trust Company, as
trustee, pursuant to which the Underlying Certificates were issued.
Underlying Trustee: State Street Bank and Trust Company, a Massachusetts
banking corporation, or its successor in interest, in its capacity as trustee
under the Underlying Trust Agreement, or any successor trustee appointed as
therein provided.
Underwriter: Xxxxxx Brothers Inc. and its successors and assigns.
Section 1.02. Interest Calculation; Certificate Principal Balances.
(a) Interest in respect of the Certificates shall be calculated on the
basis of a 360-day year consisting of twelve 30-day months.
(b) For purposes of this Trust Agreement any adjustment made to the
principal balance of an Underlying Certificate will be deemed to have been made
immediately following distributions made on the immediately preceding
Distribution Date.
[End of Article I]
ARTICLE II
CONVEYANCE OF THE UNDERLYING CERTIFICATES
AND THE ORIGINAL ISSUANCE OF CERTIFICATES;
Section 2.01. Conveyance of the Underlying Certificates. The Depositor,
concurrently with the execution and delivery hereof, does hereby transfer,
convey, sell and assign to the Trustee, on behalf of the Holders of the
Certificates, without recourse, all the right, title and interest of the
Depositor in and to the Underlying Certificates, including all distributions
thereon payable on or after the first Distribution Date. The Trustee, by
execution and delivery hereof, acknowledges receipt of the Underlying
Certificates, and certifies and confirms that (a) the Underlying Certificates
are maintained on the books and records of the Trustee as being held in trust
for the benefit of the Certificateholders, (b) the books and records of the
Trustee do not indicate any other person having any interest in any of the
Underlying Certificates and the Trustee has not confirmed any interest in the
Underlying Certificates to any other person, and (c) the Trustee has not at any
time created nor received any notice of the creation of any liens, claims,
security interests or encumbrances with respect to the Underlying Certificates,
except such as are created by this Trust Agreement.
The assignment of the Underlying Certificates accomplished hereby is
absolute and is intended as a sale. The Depositor hereby pledges and grants to
the Trustee a security interest in the Depositor's interest in the Trust Fund to
secure payment (in the event of recharacterization notwithstanding the parties'
intent) and performance by the Depositor of its obligations hereunder. The
Depositor 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 Underlying Certificates, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Trustee shall cooperate in such actions by execution and delivery of such
instruments and documents as may be necessary or appropriate in order to
accomplish such actions.
Section 2.02. Issuance of Certificates. The Trustee acknowledges the
transfer and delivery to it of the Underlying Certificates in the manner
described in Section 2.01 hereof, and concurrently with such delivery, has
caused to be duly executed, authenticated and delivered to or upon the order of
the Depositor, in exchange for the Underlying Certificates together with all
other assets included in the definition of "Trust Fund," receipt of which is
hereby acknowledged, Certificates in authorized denominations which evidence
ownership of the entire Trust.
Section 2.03. REMIC Designations and Related Matters and Related Matters.
(a) The Depositor hereby designates the Class E-1 and Class E-2
Certificates as the "regular interests" and the Class R Certificate as the
"residual interest" in the Trust REMIC within the meaning of Sections 860G(a)(1)
and 860G(a)(2) of the Code, respectively.
(b) The Closing Date is hereby designated as the "startup day" of the Trust
REMIC (the "Startup Day") within the meaning of Section 860G(a)(9) of the Code.
(c) If a "tax matters person" is required to be designated with respect to
the Trust REMIC, the holder of the Class R Certificate, by acceptance of such
Certificate, shall be deemed to agree to act as "tax matters person" and to
perform the functions of "tax matters partner" for purposes of Subchapter C of
Chapter 63 of Subtitle F of the Code, and shall be deemed to irrevocably
designate the Trustee as its agent in performing the functions of "tax matters
person" and "tax matters partner." Such agency shall terminate upon the
termination of the Trust established by this Trust Agreement. The usual and
customary expenses of the Trustee acting as such agent shall be borne by the
Trustee. The Trustee shall be entitled to be reimbursed from the Certificate
Account for extraordinary expenses.
(d) The "latest possible maturity date" of the regular interests in the
Trust REMIC is the Distribution Date occurring on June 25, 2026 for purposes of
Code Section 860G(a)(1).
(e) All provisions of this Agreement shall be construed so as to effectuate
the intent of the parties hereto that the Trust be treated as a REMIC at all
times and neither the Trust nor any party hereto shall enter into or directly or
indirectly cause a Prohibited Transaction to occur so long as any of the
Certificates are outstanding or cause the Trust to fail to qualify as a REMIC
during any taxable year.
(f) The Depositor agrees that on or prior to the tenth day after the
Closing Date, the Depositor shall provide the Trustee with a written
notification relating to each Class of Certificates setting forth such
information as to matters of fact as the Trustee may reasonably request to
enable it to comply with its reporting requirements with respect to each Class
of such Certificates to the extent such information can be in the good faith
judgment of the Depositor be determined by it.
Section 2.04. Representations and Warranties of the Depositor. The
Depositor represents and warrants to and covenants with the Trustee for the
benefit of the Certificateholders as follows:
(a) The Depositor is a corporation validly existing and in good standing
under the laws of Delaware with full power and authority (corporate and other)
to own its properties and conduct its business as now being conducted and to
enter into and perform its obligations under this Trust Agreement;
(b) This Agreement has been duly authorized, executed and delivered by the
Depositor, and will constitute a valid and binding agreement of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
liquidation, receivership, moratorium or other similar laws relating to or
affecting creditors' rights generally, or by general principles of equity
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
(c) Neither the execution nor the delivery of this Agreement nor the
issuance, delivery and sale of the Certificates, nor the consummation of any
other of the transactions contemplated herein nor the fulfillment of the terms
of this Agreement or the Certificates will result in the breach of any term or
provision of the charter or by-laws of the Depositor or conflict with, result in
a breach, violation or acceleration of or constitutes a default under, the terms
of any indenture or other agreement or instrument to which the Depositor is a
party or by which it is bound, or any statute, order or regulation applicable to
the Depositor of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Depositor;
(d) There are no actions or proceedings against, or investigations of, the
Depositor pending, or, to the knowledge of the Depositor, threatened, before any
court, administrative agency or other tribunal (i) asserting the invalidity of
this Agreement or the Certificates, (ii) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions contemplated by this
Agreement or (iii) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or enforceability of,
this Agreement or the Certificates;
(e) The Depositor is the sole owner of the Underlying Certificates and has
full right to transfer and sell the Underlying Certificates to the Trust free
and clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim or
security interest, and, upon execution and delivery by the Trustee of this
Agreement and delivery to the Depositor of the Certificates, the Trust will
acquire the Underlying Certificates free of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (except as is created by
this Agreement); and
(f) No consent, approval, authorization or order or registration or filing
with any court or governmental agency is required for the execution, delivery
and performance by the Trustee or the consummation of the transactions
contemplated by this Agreement, or if required, such approval has been obtained
prior to the Closing Date.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the Underlying Certificates
to the Trustee. Upon discovery by the Depositor or the Trustee of a breach of
any of the foregoing representations and warranties (referred to herein as a
"breach"), which breach materially and adversely affects the interests of the
Certificateholders in the Underlying Certificates, the party discovering such
breach shall give prompt written notice to the other party. Within 90 days of
its discovery or its receipt of notice of breach, the Depositor shall cure such
breach in all material respects, and if such breach cannot be cured, the
Depositor shall, at the Trustee's option, repurchase the Underlying Certificates
at a price equal to its then current certificate principal balance plus any
accrued interest thereon outstanding and unpaid as of the date of such
repurchase.
[End of Article II]
ARTICLE III
ADMINISTRATION OF THE UNDERLYING CERTIFICATES;
Section 3.01. Collection of Payments on Underlying Certificates;
Certificate Account; Trustee Obligation To Forward Funds. The Trustee shall
establish and maintain with itself a trust account (the "Certificate Account")
entitled "Xxxxxx Structured Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1996-1, Certificate Account," which shall be an Eligible
Account, in which the Trustee shall, subject to the terms of this paragraph and
to Section 5.08, deposit each distribution received by the Trustee with respect
to the Underlying Certificates upon receipt. In the event that the Trustee is
not also the Underlying Trustee, the Trustee shall arrange to receive all
distributions with respect to the Underlying Certificates by wire transfer, and
the cost of any such wire transfer shall be the nonreimbursable expense of the
Trustee. On each Distribution Date, before making the distributions referred to
in Section 3.02 below, the Trustee shall withdraw (i) the Trustee Fee and the
amount of any taxes payable with respect to the Trust REMIC pursuant to Section
5.06 from the Certificate Account and pay such amounts to itself and the
appropriate taxing authority as applicable and (ii) any other amounts payable to
itself under this Agreement. With respect to any Distribution Date, if the
Trustee shall not have received the amount distributed on the Underlying
Certificates early enough for the Trustee to remit funds for distributions on
the Certificates on such Distribution Date, the Trustee shall, unless prevented
by law from doing so, or unless in the good faith judgment of the Trustee such
amount will not be ultimately remitted within three Business Days, forward from
its own funds and deposit into the Certificate Account the full amount
distributable to the holders of Certificates on such Distribution Date (up to
the amount to be received by the Trustee on the Underlying Certificates in
respect of such Distribution Date). The amount of any such advance shall be
reimbursable (without any interest) to the Trustee directly from the
distribution on the Underlying Certificates when received by the Trustee. If the
Trustee shall not have received a distribution with respect to the Underlying
Certificates by the second Business Day after the date on which such
distribution was due and payable pursuant to the terms of the Underlying
Certificates, the Trustee shall request such payment as promptly as possible and
legally permitted and shall, subject to the penultimate sentence of this
paragraph, take such legal action as the Trustee shall deem appropriate under
the circumstances, including the prosecution of any claims in connection
therewith. The reasonable legal fees and expenses incurred by the Trustee in
connection with the prosecution of any such legal action shall be reimbursable
to the Trustee out of the proceeds of any such action and shall be retained by
the Trustee prior to the deposit of any remaining proceeds in the Certificate
Account pending distribution thereof to Certificateholders in accordance with
Section 3.02 hereof. In the event that the Trustee has reason to believe that
the proceeds of any such legal action may be insufficient to reimburse it for
its projected legal fees and expenses, the Trustee shall notify the
Certificateholders that it is not obligated to pursue any such available
remedies unless adequate indemnity for its legal fees and expenses is provided
by Certificateholders. In the event any such indemnity is provided to the
Trustee, the Trustee shall take such action as shall be appropriate under the
circumstances.
Amounts on deposit in the Certificate Account may not be invested.
Section 3.02. Distributions Section.
(a) On each Distribution Date, the Trustee shall, to the extent of the
Available Distribution Amount on deposit in the Certificate Account, distribute
to the Certificateholders of record on the preceding Record Date as specified
below, by check mailed to the applicable Certificateholder at such Holder's
address as it appears on the Certificate Register, or, upon written request to
the Trustee at least five Business Days prior to the relevant Record Date by any
Holder of the Certificates having an aggregate initial Certificate Principal
Balance that is in excess of $1,000,000, by wire transfer in immediately
available funds to the account of such Certificateholder specified in the
request, the Available Distribution Amount in the following order of priority:
first, to the Class E-1 Certificates in an aggregate amount up to its
Interest Accrual Amount with respect to such Distribution Date;
second, to the Class E-1 Certificates in an aggregate amount up to its
previously unpaid Interest Shortfall Amount;
third, to the Class E-2 Certificates in an aggregate amount up to its
Interest Accrual Amount with respect to such Distribution Date;
fourth, to the Class E-2 Certificates in an aggregate amount up to its
previously unpaid Interest Shortfall Amount;
fifth, to the Class E-1 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero, up to the amount of principal
distributed on the Underlying Certificates that is not attributable to the
Excess Interest Amount;
sixth, to the Class E-2 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero, up to the amount of principal
distributed on the Underlying Certificates that is not attributable to the
Excess Interest Amount, less the amount distributed under fifth above;
seventh, to each Class of Class E Certificates in reduction of their
principal balances, pro rata, based on their respective Certificate Principal
Balances after taking into account the distributions under fifth and sixth
above, in an aggregate amount up to the Excess Interest Amount with respect to
such Distribution Date; and
eighth, to the Class R Certificate.
Distributions of interest and principal to each holder of a Certificate of
a Class will be made to the extent described above, on each Distribution Date in
an amount equal to each such holder's Percentage Interest multiplied by the
amount to be distributed in respect of such Class of Certificates.
(b) The Trustee shall withhold or cause to be withheld such amounts as may
be required by the Code (giving full effect to any exemptions from withholding
and related certifications required to be furnished by Certificateholders and
any reductions to withholding by virtue of any bilateral tax treaties and any
applicable certification required to be furnished by Certificateholders with
respect thereto) from distributions to be made to Non-U.S. Persons. A "Non-U.S.
Person" is an individual, corporation, partnership or other person other than 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 that is subject to U.S.
federal income tax regardless of the source of its income.
Section 3.03. Statements to Certificateholders.
(a) On each Distribution Date the Trustee shall forward a statement by mail
to each holder of a Certificate and to each Rating Agency, setting forth:
(1) the amount of any distribution to the Holders of the Certificates of
each Class to be applied to reduce the Certificate Principal Balance thereof,
separately identifying any reduction thereof on account of the Excess Interest
Amount;
(2) the amount of any distribution to the Holders of the Certificates of
each Class allocable to accrued interest;
(3) the amount of the Trustee Fee to be paid to the Trustee on such
Distribution Date;
(4) the aggregate Certificate Principal Balance of each Class of
Certificates after giving effect to the distribution to be made on such
Distribution Date, separately identifying any reduction thereof on account of
the Underlying Certificate Realized Loss Amount and the Realized Loss Amount,
and any increase thereof on account of Underlying Deferred Interest;
(5) the Underlying Certificate Realized Loss Amount, if any, allocated to
each Class of Certificates, after giving effect to the distribution made on such
Distribution Date;
(6) the Realized Loss Amount, if any, allocated to each Class of
Certificates, after giving effect to the distribution made on such Distribution
Date;
(7) the amount of Underlying Deferred Interest, if any, allocated to each
Class of Certificates, after giving effect to the distribution made on such
Distribution Date; and
(8) the Interest Shortfall Amount, if any, for each Class of Certificates,
after giving effect to the distribution made on such Distribution Date.
(b) On each Distribution Date, the Trustee shall forward or cause to be
forwarded by mail to each Certificateholder with each statement described in
subsection (a) of this Section 3.03 a copy of the Underlying Certificate
Statement with respect to such Distribution Date.
(c) In addition to the Distribution Date reports specified in clauses (a)
and (b) above, the Trustee shall forward to the Holder of the Class R
Certificate on each Distribution Date a statement setting forth the amounts
actually distributed with respect to the Class R Certificate on such
Distribution Date.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall prepare and furnish to each entity who at any time during the
calendar year was a Certificateholder, a statement containing the information
set forth in clauses (1) through (3) of Section 3.03(a) above, aggregated for
such calendar year thereof during which such entity was a Holder of the
Certificates. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code as from time to
time are in force.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall prepare and furnish to each entity who at any time during the
calendar year was a Holder of the Class R Certificate a statement containing the
information provided pursuant to the second preceding paragraph aggregated for
such calendar year thereof during which such entity was a Holder of such
Certificate. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code as from time to
time are in force.
(d) Based upon reports, documents and other information provided to the
Trustee by the Underlying Trustee pursuant to the Underlying Trust Agreement,
the Trustee shall file with the Commission, in respect of the Trust Fund and the
Certificates, copies of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act (including the statements
issued pursuant to Section 3.03(a) by means of Current Report on Form 8-K and an
Annual Report on Form 10-K). In the event that the Depositor determines that
electronic filing through the XXXXX System is required for any reports, the
Depositor may either (x) request that the Trustee process such filing, or (y)
cause the filing to be processed by the Depositor or its designee upon receipt
from the Trustee of the reports, documents and other information described
above. Notwithstanding the foregoing, the Depositor shall file with the
Commission, within fifteen days after the Closing Date, a Current Report on Form
8-K together with this Agreement.
Section 3.04. Reduction of Certificate Principal Balances Due to Underlying
Certificate Realized Losses and Realized Losses.
(a) With respect to each Distribution Date, the Underlying Certificate
Realized Loss Amount shall be allocated to reduce the Certificate Principal
Balance of the Class E-2 Certificates until its Certificate Principal Balance
has been reduced to zero. Any remaining Underlying Certificate Realized Loss
Amount shall be allocated to reduce the Certificate Principal Balance of the
Class E-1 Certificates.
(b) With respect to each Distribution Date, the Realized Loss Amount with
respect to such Distribution Date shall be allocated to the Class E-2
Certificates until its Certificate Principal Balance has been reduced to zero.
Any remaining Realized Loss Amount shall be allocated to reduce the Certificate
Principal Balance of the Class E-1 Certificates.
Section 3.05. Addition to Certificate Principal Balance Due to Underlying
Deferred Interest. With respect to each Distribution Date, the amount of any
Underlying Deferred Interest shall be allocated first to reduce the
distributions of interest on the Class E-2 Certificates and then to reduce the
distributions of interest on the Class E-1 Certificates. The amount of any
Underlying Deferred Interest allocated to a Class of Class E Certificates shall
be added to the Certificate Principal Balance thereof.
Section 3.06. Notices to Trustee
(a) Subject to the third paragraph of Section 7.02, if at any time the
Trustee, as the holder of the Underlying Certificates, is requested in such
capacity to take any action or to give any consent, approval or waiver,
including without limitation in connection with an amendment of the Underlying
Trust Agreement or an event of default under the Underlying Trust Agreement with
respect to the Master Servicer or the Special Servicer thereunder, the Trustee,
in its capacity as holder of the Underlying Certificates, shall promptly notify
or cause to be notified all of the Holders of the Certificates and shall take
action in connection with the enforcement of any rights and remedies available
to it in such capacity with respect thereto only in accordance with the written
directions of Holders of the Certificates representing an aggregate outstanding
Certificate Principal Balance of not less than 51% of the Certificates.
(b) Upon receipt of notice of the final distribution on any Underlying
Certificate, the Trustee shall surrender such Underlying Certificate to the
Underlying Trustee for payment of the final distribution thereon.
[End of Article III]
ARTICLE IV
THE CERTIFICATES;
Section 4.01. The Certificates.
(a) The Certificates shall be issued as Class E-1, Class E-2 and Class R
Certificates substantially in the respective forms set forth in Exhibit X-0,
Xxxxxxx X-0 and Exhibit A-R. The aggregate Certificate Principal Balance of all
Certificates of each Class issued as of the Closing Date shall equal such
Class's respective Original Certificate Principal Balance. The Certificates
shall be issued in minimum denominations of a Single Certificate and (except for
the Class R Certificate) integral multiples of $1,000 initial Certificate
Principal Balance in excess thereof, except for one Class E Certificate of each
Class which may be issued in another denomination. There will be only one Class
R Certificate. The Certificates shall, on original issue, be executed by the
Trustee, not in its individual capacity but solely as Trustee, authenticated by
the Registrar and delivered by the Trustee to or upon the order of Depositor
upon receipt by the Trustee of the Underlying Certificates pursuant to Section
2.01 hereof. Each Certificate shall be in fully-registered form and shall be
numbered serially for identification. The Certificates shall be executed by
manual or facsimile signature on behalf of the Trustee by any Responsible
Officer thereof. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures were affixed, authorized
to sign on behalf of the Trustee shall bind the Trustee, notwithstanding that
such individuals or any of them have ceased to be so authorized prior to the
execution and delivery of such Certificates. No Certificate shall be entitled to
any benefit under this Agreement, or be valid for any purpose, unless such
Certificate shall have been manually authenticated by the Registrar
substantially in the form set forth in Exhibit X-0, Xxxxxxx X-0 or Exhibit A-R,
as the case may be, and such manual signature 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 and delivery.
Until such time as Definitive Certificates are issued pursuant to Section
4.05, each Book-Entry Certificate shall bear such legend:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
[THE CLEARING AGENCY] TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
[THE CLEARING AGENCY] OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF [THE CLEARING AGENCY] (AND ANY PAYMENT IS MADE TO [THE
CLEARING AGENCY] OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF [THE CLEARING AGENCY]), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, [THE CLEARING AGENCY], HAS AN INTEREST HEREIN."
(b) Upon original issuance, the Book-Entry Certificates shall be issued in
the form of one or more typewritten certificates, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the
Depositor. Such Certificates shall initially be registered on the Certificate
Register in the name of the nominee of the initial Clearing Agency, and no
Beneficial Owner will receive a definitive certificate representing such
Beneficial Owner's interest in the Book-Entry Certificates, except as provided
in Section 4.05. Unless and until definitive, fully-registered certificates
("Definitive Certificates") have been issued to Beneficial Owners pursuant to
Section 4.05:
(i) the provisions of this Section 4.01(b) shall be in full force and
effect;
(ii) the Depositor, the Registrar and the Trustee may deal with the
Clearing Agency for all purposes (including the making of
distributions on the Book-Entry Certificates and the taking of
actions by the Holders of Book-Entry Certificates) as the
authorized representative of the Beneficial Owners;
(iii)to the extent that the provisions of this Section 4.01(b)
conflict with any other provisions of this Agreement, the
provisions of this Section 4.01(b) shall control;
(iv) the rights of Beneficial Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by
law, the rules, regulations and procedures of the Clearing Agency
and agreements between such Beneficial Owners and the Clearing
Agency and/or the Clearing Agency Participants, and all
references in this Agreement to actions by Certificateholders
shall, with respect to the Book-Entry Certificates, refer to
actions taken by the Clearing Agency upon instructions from the
Clearing Agency Participants, and all references in this
Agreement to distributions, notices, reports and statements to
Certificateholders shall, with respect to the Book-Entry
Certificates, refer to distributions, notices, reports and
statements to the Clearing Agency or its nominee, as registered
holder of the Book-Entry Certificates, as the case may be, for
distribution to Beneficial Owners in accordance with the
procedures of the Clearing Agency; and
(v) the initial Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit
distributions of principal and interest on the Certificates to
the Clearing Agency Participants, for distribution by such
Clearing Agency Participants to the Beneficial Owners or their
nominees.
For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Holders of Book-Entry
Certificates evidencing specified Percentage Interests, such direction or
consent shall be given by Beneficial Owners having the requisite Percentage
Interests, acting through the Clearing Agency.
Section 4.02. Registration of and Limitations on Transfer and Exchange of
Certificates.
(a) The Registrar shall cause to be kept at its Corporate Trust Office a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Registrar shall provide for the registration of Certificates and
of transfers and exchanges of Certificates as herein provided.
(b) Subject to the restrictions and limitations set forth below, upon
surrender for registration of transfer of any Certificate at the Corporate Trust
Office, the Trustee shall execute and the Registrar (or Trustee, if the Trustee
is also the Registrar) shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interests.
(c) With respect to the Class E-1 Certificates, each purchaser or
transferee (including any Beneficial Owners) shall be deemed to represent that
it is not a Plan or a Person acting on behalf any such Plan or using the assets
of any such Plan to acquire such Certificate, or that it is an insurance company
and the purchase and holding of such Certificate or any interest therein is
exempt from the prohibited transaction provisions of ERISA and the Code under
Prohibited Transaction Class Exemption 95-60.
With respect to the Class E-2 Certificates, no sale, transfer, pledge or
other disposition by any Holder of any such Certificate shall be made unless the
Trustee shall have received a transferee affidavit from the proposed purchaser
or transferee of such Certificate in form and substance as set forth in Exhibit
D hereto, to the effect that such proposed purchaser or transferee (i)(a) is not
a Plan or a Person acting on behalf of any such Plan or using the assets of any
such Plan to acquire such Certificate or (b) if it is an insurance company, that
the purchase and holding of such Certificate is exempt from the prohibited
transaction provisions of ERISA and the Code under Prohibited Transaction Class
Exemption 95-60 and (ii) is (a) an "accredited investor" as defined in
paragraphs (1), (2), (3) and (7) of rule 501(a) under the Securities Act of
1933, as amended (the "Act") (or any entity in which all of the equity owners
come within such paragraphs), (b) a Qualified Institutional Buyer, or (c) a
person (other than any rating organization rating the Depositor's securities)
involved in the organization or operation of the Depositor or an affiliate, as
defined in rule 405 under the Act.
(d) No legal or beneficial interest in all or any portion of the Class R
Certificate may be transferred directly or indirectly to a "disqualified
organization" within the meaning of Code Section 860E(e)(5) or an agent of a
disqualified organization (including a broker, nominee or middleman), to Plan or
a Person investing the assets of a Plan (such Plan or Person, an "ERISA
Prohibited Holder") or to an individual, corporation, partnership or other
person unless such transferee (i) is not a Non-U.S. Person or (ii) is a Non-U.S.
Person that holds the Class R Certificate in connection with the conduct of a
trade or business within the United States and has furnished the transferor and
the Trustee with an effective Internal Revenue Service Form 4224 or (iii) is a
Non-U.S. Person that has delivered to both the transferor and the Trustee an
opinion of a nationally recognized tax counsel to the effect that the transfer
of the Class R Certificate to it is in accordance with the requirements of the
Code and the regulations promulgated thereunder and that such transfer of the
Class R Certificate will not be disregarded for federal income tax purposes (any
such person who is not covered by clauses (i), (ii) or (iii) above being
referred to herein as a "Non-permitted Foreign Holder"), and any such purported
transfer shall be void and have no effect. The Trustee shall not execute, and
shall not authenticate (or cause to be authenticated) and deliver, a new Class R
Certificate in connection with any such transfer to a disqualified organization
or agent thereof (including a broker, nominee or middleman), an ERISA Prohibited
Holder or a Non-permitted Foreign Holder, and neither the Registrar nor the
Trustee shall accept a surrender for transfer or registration of transfer, or
register the transfer of, the Class R Certificate (other than with respect to
the transfer of the Class R Certificate to the Underwriter), unless the proposed
transferee shall have provided (at such transferee's expense) to the Trustee and
transferor an affidavit, substantially in the form attached as Exhibit B hereto,
signed by such proposed transferee, to the effect that the transferee is not
such a disqualified organization, an agent (including a broker, nominee or
middleman) for any entity as to which the transferee has not received a
substantially similar affidavit, an ERISA Prohibited Holder or a Non-permitted
Foreign Holder, which affidavit shall contain the consent of the transferee to
any amendments of this Agreement as may be required to further effectuate the
foregoing restrictions on transfer of the Class R Certificate to disqualified
organizations, an ERISA Prohibited Holder or Non-permitted Foreign Holders. Such
affidavit shall also contain the statement of the transferee that (i) the
transferee has historically paid its debts as they have come due and intends to
do so in the future, (ii) the transferee understands that it may incur
liabilities in excess of cash flows generated by the residual interest, (iii)
the transferee intends to pay taxes associated with holding the residual
interest as they become due, (iv) the transferee is a Qualified Institutional
Buyer or a person (other than any rating organization rating the Depositor's
securities) involved in the organization or operation of the Depositor or an
affiliate, as defined in rule 405 under the Act and (v) the transferee will not
transfer the Class R Certificate to any Person who does not provide an affidavit
substantially in the form attached as Exhibit B hereto.
The affidavit described in the preceding paragraph, if not executed in
connection with the initial issuance of the Class R Certificate, shall be
accompanied by a written statement in the form attached as Exhibit C hereto,
signed by the transferor, to the effect that as of the time of the transfer, the
transferor has no actual knowledge that the transferee is a disqualified
organization, ERISA Prohibited Holder or Non-permitted Foreign Holder, and has
no knowledge or reason to know that the statements made by the transferee with
respect to clauses (i) and (iii) of the last sentence of the preceding paragraph
are not true. The Class R Certificate shall bear a legend referring to the
foregoing restrictions contained in this paragraph and the preceding paragraph.
Upon notice to a Responsible Officer of the Trustee that any legal or
beneficial interest in any portion of the Class R Certificate has been
transferred, directly or indirectly, to a disqualified organization or agent
thereof (including a broker, nominee or middleman) in contravention of the
foregoing restrictions, (i) such transferee shall be deemed to hold the Class R
Certificate in constructive trust for the last transferor who was not a
disqualified organization or agent thereof, and such transferor shall be
restored as the owner of such Class R Certificate as completely as if such
transfer had never occurred, provided that the Trustee may, but is not required
to, receive any distributions made to such transferee with respect to the Class
R Certificate, and (ii) the Trustee agrees to furnish the Internal Revenue
Service and to any transferor of the Class R Certificate or such agent (within
60 days of the request therefor by the transferor or agent) such information
necessary to the application of Code Section 860E(e) as may be required by the
Code, including but not limited to the present value of the total anticipated
excess inclusions with respect to the Class R Certificate (or portion thereof)
for periods after such transfer. At the election of the Trustee, the cost of
computing and furnishing such information may be charged to the transferor or
such agent referred to above; however, the Trustee shall in no event be excused
from furnishing such information.
(e) At the option of the Certificateholders, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations evidencing
the same aggregate Percentage Interests upon surrender of the Certificates to be
exchanged at the Corporate Trust Office of the Registrar. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute and the
Registrar shall authenticate and deliver the Certificates that the
Certificateholder making the exchange is entitled to receive. Each Certificate
presented or surrendered for registration of transfer or exchange shall (if so
required by the Registrar) be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Registrar duly executed by,
the Holder thereof or his attorney duly authorized in writing. Certificates
delivered upon any such transfer or exchange will evidence the same obligations,
and will be entitled to the same rights and privileges, as the Certificates
surrendered.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Registrar shall require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration of transfer or exchange of Certificates.
All Certificates surrendered for registration of transfer and exchange
shall be canceled by the Registrar and delivered to the Trustee for subsequent
destruction without liability on the part of either.
Section 4.03. Mutilated, Destroyed, Lost or Stolen Certificates. If (i) any
mutilated Certificate is surrendered to the Registrar or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and of the ownership thereof, and (ii) there is delivered to the
Trustee such security or indemnity as may be required by it to save it and the
Registrar harmless, then the Trustee shall execute and the Registrar shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor but
bearing a number not contemporaneously outstanding. Upon the issuance of any new
Certificate under this Section 4.03, the 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 or the Registrar) connected therewith. Any duplicate Certificate
issued pursuant to this Section shall constitute complete and indefeasible
evidence of ownership of a like Percentage Interest as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time. All Certificates surrendered to the Registrar under the terms of this
Section 4.03 shall be canceled by the Registrar and delivered to the Trustee for
subsequent destruction without liability on the part of either.
Section 4.04. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Registrar, the
Trustee and any agent of such Persons 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 3.02 and at any other time for all
other purposes whatsoever, and neither the Depositor, the Registrar, the
Trustee, nor any agent of such Persons shall be affected by notice to the
contrary.
Section 4.05. Definitive Certificates. If (i)(A) the Depositor advises the
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities as depository with respect to the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, (ii) the Depositor, at its option, advises the Trustee in writing
that it elects to terminate the book-entry system through the Clearing Agency
with respect to some or all of the Book-Entry Certificates or (iii) Beneficial
Owners representing aggregate Percentage Interests of not less than 51% of the
aggregate Percentage Interests of each outstanding Class of Book-Entry
Certificates advise the Trustee through the Clearing Agency and Clearing Agency
Participants in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interests of the Beneficial Owners, the
Trustee shall notify the Beneficial Owners, through the Clearing Agency, of the
occurrence of any such event and of the availability of Definitive Certificates
to Beneficial Owners requesting the same. Upon surrender to the Trustee by the
Clearing Agency of the Certificates held of record by its nominee, accompanied
by re-registration instructions and directions to execute and authenticate new
Certificates, the Trustee shall, at the Depositor's expense, execute and
authenticate Definitive Certificates for delivery at its Corporate Trust Office.
The Trustee shall arrange for the printing and issuance of such Definitive
Certificates at the expense and direction of the Depositor. Neither the
Depositor nor the Trustee shall be liable for any delay in delivery of such
instructions by the Clearing Agency and may conclusively rely on, and shall be
protected in relying on, such instructions and the identification of the
Beneficial Owners by the Clearing Agency and the Clearing Agency Participants.
Section 4.06. Notices to Clearing Agency. Whenever notice or other
communication to the Holders of Book-Entry Certificates is required under this
Agreement, unless and until Definitive Certificates shall have been issued to
Beneficial Owners pursuant to Section 4.05, the Trustee shall give all such
notices and communications specified herein to be given to Holders of Book-Entry
Certificates to the Clearing Agency.
[End of Article IV]
ARTICLE V
THE TRUSTEE
Section 5.01. Representations and Warranties of the Trustee. The Trustee
represents and warrants to the Depositor and the Trustee, for the benefit of the
Certificateholders, as follows:
(a) Organization and Existence. The Trustee is a Massachusetts banking
corporation duly organized and validly existing under the laws of the
Commonwealth of Massachusetts and authorized to engage in a banking and trust
business under such laws.
(b) Power and Authority. The Trustee has full power, authority, and legal
right to execute, deliver, and perform this Agreement, and shall have taken all
necessary action to authorize the execution, delivery, and performance by it of
this Agreement.
(c) Duly Executed. This Agreement has been duly executed and delivered by
the Trustee and constitutes the legal, valid, and binding agreement of the
Trustee, enforceable in accordance with its terms, except as such enforceability
may be limited by (i) bankruptcy, insolvency, liquidation, reorganization,
moratorium, conservatorship, receivership or other similar laws now or hereafter
in effect relating to the enforcement of creditors' rights in general or rights
of creditors' banks, as such laws would apply in the event of a moratorium,
conservatorship, receivership or similar principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
as well as concepts of reasonableness, good faith and fair dealing.
(d) No Conflicts. The execution and delivery of this Agreement and the
performance and consummation of the transactions contemplated hereby will not
conflict with or result in a breach of any of the terms, conditions or
provisions of the Trustee's charter or by-laws or any agreement or instrument to
which the Trustee is now a party or by which it is bound, and will not
constitute a default under any of the foregoing.
(e) No Consent Required. No consent, approval, authorization or order or
registration or filing with any court or governmental agency is required for the
execution, delivery and performance by the Trustee or the consummation of the
transactions contemplated by this Agreement, or if required, such approval has
been obtained prior to the Closing Date.
(f) No Litigation. There is no action, suit, proceeding or investigation
pending or threatened against the Trustee, which either in one instance or in
the aggregate, may result in any material adverse change in the business,
operations, financial condition or properties or assets of the Trustee, or which
would draw into question the validity of this Agreement, or which would be
likely to materially impair the ability of the Trustee to perform under the
terms of this Agreement.
Section 5.02. Directions to Trustee. The Trustee is hereby directed:
(a) to accept assignment of the Underlying Certificates and hold the Trust
Fund in trust for the Certificateholders;
(b) to issue, execute and deliver the Certificates substantially in the
forms prescribed by Exhibits X-0, X-0 and A-R in accordance with the terms of
this Agreement; and
(c) to take all other actions as shall be required to be taken by the terms
of this Agreement.
Section 5.03. Liability of the Trustee. The Trustee shall be liable in
accordance herewith only to the extent provided in Section 5.08 and only to the
extent of the obligations specifically imposed upon and undertaken by the
Trustee herein and no implied covenants or obligations shall be read into this
Trust Agreement against the Trustee.
The Trustee, upon receipt of all certificates, opinions, documents or other
instruments furnished to the Trustee that are specifically required to be
furnished pursuant to any provision of this Trust Agreement, shall determine
whether they are in the form required by this Trust Agreement; provided,
however, that the Trustee shall not be responsible for the accuracy or content
of any such certificate, opinion, document or other instrument furnished to it
pursuant to this Trust Agreement.
Section 5.04. Returns. The Trustee, on behalf of the Trust, shall prepare,
execute and file income tax and information returns for each taxable year (the
"REMIC Returns") for the Trust REMIC as may be required under the REMIC
Provisions and any other applicable federal, state or local tax laws. The
Trustee shall maintain such information and records, including but not limited
to the income, expenses, Underlying Certificates, other assets and liabilities
of the Trust Fund, and the adjusted basis of the Trust Fund property determined
at such intervals as may be required by the Code, as may be necessary and
appropriate to enable the preparation of any such returns, and shall take any
and all actions necessary to ensure that any such returns are prepared and filed
as required by this Section 5.04 and applicable law. The fiscal year of the
Trust and the Trust REMIC shall be the calendar year and the books of the Trust
REMIC shall be maintained on the accrual method of accounting. The Trustee shall
also prepare and forward to the Certificateholders all information reports or
tax returns required with respect to the Trust REMIC (including information
relating to interest, original issue discount and market discount) as and when
required to be provided to the Certificateholders, and to the Internal Revenue
Service and other governmental authorities in accordance with the REMIC
Provisions and any other applicable federal, state or local tax laws.
Section 5.05. Election of REMIC Status. The parties intend that the Trust
shall constitute, and that the affairs of the Trust shall be conducted so as to
qualify it as, a REMIC. In such manner as may be required by the Code, the
Trustee, on behalf of the Trust, shall elect to treat the Trust as a REMIC and
make the appropriate designations in accordance with Section 2.03 hereof on the
federal income tax return of the Trust REMIC for its first taxable year, in
accordance with the REMIC Provisions. The Trustee, on behalf of the Trust, shall
make all other tax elections that may be required for the qualification of the
Trust REMIC as a REMIC under applicable federal or state law.
Section 5.06. Compliance with REMIC Provisions. The Trustee shall (a) pay
on behalf of the Trust REMIC the amount of any federal income tax, including,
without limitation, prohibited transaction taxes, taxes on net income from
foreclosure property, and taxes on certain contributions to a REMIC after the
Closing Date, imposed on the Trust REMIC when and as the same shall be due and
payable (but such obligation shall not prevent the Trustee or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Trustee from withholding or depositing payment of such
tax, if permitted by law, pending the outcome of such proceedings); and (b)
within 30 days of the Closing Date, furnish or cause to be furnished to the
Internal Revenue Service, on Form 8811 or as may otherwise be required by the
Code, the name, title and address of the person that Certificateholders may
contact for tax information relating to their Certificates (and the Trustee
shall act as the representative of the Trust REMIC for this purpose), together
with such additional information as may be required by such Form, and shall
update such information at the time and in the manner required by the Code. The
Trustee shall be entitled (a) to make demand upon the Holder of the Class R
Certificate for payment of the amount of any taxes payable by the Class R
Certificateholder pursuant to clause (a) of the preceding sentence, including
interest and penalties, if applicable, and the Class R Certificateholder, by its
acceptance of the Class R Certificate, agrees promptly to comply with such
demand and (b) if, and to the extent the Holder of the Class R Certificate shall
fail to comply with such demand and the Trustee is required to expend its own
funds to pay any such taxes or such taxes are paid out of the Trust REMIC, the
Trustee or the Trust REMIC shall be entitled to be reimbursed pursuant to
Section 3.01, except, in the case of either (a) or (b), except that the Trustee
shall not be entitled to reimbursement to the extent that such taxes are imposed
as the result of the bad faith, willful misfeasance or negligence of the Trustee
in the performance of its obligations hereunder. The Trustee (x) shall not
knowingly or intentionally take any action, or omit to take any action, if such
action or omission may cause the Trust REMIC to fail to qualify as a REMIC
during any taxable year, (y) shall exercise reasonable care not to allow the
occurrence of any Prohibited Transaction, unless the Trustee shall have provided
an Opinion of Counsel (which opinion shall be at the expense of the Person
proposing such transaction) to the Trustee that such occurrence would not (i)
result in a gain, (ii) otherwise subject the Trust REMIC to tax, or (iii) cause
the Trust REMIC to fail to qualify as a REMIC and (z) shall exercise reasonable
care not to allow the Trust REMIC to receive income from the performance of
services or from assets not permitted under the REMIC Provisions to be held by a
REMIC.
Section 5.07. Trustee May Own Certificates. The Trustee in its individual
or any other capacity or as Underlying Trustee may become the owner or pledgee
of Certificates with the same rights it would have if it were not Trustee.
Section 5.08. Limitation on Liability of the Trustee and Others. In
entering into this Trust Agreement, the Trustee acts solely as trustee hereunder
and not in its individual capacity; and all persons having any claim under this
Trust Agreement or under the Certificates by reason of the transactions
contemplated hereby shall look only to the Trust Fund for payment or
satisfaction thereof, subject to this Section 5.08. The Trustee shall not be
responsible for the validity or sufficiency of any Underlying Certificate, the
Trust Fund, any assignment or registration, or for any depreciation in the value
of the Trust Fund, subject to this Section 5.08. The recitals and statements
contained herein and in the Certificates (other than the signature of the
Trustee, the authentication of the Registrar on the Certificates and the
representation and warranty of the Trustee in Section 5.01) shall be taken as
the statements of the Depositor, and the Trustee assumes no responsibility for
the correctness of such recitals and statements.
Neither the Trustee nor any of the directors, officers, employees or agents
of the Trustee shall be under 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 Trust Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the Trustee
against liability for any breach of the warranty or representation made in
Section 5.01 hereof or against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
The Trustee and any of its directors, officers, employees or agents may rely in
good faith on any document of any kind prima facie properly executed and/or
submitted by any Person respecting any matter arising hereunder. The Trustee and
any director, officer, employee or agent of the Trustee shall be indemnified by
the Trust Fund and held harmless against any loss, liability or expense incurred
in connection with investigating, preparing or defending any legal action,
commenced or threatened, relating to this Agreement or the Underlying
Certificates, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. All sums due the Trustee pursuant to the foregoing indemnity shall be
reimbursable to the Trustee out of any distribution received by the Trustee with
respect to the Underlying Certificates and shall be retained by the Trustee
prior to the deposit of any remaining distribution in the Certificate Account
pending payment to Certificateholders in accordance with Section 3.01. The
Trustee shall not be under any obligation to appear in, prosecute or defend any
legal action except in connection with the Underlying Certificates under the
circumstances described in Section 3.01; provided, however, that the Trustee
shall at the request of Holders of Certificates evidencing Percentage Interests
aggregating not less than 66-2/3% of the Certificates undertake any such legal
action which the Certificateholders making such request shall specify with
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event the legal fees
and expenses of such action and any liability therefrom shall be borne by
Certificateholders pursuant to the indemnity furnished by them as a precondition
to the Trustee's obligation to take any such action pursuant to any such
request.
Section 5.09. Delegation of Duty by Trustee. In carrying out its
obligations under this Trust Agreement, the Trustee may act either directly or
through agents, attorneys, accountants, independent contractors and auditors and
enter into agreements with any of them, provided, however, that the Trustee
shall remain principally liable for its obligations under this Trust Agreement..
Section 5.10. Trustee's Expenses. The Trustee shall pay, at its own cost,
any recurring and reasonably anticipated expenses incurred in connection with
the performance of its obligations and duties under this Agreement, and shall
not be otherwise entitled to reimbursement for any expenses except as
specifically provided for in this Agreement, including without limitation in
Sections 2.03(c), 3.01, 5.06, 5.08 and 6.02 of this Agreement.
Except as provided above, no provision of this Agreement or of the
Certificates shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder or thereunder, 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.
Section 5.11. Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be a corporation or a national banking association organized
and doing business under the laws of any state or the United States of America
or the District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000, a
rating on its unsecured long-term debt in one of the four highest rating
categories from a nationally recognized statistical rating agency, and subject
to supervision or examination by federal or state authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 5.11 the combined capital and surplus of such
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 5.11, the Trustee shall resign immediately in the manner and with the
effect specified in Section 5.12.
Section 5.12. Resignation and Removal of the Trustee. The Trustee may at
any time resign and be discharged from the trusts hereby created by giving
notice thereof to the Depositor and to all Certificateholders; provided,
however, that if the Trustee is also the Underlying Trustee, the Trustee may not
resign as Trustee hereunder unless the Trustee, concurrently with such
resignation, also resigns as Underlying Trustee, or unless the Trustee has
determined in good faith that its duties and obligations under this Agreement
present a conflict of interest with its duties and obligations under the
Underlying Trust Agreement. Unless the Trustee has resigned after a
determination that a conflict of interest exists as set forth in the preceding
sentence, any successor trustee appointed hereunder shall, if it otherwise
qualifies hereunder, be the Underlying Trustee. No such resignation shall be
effective until a successor trustee is appointed and accepts appointment in
accordance with the following provisions. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee who meets
the eligibility requirements of Section 5.11 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
Certificateholders by the Depositor. If no successor trustee shall have been so
appointed and have accepted appointment within 60 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; provided, however, that
the resigning Trustee shall not resign and be discharged from the trusts hereby
created until such time as each Rating Agency rating the Certificates has
provided written confirmation that such resignation or succession will not
result in a downgrade, qualification or withdrawal of the then-current rating or
ratings assigned to the Certificates.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 5.11 and shall fail to resign after written request
therefor by the Depositor, or if at any time the Trustee shall become incapable
of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, or if the rating of the
long-term debt obligations of the Trustee is not in one of the four highest
rating categories from a nationally recognized statistical rating agency, then,
in any such case, the Depositor or the Holders of at least 25% or more of the
aggregate Certificate Principal Balance of the Certificates then outstanding may
remove the Trustee and appoint a successor trustee who meets the eligibility
requirements of Section 5.11 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 Certificateholders
by the Depositor.
If the Trustee is also the Underlying Trustee and the Underlying Trustee
resigns or is removed as trustee of the Underlying Trust Fund, then the
Depositor or the Holders of Certificates representing at least 25% of the
aggregate Certificate Principal Balance of the Certificates then outstanding
may, at any time on or after such resignation or removal, remove the Trustee and
appoint a successor trustee. In addition, the Holders of Certificates
representing at least 51% or more of the aggregate Certificate Principal Balance
of the Certificates then outstanding may at any time remove the Trustee and
appoint a successor trustee. In either such case, such removal and appointment
shall be by written instrument or instruments, in triplicate, signed by the
Depositor or such Holders, as the case may be, or their attorneys-in-fact duly
authorized, one complete set of which instruments shall be delivered to the
Depositor, one complete set to the Trustee so removed and one complete set to
the successor so appointed. A copy of such instrument shall be delivered to the
Certificateholders by the Depositor.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 5.12 shall not become
effective until acceptance of appointment by the successor trustee as provided
in Section 5.13.
Section 5.13. Successor Trustee. Any successor trustee appointed as
provided in Section 5.12 shall execute, acknowledge and deliver to the Depositor
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 documents and statements held by it hereunder with respect to the
Trust Fund, and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor trustee all such
rights, powers, duties and obligations.
No successor trustee shall accept appointment as provided in this Section
5.13 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 5.11.
Upon acceptance of appointment by a successor trustee as provided in this
Section 5.13, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Depositor fails to mail such notice within ten days
after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Depositor.
Section 5.14. Merger or Consolidation of the Trustee . Any Person into
which the Trustee may be merged or consolidated, or any Person resulting from
any merger, conversion or consolidation to which the Trustee shall be a party,
or any Person succeeding to all or substantially all of the corporate trust
business of the Trustee shall be the successor of the Trustee 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
that (i) such Person shall satisfy the requirements for a successor trustee
specified in the first sentence of Section 5.11, and (ii) the Trustee shall
deliver an Opinion of Counsel to the Depositor to the effect that such merger,
consolidation, sale or transfer will not subject the Trust REMIC to federal,
state or local tax or cause the Trust REMIC to fail to qualify as a REMIC, which
Opinion of Counsel shall be at the sole expense of the Trustee.
Section 5.15. Appointment of Co-Trustee or Separate Trustee.
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
Depositor 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
5.15, such powers, duties, obligations, rights and trusts as the Depositor and
the Trustee may consider necessary or desirable. If the Depositor shall not have
joined in such appointment within 15 days after the receipt by it of a request
so to do, 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 5.13 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 5.13 hereof.
In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section 5.15 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 under the Underlying Trust Agreement), 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.
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 V. 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.
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.
[End of Article V]
ARTICLE VI
TERMINATION;
Section 6.01. Termination Upon Distribution to Certificateholders. This
Agreement and the respective obligations and responsibilities of the Depositor
and the Trustee created hereby shall terminate upon the final distribution to
Certificateholders and the Trustee of all amounts required to be distributed
pursuant to Article III; 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 Xxxxxx X. Xxxxxxx, the late ambassador of
the United States to the Court of St. James's, living on the date hereof.
Notice of any termination specifying the Final Distribution Date upon which
the Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation, shall be given promptly by
the Trustee by letter to Certificateholders mailed not earlier than the first
day and not later than the 21st day of the month of such final distribution
specifying (A) the Distribution Date upon which the final distribution on the
Certificates will be made upon presentation and surrender of Certificates at the
office of the Trustee therein designated, (B) the amount of any such final
distribution and (C) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distributions being made only upon
presentation and surrender of the Certificates at the office of the Trustee
therein specified; provided, however, that the failure to give such notice will
not entitle any Certificateholder to receive any interest in excess of such
Certificateholder's Percentage Interest of the allocation of such Class's
Interest Accrual Amount for such Final Distribution Date. Upon presentation and
surrender of a Certificate, the Trustee shall cause to be distributed to the
Holder thereof such Holder's final distribution.
On such Final Distribution Date, any amount remaining on deposit in the
Certificate Account (other than amounts distributed pursuant to Article III)
after payment to the Trustee of any amounts to which it is entitled hereunder
will be distributed on the Class R Certificate.
Section 6.02. Failure of Certificateholders to Surrender Certificates. In
the event that any of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the Final Distribution
Date, the Trustee shall give a written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within one year after such
notice all the Certificates shall not have been surrendered for cancellation,
the Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain subject to the Trust Fund. If within nine
months thereafter, all of the Certificates shall not have been surrendered for
cancellation, the Class R Certificateholder shall be entitled to all unclaimed
funds and other assets which remain subject thereto. [End of Article VI]
ARTICLE VII
MISCELLANEOUS PROVISIONS;
Section 7.01. Amendment. This Agreement may be amended from time to time by
the Trustee and the Depositor, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provisions herein which may be inconsistent with any other material provision
herein, (iii) to maintain the qualification of the Trust REMIC as a REMIC or
prevent the Trust REMIC from entering into any Prohibited Transaction, (iv) to
change the timing and/or nature of deposits into the Certificate Account
provided that (a) such change shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder
and (b) such change shall not result in a downgrade, qualification or withdrawal
of the then-current rating or ratings of the Certificates, as evidenced by a
letter from each Rating Agency to such effect, or (v) to add such other
provisions with respect to matters or questions arising under this Agreement
that shall not be materially inconsistent with other provisions of this
Agreement; provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder. This Agreement may also be amended from time to time by the
Trustee and the Depositor with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 66-2/3% of each Class
of Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
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, amounts required to be distributed on any Certificate
without the consent of the Holder of such Certificate or (ii) reduce the
aforesaid percentage of the Certificates of each Class, the Holders of which are
required to consent to any such amendment without the consent of the Holders of
all Certificates then outstanding. No amendment shall be deemed to affect the
Class R Certificate unless it imposes additional obligations on the Holder of
the Class R Certificate or increases the tax liability of such Holder.
Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel (which Opinion of Counsel shall not be at the
expense of the Trustee) to the effect that such amendment will not subject the
Trust REMIC to tax or cause the Trust REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish a copy of such
amendment to each Certificateholder and to each Rating Agency.
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.
Section 7.02. Limitation on Rights of Certificateholders. 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 any of the parties
hereto.
No Certificateholder shall have any right to vote (except as provided in
Sections 3.06, 5.12, 7.01 or this Section 7.02) 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 person by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
Notwithstanding anything to the contrary, except in the case of an action,
suit or proceeding against the Trustee in respect to a breach or alleged breach
of its duties and responsibilities hereunder, no Certificateholder shall have
any right by virtue of any provisions of this Agreement to institute any action,
suit or proceeding in equity or at law upon or under or with respect to this
Agreement unless such Holder previously shall have given to the Trustee a
written notice of the basis of such action, suit or proceeding, and unless also
the Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the same Class of Certificates 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 being understood and intended,
and being expressly covenanted by each Certificateholder with every other Holder
of a Certificate and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever 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 of Certificates, or to enforce any right under this
Agreement, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Certificates. For the protection and
enforcement of the provisions of this Section, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
Section 7.03. Limitation on Liability of the Depositor and Others. Neither
the Depositor nor any of its directors, officers, employees or agents shall be
under any liability to the Trust or Certificateholders for any action taken, or
for refraining from the taking of any action, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor or any other such person against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Depositor and its directors, officers,
employees or agents may rely in good faith on any document of any kind prima
facie properly executed and/or submitted by any Person respecting any matter
arising hereunder.
Section 7.04. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in the State of New York, and the obligations, rights and
remedies of the parties hereto and the Certificateholders shall be determined in
accordance with such laws.
Section 7.05. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given when delivered
at (a) in the case of the Depositor, Xxxxxx Structured Securities Corp., 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 or to such other address as may
hereafter be furnished to the other parties hereto in writing by the Depositor;
(b) in the case of the Trustee, State Street Bank and Trust Company, 000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Corporate Trust
Department, or to such other address as may hereafter be furnished to the other
parties hereto in writing by the Trustee; (c) in the case of Duff & Xxxxxx
Credit Rating Co. 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
[ ] and (d) in the case of Standard and Poor's, 00 Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: [ ]. Any notice
required or permitted to be mailed to a Certificateholder shall be given by
first class mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register. Any notice so mailed to a Holder within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given whether or not the Certificateholder receives such notice. Any notice
mailed to the Trustee shall be effective only upon receipt.
Section 7.06. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 7.07. Certificates Nonassessable and Fully Paid. It is the
intention of this Agreement that Certificateholders shall not be personally
liable for obligations of the Trust, that the beneficial ownership interests
represented by the Certificates shall be nonassessable for any losses or
expenses of the Trust or for any reason whatsoever, and that Certificates upon
execution, authentication and delivery thereof by the Trustee pursuant to
Section 2.02 are and shall be deemed fully paid.
Section 7.08. Execution in Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become a binding agreement when one or more counterparts
have been signed by each party and delivered to the other party.
[End of Article VII]
IN WITNESS WHEREOF, the Depositor and the Trustee have caused their names
to be signed hereto by their respective officers thereunto duly authorized, all
as of the day and year first above written.
XXXXXX STRUCTURED SECURITIES CORP.,
as Depositor
By:
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of [October ], 1996, before me, a notary public in and for
the State of New York, personally appeared , known to me who, being by me duly
sworn, did depose and say that he is a of[ ], a [ ] corporation, one of the
parties that executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of said corporation.
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On this day of [October], 1996, before me, a notary public in and for
the State of , personally appeared , known to me
who, being by me duly sworn, did depose and say that he is the of
[ ], one of the parties that executed the foregoing instrument; and
that he signed his name thereto by order of the Board of Directors of said
association.
Notary Public
[NOTARIAL SEAL]
STATE OF )
) ss.:
COUNTY OF )
On this day of [October], 1996, before me, a notary public in and for
the State of , personally appeared , known to me
who, being by me duly sworn, did depose and say that he is the of
[ ], a banking corporation, one of the parties that executed the
foregoing instrument; and that he signed his name thereto by order of the Board
of Directors of said association.
Notary Public
[NOTARIAL SEAL]
EXHIBIT A-1
[FORM OF CLASS E-1 CERTIFICATE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE IS ISSUED ON [OCTOBER ], 1996, AT AN ISSUE PRICE OF
%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT
MATURITY EQUAL TO THE SUM OF ITS INITIAL PRINCIPAL BALANCE AND ALL INTEREST
DISTRIBUTIONS HEREON, AND IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID")
FOR FEDERAL INCOME TAX PURPOSES. ASSUMING (A) THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION
OF % SPA (AS DEFINED IN THE PROSPECTUS DATED [OCTOBER ], 1996 WITH RESPECT
TO THE OFFERING OF THE CLASS E-1, CLASS E-2 AND CLASS R CERTIFICATES) USED TO
PRICE THIS CERTIFICATE AND (B) THAT THE INTEREST RATE AT WHICH DISTRIBUTIONS
OF INTEREST ON THIS CERTIFICATE ACTUALLY WILL BE MADE WILL BE DETERMINED AS
THOUGH THE PASS-THROUGH RATE ON THIS CERTIFICATE APPLICABLE TO THE FIRST
DISTRIBUTION DATE WILL NOT CHANGE THEREAFTER: (I) THE AMOUNT OF OID AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY ; (II) THE ANNUAL YIELD TO MATURITY OF THIS CERTIFICATE,
COMPOUNDED MONTHLY, IS APPROXIMATELY %; AND (III) THE AMOUNT OF OID
ALLOCABLE TO THE FIRST ACCRUAL PERIOD ([OCTOBER ], 1996 TO [OCTOBER ],
1996) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY %.]
THIS CERTIFICATE CONSTITUTES A "REGULAR INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED IN SECTION 860G(a)(1)
AND SECTION 860D, RESPECTIVELY, OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
NO TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION OF THIS CERTIFICATE SHALL BE
MADE TO A PERSON WHICH IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA") OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF
ERISA, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL
EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY,
A "PLAN"), OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
ANY SUCH PLAN TO ACQUIRE THIS CERTIFICATE, UNLESS SUCH PERSON IS AN INSURANCE
COMPANY AND THE PURCHASE AND HOLDING OF THIS CERTIFICATE IS EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"). EACH PURCHASER OR TRANSFEREE OF
THIS CERTIFICATE SHALL BE DEEMED TO REPRESENT EITHER (A) THAT IT IS NOT A PLAN
OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN TO ACQUIRE THIS CERTIFICATE OR (B) THAT IT IS AN INSURANCE COMPANY AND THE
PURCHASE AND HOLDING OF THIS CERTIFICATE OR ANY INTEREST THEREIN IS EXEMPT FROM
THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PTE 95-60.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 1996-1
CLASS E-1
evidencing a beneficial ownership interest in a trust fund
consisting of mortgage pass-through certificates
sold by
XXXXXX STRUCTURED SECURITIES CORP.
(Not an interest in or obligation of the Depositor)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
DEPOSITOR, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT INSURED OR
GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR AFFILIATES, OR BY ANY
GOVERNMENT AGENCY.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY TIME
MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. First Distribution Date:
November 25, 1996
Percentage Interest evidenced Denomination: $
by this Certificate: %
THIS CERTIFIES THAT is the registered owner of the
Percentage Interest evidenced by this Certificate in distributions, if any, to
the Holder of the Class E-1 Certificate with respect to a Trust Fund consisting
primarily of Resolution Trust Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1994-C1 (the "RTC Certificates"), Class E (the "Underlying
Certificates"), identified in the Agreement referred to below, which evidence
senior beneficial ownership interests in a trust that consists primarily of a
pool of mortgage loans secured by first liens on commercial, multifamily
residential, and mixed residential commercial properties and certain mortgage
loans secured by junior liens on such types of properties. The Trust Fund was
created pursuant to a Trust Agreement dated as of October 1, 1996 (the
"Agreement"), among Xxxxxx Structured Securities Corp. (the "Depositor"), and
State Street Bank and Trust Company, as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. To the extent
not defined herein, the capitalized terms used herein have the meanings ascribed
to such terms 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, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"); except as otherwise
provided in the Agreement and except, in the event the Trustee is no longer the
Underlying Trustee and all distributions due on the Underlying Certificates have
not been received prior to 1:00 p.m. (New York City time) on any Distribution
Date, "Distribution Date" with respect to the Certificates shall mean the next
succeeding Business Day, 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 preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount distributable
pursuant to the Agreement on the Class E-1 Certificate for such Distribution
Date, subject to adjustment, in certain events, as specified in the Agreement.
Pursuant to the Agreement and to the extent the Available Distribution Amount is
sufficient therefor, this Class of Certificates is entitled on each Distribution
Date to interest (subject to certain reductions specified in the Agreement)
(based on a 360 day year consisting of twelve 30-day months) equal to 1/12th of
the Pass-Through Rate on the related Certificate Principal Balance and
distributions of principal to the extent provided for in the Agreement. In
addition, to the extent the principal balance of the Underlying Certificates is
reduced as a result of losses on the Mortgage Loans, the Certificate Principal
Balance of this Class of Certificates will be reduced in the manner specified in
the Agreement.
This Certificate is one of a duly authorized issue of Certificates issued
in several Classes designated as Commercial Mortgage Pass-Through Certificates
of the Series specified hereon (herein collectively called the "Certificates").
Distributions on this Certificate will be made by the Trustee by check
mailed to the Holder of this Certificate as of the preceding Record Date at such
Holder's address as it appears on the Certificate Register, or, upon written
request to the Trustee at least five Business Days prior to the relevant Record
Date if such Certificateholder holds Certificates having an aggregate initial
Certificate Principal Balance that is in excess of $1,000,000, by wire transfer
to an account specified in writing by such Certificateholder. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made only upon presentation and surrender of this Certificate at the
Corporate Trust Office of the Trustee.
The Certificates are limited in right of payment to the Percentage
Interests represented thereby in distributions in respect of the Underlying
Certificates received by the Trustee, subject to the provisions of and all as
more specifically set forth in the Agreement. The Certificateholder, by its
acceptance of this Certificate, agrees that it will look solely to the funds on
deposit in the Certificate Account for payment hereunder and that neither the
Trustee in its individual capacity nor the Depositor is personally liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the terms of the Agreement and the
rights of the Holders of the Certificates under the Agreement at any time by the
Depositor and the Trustee with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 66-2/3% of each Class
of Certificates affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding upon such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Certificate. The Agreement
also permits the Trustee to amend or waive certain terms and conditions set
forth in the Agreement without the consent of the Holders of the Certificates
issued thereunder.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register maintained by the Registrar for the Certificates represented hereby
upon surrender of this Certificate for registration of transfer at the offices
or agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Registrar, duly executed by
the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate Percentage Interest will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of authorized denominations evidencing the
same aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Registrar for the Certificates may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, the Trustee, and any agent of any such Person may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of such Persons nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
(other than the obligations to make distributions to Certificateholders pursuant
to the Agreement) shall terminate upon the last action required to be taken by
the Trustee on the final Distribution Date after the earlier of (i) the final
payment in respect of the Underlying Certificates or (ii) the purchase from the
Trust Fund or the redemption of the Underlying Certificates by the Master
Servicer. Pursuant to the terms of the Underlying Trust Agreement, the Master
Servicer may redeem the RTC Certificates (including the Underlying
Certificates), in whole but not in part, on any Distribution Date on or after
the Distribution Date on which, after taking into account payments of principal
to be made on such Distribution Date, the aggregate principal balance of the RTC
Certificates is less than 5% of the aggregate initial principal amount of the
RTC Certificates. Any such sale or redemption will be made at a price determined
as set forth in the Underlying Trust Agreement. The consummation of such sale or
redemption will effect an early retirement of the Certificates. In no event,
however, will the trust created by the Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants, living at
the date of the Agreement, of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. James's.
In the event that the Holder of this Certificate shall not surrender this
Certificate for cancellation after the Final Distribution Date in accordance
with the time periods set forth in Section 6.02 of the Agreement, the Class R
Certificateholder shall be entitled to all unclaimed funds and other assets
which remain subject thereto.
Unless this Certificate has been executed by an authorized officer of the
Trustee, and authenticated by an authorized officer of the Registrar (or the
Trustee, if the Trustee is also the Registrar), by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement or be valid
for any purpose.
[Signatures Commence on Following Page]
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
STATE STREET BANK AND TRUST COMPANY
as Trustee
By
Authorized Officer
Authenticated:
STATE STREET BANK AND TRUST COMPANY
as Trustee
By
Authorized Officer
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 interest evidenced by the within Commercial Mortgage
Pass-Through Certificates and hereby authorizes the transfer of registration of
such interest to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Registrar to issue a new Certificate of a like
denomination or Percentage Interest and Class, to the above named assignee and
deliver such Certificate to the following address:
Social Security or other
Identifying Number of Assignee:
Dated:
Signature by or on behalf of
assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, if the assignee is eligible to receive
distributions in immediately available funds, by wire transfer or otherwise, in
immediately available funds to for the account of account number , or, if mailed
by check, to . Applicable statements should be mailed to .
This information is provided by the assignee named above,
or , as its agent.
EXHIBIT A-2
[FORM OF CLASS E-2 CERTIFICATE]
THIS CERTIFICATE IS ISSUED ON [OCTOBER ], 1996, AT AN ISSUE PRICE OF %,
INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO
THE SUM OF ITS INITIAL PRINCIPAL BALANCE AND ALL INTEREST DISTRIBUTIONS HEREON,
AND IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR FEDERAL INCOME TAX
PURPOSES. ASSUMING (A) THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED
CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION OF % SPA (AS DEFINED IN THE
PROSPECTUS DATED [OCTOBER ], 1996 WITH RESPECT TO THE OFFERING OF THE CLASS E-1,
CLASS E-2 AND CLASS R CERTIFICATES) USED TO PRICE THIS CERTIFICATE AND (B) THAT
THE INTEREST RATE AT WHICH DISTRIBUTIONS OF INTEREST ON THIS CERTIFICATE
ACTUALLY WILL BE MADE WILL BE DETERMINED AS THOUGH THE PASS-THROUGH RATE ON THIS
CERTIFICATE APPLICABLE TO THE FIRST DISTRIBUTION DATE WILL NOT CHANGE
THEREAFTER: (I) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY %; (II) THE ANNUAL YIELD TO
MATURITY OF THIS CERTIFICATE, COMPOUNDED MONTHLY, IS APPROXIMATELY %; AND (III)
THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD ([OCTOBER ], 1996 TO
[OCTOBER ], 1996) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS
CERTIFICATE, CALCULATED USING THE EXACT METHOD, IS APPROXIMATELY %.]
THIS CERTIFICATE CONSTITUTES A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED IN SECTION 860G(a)(1) AND SECTION
860D, RESPECTIVELY, OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
TRANSFERS, SALES, PLEDGES OR OTHER DISPOSITIONS OF THIS CERTIFICATE SHALL
BE MADE ONLY TO (I) AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED
IN PARAGRAPHS (1), (2), (3) AND (7) OF RULE 501(A) UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT") (OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS
COME WITHIN SUCH PARAGRAPHS), (II) A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE ACT, OR (III) ANY PERSON (OTHER THAN ANY RATING
ORGANIZATION RATING THE DEPOSITOR'S SECURITIES) INVOLVED IN THE ORGANIZATION OR
OPERATION OF THE DEPOSITOR OR AN AFFILIATE, AS DEFINED IN RULE 405 UNDER THE
ACT.
NO TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION OF THIS CERTIFICATE SHALL BE MADE
TO A PERSON WHICH IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA") OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF
ERISA, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL
EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY,
A "PLAN"), OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
ANY SUCH PLAN TO ACQUIRE THIS CERTIFICATE, UNLESS SUCH PERSON IS AN INSURANCE
COMPANY AND THE PURCHASE AND HOLDING OF THIS CERTIFICATE IS EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 1996-1
CLASS E-2
evidencing a beneficial ownership interest in a trust fund
consisting of mortgage pass-through certificates
sold by
XXXXXX STRUCTURED SECURITIES CORP.
(Not an interest in or obligation of the Depositor)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
DEPOSITOR, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT INSURED OR
GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR AFFILIATES, OR BY ANY
GOVERNMENT AGENCY.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN THE MANNER DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY THE OUTSTANDING PRINCIPAL BALANCE OF THIS CERTIFICATE AT ANY
TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE REPRESENTED HEREBY.
Certificate No. First Distribution Date:
November 25, 1996
Percentage Interest evidenced Denomination: $
by this Certificate: %
THIS CERTIFIES THAT is the registered owner of the
Percentage Interest evidenced by this Certificate in distributions, if any, to
the Holder of the Class E-2 Certificate with respect to a Trust Fund consisting
primarily of Resolution Trust Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1994-C1 (the "RTC Certificates"), Class E (the "Underlying
Certificates"), identified in the Agreement referred to below, which evidence
senior beneficial ownership interests in a trust that consists primarily of a
pool of mortgage loans secured by first liens on commercial, multifamily
residential, and mixed residential commercial properties and certain mortgage
loans secured by junior liens on such types of properties. The Trust Fund was
created pursuant to a Trust Agreement dated as of [October ], 1996 (the
"Agreement"), among Xxxxxx Structured Securities Corp. (the "Depositor"), and
State Street Bank and Trust Company, as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. To the extent
not defined herein, the capitalized terms used herein have the meanings ascribed
to such terms 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, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"); except as otherwise
provided in the Agreement and except, in the event the Trustee is no longer the
Underlying Trustee and all distributions due on the Underlying Certificates have
not been received prior to 1:00 p.m. (New York City time) on any Distribution
Date, "Distribution Date" with respect to the Certificates shall mean the next
succeeding Business Day, 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 preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount distributable
pursuant to the Agreement on the Class E-2 Certificate for such Distribution
Date, subject to adjustment, in certain events, as specified in the Agreement.
Pursuant to the Agreement and to the extent the Available Distribution Amount is
sufficient therefor, this Class of Certificates is entitled on each Distribution
Date to interest (subject to certain reductions specified in the Agreement)
(based on a 360 day year consisting of twelve 30-day months) equal to 1/12th of
the Pass-Through Rate on the related Certificate Principal Balance and
distributions of principal to the extent provided for in the Agreement. In
addition, to the extent the principal balance of the Underlying Certificates is
reduced as a result of losses on the Mortgage Loans, the Certificate Principal
Balance of this Class of Certificates will be reduced in the manner specified in
the Agreement.
This Certificate is one of a duly authorized issue of Certificates issued
in several Classes designated as Commercial Mortgage Pass-Through Certificates
of the Series specified hereon (herein collectively called the "Certificates").
Distributions on this Certificate will be made by the Trustee by check
mailed to the Holder of this Certificate as of the preceding Record Date at such
Holder's address as it appears on the Certificate Register, or, upon written
request to the Trustee at least five Business Days prior to the relevant Record
Date if such Certificateholder holds Certificates having an aggregate initial
Certificate Principal Balance that is in excess of $1,000,000, by wire transfer
to an account specified in writing by such Certificateholder. Except as
otherwise provided in the Agreement, the final distribution on this Certificate
will be made only upon presentation and surrender of this Certificate at the
Corporate Trust Office of the Trustee.
The Certificates are limited in right of payment to the Percentage
Interests represented thereby in distributions in respect of the Underlying
Certificates received by the Trustee, subject to the provisions of and all as
more specifically set forth in the Agreement. The Certificateholder, by its
acceptance of this Certificate, agrees that it will look solely to the funds on
deposit in the Certificate Account for payment hereunder and that neither the
Trustee in its individual capacity nor the Depositor is personally liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the terms of the Agreement and the
rights of the Holders of the Certificates under the Agreement at any time by the
Depositor and the Trustee with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 66-2/3% of each Class
of Certificates affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding upon such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Certificate. The Agreement
also permits the Trustee to amend or waive certain terms and conditions set
forth in the Agreement without the consent of the Holders of the Certificates
issued thereunder.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register maintained by the Registrar for the Certificates represented hereby
upon surrender of this Certificate for registration of transfer at the offices
or agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Registrar, duly executed by
the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate Percentage Interest will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of authorized denominations evidencing the
same aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Registrar for the Certificates may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, the Trustee, and any agent of any such Person may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of such Persons nor any such agent shall be affected by
notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
(other than the obligations to make distributions to Certificateholders pursuant
to the Agreement) shall terminate upon the last action required to be taken by
the Trustee on the final Distribution Date after the earlier of (i) the final
payment in respect of the Underlying Certificates or (ii) the purchase from the
Trust Fund or the redemption of the Underlying Certificates by the Master
Servicer. Pursuant to the terms of the Underlying Trust Agreement, the Master
Servicer may redeem the RTC Certificates (including the Underlying
Certificates), in whole but not in part, on any Distribution Date on or after
the Distribution Date on which, after taking into account payments of principal
to be made on such Distribution Date, the aggregate principal balance of the RTC
Certificates is less than 5% of the aggregate initial principal amount of the
RTC Certificates. Any such sale or redemption will be made at a price determined
as set forth in the Underlying Trust Agreement. The consummation of such sale or
redemption will effect an early retirement of the Certificates. In no event,
however, will the trust created by the Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants, living at
the date of the Agreement, of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. James's.
In the event that the Holder of this Certificate shall not surrender this
Certificate for cancellation after the Final Distribution Date in accordance
with the time periods set forth in Section 6.02 of the Agreement, the Class R
Certificateholder shall be entitled to all unclaimed funds and other assets
which remain subject thereto.
Unless this Certificate has been executed by an authorized officer of the
Trustee, and authenticated by an authorized officer of the Registrar (or the
Trustee, if the Trustee is also the Registrar), by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement or be valid
for any purpose.
[Signatures Commence on Following Page]
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
STATE STREET BANK AND TRUST COMPANY
as Trustee
By
Authorized Officer
Authenticated:
STATE STREET BANK AND TRUST COMPANY
as Trustee
By
Authorized Officer
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 interest evidenced by the within Commercial Mortgage Pass-Through
Certificates and hereby authorizes the transfer of registration of such interest
to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Registrar to issue a new Certificate of a like
denomination or Percentage Interest and Class, to the above named assignee and
deliver such Certificate to the following address:
.
Social Security or other Identifying Number of Assignee:
.
Dated:
Signature by or on behalf of
assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, if the assignee is eligible to receive
distributions in immediately available funds, by wire transfer or otherwise, in
immediately available funds to for the account of
account number , or, if mailed by check, to
. Applicable statements should be mailed to
.
This information is provided by the assignee named above,
or , as its agent.
EXHIBIT A-R
[FORM OF CLASS R CERTIFICATE]
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"). A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE
HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 4.02 OF THE AGREEMENT,
AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE
TO THE EFFECT THAT IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS
DEFINED IN CODE SECTION 860E(e)(5), AN AGENT (INCLUDING A BROKER, NOMINEE OR
OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION OR A NON-PERMITTED FOREIGN
HOLDER, AS DEFINED IN SECTION 4.02(d) OF THE AGREEMENT AND TO HAVE AGREED TO
SUCH AMENDMENTS TO THE TRUST AGREEMENT AS MAY BE REQUIRED TO FURTHER EFFECTUATE
THE RESTRICTIONS ON TRANSFERS TO DISQUALIFIED ORGANIZATIONS, AGENTS THEREOF OR
NON-PERMITTED FOREIGN HOLDERS.
THE HOLDER OF THIS CLASS R CERTIFICATE, BY ACCEPTANCE HEREOF, AGREES (I) TO ACT
AS "TAX MATTERS PERSON" OF THE TRUST FUND TO PERFORM THE FUNCTIONS OF A "TAX
MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE
CODE, AND (II) TO THE IRREVOCABLE DESIGNATION OF THE TRUSTEE AS ITS AGENT IN
PERFORMING THE FUNCTIONS OF TAX MATTERS PERSON OF THE TRUST FUND.
NO TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION OF THIS CERTIFICATE SHALL BE MADE
TO A PERSON WHICH IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA") OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF
ERISA, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL
EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY,
A "PLAN"), OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF
ANY SUCH PLAN TO ACQUIRE THIS CERTIFICATE.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 1996-1
CLASS R
evidencing a beneficial ownership interest in a trust fund
consisting of mortgage pass-through certificates
sold by
XXXXXX STRUCTURED SECURITIES CORP.
(Not an interest in or obligation of the Depositor)
THIS CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN, THE
DEPOSITOR, THE TRUSTEE OR ANY OF THEIR AFFILIATES, AND IS NOT INSURED OR
GUARANTEED BY THE DEPOSITOR OR THE TRUSTEE OR ANY OF THEIR AFFILIATES, OR BY ANY
GOVERNMENT AGENCY.
Certificate No.
Percentage Interest evidenced Cut-Off Date: October 1, 1996
by this Certificate: %
First Distribution Date: Denomination: $
November 25, 1996
THIS CERTIFIES THAT is the registered owner of the
Percentage Interest evidenced by this Certificate in distributions, if any, to
the Holder of the Class R Certificate with respect to a Trust Fund consisting
primarily of Resolution Trust Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1994-C1 (the "RTC Certificates"), Class E (the "Underlying
Certificates"), identified in the Agreement referred to below, which evidence
senior beneficial ownership interests in a trust that consists primarily of a
pool of mortgage loans secured by first liens on commercial, multifamily
residential, and mixed residential commercial properties and certain mortgage
loans secured by junior liens on such types of properties. The Trust Fund was
created pursuant to a Trust Agreement dated as of [October ], 1996 (the
"Agreement"), among Xxxxxx Structured Securities Corp. (the "Depositor"), and
State Street Bank and Trust Company, as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. To the extent
not defined herein, the capitalized terms used herein have the meanings ascribed
to such terms 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, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"); except as otherwise
provided in the Agreement and except, in the event the Trustee is no longer the
Underlying Trustee and all distributions due on the Underlying Certificates have
not been received prior to 1:00 p.m. (New York City time) on any Distribution
Date, "Distribution Date" with respect to the Certificates shall mean the next
succeeding Business Day, 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 preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount distributable
pursuant to the Agreement on the Class R Certificate for such Distribution Date,
subject to adjustment, in certain events, as specified in the Agreement.
Pursuant to the Agreement and to the extent the Available Distribution Amount is
sufficient therefor, this Class of Certificates is entitled on each Distribution
Date to interest (subject to certain reductions specified in the Agreement)
(based on a 360 day year consisting of twelve 30-day months) equal to 1/12th of
the Pass-Through Rate on the related Certificate Principal Balance and
distributions of principal to the extent provided for in the Agreement. In
addition, to the extent the principal balance of the Underlying Certificates is
reduced as a result of losses on the Mortgage Loans, the Certificate Principal
Balance of this Class of Certificates will be reduced in the manner specified in
the Agreement.
This Certificate represents a non-economic residual interest in a REMIC
and, except as specified in the Agreement, does not entitle the Holder hereof to
any distributions with respect to the Trust Fund.
This Certificate is one of a duly authorized issue of Certificates issued
in several Classes designated as Commercial Mortgage Pass-Through Certificates
of the Series specified hereon (herein collectively called the "Certificates").
Distributions on this Certificate will be made by the Trustee by check
mailed to the Holder of this Certificate as of the preceding Record Date at such
Holder's address as it appears on the Certificate Register. Except as otherwise
provided in the Agreement, the final distribution on this Certificate will be
made only upon presentation and surrender of this Certificate at the Corporate
Trust Office of the Trustee.
The Certificates are limited in right of payment to the Percentage
Interests represented thereby in distributions in respect of the Underlying
Certificates received by the Trustee, subject to the provisions of and all as
more specifically set forth in the Agreement. The Certificateholder, by its
acceptance of this Certificate, agrees that it will look solely to the funds on
deposit in the Certificate Account for payment hereunder and that neither the
Trustee in its individual capacity nor the Depositor is personally liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
The Class R Certificateholder, by its acceptance hereof, agrees to
reimburse the Trustee for taxes imposed upon the REMIC as provided in the
Agreement. This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the terms of the Agreement and the
rights of the Holders of the Certificates under the Agreement at any time by the
Depositor and the Trustee with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 66-2/3% of each Class
of Certificates affected thereby. Any such consent by the Holder of this
Certificate shall be conclusive and binding upon such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Certificate. The Agreement
also permits the Trustee to amend or waive certain terms and conditions set
forth in the Agreement without the consent of the Holders of the Certificates
issued thereunder.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register maintained by the Registrar for the Certificates represented hereby
upon surrender of this Certificate for registration of transfer at the offices
or agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Registrar, duly executed by
the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate Percentage Interest will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of authorized denominations evidencing the
same aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Registrar for the Certificates may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, the Trustee and the Registrar, and any agent of any such
Person may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of such Persons nor any such agent shall
be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created thereby
(other than the obligations to make distributions to Certificateholders pursuant
to the Agreement) shall terminate upon the last action required to be taken by
the Trustee on the final Distribution Date after the earlier of (i) the final
payment in respect of the Underlying Certificates or (ii) the purchase from the
Trust Fund or the redemption of the Underlying Certificates by the Master
Servicer. Pursuant to the terms of the Underlying Trust Agreement, the Master
Servicer may redeem the RTC Certificates (including the Underlying
Certificates), in whole but not in part, on any Distribution Date on or after
the Distribution Date on which, after taking into account payments of principal
to be made on such Distribution Date, the aggregate principal balance of the RTC
Certificates is less than 5% of the aggregate initial principal amount of the
RTC Certificates. Any such sale or redemption will be made at a price determined
as set forth in the Underlying Trust Agreement. The consummation of such sale or
redemption will effect an early retirement of the Certificates. In no event,
however, will the trust created by the Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants, living at
the date of the Agreement, of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. James's.
In the event that the Certificateholders shall not surrender their
Certificates for cancellation after the Final Distribution Date in accordance
with the time periods set forth in Section 6.02 of the Agreement, the Class R
Certificateholder shall be entitled to all unclaimed funds and other assets
which remain subject thereto.
Unless this Certificate has been executed by an authorized officer of the
Trustee, and authenticated by an authorized officer of the Registrar (or the
Trustee, if the Trustee is also the Registrar), by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement or be valid
for any purpose.
[Signatures Commence on Following Page]
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed as of the date set forth below.
Dated:
STATE STREET BANK AND TRUST COMPANY
as Trustee
By
Authorized Officer
Authenticated:
STATE STREET BANK AND TRUST COMPANY
as Trustee
By
Authorized Officer
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 interest evidenced by the within Commercial Mortgage Pass-Through
Certificates and hereby authorizes the transfer of registration of such interest
to assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Registrar to issue a new Certificate of a like
denomination or Percentage Interest and Class, to the above named assignee and
deliver such Certificate to the following address:
.
Social Security or other Identifying Number of Assignee:
.
Dated:
Signature by or on behalf of
assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, if the assignee is eligible to receive
distributions in immediately available funds, by wire transfer or otherwise, in
immediately available funds to for the account of
account number , or, if mailed by check, to
. Applicable statements should be mailed to
.
This information is provided by
the assignee named above, or , as its agent.
EXHIBIT B
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4)
OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Purchaser] (the "Purchaser"),
a [description of type of entity] duly organized and existing under the laws of
the [State of ] [United States], on behalf of which he makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is [ ].
3. That the Purchaser is not a "disqualified organization" within the
meaning of Section 860E(e)(5), of the Internal Revenue Code of 1986, as amended
(the "Code"), and will not be a "disqualified organization" or an ERISA
Prohibited Holder as of [date of transfer], and that the Purchaser is not
acquiring Xxxxxx Structured Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1996-1, Class R Certificate (the "Class R Certificate") for
the account of, or as agent (including a broker, nominee, or other middleman)
for, any person or entity from which it has not received an affidavit
substantially in the form of this affidavit. For these purposes, "disqualified
organization" means the United States, any state or political subdivision
thereof, any foreign government, any international organization, any agency or
instrumentality of any of the foregoing (other than an instrumentality if all of
its activities are subject to tax and a majority of its board of directors is
not selected by such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to persons in rural
areas as described in Code Section 1381(a)(2)(C), or any organization (other
than a farmers' cooperative described in Code Section 521) that is exempt from
taxation under the Code unless such organization is subject to the tax on
unrelated business income imposed by Code Section 511. For these purposes, an
"ERISA Prohibited Holder" means an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan, as defined in Section
3(32) of ERISA, subject to any federal, state or local law which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code
(collectively, a "Plan") or a Person investing the assets of a Plan.
4. That the Purchaser historically has paid its debts as they have come due
and intends to pay its debts as they come due in the future and the Purchaser
intends to pay taxes associated with holding the Class R Certificate as they
become due.
5. That the Purchaser understands that it may incur tax liabilities with
respect to the Class R Certificate in excess of cash flows generated by the
Class R Certificate.
6. That the Purchaser will not transfer the Class R Certificate to any
person or entity from which the Purchaser has not received an affidavit
substantially in the form of this affidavit and as to which the Purchaser has
actual knowledge that the requirements set forth in paragraphs 3, 4 or 7 hereof
are not satisfied or that the Purchaser has reason to know does not satisfy the
requirements set forth in paragraph 4 hereof.
7. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a Non-U.S.
Person that holds the Class R Certificate in connection with the conduct of a
trade or business within the United States and has furnished the transferor and
the Trustee with an effective Internal Revenue Service Form 4224 or successor
form at the time and in the manner required by the Code or (iii) is a Non-U.S.
Person that has delivered to both the transferor and the Trustee an opinion of a
nationally recognized tax counsel to the effect that the transfer of the Class R
Certificate to it is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Class R
Certificate will not be disregarded for federal income tax purposes. "Non-U.S.
Person" means an individual corporation, partnership or other person other than
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 that is subject to U.S.
federal income tax regardless of the source of its income.
8. That the Purchaser agrees to such amendments of the Trust Agreement as
may be required to further effectuate the restrictions on transfer of the Class
R Certificate to such a "disqualified organization," an agent thereof or a
person that does not satisfy the requirements of paragraph 4, paragraph 5 and
paragraph 7 hereof.
9. That the Purchaser, pursuant to Section 2.03(c) of the Trust Agreement,
consents (i) to serve as "tax matters person" of the REMIC for as long as it
shall hold the Class R Certificate and (ii) to the irrevocable designation of
the Certificate Administrator as its agent in performing the functions of "tax
matters person."
10. That the Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act of 1933, as amended (the "Act") or
is a person (other than any rating organization rating the Depositor's
securities) involved in the organization or operation of the Depositor or an
affiliate, as defined in rule 405 under the Act.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be executed
on its behalf, pursuant to authority of its Board of Directors, by its [Title of
Officer] this day of , 19 .
[NAME OF PURCHASER]
By:
Name of Officer]
[Title of Officer]
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 Purchaser, and acknowledged to me that he
[she] executed the same as his [her] free act and deed and the free act and deed
of the Purchaser.
Subscribed and sworn before me this day of , 19 .
NOTARY PUBLIC
COUNTY OF
STATE OF
My commission expires the day of , 19 .
EXHIBIT C
[Letter from Transferor of Class R Certificate]
[Date]
STATE STREET BANK AND TRUST COMPANY
Attention: [ ]
Re: Xxxxxx Structured Securities Corp.,
Commercial Mortgage Pass-Through
Certificates, Series 1996-1, Class R
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee], and has
no actual knowledge that such affidavit is not true and has no reason to know
that the information contained in paragraph 4 thereof is not true.
Very truly yours,
[Transferor]
EXHIBIT X
XXXXXX STRUCTURED SECURITIES CORP.
Commercial Pass-Through Certificates
Series 1996-1
TRANSFEREE AFFIDAVIT
Reference is made to the trust agreement (the "Trust Agreement"), dated as
of October 1, 1996, between Xxxxxx Structured Securities Corp., as depositor
(the "Depositor"), and State Street Bank and Trust Company, as trustee (the
"Trustee"). All terms used herein and not otherwise defined shall have the
respective meanings set forth in the Trust and Servicing Agreement. In
connection with the transfer of the Class E-2 Certificates (the "Class E-2
Certificate") issued pursuant to the Trust Agreement, , hereby
certifies that:
1. That (s)he is of (the
"Transferee"), a corporation, on behalf of which he makes this
affidavit.
2. That the Transferee is (i) an institution that is an "accredited
investor" as defined in paragraphs (1), (2), (3) and (7) of rule 501(a) under
the Securities Act of 1933, as amended (the "Act") (or any entity in which all
of the equity owners come within such paragraphs), (ii) a "qualified
institutional buyer" as defined in rule 144A under the Act, or (iii) any person
(other than any rating organization rating the Depositor's securities) involved
in the organization or operation of the Depositor or an affiliate, as defined in
rule 405 under the Act.
3. That either (i) the Transferee is not an employee benefit plan subject
to the fiduciary responsibility provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), or a governmental plan, as
defined in Section 3(32) of ERISA, subject to any federal, state or local law
which is, to a material extent, similar to the foregoing provisions of ERISA or
the Code (collectively, a "Plan") or a Person acting on behalf of any such Plan
or using the assets of any such Plan to acquire the Class E-2 Certificate or
(ii) if the Transferee is an insurance company, that the purchase and holding of
the Class E-2 Certificate is exempt from the prohibited transaction provisions
of ERISA and the Code under Prohibited Transaction Class Exemption 95-60.
Name:
Title:
