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DEPOSIT TRUST AGREEMENT
dated as of ______________, 199_
between
CRIIMI MAE CMBS CORP.
as Depositor and Initial Holder of the Owner Trust Certificates,
and
---------------------------------------------
as Owner Trustee
CRIIMI MAE COMMERCIAL MORTGAGE TRUST [I]
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TABLE OF CONTENTS
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PRELIMINARY STATEMENT
ARTICLE I
DEFINITIONS
Accrued Bond Interest........................................................2
Accrued Certificate Interest.................................................2
Administrative Expenses......................................................2
Affiliate....................................................................2
Agent........................................................................2
Aggregate Certificate Principal Balance......................................2
Aggregate Stated Principal Balance...........................................3
Available Funds..............................................................3
[Bank].......................................................................3
Bond Account.................................................................3
Bond Register................................................................3
Bondholder...................................................................3
Bonds........................................................................3
Business Day.................................................................3
Business Trust Statute.......................................................3
Certificate Account..........................................................3
Certificate of Trust.........................................................3
Certificate Register.........................................................3
Certificate Registrar........................................................3
Certificateholder or Holder..................................................4
Certificateholder Funds......................................................4
Class........................................................................4
Class A-1 Bonds..............................................................4
Class A-2 Bonds..............................................................4
Class B Bonds................................................................4
Class C Bonds................................................................4
Class D Bonds................................................................4
Class E Bonds................................................................4
Class F Bonds................................................................4
Class [P] Certificate........................................................4
Class [R] Certificate........................................................4
Class [XS] Certificate.......................................................4
Closing Date.................................................................5
Code.........................................................................5
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Collection Account...........................................................5
Collection Period............................................................5
Corporate Trust Office.......................................................5
Cut-off Date.................................................................5
Depositor....................................................................5
Deposit Trust Agreement......................................................5
Depository...................................................................5
Depository Representation Letter.............................................5
Eligible Trustee.............................................................5
ERISA........................................................................5
General Administration Agreement.............................................6
General Administration Fee...................................................6
General Administrator........................................................6
Governmental Authority.......................................................6
Indenture....................................................................6
Indenture Trustee............................................................6
Indenture Trustee Fee........................................................6
IRS..........................................................................6
Lien.........................................................................6
Mortgage.....................................................................6
Mortgage Loan................................................................6
Mortgage Loan Documents......................................................6
Mortgage Loan Purchase Agreement.............................................8
Mortgage Note................................................................8
Mortgage Loan Seller.........................................................8
Mortgaged Property...........................................................8
Mortgagor....................................................................8
1933 Act.....................................................................8
1940 Act.....................................................................8
Officers' Certificate........................................................8
Operative Agreements.........................................................8
Opinion of Counsel...........................................................8
Overcollateralization Amount.................................................8
Owner Trust Certificates.....................................................9
Owner Trustee................................................................9
Owner Trustee Fee............................................................9
Payment Date.................................................................9
Percentage Interest..........................................................9
Person.......................................................................9
QIB..........................................................................9
QRS..........................................................................9
Rating Agency................................................................9
Record Date..................................................................9
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REIT.........................................................................9
REO Loan.....................................................................9
REO Property.................................................................9
Responsible Officer.........................................................10
Standard Indenture Provisions...............................................10
Terms Indenture.............................................................10
Trust.......................................................................10
Trust Estate................................................................10
UCC Financing Statement.....................................................10
Underwriting Agreement......................................................11
Underwriter(s)..............................................................11
Uniform Commercial Code.....................................................11
Voting Rights...............................................................11
ARTICLE II
AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS;
DECLARATION OF BUSINESS TRUST
SECTION 2.1 Declaration of Business Trust.............................12
SECTION 2.2 Transfer of Trust Estate to Owner Trustee.................12
SECTION 2.3 Authority to Execute and Perform Various Documents........14
SECTION 2.4 Execution and Delivery of Owner Trust Certificates........14
SECTION 2.5 Activities of the Trust...................................15
ARTICLE III
ESTABLISHMENT OF CERTIFICATE ACCOUNT
SECTION 3.1 Establishment of Certificate Account; Deposits in
Certificate Account.....................................17
SECTION 3.2 Permitted Withdrawals From the Certificate Account........17
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE TRUST ESTATE
SECTION 4.1 Distribution of Payments..................................18
SECTION 4.2 Payments..................................................18
SECTION 4.3 Statements to Certificateholders..........................20
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SECTION 4.4 Access to Certain Documentation and Information...........21
SECTION 4.5 Compliance with Withholding Requirements..................21
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
SECTION 5.1 Notice of Certain Events; Action by the Owner Trustee.....22
SECTION 5.2 Distribution of Reports...................................22
SECTION 5.3 Action Required Only if Owner Trustee is Indemnified......22
SECTION 5.4 No Duties Except as Specified in Deposit Trust Agreement
or Instructions.........................................22
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Acceptance of Trust and Duties............................24
SECTION 6.2 Limited Representations or Warranties of the Owner
Trustee.................................................24
SECTION 6.3 Trust Accounts............................................25
SECTION 6.4 Reliance; Advice of Counsel...............................25
SECTION 6.5 Not Acting in Individual Capacity.........................26
SECTION 6.6 Books and Records; Tax Election...........................26
ARTICLE VII
COMPENSATION, REIMBURSEMENT AND INDEMNIFICATION
OF THE OWNER TRUSTEE
SECTION 7.1 Compensation of the Owner Trustee.........................27
SECTION 7.2 Reimbursement and Indemnification of the Owner Trustee....27
SECTION 7.3 Not Obligations of the Trust..............................28
ARTICLE VIII
TERMINATION OF DEPOSIT TRUST AGREEMENT
SECTION 8.1 Termination...............................................29
SECTION 8.2 Further Assurances by the Owner Trustee upon Termination..29
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SECTION 8.3 Insolvency of a Certificateholder.........................29
ARTICLE IX
SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES
AND SEPARATE OWNER TRUSTEES
SECTION 9.1 Resignation of the Owner Trustee; Appointment of Successor30
SECTION 9.2 Co-Trustees and Separate Trustees.........................31
SECTION 9.3 Notice....................................................31
ARTICLE X
SUPPLEMENTS AND AMENDMENTS
SECTION 10.1 Supplements and Amendments................................32
SECTION 10.2 Limitation on Amendments..................................32
SECTION 10.3 Additional Amendment Provisions...........................32
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE DEPOSITOR
SECTION 11.1 Representations and Warranties of the Depositor...........34
SECTION 11.2 Accrued Interest, Etc.....................................35
SECTION 11.3 Additional Covenants of the Depositor.....................35
ARTICLE XII
TRANSFER OF INTEREST OF THE DEPOSITOR
SECTION 12.1 Registration of Transfer and Exchange of Owner Trust
Certificates............................................37
SECTION 12.2 Mutilated, Destroyed, Lost or Stolen Owner Trust
Certificates............................................39
SECTION 12.3 Persons Deemed Owners.....................................39
SECTION 12.4 Access to Names and Addresses.............................39
SECTION 12.5 Actions of Certificateholders.............................40
SECTION 12.6 Transferee's Agreement....................................40
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 No Legal Title to Trust Estate in the Certificateholder...41
SECTION 13.2 Action by the Owner Trustee is Binding....................41
SECTION 13.3 Limitation on Rights of Others............................41
SECTION 13.4 Notices...................................................41
SECTION 13.5 Severability..............................................42
SECTION 13.6 Limitation on the Depositor's and the Certificateholders'
Respective Liability....................................42
SECTION 13.7 Separate Counterparts.....................................42
SECTION 13.8 Successors and Assigns....................................42
SECTION 13.9 Headings..................................................43
SECTION 13.10 Governing Law.............................................43
SECTION 13.11 Administration of Trust...................................43
SECTION 13.12 Performance by the Depositor or the General Administrator.43
SECTION 13.13 Conflict with Indenture and Servicing and Administration
Agreement...............................................43
SECTION 13.14 No Implied Waiver.........................................43
SECTION 13.15 Third Party Beneficiary...................................43
SECTION 13.16 References................................................43
SECTION 13.17 Xxxxxx Act................................................44
Schedule I - Mortgage Loan Schedule
Exhibit A-1 - Form of Class [P] Certificate
Exhibit A-2 - Form of Class [XS] Certificate
Exhibit A-3 - Form of Class [R] Certificate
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DEPOSIT TRUST AGREEMENT
DEPOSIT TRUST AGREEMENT, dated as of ________________, 199_, between
CRIIMI MAE CMBS CORP., a Delaware corporation, as Depositor and initial holder
of the Owner Trust Certificates, and _________________________, a
____________________, as Owner Trustee.
PRELIMINARY STATEMENT
The Depositor (as defined herein) desires to form the trust to be
created hereby (the "Trust") for the purpose of (i) accepting from the
Depositor, and holding for the benefit of the Holders (as defined herein) of the
Owner Trust Certificates (as defined herein), the Trust Estate (as defined
herein), (ii) issuing pursuant to the Indenture nonrecourse Collateralized
Mortgage Obligations, Series 199_-__ (the "Bonds"), in [seven] classes
designated as the "Class A-1 Bonds", the "Class A-2 Bonds", the "Class B Bonds",
the "Class C Bonds", the "Class D Bonds", the "Class E Bonds" and the "Class F
Bonds", respectively, and secured by, among other things, a lien on the Mortgage
Loans (as defined herein), and distributing to the Depositor the Bonds or the
proceeds from the sale thereof, (iii) issuing Owner Trust Certificates in three
classes designated as the "Class [P] Certificates", the "Class [XS]
Certificates" and the "Class [R] Certificates", respectively, collectively
evidencing the entire beneficial ownership interest in the Trust, (iv)
consummating certain transactions contemplated by, and performing its
obligations under, the Operative Agreements, and (v) engaging in certain
activities incidental to the foregoing.
_________________________, a ________________________________, is
willing to act as trustee hereunder (in its individual capacity, the "[Bank]",
and solely in its capacity as owner trustee hereunder, with its successors in
interest in such capacity and its permitted assigns, the "Owner Trustee") and to
accept the trust created hereby.
In consideration of the premises and of the mutual agreements herein
contained and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used herein and not otherwise defined, unless
the context otherwise requires, shall have the meanings set forth below or, if
not defined below, in the Indenture. (In the event that a capitalized term used
herein is defined both in this Deposit Trust Agreement and in the Indenture, the
definition appearing herein shall control.)
"Accrued Bond Interest" shall mean interest accrued and payable on
the Bonds from time to time in accordance with the terms of the Indenture.
"Accrued Certificate Interest" shall mean: with respect to the Class
[P] Certificates for any Payment Date, one month's interest (calculated on the
basis of a 360-day year consisting of twelve 30-day months) at _____% per annum
on the Aggregate Certificate Principal Balance of the Class [P] Certificates
immediately prior to the related Payment Date; and with respect to the Class
[XS] Certificates for any Payment Date, the excess, if any, of (a) the aggregate
of all payments received on the Mortgage Loans during the related Collection
Period that are allocable to interest thereon, over (b) the aggregate of (i) all
Accrued Bond Interest payable on the Bonds and all Accrued Certificate Interest
payable on the Class [P] Certificates on such Payment Date and (ii) any unpaid
Administrative Expenses due as of such Payment Date.
"Administrative Expenses" shall mean the Indenture Trustee Fee, the
Owner Trustee Fee and the General Administration Fee and the ongoing fees of the
Rating Agencies payable under the Indenture.
"Affiliate" shall mean, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the meaning of "control".
"Agent" shall mean any agent or attorney of the Owner Trustee
appointed by the Owner Trustee to execute one or more of the trusts or powers
hereunder.
"Aggregate Certificate Principal Balance" shall mean, with respect
to the Class [P] Certificates, as of any date of determination, the then
aggregate principal balance of all Class [P] Certificates. The initial Aggregate
Certificate Principal Balance of the Class [P] Certificates shall be
$_______________. The Aggregate Certificate Principal Balance of the Class [P]
Certificates shall be reduced on each Payment Date by the amount of any payments
of principal made thereon on such date pursuant to Section 4.2, and shall be
further reduced on each Payment Date by the amount, if any, that the Aggregate
Certificate Principal Balance of the Class [P] Certificates immediately
following the payments of principal to be made on such Owner Trust Certificates
on such Payment
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Date, exceeds the Overcollateralization Amount that will be outstanding
immediately following such Payment Date.
"Aggregate Stated Principal Balance" shall mean as of any date of
determination, the then aggregate scheduled unpaid principal balance of all the
Mortgage Loans (and any successor REO Loans), calculated as set forth in the
Servicing and Administration Agreement.
"Assignment of Leases" shall mean with respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar document
executed by the Mortgagor in connection with the origination of the related
Mortgage Loan.
"Available Funds" shall have the meaning assigned to such term in
the Indenture.
"[Bank]" shall have the meaning assigned to that term in the
preliminary statement above.
"Bond Account" shall mean the segregated trust account established
in the name of the Indenture Trustee pursuant to Section [13] of the Terms
Indenture and Section [8.02] of the Standard Indenture Provisions.
"Bond Register" shall mean the register of Bonds maintained pursuant
to the Indenture.
"Bondholder" shall mean those Persons holding the Bonds from time to
time as shown on the Bond Register maintained under the Indenture.
"Bonds" shall have the meaning assigned to that term in the
preliminary statement above.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which banking institutions in New York, New York, _____________,
_______________ or any other city specified in the definition of Business Day in
the Indenture, are authorized or obligated by law or executive order to be
closed.
"Business Trust Statute" shall have the meaning assigned to that
term in Section 2.1.
"Certificate Account" shall mean the segregated trust account
established in the name of the Owner Trustee pursuant to Section 3.1 of this
Deposit Trust Agreement.
"Certificate of Trust" shall have the meaning assigned to that term
in Section 2.1.
"Certificate Register" and "Certificate Registrar" shall mean the
register of Owner Trust Certificates maintained, and the registrar appointed,
respectively, pursuant to Section 12.1.
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"Certificateholder" or "Holder" shall mean, with respect to any
Owner Trust Certificate, the Person in whose name such Owner Trust Certificate
is registered on the Certificate Register. Initially, the Depositor shall be the
sole Holder of all the Owner Trust Certificates.
"Certificateholder Funds" shall mean, with respect to any Payment
Date, an amount equal to all amounts on deposit in the Certificate Account as of
the commencement of business on such Payment Date, net of (i) any amounts
payable or reimbursable to the Owner Trustee from the Certificate Account
pursuant to Sections 7.2 hereunder and (ii) any amounts deposited in the
Certificate Account in error.
"Class" shall mean all of the Owner Trust Certificates or Bonds, as
the case may be, having the same alphabetical and/or numerical class
designation.
"Class A-1 Bonds" shall mean the Bonds so designated under the
Indenture and issued pursuant thereto.
"Class A-2 Bonds" shall mean the Bonds so designated under the
Indenture and issued pursuant thereto.
"Class B Bonds" shall mean the Bonds so designated under the
Indenture and issued pursuant thereto.
"Class C Bonds" shall mean the Bonds so designated under the
Indenture and issued pursuant thereto.
"Class D Bonds" shall mean the Bonds so designated under the
Indenture and issued pursuant thereto.
"Class E Bonds" shall mean the Bonds so designated under the
Indenture and issued pursuant thereto.
"Class F Bonds" shall mean the Bonds so designated under the
Indenture and issued pursuant thereto.
"Class [P] Certificate" shall mean any of the Owner Trust
Certificates with a "Class [P]" designation on the face thereof, executed by the
Owner Trustee and authenticated by the Certificate Registrar, substantially in
the form of Exhibit A-1 attached hereto.
"Class [R] Certificate" shall mean any of the Owner Trust
Certificates with a "Class [R]" designation on the face thereof, executed by the
Owner Trustee and authenticated by the Certificate Registrar, substantially in
the form of Exhibit A-3 attached hereto.
"Class [XS] Certificate" shall mean any of the Owner Trust
Certificates with a "Class [XS]" designation on the face thereof, executed by
the Owner Trustee and authenticated by the Certificate Registrar, substantially
in the form of Exhibit A-2 attached hereto.
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"Closing Date" shall mean ___________________, 199_.
"Code" shall mean the Internal Revenue Code of 1986.
"Collection Account" shall have the meaning assigned to such term in
the Servicing and Administration Agreement.
"Collection Period" shall mean, with respect to any Payment Date,
the period commencing on and including the prior Payment Date (or, in the case
of the initial Payment Date, commencing on and including _________________,
199_) and ending on the day prior to the related Payment Date.
"Corporate Trust Office" shall mean the principal corporate trust
office of the Owner Trustee at which, at any particular time, its corporate
trust business is administered, which office at the date hereof is located at
the address of the Owner Trustee set forth in Section 13.4.
"Cut-off Date" shall mean ______________, 199_.
"Depositor" shall mean CRIIMI MAE CMBS Corp., a Delaware
corporation, and its successors in interest.
"Deposit Trust Agreement" shall mean this Deposit Trust Agreement,
as the same may be amended or supplemented from time to time.
"Depository" shall have the meaning assigned thereto in the
Indenture.
"Depository Representation Letter" shall mean the Letter of
Representations dated ______________, 199_ among the Trust, the Indenture
Trustee and initial Depository in connection with the issuance of the Class A-1,
Class A-2, Class B, Class C and Class D Bonds.
"Eligible Trustee" shall mean a bank (within the meaning of Section
2(a)(5) of the 0000 Xxx) that meets the requirements of Section 26(a)(1) of the
1940 Act, that is not an Affiliate of the Depositor or an Affiliate of any
Person involved in the organization or operation of the Depositor, that is
organized and doing business under the laws of any state or the United States of
America, that is authorized under such laws to exercise corporate trust powers
and to accept the trust conferred under this Deposit Trust Agreement, that has a
combined capital and surplus and undivided profits of at least [$100,000,000]
and that is subject to supervision or examination by federal or state authority.
If such bank 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 definition the combined capital, surplus and undivided
profits 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.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as it may be amended from time to time.
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"General Administration Agreement" shall mean the general
administration agreement, dated as of _________________, 199_, among the Owner
Trustee (on behalf of the Trust) and the General Administrator, pursuant to
which the General Administrator is required to perform various obligations of
the Trust under the Indenture.
"General Administration Fee" shall mean the monthly fee payable to
the General Administrator as provided in the General Administration Agreement.
"General Administrator" shall mean the Person acting as the "General
Administrator" from time to time under the General Administration Agreement,
which initially shall be ___________________.
"Governmental Authority" shall mean any government, or any
commission, authority, board, agency, division, subdivision or any court or
tribunal of the government, of the United States of America or of any state,
territory, city, municipality, county or town thereof or of the District of
Columbia, or of any foreign jurisdiction, including the employees or agents
thereof.
"Indenture" shall mean the Terms Indenture as it incorporates by
reference the Standard Indenture Provisions.
"Indenture Trustee" shall mean_____________________________________,
in its capacity as trustee under the Indenture, or its successor in interest, or
any successor trustee appointed as provided in the Indenture.
"Indenture Trustee Fee" shall mean the monthly fee payable to the
Indenture Trustee as provided in the Indenture.
"IRS" shall mean the Internal Revenue Service.
"Lien" shall mean any lien, pledge, encumbrance or security interest
on or in any particular asset or property.
"Mortgage" shall mean a mortgage, deed of trust, deed to secure debt
or similar document that secures a Mortgage Note and creates a Lien on a
Mortgaged Property.
"Mortgage Loan" shall mean each of the mortgage loans listed on the
Mortgage Loan Schedule attached hereto as Schedule I and from time to time held
in the Trust Estate. The term "Mortgage Loan" shall include the related Mortgage
Loan Documents.
"Mortgage Loan Documents" shall mean with respect to any Mortgage
Loan, the following documents:
(i) the original executed Mortgage Note, endorsed "Pay to the
order of ______________, as trustee under the Indenture, dated
as of _____, 199_,
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for the registered holders of CRIIMI MAE Commercial Mortgage
Trust [I], Collateralized Mortgage Obligations, Series
199__-___, without recourse";
(ii) an original or copy of the Mortgage and of any intervening
assignments thereof that precede the assignment referred to in
clause (iv) of this definition, in each case (unless such
document has not yet been returned from the applicable
recording office) with evidence of recording indicated
thereon;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and of any
intervening assignments thereof that precede the assignment
referred to in clause (v) of this definition, in each case
(unless such document has not yet been returned from the
applicable recording office) with evidence of recording
indicated thereon;
(iv) an original executed assignment of the Mortgage, in favor of
_______________, as trustee under the Indenture, dated as of
____, 199_, for the registered holders of CRIIMI MAE
Commercial Mortgage Trust [I], Collateralized Mortgage
Obligations, Series 199__-___, in recordable form;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in favor
of ________________, as trustee under the Indenture, dated as
of ____, 199_, for the registered holders of CRIIMI MAE
Commercial Mortgage Trust [I], Collateralized Mortgage
Obligations, Series 199__-___, in recordable form;
(vi) originals or copies of any written modification agreements in
those instances where the terms or provisions of the Mortgage
or Mortgage Note have been modified;
(vii) the original or a copy of the policy or certificate of
lender's title insurance issued on the date of the origination
of such Mortgage Loan, or, if such policy has not been issued,
an irrevocable, binding commitment to issue such title
insurance policy; and
(viii) filed copies of any prior UCC Financing Statements in favor of
the originator of such Mortgage Loan or in favor of any
assignee prior to the Trustee (but only to the extent the
Mortgage Loan Seller had possession of such UCC Financing
Statements prior to the Closing Date) and, if there is an
effective UCC Financing Statement in favor of the Mortgage
Loan Seller on record with the applicable public office for
UCC Financing Statements, an original UCC-2 or UCC-3, as
appropriate, in favor of _______________, as trustee under the
Indenture, dated as of ____, 199_, for the registered holders
of CRIIMI MAE Commercial Mortgage Trust [I], Collateralized
Mortgage Obligations, Series 199__-___;
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"Mortgage Loan Purchase Agreement" shall mean that certain Mortgage
Loan Purchase and Sale Agreement, dated as of _____, 199_, between the Depositor
and the Mortgage Loan Seller, pursuant to which the Depositor acquired the
Mortgage Loans.
"Mortgage Note" shall mean the original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Loan Seller" shall mean _____________________________ or
its successor in interest.
"Mortgaged Property" shall mean a property subject to the Lien of a
Mortgage.
"Mortgagor" shall mean the obligor or obligors on a Mortgage Note,
including without limitation, any Person that has acquired the related Mortgaged
Property and assumed the obligations of the original obligor under the Mortgage
Note.
"1933 Act" shall mean the Securities Act of 1933, as amended.
"1940 Act" shall mean the Investment Company Act of 1940, as
amended.
"Officers' Certificate" shall mean a certificate signed on behalf of
the applicable entity by two officers, one of whom shall be any of the Chairman
of the Board, the Vice Chairman of the Board, the President, any Vice President
or Managing Director, an Assistant Vice President or any other authorized
officer (however denominated) and the other of whom shall be any of the
Treasurer, the Secretary, one of the Assistant Treasurers or Assistant
Secretaries, or, in either case, another officer customarily performing
functions similar to those performed by any of the above designated officers or,
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.
"Operative Agreements" shall mean, collectively, this Deposit Trust
Agreement, the Owner Trust Certificates, the Indenture, the Bonds, the General
Administration Agreement, the Servicing and Administration Agreement, the
Mortgage Loan Purchase Agreement, the Mortgage Loans, the Depository
Representation Letter and the Purchase Agreement, as each of them may, from time
to time, be amended or supplemented.
"Opinion of Counsel" shall mean a written opinion of counsel, who
may, without limitation, but subject to the requirements of the Indenture, be
employees or other counsel for the Depositor which are reasonably acceptable to
the Owner Trustee. The cost of such opinion shall be born by the Depositor.
"Overcollateralization Amount" shall mean, as of any date of
determination, the amount, if any, by which the then Aggregate Stated Principal
Balance exceeds the then aggregate principal amount of all the Bonds.
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"Owner Trust Certificates" shall mean the Class [P], Class [XS] and
Class [R] Certificates issued hereunder.
"Owner Trustee" shall have the meaning assigned to that term in the
preliminary statement above.
"Owner Trustee Fee" shall be an amount set forth in the Fee
Agreement, dated as of _______________, 199_, between the Bank and the
Depositor.
"Payment Date" shall mean the ____ day [(or, in the case of
February, the 28th day)] of each month or, if any such day is not a Business
Day, then the next succeeding Business Day, commencing in ____________, 199_.
"Percentage Interest" shall mean, with respect to any Owner Trust
Certificate, the percentage interest in the related Class evidenced by such
Owner Trust Certificate as specified on the face thereof.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"QIB" shall mean a qualified institutional buyer within the meaning
of Rule 144A under the 1933 Act.
"QRS" shall mean a qualified REIT subsidiary within the meaning of
Section 856(i) of the Code.
"Rating Agency" shall have the meaning assigned to such term in the
Indenture.
"Record Date" shall mean, with respect to any Class of Owner Trust
Certificates for any Payment Date, the _____ Business Day preceding such Payment
Date.
"REIT" shall mean a real estate investment trust within the meaning
of Section 856(a) of the Code.
"REO Loan" shall mean the mortgage loan deemed to be outstanding
with respect to each REO Property as set forth in the Servicing and
Administration Agreement.
"REO Property" shall mean a Mortgaged Property acquired pursuant to
the Servicing and Administration Agreement on behalf of the Indenture Trustee
for the benefit of the Bondholders and, subject to the Lien of the Indenture,
the Trust, through foreclosure or acceptance of a deed in lieu of foreclosure or
otherwise in accordance with applicable law in connection with the default or
imminent default of Mortgage Loan.
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"Responsible Officer" shall mean any officer of the Owner Trustee
assigned to the Corporate Trust Office with direct responsibility for the
administration of this Deposit Trust Agreement and also, with respect to a
particular matter, any officer of the Owner Trustee employed within the
Corporate Trust Office, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject, and, in the case of any certification required to be signed by a
Responsible Officer, such an officer whose name appears on a list of corporate
trust officers furnished to the Depositor and the Indenture Trustee by the Owner
Trustee, as such list may from time to time be amended.
"Standard Indenture Provisions" shall mean the Depositor's Standard
Indenture Provisions, dated as of ______, 199__.
"Terms Indenture" shall mean that certain Terms Indenture dated as
of _______, 199__, between the Trust and Indenture Trustee.
"Trust" shall mean the trust established under this Deposit Trust
Agreement.
"Trust Estate" shall mean the corpus of the trust created as of the
Closing Date and to be administered hereunder, consisting of: all the estate,
right, title and interest of the Depositor in, to and under (a)(i) the Mortgage
Loans as from time to time are subject to this Deposit Trust Agreement and all
payments thereon and proceeds thereof received or receivable after the Cut-off
Date (other than payments of principal and interest due and payable on the
Mortgage Loans on or prior to the Cut-off Date and any principal prepayment
received on or prior to the Cut-off Date), together with all documents, escrow
payments and reserve funds delivered or caused to be delivered hereunder with
respect to such Mortgage Loan, including, without limitation, the Mortgage Loan
Documents and the Servicing File related to each Mortgage Loan, (ii) any REO
Property acquired in respect of a Mortgage Loan, (iii) such funds or assets as
from time to time deposited in the Collection Account and any other accounts
maintained pursuant to the Servicing and Administration Agreement and all
reinvestment earnings on such amounts, and all the Depositor's right, title and
interest in and to the proceeds of any title, hazard or other insurance policies
related to the Mortgage Loans and maintained pursuant to the Mortgage Loan
Documents and the Servicing and Administration Agreement, and (iv) the rights of
the Depositor under Sections _____ of the Mortgage Loan Purchase Agreement, (b)
the Operative Agreements (i) to which the Depositor is a party or (ii) of which
the Depositor is a third party beneficiary, including the right to receive all
income on the Mortgage Loans, (c) all present and future claims, demands, causes
and choses in action in respect of any or all of the foregoing and (d) all
proceeds of every kind and nature whatsoever in respect thereof, including all
proceeds of the conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of the foregoing.
"UCC Financing Statement" shall mean a financing statement executed
and filed pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
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"Underwriting Agreement" shall mean the underwriting agreement,
dated _________________, 199_, between the Underwriter(s), as purchaser(s) of
the Class A-1, Class X- 0, Class B, Class C and Class D Bonds, and the
Depositor.
"Underwriter(s)" shall mean [each of _______________________________
and] ___________________________________
"Uniform Commercial Code" shall mean the Uniform Commercial Code as
in effect in any applicable jurisdiction.
"Voting Rights" shall mean that portion of the voting rights of all
the Owner Trust Certificates which is allocated to any particular Owner Trust
Certificate. At all times during the term of this Deposit Trust Agreement, __%
of the Voting Rights shall be allocated to the Holders of the Class [P]
Certificates, _% of the Voting Rights shall be allocated to the Holders of the
Class [XS] Certificates and _% of the Voting Rights shall be allocated to the
Holders of the Class [R] Certificates. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective Owner Trust
Certificates.
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ARTICLE II
AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS;
DECLARATION OF BUSINESS TRUST
SECTION 2.1 Declaration of Business Trust. The Trust will be known
as "CRIIMI MAE Commercial Mortgage Trust [I]," in which name the Owner Trustee
may conduct the affairs of the Trust. The [Bank] is hereby appointed to hold and
agrees to hold the Trust Estate as Owner Trustee in trust upon the terms and
conditions and for the use and benefit of the Certificateholders as herein set
forth.
It is the intention of the parties hereto that the trust created by
this Deposit Trust Agreement constitute a business trust under the Business
Trust Statute and that this Deposit Trust Agreement constitute the governing
instrument of such business trust. This Declaration of Business Trust is not
intended to create a partnership or a joint-stock association. As soon as
practicable after the date hereof, the Owner Trustee shall file the Certificate
of Trust required by Section _____ of the Business Trust Statute, in the office
of [applicable office] of the State of ___________ (the "Certificate of Trust").
Effective as of the date hereof, the Owner Trustee shall have all the rights,
powers and duties set forth herein and in the Business Trust Statute with
respect to accomplishing the purposes of the Trust. For purposes of this
Declaration of Business Trust, "Business Trust Statute" means [applicable law]
as the same may be amended from time to time.
SECTION 2.2 Transfer of Trust Estate to Owner Trustee.
(a) Effective as of the date hereof, the Depositor does hereby
contribute, sell, grant, assign, transfer, set-over and otherwise convey to, and
deposit with, the Owner Trustee, and its successors, for the benefit of the
Trust, until this Deposit Trust Agreement terminates pursuant to Section 8.1,
the entire Trust Estate (including, without limitation, each and every item
thereof as set forth in the definition of "Trust Estate"), such conveyance to be
made in exchange for [the Bonds and] the Owner Trust Certificates.
In connection with such transfer and assignment, the Depositor does
hereby deliver or cause to be delivered to, and deposit or cause to be deposited
with, the Owner Trustee (or, at the direction of the Owner Trustee on behalf of
the Trust, to and with the Indenture Trustee on behalf of the Trust pursuant to
the Indenture) each of the following documents or instruments relating to each
Mortgage Loan:
(i) the Mortgage Loan Documents;
(ii) a UCC Financing Statement covering the Trust Estate, executed
by the Depositor as debtor in favor of the Trust as secured party and the
Indenture Trustee as its assignee; and
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(iii) all other items relating to the foregoing as may be reasonably
requested by or on behalf of the Owner Trustee or the Indenture Trustee.
(b) The conveyance of the Mortgage Loans, the related rights and
property and all other assets constituting the Trust Estate by the Depositor as
contemplated hereby is absolute and is intended by the parties to constitute an
absolute contribution and transfer of the Mortgage Loans, such other related
rights and all other assets constituting the Trust Estate by the Depositor to
the Trust. It is, further, not intended that such conveyance be deemed to
constitute a pledge of security for a loan. If, however, such conveyance is
deemed to constitute a pledge of security for a loan, the Depositor intends that
the rights and obligations of the parties to such loan shall be established
pursuant to, and be governed by, the terms of this Deposit Trust Agreement. The
Depositor also intends and agrees that, in such event, (i) this Deposit Trust
Agreement shall constitute a security agreement under applicable law, (ii) the
Depositor shall be deemed to have granted to the Owner Trustee on behalf of the
Trust a first priority security interest in the Depositor's entire right, title
and interest in and to the assets constituting the Trust Estate, (iii) the
possession by the Owner Trustee on behalf of the Trust (or any subsequent
assignee, including, without limitation, the Indenture Trustee) or its agent of
the Mortgage Notes with respect to the Mortgage Loans and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" or possession by a
purchaser or Person designated by such secured party for the purpose of
perfecting such security interest under applicable law, and (iv) notifications
to, and acknowledgments, receipts or confirmations from, Persons holding such
property, shall be deemed to be notifications to, or acknowledgments, receipts
or confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Owner Trustee on behalf of the Trust (or any subsequent
assignee, including, without limitation, the Indenture Trustee) for the purpose
of perfecting such security interest under applicable law. The Depositor shall,
to the extent consistent with this Deposit Trust Agreement, take or cause to be
taken such reasonable actions, including the filing, as a precautionary filing,
UCC Financing Statements on Form UCC-1 in all appropriate locations in the State
of _____________ promptly following the issuance of the Bonds, such that, if
this Deposit Trust Agreement were deemed to create a security interest in the
Mortgage Loans and the other assets of the Trust Estate, such security interest
would be a perfected security interest of first priority under applicable law
and will be maintained as such throughout the term of this Deposit Trust
Agreement.
(c) The Owner Trustee, by its execution and delivery of this Deposit
Trust Agreement, acknowledges the receipt by it of all assets delivered to it
and included in the Trust Estate, in good faith and without notice of any
adverse claim (except to the extent of the Lien thereon contemplated by the
Indenture), and declares that it holds and will hold such assets, and all other
assets hereafter delivered to it that constitute portions of the Trust Estate,
in trust for the exclusive use and benefit of all present and future
Certificateholders.
(d) Except as expressly provided in Section 8.1, neither the
Depositor nor any Certificateholder shall have any right to revoke or otherwise
terminate the Trust established hereunder. Except as contemplated by the
Indenture and as provided in Sections 4.2 and 8.1 hereof, the Owner Trustee
shall not assign, sell, dispose of or transfer any interest in (or permit or
cause the assignment, sale, disposition or transfer of any interest in), nor may
the Depositor or any
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Certificateholder withdraw from the Trust, any Mortgage Loan or other asset
constituting the Trust Estate. Except as contemplated by the Indenture, the
Owner Trustee shall not permit the Mortgage Loans or any other asset
constituting the Trust Estate to be subjected to any lien, claim or encumbrance
arising by, through or under the Owner Trustee or any Person claiming by,
through or under the Owner Trustee.
SECTION 2.3 Authority to Execute and Perform Various Documents. The
Depositor hereby authorizes and directs the Owner Trustee or (in the case of tax
administration matters, its agent) (i) to execute and deliver, as trustee for
and on behalf of the Certificateholders, the Operative Agreements to which the
Trust is a party and all other agreements, documents, instruments and
certificates contemplated to be executed and delivered by the Trust pursuant to
the Operative Agreements and, pursuant to the terms of the Indenture, to
execute, issue and deliver the Bonds to the Indenture Trustee (each such
Operative Agreement and the Bonds to be in the form approved by the Depositor);
(ii) to execute and deliver the Owner Trust Certificates to the Depositor; (iii)
as and to the extent provided in the Indenture, to pledge the Trust Estate as
security for repayment of the Bonds and, in connection therewith, to deliver (or
cause to be delivered) to the Indenture Trustee each of the documents and
instruments contemplated by the Granting Clause of the Terms Indenture; (iv) to
take whatever action shall be required to be taken by the Owner Trustee by the
terms of, and exercise its rights and perform its duties under, each of the
documents, agreements, instruments and certificates referred to in clauses (i)
through (iii) above as set forth in such documents, agreements, instruments and
certificates; and (v) subject to the terms of this Deposit Trust Agreement, to
take such other action in connection with the foregoing as the
Certificateholders may from time to time direct.
SECTION 2.4 Execution and Delivery of Owner Trust Certificates.
(a) The Owner Trustee shall, on the date hereof, execute and cause
to be authenticated and delivered to and upon the order of the Depositor, the
Owner Trust Certificates in authorized denominations evidencing the entire
beneficial ownership of the Trust. The Owner Trust Certificates will consist of
[three] Classes designated as the "Class [P] Certificates", the "Class [XS]
Certificates" and the "Class [R] Certificates". The rights of the respective
Classes of Certificateholders to receive distributions from the proceeds of the
Trust in respect of their Owner Trust Certificates, and all ownership interests
of the respective Classes of Certificateholders in such distributions, shall be
as set forth in this Deposit Trust Agreement.
(b) The Owner Trust Certificates will be substantially in the
respective forms attached hereto as Exhibits A-1 through A-3; provided that any
of the Owner Trust Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Deposit Trust Agreement, as may be required to comply with any law or
with rules or regulations pursuant thereto, or with the rules of any securities
market in which the Owner Trust Certificates are admitted to trading, or to
conform to general usage. The Owner Trust Certificates will be issuable in
registered form only, in minimum denominations representing not less than a
[25%] Percentage Interest in the relevant Class.
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(c) Each Owner Trust Certificate may be printed or in typewritten or
similar form, and each Owner Trust Certificate shall, upon original issue, be
executed by the Owner Trustee and authenticated by the Certificate Registrar and
delivered to or upon the order of the Depositor. All Owner Trust Certificates
shall be executed by manual or facsimile signature on behalf of the Trust by an
authorized officer of the Owner Trustee, not individually, but solely as Owner
Trustee hereunder. Owner Trust Certificates bearing the signatures of
individuals who were at any time the proper officers of the Owner Trustee shall
bind the Owner Trustee, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the delivery of such Owner Trust
Certificates or did not hold such offices at the date of such Owner Trust
Certificates. No Owner Trust Certificates shall be entitled to any benefit under
this Deposit Trust Agreement, or be valid for any purpose, unless there appears
on such Owner Trust Certificate a certificate of authentication in the form set
forth on the signature page of the form of Owner Trust Certificates attached as
Exhibit A-1 through Exhibit A-3, executed by the Certificate Registrar by manual
signature, and such certificate of authentication upon any Owner Trust
Certificate shall be conclusive evidence, and the only evidence, that such Owner
Trust Certificate has been duly authenticated and delivered hereunder. All Owner
Trust Certificates shall be dated the date of their authentication.
SECTION 2.5 Activities of the Trust. It is the intention of the
parties hereto that the Trust shall not engage in any business or activities
other than in connection with, or relating to, the purposes specified in Section
2.3. The operations of the Trust will be conducted in accordance with the
following standards (and the Owner Trustee and the Depositor hereby agree to use
their best reasonable efforts to cause the operations of the Trust to be
conducted in accordance herewith):
(i) The Trust will observe all procedures required by this Deposit
Trust Agreement.
(ii) Subject to Sections 5.1 and 5.4, the business and affairs of
the Trust will be managed by or under the direction of the Owner Trustee.
Except as otherwise expressly provided in this Deposit Trust Agreement,
the Depositor will have no authority to act for, or to assume any
obligation or responsibility on behalf of, the Trust.
(iii) The Trust will keep correct and complete books and records of
accounts and minutes of the meetings and other proceedings of its
trustees, separate from those of the Depositor or any subsidiary,
affiliate or separate account of the Depositor. Any such resolutions,
agreements and other instruments will be continuously maintained as
official records by the Trust.
(iv) Each of the Depositor and the Trust will provide for its own
operating expenses and liabilities from its own funds. General overhead
and administrative expenses of the Trust will not be charged or otherwise
allocated to the Depositor (except indirectly, insofar as the Depositor
owns the Owner Trust Certificates) and such expenses of the Depositor will
not be charged or otherwise allocated to the Trust.
(v) The Trust will conduct its business under names or trade names
so as not to mislead others as to the identity of the Trust. Without
limiting the generality of the
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foregoing, all oral and written communications, including letters,
invoices, contracts, statements, and applications will be made solely in
the name of the Trust if related to the Trust. The Depositor and the Trust
each will have separate stationery and other business forms.
(vi) There will be no guarantees made by the Trust with respect to
obligations of the Depositor. There will not be any indebtedness relating
to borrowings or loans between the Trust and the Depositor.
(vii) The Trust will act solely in its name and through its or the
Owner Trustee's duly authorized officers or agents in the conduct of its
business. The Trust will not: (a) operate or purport to operate as an
integrated, single economic unit with respect to the Depositor or any
other affiliated or unaffiliated entity; (b) seek or obtain credit or
incur any obligation to any third party based upon the assets of the
Depositor; or (c) induce any such third party to reasonably rely on the
creditworthiness of the Depositor or any other affiliated or unaffiliated
entity.
(viii) The Trust will maintain its principal place of business in
the State of ____________________.
(ix) The Trust and the Depositor shall keep separate their
respective funds and other assets and shall not commingle such funds and
other assets with those of any other Affiliates thereof.
(x) If and to the extent applicable, the Trust shall cause the
preparation of financial statements that are separate from those of the
Depositor and any other Affiliates (although the Trust's financial
statements may be presented as part of the consolidated financial
statements of an Affiliate).
(xi) The Trust will not engage in any transaction with an Affiliate
on any terms other than would be obtained in an arm's-length transaction
with a non-Affiliate.
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ARTICLE III
ESTABLISHMENT OF CERTIFICATE ACCOUNT
SECTION 3.1 Establishment of Certificate Account; Deposits in
Certificate Account.
The Owner Trustee, for the benefit of the Certificateholders, shall
establish and maintain one or more non-interest bearing trust accounts
(collectively, the "Certificate Account"), entitled "______________________, in
trust for the registered holders of CRIIMI MAE Commercial Mortgage Trust [I]
Owner Trust Certificates" and held in trust by the Owner Trustee for the benefit
of the Certificateholders. The Owner Trustee shall cause the following payments
and collections to be deposited directly into the Certificate Account: (1) all
distributions to the Trust as issuer of the Bonds received from the Indenture
Trustee from time to time pursuant to Section [14] of the Terms Indenture; (2)
any payments (if any) received on the Mortgage Loans from time to time after the
Cutoff Date and remitted by the Master Servicer or the Special Servicer to the
Owner Trustee on behalf of the Trust pursuant to Section ___ of the Servicing
and Administration Agreement; and (3) any other amounts specifically required to
be deposited in the Certificate Account hereunder. The foregoing requirements
for deposit in the Certificate Account shall be exclusive.
SECTION 3.2 Permitted Withdrawals From the Certificate Account. The
Owner Trustee may from time to time withdraw funds from the Certificate Account
for the following purposes:
(i) to make payments on the Owner Trust Certificates in the
amounts and in the manner provided for in Section 4.2
hereunder;
(ii) to pay itself any unpaid Owner Trustee Fees, but only to the
extent of amounts on deposit in the Certificate Account
representing amounts received in respect of the Mortgage
Loans;
(iii) to reimburse or indemnify the Owner Trustee for expenses and
other liabilities incurred by and reimbursable to the Owner
Trustee, pursuant to Section 7.2 hereunder, except as
otherwise provided in such section; and
(iv) to clear and terminate the Certificate Account upon the
termination of this Deposit Trust Agreement.
On each Payment Date, the Owner Trustee shall withdraw all funds
from the Certificate Account and shall use such funds withdrawn from the
Certificate Account only for the purposes described in this Section 3.2 and
Section 4.2 hereunder.
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ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE TRUST ESTATE
SECTION 4.1 Distribution of Payments.
(a) In the event that, following the [Cut-off Date] and prior to the
Lien on the Trust Estate under the Indenture having been discharged and
released, any payments on account of the Mortgage Loans are received directly
(rather than through the Indenture Trustee) by the Owner Trustee, the Depositor
or a Certificateholder (other than payments described in clause (2) of Section
3.1), the Person so receiving such payment shall, promptly upon receipt, deliver
such payment over to the Indenture Trustee without deduction, set-off or
adjustment of any kind.
(b) The parties hereto acknowledge that pursuant to the terms of the
Indenture, after payment by the Indenture Trustee of all required payments on
the Bonds on each Payment Date, the remaining Available Funds in the Bond
Account are required to be remitted by the Indenture Trustee to the Trust. The
Owner Trustee may direct the Indenture Trustee to distribute such remaining
Available Funds on any such Payment Date in a manner consistent with Sections
3.2 and 4.2 (as if such remaining Available Funds were on deposit in the
Certificate Account); and, in connection therewith, such remaining Available
Funds shall be deemed to have been deposited in the Certificate Account and
subsequently withdrawn to make such distributions.
SECTION 4.2 Payments.
(a) On each Payment Date (or, if the payments from the Indenture
Trustee on such Payment Date contemplated by Section 4.1(b) shall have been
received after 2:00 p.m., New York City time on such Payment Date, as soon as
practically possible, but in no event more than one Business Day, following
receipt), the Owner Trustee (or its Agent) shall withdraw from the Certificate
Account all Certificateholder Funds then on deposit therein, and the Owner
Trustee (or its Agent) shall pay such Certificateholder Funds to the respective
Classes of Certificateholders for the following purposes and in the following
order, in each case to the extent of remaining available funds:
(i) to the Holders of the Class [P] Certificates and the Holders
of the Class [XS] Certificates in respect of interest, pro
rata based on entitlement, up to an amount equal to all
Accrued Certificate Interest in respect of each such Class of
Owner Trust Certificates for the related Payment Date and, to
the extent not previously paid, for all prior Payment Dates;
(ii) if all the Bonds have been retired, to the Holders of the
Class [P] Certificates in respect of principal, up to an
amount equal to the Aggregate Certificate Principal Amount of
the Class [P] Certificates immediately prior to such Payment
Date; and
18
(iii) to the Holders of the Class [R] Certificates, in an amount
equal to the remaining portion, if any, of the
Certificateholder Funds for such Payment Date.
Payments made after the Payment Date on which they were scheduled to
be made as permitted by the parenthetical in the first sentence of this Section
4.2(a), shall be deemed to have been made on such Payment Date.
(b) All payments made with respect to any Class of Owner Trust
Certificates on any Payment Date shall be allocated pro rata among the
Certificates of such Class based upon their respective Percentage Interests.
Payments to the Certificateholders on each Payment Date will be made to the
Certificateholders of record on the related Record Date. Payments to any
Certificateholder on any Payment Date shall be made by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Owner Trustee in writing at least
five (5) Business Days prior to the related Record Date and if such
Certificateholder is the registered owner of Owner Trust Certificates
representing at least a [331/3%] Percentage Interest in any Class thereof, or
otherwise by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. Final payment on each
Owner Trust Certificate will be made in like manner, but only upon presentment
and surrender of such Owner Trust Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such final
payment.
(c) Whenever the Owner Trustee expects that the final payment with
respect to the Certificates will be made on the next Payment Date, whether in
connection with the final payment or other liquidation of the last remaining
Mortgage Loan or REO Property or upon a termination of the Trust at the
direction of the Certificateholders in accordance with Section 8.1, the Owner
Trustee (or its Agent) shall mail to each Holder on such date of the Owner Trust
Certificates a notice to the effect that:
(i) the Owner Trustee expects that the final payment with respect
to the Owner Trust Certificates will be made on such Payment
Date but only upon presentation and surrender of the Owner
Trust Certificates at the office of the Owner Trustee therein
specified, and
(ii) no interest shall accrue on the Owner Trust Certificates from
and after such Payment Date.
Upon presentation and surrender of the Owner Trust Certificates by the
Certificateholders on the final Payment Date in respect of the Owner Trust
Certificates, the Owner Trustee shall distribute to the Certificateholders the
amounts otherwise distributable on such Payment Date pursuant to Section 4.2(a).
Any funds not distributed on such Payment Date because of the failure of any
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the appropriate non-tendering Certificateholders. If
any Owner Trust Certificate, as to which notice has been given pursuant to this
Section 4.2(c) shall not have been surrendered for cancellation within six (6)
months after the time specified in such notice, the Owner Trustee shall mail a
second notice to
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the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Owner Trust Certificates for
cancellation in order to receive, from such funds held, the final payment with
respect thereto. If within one year after the second notice any Owner Trust
Certificate shall not have been surrendered for cancellation, the Owner Trustee
shall directly or through an agent, take reasonable steps to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Owner Trust Certificates shall not have
been surrendered for cancellation, the Owner Trustee shall segregate all amounts
distributable to the Holders thereof and shall thereafter hold such amounts
uninvested for the benefit of such Holders. No interest shall accrue or be
payable to any Certifi cateholder on any amount held as a result of such
Certificateholder's failure to surrender its Owner Trust Certificates for final
payment thereof in accordance with this Section 4.2(c).
SECTION 4.3 Statements to Certificateholders. On each Payment Date,
the Owner Trustee (or its Agent) shall prepare, and shall forward by mail, a
statement to each Certificateholder, to the Depositor and to the Rating Agencies
setting forth:
(i) the amount of the Certificateholder Funds for such Payment
Date;
(ii) the aggregate amounts of interest and principal paid to the
Holders of the Class [P] Certificates and to the Holders of
the Class [XS] Certificates on such Payment Date;
(iii) the aggregate amount of any distributions to the Holders of
the Class [R] Certificates on such Payment Date;
(iv) the Aggregate Certificate Principal Balance of the Class [P]
Certificates after giving effect to payments of principal and
other reductions in respect of the Aggregate Certificate
Principal Balance of such Owner Trust Certificates (all in
accordance with the definition of "Aggregate Certificate
Principal Balance") on such Payment Date; and
(v) the amount of the Owner Trustee Fees received by the Owner
Trustee following the preceding Payment Date and any unpaid
Owner Trustee Fees then due and owing to the Owner Trustee.
In addition, the Owner Trustee promptly (and, in any event, within
five (5) Business Days of receipt) will furnish to Certificateholders and the
Depositor copies of any notices, statements, reports or other communications
received by the Owner Trustee on behalf of the Trust as issuer of the Bonds or
as owner of the Mortgage Loans, including, without limitation, any such notices,
statements, reports or other communications relating to the Bonds, the
Indenture, the Mortgage Loans, the Servicing and Administration Agreement or the
other assets of the Trust Estate.
On or before March 31st of each calendar year, beginning with
calendar year 199_, the Owner Trustee (or its Agent) shall prepare, or cause to
be prepared, and deliver, or cause to be
20
delivered, by first class mail to each Person who at any time during the
previous calendar year was a Certificateholder of record a statement containing
the information required to be contained in the regular monthly report to
Certificateholders, as set forth in clause (ii) or clause (iii), as applicable,
above aggregated for such calendar year or the applicable portion thereof during
which such Person was a Certificateholder. Such obligation of the Owner Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Owner Trustee pursuant to any
requirements of the Code and regulations thereunder as from time to time are in
force.
SECTION 4.4 Access to Certain Documentation and Information. The
Owner Trustee shall provide to the Certificateholders access to [all] reports,
documents and records maintained by the Owner Trustee in respect of its duties
hereunder, such access being afforded without charge but only upon reasonable
written request and during normal business hours at offices designated by the
Owner Trustee.
SECTION 4.5 Compliance with Withholding Requirements. In the event
that the Owner Trustee is required (whether on liquidation of the Trust or
otherwise) to make payments to the Depositor or the Certificateholders,
notwithstanding any other provisions of this Deposit Trust Agreement, the Owner
Trustee (or its Agent) shall comply with all federal withholding requirements
with respect to payments to the Depositor or the Certificateholders that the
Owner Trustee reasonably believes are applicable under the Code. The consent of
the Depositor or the Certificateholders, as the case may be, shall not be
required for any such withholding. The parties hereto understand and agree that
the Owner Trustee shall not be required to increase the amount of any such
payments to adjust or compensate for the amount of such withholding (or any
other amounts).
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ARTICLE V
DUTIES OF THE OWNER TRUSTEE
SECTION 5.1 Notice of Certain Events; Action by the Owner Trustee.
(a) Whenever the Owner Trustee, on behalf of the Trust as issuer of
the Bonds or as owner of the Mortgage Loans, is requested or, as to any
particular matter, notified of its authority, by any Person, to take any action
or to give any consent, approval or waiver that it is entitled to take or give
on behalf of the Trust in such capacity, the Owner Trustee shall promptly notify
all the Certificateholders of such request or notice in such detail as is
available to it.
(b) Subject to the Owner Trustee's rights in this Deposit Trust
Agreement to be indemnified for its acts and omissions with respect to matters
concerning this Deposit Trust Agreement, the Operative Agreements, the Trust
Estate or the Mortgage Loans, the Owner Trustee shall take or refrain from
taking such action as Certificateholders entitled to a majority of the Voting
Rights shall so direct. The Owner Trustee may, from time to time, request in
writing instructions from the Certificateholders and shall request in writing
instructions from the Certificateholders if the Owner Trustee receives notice
that a default shall have occurred and is continuing under the General
Administration Agreement or the Indenture.
(c) Notwithstanding any direction of the Certificateholders to the
contrary or any provision hereof to the contrary, the Owner Trustee shall not,
without the written consent of the Indenture Trustee, execute any direction of
the Certificateholders that might result in the Trust being terminated prior to
the satisfaction and discharge of the Lien of the Indenture on the Trust Estate
or prior to the payment in full of the principal of and accrued interest on the
Bonds.
SECTION 5.2 Distribution of Reports. The Owner Trustee shall
promptly (but not later than five (5) Business Days following receipt thereof)
distribute to the Depositor and the Certificateholders such reports, notices,
statements and written materials which it actually receives as Owner Trustee or
otherwise on behalf of the Trust hereunder or under any of the other Operative
Agreements.
SECTION 5.3 Action Required Only if Owner Trustee is Indemnified.
The Owner Trustee shall not be required to take any action under Section 5.1(b)
if the Owner Trustee shall reasonably determine, or shall have been advised in
writing by counsel, that such action is likely to result in personal liability
for which the Owner Trustee has not been and will not be adequately indemnified
or is contrary to the terms hereof or of any Operative Agreement or is otherwise
contrary to applicable law.
SECTION 5.4 No Duties Except as Specified in Deposit Trust Agreement
or Instructions.
(a) The Owner Trustee shall not have any duty or obligation to
manage, control, use, make any payment in respect of, register, record, insure,
inspect, sell, dispose of or otherwise
22
deal with the Mortgage Loans or any other part of the Trust Estate, or to
otherwise take or refrain from taking any action under or in connection with any
Operative Agreement to which the Owner Trustee is a party, except as expressly
provided by the terms of this Deposit Trust Agreement or any such other
Operative Agreement or in written instructions from the Certificateholders
received pursuant to Section 5.1(b); and no implied duties or obligations shall
be read into this Deposit Trust Agreement against the Owner Trustee, other than
the obligation of the Owner Trustee to exercise such of the rights and powers
vested in it by this Deposit Trust Agreement in good faith and in a manner which
is not grossly negligent and which does not constitute willful misconduct. The
[Bank] (and any successor trustee or co-trustee) in its individual capacity
nevertheless agrees that it will, at its own cost and expense, promptly take all
action as may be necessary to discharge any Liens on the Trust Estate arising
by, through or under the Owner Trustee (or such successor trustee or co-trustee,
as the case may be) either (i) when acting in its individual capacity or (ii)
when acting improperly in its capacity as Owner Trustee.
(b) Without limiting the generality of the foregoing subsection (a),
except as otherwise explicitly provided in this Deposit Trust Agreement or in
any other Operative Agreement to which it is a party, neither the Owner Trustee
nor the [Bank] shall have any duty to (i) file or record any Operative Agreement
or any other document, or to maintain or continue any such filing or recording
or to refile or rerecord any such document, (ii) pay or discharge any tax or any
Lien owing with respect to or assessed or levied against any part of the Trust
Estate, other than to forward notice of such tax or Lien received by the Owner
Trustee to the Certificateholders and the Indenture Trustee, (iii) confirm,
verify, investigate or inquire into the failure of any party to receive any
reports or financial statements in connection with the Mortgage Loans, (iv)
ascertain or inquire as to the performance or observance of any Person under or
of any of the Operative Agreements, or (v) manage, control, sell, dispose of or
otherwise deal with the Mortgage Loans or any part hereof or any other part of
the Trust Estate.
23
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Acceptance of Trust and Duties. The [Bank] accepts the
trust hereby created and agrees to perform the same, but only upon the terms of
this Deposit Trust Agreement in accordance with the standard of care set forth
in Section 5.4(a). The [Bank] agrees to receive, manage and disburse all moneys
constituting part of the Trust Estate actually received by it as Owner Trustee
in accordance with the terms of this Deposit Trust Agreement. Neither the [Bank]
nor the Owner Trustee shall be answerable or accountable under any
circumstances, except for (i) its own willful misconduct or [gross] negligence,
(ii) the inaccuracy of any of its representations or warranties contained in
Section 6.2 of this Deposit Trust Agreement, (iii) its failure to perform
obligations expressly undertaken by it in this Deposit Trust Agreement in
accordance with the standard of care set forth in Section 5.4(a), (iv) taxes
based on or measured by any fees, commissions or compensation received by it for
acting as Owner Trustee in connection with any of the transactions contemplated
by this Deposit Trust Agreement or any other Operative Agreements, (v) its
failure to use due care to receive, manage and disburse moneys actually received
by it in accordance with the terms hereof, and (vi) any other claims, amounts or
taxes otherwise excluded from the Depositor's indemnity obligations pursuant to
Article VII.
SECTION 6.2 Limited Representations or Warranties of the Owner
Trustee. Neither the [Bank] nor the Owner Trustee makes (i) any representation
or warranty, either express or implied, as to the title to or value of the
Mortgage Loans, and (ii) any representation or warranty as to the validity or
enforceability of any Operative Agreement except as set forth below or as to the
accuracy of any statement made by a Person other than the [Bank] or the Owner
Trustee contained in any Operative Agreement. The [Bank] represents, warrants
and covenants to and for the benefit of the Depositor, the Indenture Trustee
(for the benefit of the Bondholders) and the Certificateholders that:
(a) The [Bank] is a banking corporation, duly organized, validly
existing and in good standing under the laws of the state of
__________________;
(b) The execution and delivery by the [Bank], and the performance
and compliance by the [Bank] with the terms of, this Deposit Trust
Agreement and any and all documents to be executed or delivered by the
[Bank] in its individual capacity in connection with this Deposit Trust
Agreement and to fulfill its obligations under, and to consummate the
transactions contemplated by, this Deposit Trust Agreement and such other
documents executed in connection herewith to which the [Bank] is a party,
will not violate any provisions of the [Bank's] charter or bylaws, and no
consent, approval, authorization or order of or filing with or notice to
any court or governmental agency or body is required for the execution,
delivery or performance by the [Bank] of this Deposit Trust Agreement;
(c) The [Bank], in its individual capacity, has full power and
authority and has taken all action necessary to execute and deliver this
Deposit Trust Agreement and any and all documents to be executed or
delivered by it in its individual capacity in connection with
24
this Deposit Trust Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Deposit Trust Agreement
and such other documents executed in connection herewith to which it is a
party, and this Deposit Trust Agreement and such other documents executed
in connection herewith to which it is a party are the legal, valid and
binding obligations of the [Bank], in its individual capacity, enforceable
against the [Bank] in accordance with their respective terms, except as
such terms may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally and by general principles of equity;
(d) The consummation of the transactions hereby contemplated do not
conflict with, violate or contravene any law, rule, regulation or
judicial, governmental or administrative order applicable to the [Bank] or
the Owner Trustee or conflict with, result in a breach of or constitute a
default under any of the terms, conditions or provisions of any agreement
or instrument to which the [Bank] is a party or by which it is bound, or
any order or decree applicable to the [Bank], or result in the creation or
imposition of any Lien on any of the [Bank's] assets or property, which
would materially and adversely affect the ability of the [Bank] or Owner
Trustee to carry out the transactions contemplated by this Deposit Trust
Agreement; and
(e) There is no action, suit or proceeding pending against the
[Bank], in its individual capacity or as Owner Trustee, in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the ability of the [Bank], in its
individual capacity or as Owner Trustee, to carry out the transactions
contemplated by this Deposit Trust Agreement.
SECTION 6.3 Trust Accounts. Moneys received by the Owner Trustee
hereunder shall be segregated in a trust account maintained with a federal or
state chartered depository institution or trust company having corporate trust
powers acting in its fiduciary capacity.
SECTION 6.4 Reliance; Advice of Counsel. Neither the [Bank] nor the
Owner Trustee shall incur any liability to any Person in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper believed by it to be genuine
and believed by it in good faith to be signed by the proper party or parties.
The Owner Trustee may accept and rely upon a certified copy of a resolution of
the board of directors or other governing body of any corporate party as
conclusive evidence that such resolution has been duly adopted by such body and
that the same is in full force and effect. As to any fact or matter the manner
of ascertainment of which is not specifically prescribed herein, the Owner
Trustee may for all purposes hereof rely on an Officers' Certificate of the
relevant party, as to such fact or matter, and such Officers' Certificate shall
constitute full protection to the Owner Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon. In the administration of
the Trust hereunder, the Owner Trustee may execute any of the trusts or powers
hereof and perform its powers and duties hereunder directly or through Agents
and may consult with counsel, accountants and other skilled Persons to be
selected and employed by it, and the Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
written advice or opinion of counsel, accountant or other skilled Persons, so
long as the Owner Trustee had
25
no actual knowledge that it could not reasonably rely on such advice or opinion
or by any such Persons appointed with due care.
SECTION 6.5 Not Acting in Individual Capacity. All Persons having
any claim against the [Bank] or the Owner Trustee by reason of the transactions
contemplated by the Operative Agreements shall look only to the Trust Estate (or
a part thereof, as the case may be) for payment or satisfaction thereof, except
as specifically provided in this Deposit Trust Agreement and except to the
extent that the [Bank] or the Owner Trustee shall otherwise expressly agree in
any Operative Agreement to which it is a party.
SECTION 6.6 Books and Records; Tax Election. The Owner Trustee shall
be responsible for the keeping of all appropriate books and records relating to
the receipt and disbursement of all moneys that it may receive or be entitled to
hereunder or under any other Operative Agreement. The Owner Trustee (or its
Agent) shall file an application with the IRS for a taxpayer identification
number with respect to the Trust (and, upon receipt of such number, notify the
Indenture Trustee thereof) and prepare or cause to be prepared and sign and/or
file a tax return in connection with the transactions contemplated hereby or by
any other Operative Agreement (the "Tax Return"); provided, however, that the
Owner Trustee shall send or cause to be sent a copy of the completed Tax Return
to the Depositor, the Certificateholders and the Indenture Trustee not more than
60 nor less than 30 days prior to the due date of the Tax Return. The Depositor
and the Certificateholders shall each, upon request by the Owner Trustee (or the
Agent of the Owner Trustee), furnish the Owner Trustee (or the Agent of the
Owner Trustee) with all such information as may be reasonably required from the
Depositor or the Certificateholders in connection with the preparation of such
Tax Return. The Owner Trustee shall keep copies of the Tax Returns delivered to
or filed by it (or the Agent of the Owner Trustee).
26
ARTICLE VII
COMPENSATION, REIMBURSEMENT AND INDEMNIFICATION
OF THE OWNER TRUSTEE
SECTION 7.1 Compensation of the Owner Trustee. The Owner Trustee
shall be entitled to receive as compensation for its services the amount of
$_______ per annum, such amount to be payable: first, as provided in the
Indenture; second, out of amounts on deposit in the Certificate Account that
represent payments received in respect of the Mortgage Loans; and, third, to the
extent not paid pursuant to either clause first or second of this sentence
within 60 days of first becoming due, by the Certificateholders, on a joint and
several basis.
SECTION 7.2 Reimbursement and Indemnification of the Owner Trustee.
(a) The Owner Trustee shall be entitled to be reimbursed for its
reasonable expenses (including reasonable attorneys' fees) incurred in the
performance of its duties as Owner Trustee hereunder, and to be compensated
reasonably for any extraordinary services rendered under Section 5.1(b), except
to the extent that such expenses arise out of or result from (i) the Owner
Trustee's own willful misconduct or [gross] negligence, (ii) the inaccuracy of
any of the Owner Trustee's representations or warranties contained in Section
6.2 of this Deposit Trust Agreement, (iii) the Owner Trustee's failure to
perform obligations expressly undertaken by it in this Deposit Trust Agreement
in accordance with the standard of care set forth in Section 5.4(a), (iv) taxes
based on or measured by any fees, commissions or compensation received by the
Owner Trustee for acting as such in connection with any of the transactions
contemplated by this Deposit Trust Agreement or any other Operative Agreements,
and (v) the Owner Trustee's failure to use due care to receive, manage and
disburse moneys actually received by it in accordance with the terms hereof.
(b) The Owner Trustee shall be entitled to be indemnified and held
harmless from and against any and all liabilities, obligations, indemnity
obligations, losses (excluding loss of anticipated profits), damages, claims,
actions, suits, judgments, out-of-pocket costs, expenses and disbursements
(including legal and consultants' fees and expenses) of any kind and nature
whatsoever (collectively, the "Liabilities") which may be imposed on, incurred
by or asserted at any time against the Owner Trustee in any way relating to or
arising out of the Trust Estate, any of the properties included therein, the
administration of the Trust Estate or any action or inaction of the Owner
Trustee hereunder or under the Operative Agreements, except to the extent that
such Liabilities arise out of or result from (i) the Owner Trustee's own willful
misconduct or [gross negligence], (ii) the inaccuracy of any of the Owner
Trustee's representations or warranties contained in Section 6.2 of this Deposit
Trust Agreement, (iii) the Owner Trustee's failure to perform obligations
expressly undertaken by it in this Deposit Trust Agreement in accordance with
the standard of care set forth in Section 5.4(a), (iv) taxes based on or
measured by any fees, commissions or compensation received by the Owner Trustee
for acting as such in connection with any of the transactions contemplated by
this Deposit Trust Agreement or any other Operative Agreements, and (v) the
Owner Trustee's failure to use due care to receive, manage and disburse moneys
actually received by it in accordance with
27
the terms hereof. The indemnities contained in this Section 7.2(b) shall survive
the termination of this Deposit Trust Agreement and the removal or resignation
of the Owner Trustee hereunder.
(c) Any reimbursements and indemnities to the Owner Trustee pursuant
to this Section 7.2 shall be payable: first, out of amounts on deposit in the
Certificate Account; and, second, to the extent not paid pursuant to clause
first within 60 days of first being incurred, by the Certificateholders, on a
joint and several basis.
SECTION 7.3 Not Obligations of the Trust. None of the fees, expenses
and other liabilities referred to in Sections 7.1 and 7.2 shall be obligations
of the Trust or otherwise chargeable to the Trust Estate. The Owner Trustee
hereby agrees not to cause or participate in the filing of a petition in
bankruptcy against the Trust for the non-payment to the Owner Trustee of any
amounts provided by this Deposit Trust Agreement until a date that is not less
than 91 days after the payment in full of all the Bonds issued under the
Indenture.
28
ARTICLE VIII
TERMINATION OF DEPOSIT TRUST AGREEMENT
SECTION 8.1 Termination. The Trust shall not be terminated under
this Section 8.1 until the Bonds have been paid in full and the Lien on the
Trust Estate created by the Indenture has been released; 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. Xxxxx,
living on the date hereof.
This Deposit Trust Agreement may be terminated by all of the
Certificateholders at any time prior to the issuance of the Bonds and the pledge
of the Trust Estate pursuant to the Indenture, and at any time after the
Indenture is discharged in accordance with Article III thereof, and this Deposit
Trust Agreement shall terminate in connection with the final payment or other
liquidation of the last remaining Mortgage Loan or REO Property. With respect to
any such event, this Deposit Trust Agreement and the estate and rights thereby
granted by the Depositor to the Owner Trustee in the Trust Estate shall cease,
terminate and be void as of the date of the final distribution by the Owner
Trustee of all the assets in the Trust Estate pursuant to this Section 8.1 and
Section 4.2. After payment of all amounts then due and payable to the [Bank]
pursuant to Sections 7.1 and 7.2 hereof, all right, title and interest in the
Trust Estate still held by the Owner Trustee at the time of such termination
shall be transferred, assigned and paid over to the Certificateholders or their
designee.
The Certificateholders hereby irrevocably appoint the Owner Trustee
as their attorney-in-fact for the purposes of the terminating the Trust.
SECTION 8.2 Further Assurances by the Owner Trustee upon
Termination. Upon termination of this Trust, the Owner Trustee shall take such
action as may be requested by the Certificateholders to transfer the remaining
assets of the Trust to the Certificateholders or the Certificateholders'
designee, including the execution of instruments of transfer or assignment with
respect to the Mortgage Loans and any of the Operative Agreements to which the
Owner Trustee is a party.
SECTION 8.3 Insolvency of a Certificateholder. The insolvency or
other similar incapacity of a Certificateholder shall not (i) operate to
terminate this Deposit Trust Agreement, (ii) entitle the Certificateholder's
legal representatives to claim an accounting or to take any action in any court
for a partition or winding up of the Trust Estate or (iii) otherwise affect the
rights, obligations and liabilities of the parties hereto.
29
ARTICLE IX
SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES
AND SEPARATE OWNER TRUSTEES
SECTION 9.1 Resignation of the Owner Trustee; Appointment of
Successor.
(a) The Owner Trustee may resign at any time (and shall immediately
resign if it ceases to be an Eligible Trustee) by giving at least 60 days
written notice to the Certificateholders, the Depositor, the Indenture Trustee
and the General Administrator, such resignation to be effective on the
acceptance of appointment by a successor Owner Trustee under Section 9.1(b)
hereof. The Depositor shall remove the Owner Trustee by written notice, a copy
of which shall be concurrently delivered by the Depositor to the
Certificateholders, the Indenture Trustee and the General Administrator, if the
Owner Trustee ceases to be an Eligible Trustee and fails to resign immediately.
The Owner Trustee otherwise may be removed with or without cause at any time by
the Certificateholders with 60 days' prior written notice, a copy of which shall
be concurrently delivered by the Certificateholders to the Depositor, the
Indenture Trustee and the General Administrator. Any such removal shall be
effective upon the acceptance of appointment by a successor Owner Trustee under
Section 9.1(b) hereof. In the event of the resignation or removal of the Owner
Trustee, the Certificateholders may appoint a successor Owner Trustee by an
instrument signed by the Certificateholders. If a successor Owner Trustee shall
not have been appointed within 60 days after the giving of written notice of
such resignation or the delivery of the written instrument with respect to such
removal, the Owner Trustee, the Depositor, the Indenture Trustee, the General
Administrator or the Certificateholders may apply to any court of competent
jurisdiction to appoint a successor Owner Trustee to act until such time, if
any, as a successor shall have been appointed and shall have accepted its
appointment as above provided. Any successor Owner Trustee so appointed by such
court shall immediately and without further act be superseded by any successor
Owner Trustee appointed as above provided within one year from the date of the
appointment by such court.
(b) Any successor Owner Trustee, however appointed, shall execute
and deliver to the predecessor Owner Trustee and the Indenture Trustee an
instrument accepting such appointment and shall furnish a photocopy of such
instrument to the Certificateholders, and thereupon such successor Owner
Trustee, without further act, shall become vested with all the estates,
properties, rights, powers, duties and trusts of the predecessor Owner Trustee
herein; but nevertheless, upon the written request of such successor Owner
Trustee such predecessor Owner Trustee shall execute and deliver an instrument
transferring to such successor Owner Trustee, upon the trusts herein expressed,
all the estates, properties, rights, powers, duties and trusts of such
predecessor Owner Trustee and such predecessor Owner Trustee shall duly assign,
transfer, deliver and pay over to such successor Owner Trustee all moneys or
other property then held by such predecessor Owner Trustee upon the trusts
herein expressed.
(c) Any successor Owner Trustee shall be an Eligible Trustee,
willing, able and legally qualified to perform the duties of the Owner Trustee
hereunder.
30
(d) Any corporation into which the Owner Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Owner Trustee shall be
a party, or any corporation to which substantially all the corporate trust
business of the Owner Trustee may be transferred, shall, subject to the terms of
Section 9.1(c) hereof, be the Owner Trustee under this Deposit Trust Agreement
without any further act.
SECTION 9.2 Co-Trustees and Separate Trustees. Whenever the Owner
Trustee or the Indenture Trustee shall deem it necessary or prudent in order to
conform to any law of any jurisdiction in which all or any part of the Trust
Estate shall be situated or to make any claim or be a party to any suit with
respect to the Trust Estate, the Owner Trust Certificates, the Bonds or any
Operative Agreement, or the Owner Trustee or the Indenture Trustee shall be
advised in writing by counsel reasonably satisfactory to each of them that it is
so necessary or prudent, the Owner Trustee and the Certificateholders shall
execute and deliver an agreement supplemental hereto and all other instruments
and agreements, and shall take all other action, necessary or proper to
constitute one or more Persons , who need not meet the requirements of Section
9.1(c) hereof (and the Owner Trustee may appoint one or more of its officers),
either as co-trustees or co-trustees jointly with the Owner Trustee of all or
any part of the Trust Estate, or as separate trustee or separate trustees of all
or any part of the Trust Estate, and to vest in such Persons, in such capacity,
such title to the Trust Estate or any part thereof and such rights or duties as
may be necessary or desirable, all for such period and under such terms and
conditions as are reasonably satisfactory to the Owner Trustee and the
Certificateholders. In case any co-trustee or separate trustee shall die, become
incapable of acting, resign or be removed, the title to the Trust Estate and all
rights and duties of such co-trustee or separate trustee shall, so far as
permitted by law, vest in and be exercised by the Owner Trustee, without the
appointment of a successor to such co-trustee or separate trustee.
SECTION 9.3 Notice. At all times that a successor Owner Trustee is
appointed under Section 9.1 hereof, an Owner Trustee resigns pursuant to such
Section 9.1 or a co-trustee or separate trustee is appointed pursuant to Section
9.2 hereof, the Certificateholders promptly shall give notice of such fact to
the Rating Agencies, if the Indenture has not been discharged.
31
ARTICLE X
SUPPLEMENTS AND AMENDMENTS
SECTION 10.1 Supplements and Amendments. Subject to Sections 10.2
and 10.3 of this Deposit Trust Agreement, at the written request of the
Certificateholders, this Deposit Trust Agreement shall be amended by a written
instrument signed by the Owner Trustee and the Certificateholders (and, if its
rights hereunder are adversely affected, the Depositor), but if in the opinion
of the Owner Trustee any instrument required to be so executed materially and
adversely affects any right, duty or liability of, or immunity or indemnity in
favor of the [Bank] or the Owner Trustee under this Deposit Trust Agreement or
any of the other Operative Agreements to which the Owner Trustee is a party, or
would cause or result in any conflict with or breach of any terms, conditions or
provisions of, or default under, the [Bank's] charter documents or bylaws or any
document contemplated hereby to which the Owner Trustee is a party, the Owner
Trustee may in its sole discretion decline to execute such instrument, unless it
shall have been provided an indemnity satisfactory to it by the
Certificateholders.
In the event that there is more than one Holder of Owner Trust
Certificates (as set forth in the Certificate Register), the consent to an
amendment by Certificateholders entitled to a majority of the Voting Rights
shall be sufficient to bind all of such Holders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments required to be made on any Owner Trust Certificate without the consent
of the affected Holder; or (ii) amend this Section 10.1, without the consent of
the Holders of all Owner Trust Certificates then outstanding.
SECTION 10.2 Limitation on Amendments. Notwithstanding Section 10.1
or Section 10.3 hereof, the Owner Trustee shall not, without the consent of the
Indenture Trustee, amend Section 8.1 of this Deposit Trust Agreement, or execute
any amendment that might result in the Trust being terminated prior to the
satisfaction and discharge of the Lien of the Indenture on the Trust Estate or
otherwise have a material adverse effect on the Bondholders prior to the payment
in full of the principal of and interest on the Bonds. Furthermore,
notwithstanding Section 10.1 or Section 10.3 hereof, the Owner Trustee shall not
execute any amendment without obtaining written confirmation from each Rating
Agency that such amendment will not result in the qualification, downgrade or
withdrawal of any then-current rating on the Bonds.
SECTION 10.3 Additional Amendment Provisions.
(a) It shall not be necessary for the consent of the
Certificateholders under this Article X to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof shall be subject to such reasonable
regulations as the Owner Trustee may prescribe.
(b) The Owner Trustee, at any time from time to time, without the
consent of the Certificateholders, may amend this Deposit Trust Agreement to
modify, eliminate or add to any of
32
its provisions, to such extent as shall be necessary to prevent or reduce the
imposition on the Trust of any material federal, state or local taxes, at all
times prior to the liquidation of the Trust; provided, however, that such
action, as evidenced by an Opinion of Counsel acceptable to the Owner Trustee is
necessary or helpful to prevent the imposition on the Trust of any such taxes.
(c) Prior to the execution of any amendment to this Deposit Trust
Agreement, the Owner Trustee shall be entitled to receive and rely upon an
Opinion of Counsel, at the expense of the party requesting such amendment (or,
if such amendment is requested by the Owner Trustee, then at the expense of the
Trust) stating that the execution of such amendment is authorized or permitted
by this Deposit Trust Agreement.
33
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE DEPOSITOR
SECTION 11.1 Representations and Warranties of the Depositor.
(a) The Depositor represents and warrants as follows for the benefit
of the Indenture Trustee, the Bondholders and the Certificateholders:
(i) the Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, has full
power and authority, and has taken all action necessary, to execute and
deliver this Deposit Trust Agreement, and any and all other documents to
be executed or delivered by it in connection with this Deposit Trust
Agreement, and to fulfill its obligations under, and to consummate the
transactions contemplated by, this Deposit Trust Agreement, and this
Deposit Trust Agreement and such other documents executed in connection
herewith are the legal, valid and binding obligations of the Depositor,
enforceable against it in accordance with their respective terms, except
as such terms may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors
generally and by general principles of equity;
(ii) the execution and delivery of this Deposit Trust Agreement and
each other document to be executed or delivered by it in connection with
this Deposit Trust Agreement, and the performance of its obligations
hereunder and thereunder by the Depositor will not violate the provisions
of its certificate of incorporation or bylaws, conflict with any provision
of any law or regulation to which it is subject, or conflict with, result
in a breach of, or constitute a default under any of the terms, conditions
or provisions of, any agreement or instrument to which the Depositor is a
party or by which it is bound, or any order or decree applicable to the
Depositor, or result in the creation or imposition of any Lien on any of
the Depositor's assets or property, which would materially and adversely
affect the ability of the Depositor to carry out the transactions
contemplated by this Deposit Trust Agreement or such other documents
executed in connection herewith; no consent, approval, authorization or
order of or filing with or notice to any court or governmental agency or
body is required for the execution, delivery and performance by the
Depositor of this Deposit Trust Agreement or such other documents; and
(iii) there is no action, suit or proceeding pending against the
Depositor in any court or by or before any other governmental agency or
instrumentality which would materially and adversely affect the validity
of the Mortgage Loans or the ability of the Depositor or the
Certificateholder to carry out the transactions contemplated by this
Deposit Trust Agreement.
(iv) The Depositor hereby represents and warrants to and for the
benefit of the Owner Trustee and the benefit of the Certificateholders and
the Bondholders, as of the Closing Date, that immediately prior to the
conveyance of the Mortgage Loans to the Owner
34
Trustee on behalf of the Trust, the Depositor had good and marketable
title to, and was the sole owner and holder of, with full right and
authority to sell, assign and transfer, each Mortgage Loan, free and clear
of any pledge, lien, encumbrance or security interest and such assignment
validly transfers all right, title and interest in the Mortgage Loans to
the Owner Trustee, free and clear of any pledge, lien, encumbrance or
security interest.
(v) The transfer of the Mortgage Loans to the Owner Trustee as
contemplated herein requires no regulatory or governmental approval, other
than any such approvals as have been obtained, and is not subject to any
bulk transfer or similar law in effect in any applicable jurisdiction.
(b) It is understood and agreed that each of the foregoing
representations and warranties of the Depositor shall survive delivery of the
Mortgage Loans to the Owner Trustee on behalf of the Trust. Upon discovery or
receipt of notice by the Depositor or a Responsible Officer of the Owner Trustee
of a breach of any of the foregoing representations and warranties that
materially and adversely affects the interests of the Indenture Trustee for the
benefit of the Bondholders or the Owner Trustee for the benefit of the
Certificateholders in any Mortgage Loan, the party discovering such breach shall
give prompt written notice to the other party hereto and to the Indenture
Trustee.
SECTION 11.2 Accrued Interest, Etc. The Depositor agrees that any
income, interest, fees and other payments that it may receive in respect of the
Mortgage Loans applicable to a period on or after the Cut-off Date shall inure
to the benefit of the Trust, and the Depositor shall pay such amounts to the
Owner Trustee (to be remitted in accordance with Section 4.1) promptly upon
receipt.
SECTION 11.3 Additional Covenants of the Depositor. The Depositor
hereby covenants and agrees that:
(a) The business and affairs of the Depositor will be managed by or
under the direction of its board of trustees in accordance with its
certificate of incorporation and bylaws. The Depositor will keep correct
and complete books and records of accounts and minutes of the meetings and
other proceedings of the board of trustees. Any such resolutions,
agreements and other instruments will be continuously maintained as
official records by the Depositor.
(b) The Depositor will at all times ensure that its capitalization
is adequate in light of its business and purposes. The Depositor will pay
from its own funds and assets (and not the Trust's) all obligations and
indebtedness incurred by it.
(c) The Depositor will not conduct its business in the name of the
Trust.
(d) The Depositor will not guarantee any obligations of the Trust
(including the Bonds or the Owner Trust Certificates). The Depositor will
not operate or purport to operate as an integrated, single economic unit
with respect to the Trust or seek or obtain credit or
35
incur any obligation to any third party based on the assets of the Trust
or induce any such third party to reasonably rely on the creditworthiness
of the Trust in connection therewith.
(e) The accounting records of the Depositor will disclose the effect
of the transactions in accordance with statutory accounting practices and
relevant pronouncements.
(f) The Depositor hereby acknowledges, and agrees for the benefit of
the Indenture Trustee, the Bondholders and the Certificateholders to
perform, each obligation imposed upon it under the Indenture.
(g) The Depositor shall not act or fail to act in a manner that
would endanger its status as a QRS.
36
ARTICLE XII
TRANSFER OF INTEREST OF THE DEPOSITOR
SECTION 12.1 Registration of Transfer and Exchange of Owner Trust
Certificates.
(a) At all times during the term of this Deposit Trust Agreement,
there shall be maintained at the office of a registrar appointed by the
Depositor (the "Certificate Registrar") a register (the "Certificate Register")
in which, subject to such reasonable regulations as the Certificate Registrar
may prescribe, the Certificate Registrar shall provide for the registration of
Owner Trust Certificates and of transfers and exchanges of Owner Trust
Certificates as herein provided. The Owner Trustee is hereby initially appointed
(and hereby agrees to act in accordance with the terms hereof) as Certificate
Registrar for the purpose of registering Owner Trust Certificates and transfers
and exchanges of Owner Trust Certificates as herein provided. The Owner Trustee
may appoint, by a written instrument delivered to the Depositor, any other bank
or trust company to act as Certificate Registrar under such conditions as the
Owner Trustee may prescribe, provided that the Owner Trustee shall not be
relieved of any of its duties or responsibilities hereunder as Certificate
Registrar by reason of such appointment. If the Owner Trustee resigns or is
removed in accordance with the terms hereof, the successor trustee shall
immediately succeed to its predecessor's duties as Certificate Registrar. The
Depositor, the General Administrator, and the Owner Trustee shall have the right
to inspect the Certificate Register or to obtain a copy thereof at all
reasonable times, and to rely conclusively upon a certificate of the Certificate
Registrar as to the information set forth in the Certificate Register.
(b) No sale, transfer or other disposition of any Owner Trust
Certificate may be made, and the Certificate Registrar shall refuse to register
any such transfer, unless the Depositor (or, if the Depositor no longer exists,
100% of the other Certificateholders) shall consent in writing to such sale,
transfer or other disposition. The Depositor (or any such other
Certificateholder(s)) shall be entitled to request from the parties interested
in effecting such sale, transfer or other disposition, and to rely upon, a
certification of facts and/or an opinion of counsel which establishes to the
satisfaction of the Depositor (or such other Certificateholder(s)) that such
sale, transfer or other disposition is permissible under applicable law and the
Operative Agreements.
(c) No transfer, sale, pledge or other disposition of any Owner
Trust Certificate or interest therein shall be made unless that transfer, sale,
pledge or the disposition is exempt from the registration and/or qualification
requirements of the 1933 Act and any applicable state securities laws, or is
otherwise made in accordance with the 1933 Act and such state securities laws.
The Trust has not been registered as an investment company under the 1940 Act,
and no transfer of an Owner Trust Certificate may be made (i) to any Person
other than a QIB or an Affiliate of the Trust or (ii) to any Person that would
require the Trust to be registered as an investment company under the 1940 Act.
No transfer of any Owner Trust Certificate or any interest therein shall be made
(A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general
37
accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing such Owner Trust Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan.
(d) No sale, transfer or other disposition of any Owner Trust
Certificate may be made, and the Certificate Registrar shall refuse to register
any such transfer, if such sale, transfer or other disposition would result in
the Trust ceasing to be a QRS.
(e) For so long as the Bonds are outstanding and the Lien of the
Indenture has not been satisfied and discharged, no sale, transfer or other
disposition of any Owner Trust Certificate may be made, and the Certificate
Registrar shall refuse to register any such transfer, unless the Owner Trustee
shall have received written confirmation from each Rating Agency to the effect
that such sale, transfer or other disposition will not result in the
qualification, downgrade or withdrawal of any then current rating on the Bonds.
(f) Each Owner Trust Certificate shall bear a legend describing or
referencing the restrictions on transferability set forth in Sections 12.1(b),
(c), (d) and (e).
(g) Subject to compliance with Sections 12.1(b), (c), (d) and (e),
upon surrender for registration of transfer of any Owner Trust Certificate at
the office of the Certificate Registrar or at the office of its Agent in [the
City of New York], the Owner Trustee shall execute, and the Certificate
Registrar shall deliver and authenticate, in the name of the designated
transferee or transferees, one or more new Owner Trust Certificates of the same
Class, in authorized denominations, evidencing in the aggregate a like aggregate
Percentage Interest and dated the date of authentication by the Certificate
Registrar.
(h) At the option of any Certificateholder, Owner Trust Certificates
may be exchanged for other Owner Trust Certificates of the same Class, in
authorized denominations, evidencing in the aggregate a like aggregate
Percentage Interest upon surrender of the Owner Trust Certificates to be
exchanged at the office of the Certificate Registrar, or the office of its Agent
in [the City of New York]. Whenever any Owner Trust Certificates are so
surrendered for exchange, the Owner Trustee shall execute and the Certificate
Registrar shall authenticate and deliver, the Owner Trust Certificates which the
Certificateholder is entitled to receive.
(i) If the Owner Trustee or the Certificate Registrar so requires,
every Owner Trust Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by, the Certificateholder thereof or such
Person's attorney duly authorized in writing.
(j) No service charge shall be made to the requesting
Certificateholder for any registration of transfer or exchange of Owner Trust
Certificates, but the Certificate Registrar may 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 Owner Trust
Certificates.
38
(k) The Certificate Registrar shall cancel and retain or destroy, in
accordance with the Owner Trustee's retention policy then in effect, all Owner
Trust Certificates surrendered for registration of transfer or exchange.
SECTION 12.2 Mutilated, Destroyed, Lost or Stolen Owner Trust
Certificates. If (i) any mutilated Owner Trust Certificate is surrendered to the
Owner Trustee or the Certificate Registrar, or the Owner Trustee and the
Certificate Registrar receive evidence to their satisfaction of the destruction,
loss or theft of any Owner Trust Certificate, and (ii) there is delivered to the
Owner Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
knowledge by a Responsible Officer of the Owner Trustee or the Certificate
Registrar that such Owner Trust Certificate has been acquired by a bona fide
purchaser, the Owner Trustee shall execute and the Certificate Registrar shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Owner Trust Certificate, a new Owner Trust Certificate
of like Class and tenor. Upon the issuance of any new Owner Trust Certificate
under this Section 12.2, the Owner Trustee 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
Certificate Registrar) connected therewith. Any replacement Owner Trust
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership of the corresponding interest in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed Owner
Trust Certificate shall be found at any time and such original Owner Trust
Certificate shall thereby be deemed canceled.
SECTION 12.3 Persons Deemed Owners. Prior to due presentation of an
Owner Trust Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar, the Indenture Trustee and any agent of any of them may
treat the Person in whose name any Owner Trust Certificate is registered as the
owner of such Owner Trust Certificate for the purpose of receiving distributions
pursuant to Section 4.2 hereof and for all other purposes whatsoever, and
neither the Owner Trustee, the Certificate Registrar, the Indenture Trustee nor
any agent of any of them shall be affected by notice to the contrary.
SECTION 12.4 Access to Names and Addresses.
(a) If any Certificateholder (an "Applicant") applies in writing to
the Owner Trustee, and such application states that the Applicant desires to
communicate with other Certificateholders with respect to their rights under
this Deposit Trust Agreement or the Owner Trust Certificates and is accompanied
by a copy of the communication which such Applicant proposes to transmit, then
the Owner Trustee shall, at the expense of such Applicant, within ten (10)
Business Days after the receipt of such application, furnish or cause to be
furnished to such Applicant a list of the names and addresses of the
Certificateholders as set forth in the Certificate Register.
(b) Every Certificateholder consents to the disclosure to any
Applicant of its identity and status as a Certificateholder and agrees with the
Owner Trustee that the Owner Trustee and the Certificate Registrar shall not be
held accountable in any way by reason of the disclosure of any information as to
the names and addresses of the Certificateholders hereunder, regardless of the
source from which such information was derived.
39
SECTION 12.5 Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Deposit Trust Agreement to be given or
taken by Certificateholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Certificateholders in
person or by agent duly appointed in writing; and except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Owner Trustee. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Deposit Trust Agreement and conclusive in favor of the Owner
Trustee, if made in the manner provided in this Section 12.5.
(b) The fact and date of the execution by any Certificateholder of
any such instrument or writing may be proved in any reasonable manner which the
Owner Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other action by a Certificateholder shall bind every transferee of
every Owner Trust Certificate issued upon the registration of transfer of such
Certificateholder's Owner Trust Certificate or in exchange therefor or in lieu
thereof, in respect of anything done, or omitted to be done, by the Owner
Trustee, in reliance thereon, whether or not notation of such action is made
upon such Owner Trust Certificate.
(d) The Owner Trustee may require such additional proof of any
matter referred to in this Section 12.5 as it shall deem necessary.
SECTION 12.6 Transferee's Agreement. No assignment, conveyance or
other transfer pursuant to this Article XII shall be effective unless the
transferee shall have executed and delivered to the Owner Trustee an instrument
containing the transferee's agreement to be bound by the terms of this Deposit
Trust Agreement.
40
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 No Legal Title to Trust Estate in the
Certificateholder. The Certificateholders shall not have legal title to any part
of the Trust Estate; provided, however, that the Certificateholder has a
beneficial interest in the Trust Estate (and initially shall have all right,
title and interest in and to the Owner Trust Certificates). No transfer by
operation of law or otherwise of any right, title or interest of the
Certificateholders in and to the Trust Estate or hereunder shall operate to
terminate this Deposit Trust Agreement or the Trust or the trusts hereunder or
entitle any successor or transferee to an accounting or to the transfer to it of
legal title to any part of the Trust Estate.
SECTION 13.2 Action by the Owner Trustee is Binding. Any actions,
directions, approvals or consents by the Owner Trustee so long as such actions,
directions, consents or approvals are made pursuant to the terms of this Deposit
Trust Agreement shall bind the Certificateholders and shall be effective to
consent to action taken by the parties. No such party shall be required to
inquire as to the authorization, necessity, expediency or regularity of such
consent by the Owner Trustee.
SECTION 13.3 Limitation on Rights of Others. Nothing in this Deposit
Trust Agreement, whether express or implied, shall be construed to give to any
Person, other than the [Bank], the Owner Trustee, the Depositor, the
Certificateholders and the Indenture Trustee on behalf of the Bondholders, any
legal or equitable right, remedy or claim under or in respect of this Deposit
Trust Agreement.
SECTION 13.4 Notices. All demands, notices and communications
hereunder shall be in writing, may be given by telecopy transmission, shall be
deemed to have been given upon receipt (except that notices being sent by first
class mail, postage prepaid, shall be deemed to be received five business days
following the mailing thereof) as follows:
If to the Owner Trustee, to:
-------------------------------------
-------------------------------------
Attention: __________________________
41
If to the Depositor, to:
CRIIMI MAE CMBS CORP.
______________________________
______________________________
______________________________
Attention: ___________________
with copies to:
______________________________
______________________________
______________________________
______________________________
Attention: ___________________
If to the Indenture Trustee, as set forth in the Indenture,
If to a Certificateholder, to that Person's name and address as set
forth from time to time in the Certificate Register,
or to such other address as any of them shall specify by written notice to the
other parties.
SECTION 13.5 Severability. To the extent permitted by law, any
provision of this Deposit Trust Agreement that may be determined by competent
authority to be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 13.6 Limitation on the Depositor's and the
Certificateholders' Respective Liability. Neither the Depositor nor any
Certificateholder shall have any liability for the performance of this Deposit
Trust Agreement except as expressly set forth herein.
SECTION 13.7 Separate Counterparts. This Deposit Trust Agreement may
be executed by the parties hereto in separate counterparts, each of which when
so executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 13.8 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the [Bank],
the Owner Trustee and its successors and assigns, the Certificateholders and the
Depositor and its or their respective successors and assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument or
action by the Depositor shall bind the successors and assigns of the Depositor
and any request, notice, direction, consent, waiver or other instrument or
action by a Certificateholder shall
42
bind the successors and assigns of such Certificateholder. It is the intention
of the parties hereto that the Trust constitute a trust formed pursuant to the
laws of the State of _______________ with the purpose of facilitating the
transactions contemplated by the Operative Agreements.
SECTION 13.9 Headings. The headings of the various articles and
sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 13.10 Governing Law. THIS DEPOSIT TRUST AGREEMENT SHALL IN
ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF ___________________.
SECTION 13.11 Administration of Trust. The principal place of
administration of the Trust shall be in __________.
SECTION 13.12 Performance by the Depositor or the General
Administrator. Any obligation of the Owner Trustee hereunder or under any
Operative Agreement or other document contemplated herein may be performed by
the Depositor or the General Administrator and any such performance shall not be
construed as a revocation of the trusts created hereby.
SECTION 13.13 Conflict with Indenture and Servicing and
Administration Agreement. If this Deposit Trust Agreement (or any instructions
given by the Depositor or the Certificateholders pursuant hereto) shall require
that any action be taken with respect to any matter and the Indenture or the
Servicing and Administration Agreement (or any instructions duly given in
accordance with the terms thereof) shall require that a different action be
taken with respect to such matter, and such actions shall be mutually exclusive,
the provisions of the Indenture or the Servicing and Administration Agreement,
in respect thereof, shall control.
SECTION 13.14 No Implied Waiver. No term or provision of this
Deposit Trust Agreement may be changed, waived, discharged or terminated orally,
but only by an instrument in writing entered into as provided in Section 10.1
hereof; and any such waiver of the terms hereof shall be effective only in the
specific instance and for the specific purpose given.
SECTION 13.15 Third Party Beneficiary. The Indenture Trustee for the
benefit of the Bondholders is an intended third-party beneficiary of this
Deposit Trust Agreement from and including the date hereof to the date on which
the Lien on the Trust Estate created pursuant to the Indenture is satisfied,
discharged and released pursuant to Article IV of the Standard Indenture
Provisions.
SECTION 13.16 References. The definitions in Article I shall apply
equally to both the singular and plural forms of the terms defined. "Include",
"included", "includes" and "including" shall be deemed to be followed by
"without limitation". "Writing", "written" and comparable terms refer to
printing, typing, lithography or other means of reproducing words in a visible
form. Any agreement or instrument or any law, rule or regulation of any
Governmental Authority defined or referred to in Article I means such agreement
or instrument or such law, rule
43
or regulation as from time to time amended, modified or supplemented in
accordance with the terms thereof, including (in the case of agreements or
instruments) by waiver or consent and (in the case of such law, rule or
regulation) by succession of any comparable successor law, rule or regulation
and includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein. References to a Person
are also to its successors and permitted assigns. Any term defined above by
reference to any agreement or instrument or any law, rule or regulation of any
Governmental Authority has such meaning whether or not such agreement,
instrument or law, rule or regulation is in effect. "Deposit Trust Agreement",
"hereof", "herein", "hereto", "hereunder" and comparable terms refer to this
Deposit Trust Agreement (including all exhibits and schedules hereto) and not to
any particular article, section, clause or other subdivision hereof or
attachment hereto. References to any gender include, unless the context
otherwise requires, references to all genders, and references to the singular
include, unless the context other requires, references to the plural and vice
versa. References in this Deposit Trust Agreement to "Article", "Section",
"Clause" or another subdivision or to an attachment are, unless the context
otherwise requires, to an article, clause or subdivision of or attachment to
this Deposit Trust Agreement.
[SECTION 13.17 Xxxxxx Act. Any provisions required to be contained
in this Deposit Trust Agreement by Section 126 of Article 4-A of the New York
Real Property Law and any provisions permitted to be contained in this Deposit
Trust Agreement by Section 130-K of such Article 4-A that are necessary in order
to permit the Owner Trustee to act in the manner contemplated by this Deposit
Trust Agreement are hereby incorporated, and such provisions shall be in
addition to those conferred or imposed by this Deposit Trust Agreement;
provided, however, that to the extent that such Section 126 and/or Section 130-K
shall not apply to this Deposit Trust Agreement, said Section 126 and/or Section
130-K shall not have any effect, and if said Section 126 and/or Section 130-K
should at any time be repealed or cease to apply to this Deposit Trust
Agreement, or be construed by judicial decision to be inapplicable, said Section
126 and/or Section 130-K shall cease to have any further effect upon the
provisions of this Deposit Trust Agreement. In case of a conflict between the
provisions of this Deposit Trust Agreement and any mandatory provisions of
Article 4-A of the New York Real Property Law applicable to this Deposit Trust
Agreement, such mandatory provisions of said Article 4-A shall prevail, provided
that if said Article 4-A shall not apply to this Deposit Trust Agreement, should
at any time be repealed, or cease to apply to this Deposit Trust Agreement, or
be construed by judicial decision to be inapplicable, such mandatory provisions
of such Article 4-A shall cease to have any further effect upon the provisions
of this Deposit Trust Agreement.]
44
IN WITNESS WHEREOF, the parties hereto have caused this Deposit
Trust Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the date hereof.
CRIIMI MAE CMBS CORP. as Depositor
and initial Certificateholder,
By:
------------------------------
Name:
Title:
------------------------------------
not individually, but solely in its
capacity as Owner Trustee
By:
------------------------------
Name:
Title:
SCHEDULE I
MORTGAGE LOAN SCHEDULE
EXHIBIT A-1
FORM OF CLASS [P] OWNER TRUST CERTIFICATE
CRIIMI MAE COMMERCIAL MORTGAGE TRUST [I]
CLASS [P] OWNER TRUST CERTIFICATE
evidencing a non-assessable, fully paid ___% interest in the Class [P]
Owner Trust Certificates, which, collectively with the Class [XS] and
Class [R] Owner Trust Certificates, evidence the entire beneficial
ownership interest in CRIIMI MAE Commercial Mortgage Trust [I], a
_________ business trust whose assets include various commercial mortgage
loans (the "Mortgage Loans") deposited by CRIIMI MAE CMBS Corp. (the
"Depositor")
Certificate Interest Rate: ____% per Aggregate Certificate Principal Balance
annum of the Class P Owner Trust Certificates
as of the Closing Date: $____________
Date of Deposit Trust Percentage Interest in Related Class
Agreement: __________, 199__ Evidenced by this Class [P] Owner Trust
Certificate: ___%
First Payment Date: _______, 199__ Closing Date: _________, 199__
Depositor and Initial Holder of Owner Trustee:
the Owner Trust Certificates:
CRIIMI MAE CMBS Corp.
Owner Trust Certificate No. P-___
A-1-1
THIS OWNER TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN, OR
OBLIGATION OF, THE DEPOSITOR, THE OWNER TRUSTEE, ANY OF THEIR RESPECTIVE
AFFILIATES, OR ANY OTHER PERSON. NEITHER THIS OWNER TRUST CERTIFICATE NOR THE
MORTGAGE LOANS ARE INSURED OR GUARANTEED, IN WHOLE OR IN PART, BY ANY
GOVERNMENTAL ENTITY OR INSTRUMENTALITY OR ANY PRIVATE INSURER OR GUARANTOR.
THIS OWNER TRUST CERTIFICATE IS SUBJECT TO VARIOUS TRANSFER
RESTRICTIONS DESCRIBED HEREIN.
This Owner Trust Certificate is issued pursuant to, and in
accordance with, the terms of a Deposit Trust Agreement, dated as of
___________, 199__ (the "Deposit Trust Agreement"; terms not otherwise defined
herein shall have the meanings assigned to those terms in the Deposit Trust
Agreement), between CRIIMI MAE CMBS Corp. as depositor (in such capacity, the
"Depositor") and initial Certificateholder and _______________ as Owner Trustee
(the "Owner Trustee"), a summary of certain of the pertinent provisions of which
are set forth herein. This Owner Trust Certificate is issued under and is
subject to the terms, provisions and conditions of the Deposit Trust Agreement,
to which Deposit Trust Agreement the holder of this Owner Trust Certificate by
virtue of the acceptance hereof assents and by which such Certificateholder is
bound. In the event of a conflict between the provisions of this Owner Trust
Certificate and those of the Deposit Trust Agreement, the provisions of the
Deposit Trust Agreement shall control.
This certifies that ______________________________ is the registered
owner of the beneficial interest evidenced by this Owner Trust Certificate in
the trust established pursuant to the Deposit Trust Agreement and designated as
CRIIMI MAE Commercial Mortgage Trust [I] (the "Trust"). The assets of the Trust
include various commercial mortgage loans (the "Mortgage Loans").
Except to the extent of their execution and authentication,
respectively, of the Owner Trust Certificates, the Owner Trustee and the
Certificate Registrar make no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of this Owner Trust
Certificate or the Mortgage Loans. The Owner Trustee has executed this Owner
Trust Certificate in its limited capacity as Owner Trustee under the Deposit
Trust Agreement, and the Certificate Registrar has authenticated this Owner
Trust Certificate in its limited capacity as Certificate Registrar under the
Deposit Trust Agreement.
Distributions on the Certificates will be made, to the extent of
available funds, on the __ day [(or, in the case of February, the 28th day)] of
each month or, if any such day is not a Business Day, then the next succeeding
Business Day (each, a "Payment Date"), commencing in __________, 199__. As more
fully described in the Deposit Trust Agreement, distributions allocable to
interest accrued on the Class [P] Certificates will be made on each Payment Date
up to the Accrued Certificate Interest in respect of the Class [P] Certificates
for the related Payment Date and, to the extent not previously paid, for all
prior Payment Dates. As and to the extent described in the Deposit Trust
Agreement, distributions of interest on the Class [P] Certificates will be
limited to the amount available for such purposes in the Certificate Account.
Such available funds will be distributed on
A-1-2
each Payment Date on a pro rata basis among the Holders of the Class [P]
Certificates and the Holders of the Class [XS] Certificates in respect of
Accrued Certificate Interest.
Upon the retirement of all of the Bonds, the holders of the Class
[P] Certificates will receive payments in respect of principal on each Payment
Date, subsequent to the payments in respect of interest on the Class [P] and
Class [XS] Certificates as described in the previous paragraph, up to (subject
to available funds) an amount equal to the Aggregate Certificate Principal
Amount of the Class [P] Certificates immediately prior to such Payment Date.
Pursuant to the Deposit Trust Agreement, all payments made with
respect to any Class of Owner Trust Certificates on any Payment Date shall be
allocated pro rata among such Owner Trust Certificates based upon their
respective Percentage Interests. Payments to the Certificateholders on each
Payment Date will be made to the Certificateholders of record on the related
Record Date. Payments to any Certificateholder on any Payment Date shall be made
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have so notified the Owner Trustee in
writing at least five (5) Business Days prior to the related Record Date and if
such Certificateholder is the registered owner of Owner Trust Certificates
representing at least a [331/3]% Percentage Interest in any Class thereof, or
otherwise by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. Final payment on each
Owner Trust Certificate will be made in like manner, but only upon presentment
and surrender of such Owner Trust Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such final
payment.
This Owner Trust Certificate is one of a duly authorized issue of
Owner Trust Certificates designated as CRIIMI MAE Commercial Mortgage Trust [I],
Owner Trust Certificates, representing a fractional undivided beneficial
interest in a Trust Estate consisting of (a) the Mortgage Loans and all payments
thereon and proceeds thereof from and after the Cut-off Date, (b) the Operative
Agreements (i) to which the Depositor is a party or (ii) of which the Depositor
is a third party beneficiary, including the right to receive all income on the
Mortgage Loans, (iii) all present and future claims, demands, causes and choses
in action in respect of any or all of the foregoing and (iv) all proceeds of
every kind and nature whatsoever in respect thereof, including all proceeds of
the conversion, voluntary or involuntary, into cash or other liquid property,
all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of obligations
and receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of the foregoing, subject, to the
Lien in favor of the Indenture Trustee.
This Owner Trust Certificate does not purport to summarize the
Deposit Trust Agreement and reference is made to the Deposit Trust Agreement for
the interests, rights and limitations of rights, benefits, obligations and
duties evidenced hereby and the rights, duties and immunities of the Owner
Trustee.
A-1-3
No sale, transfer or other disposition of any Owner Trust
Certificate may be made, and the Certificate Registrar shall refuse to register
any such transfer, unless the Depositor (or, if the Depositor no longer exists,
100% of the other Certificateholders) shall consent in writing to such sale,
transfer or other disposition. The Depositor (or any such other
Certificateholder) shall be entitled to request from the parties interested in
effecting such sale, transfer or other disposition, and to rely upon, a
certification of facts and/or an opinion of counsel which establishes to the
satisfaction of the Depositor (or such other Certificateholders) that such sale,
transfer or other disposition is permissible under applicable law and the
Operative Agreements.
No transfer, sale, pledge or other disposition of this Owner Trust
Certificate or any interest herein shall be made unless that transfer, sale,
pledge or other disposition is exempt from the registration and/or qualification
requirements of the 1933 Act and any applicable state securities laws, or is
otherwise made in accordance with the 1933 Act and such state securities laws.
The Trust has not been registered as an investment company under the 1940 Act,
and no transfer of an Owner Trust Certificate may be made (i) to any Person
other than a QIB or an Affiliate of the Trust or (ii) to any Person that would
require the Trust or any such trust fund to be registered as an investment
company under the 1940 Act. No transfer of this Owner Trust Certificate or any
interest herein shall be made (A) to any employee benefit plan or other
retirement arrangement, including individual retirement accounts and annuities,
Xxxxx plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, including, without limitation,
insurance company general accounts, that is subject to ERISA or the Code (each,
a "Plan"), or (B) to any Person who is directly or indirectly purchasing this
Owner Trust Certificate or interest herein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan.
No sale, transfer or other disposition of any Owner Trust
Certificate may be made, and the Certificate Registrar shall refuse to register
any such transfer, if such sale, transfer or other disposition would result in
the Trust ceasing to be a qualified REIT subsidiary within the meaning of
Section 856(i) of the Code.
For so long as the Bonds are outstanding and the Lien of the
Indenture has not been satisfied and discharged, no sale, transfer or other
disposition of any Owner Trust Certificate may be made, and the Certificate
Registrar shall refuse to register any such transfer, unless the Owner Trustee
shall have received written confirmation from each Rating Agency to the effect
that such sale, transfer or other disposition will not result in the
qualification, downgrade or withdrawal of any then current rating on the Bonds.
No assignment, conveyance or other transfer of this Owner Trust
Certificate shall be effective unless the transferee shall have executed and
delivered to the Owner Trustee an instrument containing the transferee's
agreement to be bound by the terms of the Deposit Trust Agreement.
Prior to transfer of this Owner Trust Certificate in accordance with
the foregoing and the Deposit Trust Agreement, the Owner Trustee, the Indenture
Trustee and the Certificate Registrar and any agent of any of them may treat the
person or entity in whose name this Owner Trust Certificate is registered as the
owner hereof for the purpose of receiving distributions pursuant to the Deposit
Trust Agreement, pursuant to the Indenture and for all other purposes
whatsoever, and
A-1-4
neither the Owner Trustee, the Indenture Trustee, the Certificate Registrar nor
any agent of any of them shall be affected by notice to the contrary.
As provided in the Deposit Trust Agreement and subject to certain
limitations herein and therein set forth, this Owner Trust Certificate is
exchangeable for other Owner Trust Certificates of the same Class in authorized
denominations representing a like aggregate Percentage Interest, as requested by
the Certificateholder surrendering the same.
No service charge will be made to a Certificateholder for any such
registration of transfer or exchange, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Deposit Trust Agreement permits, with certain exceptions therein
provided, the amendment of the Deposit Trust Agreement and the modification of
the rights of the Certificateholders at any time by the Owner Trustee with the
consent of Certificateholders entitled to a majority of the Voting Rights
(except as provided in the Deposit Trust Agreement). Any consent by the
Certificateholder of this Owner Trust Certificate shall be conclusive and
binding on such Certificateholder and upon all future Certificateholders issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Owner Trust Certificate.
The obligations created by the Deposit Trust Agreement shall not
terminate until the Bonds have been paid in full and the Lien on the Trust
Estate created by the Indenture has been released; provided, however, that in no
event shall the Trust 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. Xxxxx, living on the date
hereof.
Unless the Certificate of Authentication on this Owner Trust
Certificate has been executed by or on behalf of the Certificate Registrar, by
manual signature, this Owner Trust Certificate shall not be entitled to any
benefit under the Deposit Trust Agreement or be valid for any purpose.
A-1-5
IN WITNESS WHEREOF, the Owner Trustee has caused this Owner Trust
Certificate to be duly executed.
----------------------------------------------,
not individually, but solely in its capacity as
Owner Trustee
----------------------------------------------
Authorized Officer
This is one of the Owner Trust Certificates referred to in the within-referenced
Deposit Trust Agreement.
Date:
-----------------------------------------------,
not individually, but solely in its capacity as
Certificate Registrar
-----------------------------------------------
Authorized Officer
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto __________________________________________________________
_______________________________________________________________________________
______________________________________________________ [(Please print or
typewrite name(s) and address(es), including postal zip code of assignee(s)]
("Assignee(s)") that portion of the interest in the Trust represented by the
within Owner Trust Certificate set forth below and hereby authorize(s) the
transfer and registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust.
I (we) further direct the Certificate Registrar to issue a new Owner Trust
Certificate of the same Class for that portion of the interest in the Trust
represented by the within Owner Trust Certificate set forth below to the
above-named Assignee(s) and deliver such Owner Trust Certificate to the
following address: __________________________________________________________
____________________________________________________; to issue a new Owner
Trust Certificate of the same Class for the remainder of the interest in the
Trust represented by the within Owner Trust Certificate to the above-named
Assignor(s) and deliver such Owner Trust Certificate to the following address:
_____________________________________; and to cancel the within Owner Trust
Certificate.
Date:_______________________ ___________________________________________
Signature by or on behalf of Assignor(s)
Percentage Interest
Transferred:___________ ___________________________________________
Taxpayer Identification Number
X-0-0
XXXXXXX X-0
FORM OF CLASS [XS] OWNER TRUST CERTIFICATE
CRIIMI MAE COMMERCIAL MORTGAGE TRUST [I]
CLASS [XS] OWNER TRUST CERTIFICATE
evidencing a non-assessable, fully paid ___% interest in the Class [XS]
Owner Trust Certificates, which, collectively with the Class [P] and Class
[R] Owner Trust Certificates, evidence the entire beneficial ownership
interest in CRIIMI MAE Commercial Mortgage Trust [I], a __________
business trust whose assets include various commercial mortgage loans (the
"Mortgage Loans") deposited by CRIIMI MAE CMBS Corp. (the "Depositor")
Date of Deposit Trust- Percentage Interest in Related Class
Agreement: ___________, 199__ Evidenced by this Class [XS] Owner Trust
Certificate:_______%
First Payment Date: _________, 199__ Closing Date: ___________, 199__
Depositor and Initial Holder of the
Owner Trust Certificates: Owner Trustee: __________________
CRIIMI MAE CMBS Corp.
Owner Trust Certificate No. XS-___
A-2-1
THIS OWNER TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN, OR
OBLIGATION OF, THE DEPOSITOR, THE OWNER TRUSTEE, ANY OF THEIR RESPECTIVE
AFFILIATES, OR ANY OTHER PERSON. NEITHER THIS OWNER TRUST CERTIFICATE NOR THE
MORTGAGE LOANS ARE INSURED OR GUARANTEED, IN WHOLE OR IN PART, BY ANY
GOVERNMENTAL ENTITY OR INSTRUMENTALITY OR ANY PRIVATE INSURER OR GUARANTOR.
THIS OWNER TRUST CERTIFICATE IS SUBJECT TO VARIOUS TRANSFER
RESTRICTIONS DESCRIBED HEREIN.
This Owner Trust Certificate is issued pursuant to, and in
accordance with, the terms of a Deposit Trust Agreement, dated as of
___________, 199__ (the "Deposit Trust Agreement"; terms not otherwise defined
herein shall have the meanings assigned to those terms in the Deposit Trust
Agreement), between CRIIMI MAE CMBS Corp. as depositor (in such capacity, the
"Depositor") and initial Certificateholder and _______________ as Owner Trustee
(the "Owner Trustee"), a summary of certain of the pertinent provisions of which
are set forth herein. This Owner Trust Certificate is issued under and is
subject to the terms, provisions and conditions of the Deposit Trust Agreement,
to which Deposit Trust Agreement the holder of this Owner Trust Certificate by
virtue of the acceptance hereof assents and by which such Certificateholder is
bound. In the event of a conflict between the provisions of this Owner Trust
Certificate and those of the Deposit Trust Agreement, the provisions of the
Deposit Trust Agreement shall control.
This certifies that _________________________is the registered owner
of the beneficial interest evidenced by this Owner Trust Certificate in the
trust established pursuant to the Deposit Trust Agreement and designated as
CRIIMI MAE Commercial Mortgage Trust [I] (the "Trust"). The assets of the Trust
include various commercial mortgage loans (the "Mortgage Loans").
Except to the extent of their execution and authentication,
respectively, of the Owner Trust Certificates, the Owner Trustee and the
Certificate Registrar make no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of this Owner Trust
Certificate or the Mortgage Loans. The Owner Trustee has executed this Owner
Trust Certificate in its limited capacity as Owner Trustee under the Deposit
Trust Agreement, and the Certificate Registrar has authenticated this Owner
Trust Certificate in its limited capacity as Certificate Registrar under the
Deposit Trust Agreement.
Distributions on the Certificates will be made, to the extent of
available funds, on the __ day [(or, in the case of February, the 28th day)] of
each month or, if any such day is not a Business Day, then the next succeeding
Business Day (each, a "Payment Date"), commencing in __________, 199__. As more
fully described in the Deposit Trust Agreement, distributions allocable to
interest accrued on the Class [XS] Certificates will be made on each Payment
Date up to the Accrued Certificate Interest in respect of the Class [XS]
Certificates for the related Payment Date and, to the extent not previously
paid, for all prior Payment Dates. As and to the extent described in the Deposit
Trust Agreement, distributions of interest on the Class [XS] Certificates will
be limited to the amount available for such purposes in the Certificate Account.
Such available funds will be distributed on
A-2-2
each Payment Date on a pro rata basis among the Holders of the Class [P]
Certificates and the Holders of the Class [XS] Certificates in respect of
Accrued Certificate Interest.
Pursuant to the Deposit Trust Agreement, all payments made with
respect to any Class of Owner Trust Certificates on any Payment Date shall be
allocated pro rata among such Owner Trust Certificates based upon their
respective Percentage Interests. Payments to the Certificateholders on each
Payment Date will be made to the Certificateholders of record on the related
Record Date. Payments to any Certificateholder on any Payment Date shall be made
by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have so notified the Owner Trustee in
writing at least five (5) Business Days prior to the related Record Date and if
such Certificateholder is the registered owner of Owner Trust Certificates
representing at least a [331/3]% Percentage Interest in any Class thereof, or
otherwise by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. Final payment on each
Owner Trust Certificate will be made in like manner, but only upon presentment
and surrender of such Owner Trust Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such final
payment.
This Owner Trust Certificate is one of a duly authorized issue of
Owner Trust Certificates designated as CRIIMI MAE Commercial Mortgage Trust [I],
Owner Trust Certificates, representing a fractional undivided beneficial
interest in a Trust Estate consisting of (a) the Mortgage Loans and all payments
thereon and proceeds thereof from and after the Cut-off Date, (b) the Operative
Agreements (i) to which the Depositor is a party or (ii) of which the Depositor
is a third party beneficiary, including the right to receive all income on the
Mortgage Loans, (iii) all present and future claims, demands, causes and choses
in action in respect of any or all of the foregoing and (iv) all proceeds of
every kind and nature whatsoever in respect thereof, including all proceeds of
the conversion, voluntary or involuntary, into cash or other liquid property,
all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of obligations
and receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of the foregoing, subject, to the
Lien in favor of the Indenture Trustee.
This Owner Trust Certificate does not purport to summarize the
Deposit Trust Agreement and reference is made to the Deposit Trust Agreement for
the interests, rights and limitations of rights, benefits, obligations and
duties evidenced hereby and the rights, duties and immunities of the Owner
Trustee.
No sale, transfer or other disposition of any Owner Trust
Certificate may be made, and the Certificate Registrar shall refuse to register
any such transfer, unless the Depositor (or, if the Depositor no longer exists,
100% of the other Certificateholders) shall consent in writing to such sale,
transfer or other disposition. The Depositor (or any such other
Certificateholder) shall be entitled to request from the parties interested in
effecting such sale, transfer or other disposition, and to rely upon, a
certification of facts and/or an opinion of counsel which establishes to the
satisfaction of the
A-2-3
Depositor (or such other Certificateholders) that such sale, transfer or other
disposition is permissible under applicable law and the Operative Agreements.
No transfer, sale, pledge or other disposition of this Owner Trust
Certificate or any interest herein shall be made unless that transfer, sale,
pledge or other disposition is exempt from the registration and/or qualification
requirements of the 1933 Act and any applicable state securities laws, or is
otherwise made in accordance with the 1933 Act and such state securities laws.
The Trust has not been registered as an investment company under the 1940 Act,
and no transfer of an Owner Trust Certificate may be made (i) to any Person
other than a QIB or an Affiliate of the Trust or (ii) to any Person that would
require the Trust or any such trust fund to be registered as an investment
company under the 1940 Act. No transfer of this Owner Trust Certificate or any
interest herein shall be made (A) to any employee benefit plan or other
retirement arrangement, including individual retirement accounts and annuities,
Xxxxx plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, including, without limitation,
insurance company general accounts, that is subject to ERISA or the Code (each,
a "Plan"), or (B) to any Person who is directly or indirectly purchasing this
Owner Trust Certificate or interest herein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan.
No sale, transfer or other disposition of any Owner Trust
Certificate may be made, and the Certificate Registrar shall refuse to register
any such transfer, if such sale, transfer or other disposition would result in
the Trust ceasing to be a qualified REIT subsidiary within the meaning of
Section 856(i) of the Code.
For so long as the Bonds are outstanding and the Lien of the
Indenture has not been satisfied and discharged, no sale, transfer or other
disposition of any Owner Trust Certificate may be made, and the Certificate
Registrar shall refuse to register any such transfer, unless the Owner Trustee
shall have received written confirmation from each Rating Agency to the effect
that such sale, transfer or other disposition will not result in the
qualification, downgrade or withdrawal of any then current rating on the Bonds.
No assignment, conveyance or other transfer of this Owner Trust
Certificate shall be effective unless the transferee shall have executed and
delivered to the Owner Trustee an instrument containing the transferee's
agreement to be bound by the terms of the Deposit Trust Agreement.
Prior to transfer of this Owner Trust Certificate in accordance with
the foregoing and the Deposit Trust Agreement, the Owner Trustee, the Indenture
Trustee and the Certificate Registrar and any agent of any of them may treat the
person or entity in whose name this Owner Trust Certificate is registered as the
owner hereof for the purpose of receiving distributions pursuant to the Deposit
Trust Agreement, pursuant to the Indenture and for all other purposes
whatsoever, and neither the Owner Trustee, the Indenture Trustee, the
Certificate Registrar nor any agent of any of them shall be affected by notice
to the contrary.
As provided in the Deposit Trust Agreement and subject to certain
limitations herein and therein set forth, this Owner Trust Certificate is
exchangeable for other Owner Trust Certificates
A-2-4
of the same Class in authorized denominations representing a like aggregate
Percentage Interest, as requested by the Certificateholder surrendering the
same.
No service charge will be made to a Certificateholder for any such
registration of transfer or exchange, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Deposit Trust Agreement permits, with certain exceptions therein
provided, the amendment of the Deposit Trust Agreement and the modification of
the rights of the Certificateholders at any time by the Owner Trustee with the
consent of Certificateholders entitled to a majority of the Voting Rights
(except as provided in the Deposit Trust Agreement). Any consent by the
Certificateholder of this Owner Trust Certificate shall be conclusive and
binding on such Certificateholder and upon all future Certificateholders issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Owner Trust Certificate.
The obligations created by the Deposit Trust Agreement shall not
terminate until the Bonds have been paid in full and the Lien on the Trust
Estate created by the Indenture has been released; provided, however, that in no
event shall the Trust 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. Xxxxx, living on the date
hereof.
Unless the Certificate of Authentication on this Owner Trust
Certificate has been executed by or on behalf of the Certificate Registrar, by
manual signature, this Owner Trust Certificate shall not be entitled to any
benefit under the Deposit Trust Agreement or be valid for any purpose.
A-2-5
IN WITNESS WHEREOF, the Owner Trustee has caused this Owner Trust
Certificate to be duly executed.
----------------------------------------------,
not individually, but solely in its capacity as
Owner Trustee
-----------------------------------------------
Authorized Officer
This is one of the Owner Trust Certificates referred to in the within-referenced
Deposit Trust Agreement.
Date:
----------------------------------------------,
not individually, but solely in its capacity as
Certificate Registrar
----------------------------------------------
Authorized Officer
A-2-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto __________________________________________________________
_______________________________________________________________________________
_______________________________________ [(Please print or typewrite name(s) and
address(es), including postal zip code of assignee(s)] ("Assignee(s)") that
portion of the interest in the Trust represented by the within Owner Trust
Certificate set forth below and hereby authorize(s) the transfer and
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust.
I (we) further direct the Certificate Registrar to issue a new Owner Trust
Certificate of the same Class for that portion of the interest in the Trust
represented by the within Owner Trust Certificate set forth below to the
above-named Assignee(s) and deliver such Owner Trust Certificate to the
following address: _____________________________________________________________
____________________________________________________________; to issue a new
Owner Trust Certificate of the same Class for the remainder of the interest in
the Trust represented by the within Owner Trust Certificate to the above-named
Assignor(s) and deliver such Owner Trust Certificate to the following address:
____________________________________; and to cancel the within Owner Trust
Certificate.
Date: ________________ __________________________________________
Signature by or on behalf of Assignor(s)
Percentage Interest
Transferred: __________ __________________________________________
Taxpayer Identification Number
X-0-0
XXXXXXX X-0
FORM OF CLASS [R] OWNER TRUST CERTIFICATE
CRIIMI MAE COMMERCIAL MORTGAGE TRUST [I]
CLASS [R] OWNER TRUST CERTIFICATE
evidencing a non-assessable, fully paid ___% interest in the Class [R]
Owner Trust Certificates, which, collectively with the Class [P] and Class
[XS] Owner Trust Certificates, evidence the entire beneficial ownership
interest in CRIIMI MAE Commercial Trust [I], a ___________ business trust
whose assets include various commercial mortgage loans (the "Mortgage
Loans") deposited by CRIIMI MAE CMBS Corp. (the "Depositor")
Date of Deposit Trust Percentage Interest in Related Class
Agreement: __________, 199__ Evidenced by this Class [R] Owner Trust
Certificate:_______%
First Payment Date: _________, 199__ Closing Date: ___________, 199__
Depositor and Initial Holder of
the Owner Trust Certificates: Owner Trustee: ______________________
CRIIMI MAE CMBS Corp.
Owner Trust Certificate No. R-___
A-3-1
THIS OWNER TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN, OR
OBLIGATION OF, THE DEPOSITOR, THE OWNER TRUSTEE, ANY OF THEIR RESPECTIVE
AFFILIATES, OR ANY OTHER PERSON. NEITHER THIS OWNER TRUST CERTIFICATE NOR THE
MORTGAGE LOANS ARE INSURED OR GUARANTEED, IN WHOLE OR IN PART, BY ANY
GOVERNMENTAL ENTITY OR INSTRUMENTALITY OR ANY PRIVATE INSURER OR GUARANTOR.
THIS OWNER TRUST CERTIFICATE IS SUBJECT TO VARIOUS TRANSFER
RESTRICTIONS DESCRIBED HEREIN.
This Owner Trust Certificate is issued pursuant to, and in
accordance with, the terms of a Deposit Trust Agreement, dated as of
___________, 199__ (the "Deposit Trust Agreement"; terms not otherwise defined
herein shall have the meanings assigned to those terms in the Deposit Trust
Agreement), between CRIIMI MAE CMBS Corp. as depositor (in such capacity, the
"Depositor") and initial Certificateholder and _________________ as Owner
Trustee (the "Owner Trustee"), a summary of certain of the pertinent provisions
of which are set forth herein. This Owner Trust Certificate is issued under and
is subject to the terms, provisions and conditions of the Deposit Trust
Agreement, to which Deposit Trust Agreement the holder of this Owner Trust
Certificate by virtue of the acceptance hereof assents and by which such
Certificateholder is bound. In the event of a conflict between the provisions of
this Owner Trust Certificate and those of the Deposit Trust Agreement, the
provisions of the Deposit Trust Agreement shall control.
This certifies that ___________________ is the registered owner of
the beneficial interest evidenced by this Owner Trust Certificate in the trust
established pursuant to the Deposit Trust Agreement and designated as CRIIMI MAE
Commercial Mortgage Trust [I] (the "Trust"). The assets of the Trust include
various Commercial Mortgage Loans (the "Mortgage Loans").
Except to the extent of their execution and authentication,
respectively, of the Owner Trust Certificates, the Owner Trustee and the
Certificate Registrar make no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of this Owner Trust
Certificate or the Mortgage Loans. The Owner Trustee has executed this Owner
Trust Certificate in its limited capacity as Owner Trustee under the Deposit
Trust Agreement, and the Certificate Registrar has authenticated this Owner
Trust Certificate in its limited capacity as Certificate Registrar under the
Deposit Trust Agreement.
Distributions on the Certificates will be made, to the extent of
available funds, on the __ day [(or, in the case of February, the 28th day)] of
each month or, if any such day is not a Business Day, then the next succeeding
Business Day (each, a "Payment Date"), commencing in __________ 199__. As more
fully described in the Deposit Trust Agreement, distributions on the Class [R]
Certificates will be in an amount equal to the remaining portion, if any, of the
Certificateholder Funds for each Payment Date after making all payments on the
Class [XS] and Class [P] Certificates.
Pursuant to the Deposit Trust Agreement, all payments made with
respect to any Class of Owner Trust Certificates on any Payment Date shall be
allocated pro rata among such Owner Trust Certificates based upon their
respective Percentage Interests. Payments to the
A-3-2
Certificateholders on each Payment Date will be made to the Certificateholders
of record on the related Record Date. Payments to any Certificateholder on any
Payment Date shall be made by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Owner Trustee in writing at least five (5) Business Days prior to
the related Record Date and if such Certificateholder is the registered owner of
Owner Trust Certificates representing at least a [331/3]% Percentage Interest in
any Class thereof, or otherwise by check mailed by first class mail to the
address of such Certificateholder appearing in the Certificate Register. Final
payment on each Owner Trust Certificate will be made in like manner, but only
upon presentment and surrender of such Owner Trust Certificate at the Corporate
Trust Office or such other location specified in the notice to
Certificateholders of such final payment.
This Owner Trust Certificate is one of a duly authorized issue of
Owner Trust Certificates designated as CRIIMI MAE Commercial Mortgage Trust [I],
Owner Trust Certificates, representing a fractional undivided beneficial
interest in a Trust Estate consisting of (a) the Mortgage Loans and all payments
thereon and proceeds thereof from and after the Cut-off Date, (b) the Operative
Agreements (i) to which the Depositor is a party or (ii) of which the Depositor
is a third party beneficiary, including the right to receive all income on the
Mortgage Loans, (iii) all present and future claims, demands, causes and choses
in action in respect of any or all of the foregoing and (iv) all proceeds of
every kind and nature whatsoever in respect thereof, including all proceeds of
the conversion, voluntary or involuntary, into cash or other liquid property,
all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of obligations
and receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of the foregoing, subject, to the
Lien in favor of the Indenture Trustee.
This Owner Trust Certificate does not purport to summarize the
Deposit Trust Agreement and reference is made to the Deposit Trust Agreement for
the interests, rights and limitations of rights, benefits, obligations and
duties evidenced hereby and the rights, duties and immunities of the Owner
Trustee.
No sale, transfer or other disposition of any Owner Trust
Certificate may be made, and the Certificate Registrar shall refuse to register
any such transfer, unless the Depositor (or, if the Depositor no longer exists,
100% of the other Certificateholders) shall consent in writing to such sale,
transfer or other disposition. The Depositor (or any such other
Certificateholder) shall be entitled to request from the parties interested in
effecting such sale, transfer or other disposition, and to rely upon, a
certification of facts and/or an opinion of counsel which establishes to the
satisfaction of the Depositor (or such other Certificateholders) that such sale,
transfer or other disposition is permissible under applicable law and the
Operative Agreements.
No transfer, sale, pledge or other disposition of this Owner Trust
Certificate or any interest herein shall be made unless that transfer, sale,
pledge or other disposition is exempt from the registration and/or qualification
requirements of the 1933 Act and any applicable state securities laws, or is
otherwise made in accordance with the 1933 Act and such state securities laws.
The Trust has
A-3-3
not been registered as an investment company under the 1940 Act, and no transfer
of an Owner Trust Certificate may be made (i) to any Person other than a QIB or
an Affiliate of the Trust or (ii) to any Person that would require the Trust or
any such trust fund to be registered as an investment company under the 1940
Act. No transfer of this Owner Trust Certificate or any interest herein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing this Owner Trust
Certificate or interest herein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan.
No sale, transfer or other disposition of any Owner Trust
Certificate may be made, and the Certificate Registrar shall refuse to register
any such transfer, if such sale, transfer or other disposition would result in
the Trust ceasing to be a qualified REIT subsidiary within the meaning of
Section 856(i) of the Code.
For so long as the Bonds are outstanding and the Lien of the
Indenture has not been satisfied and discharged, no sale, transfer or other
disposition of any Owner Trust Certificate may be made, and the Certificate
Registrar shall refuse to register any such transfer, unless the Owner Trustee
shall have received written confirmation from each Rating Agency to the effect
that such sale, transfer or other disposition will not result in the
qualification, downgrade or withdrawal of any then current rating on the Bonds.
No assignment, conveyance or other transfer of this Owner Trust
Certificate shall be effective unless the transferee shall have executed and
delivered to the Owner Trustee an instrument containing the transferee's
agreement to be bound by the terms of the Deposit Trust Agreement.
Prior to transfer of this Owner Trust Certificate in accordance with
the foregoing and the Deposit Trust Agreement, the Owner Trustee, the Indenture
Trustee and the Certificate Registrar and any agent of any of them may treat the
person or entity in whose name this Owner Trust Certificate is registered as the
owner hereof for the purpose of receiving distributions pursuant to the Deposit
Trust Agreement, pursuant to the Indenture and for all other purposes
whatsoever, and neither the Owner Trustee, the Indenture Trustee, the
Certificate Registrar nor any agent of any of them shall be affected by notice
to the contrary.
As provided in the Deposit Trust Agreement and subject to certain
limitations herein and therein set forth, this Owner Trust Certificate is
exchangeable for other Owner Trust Certificates of the same Class in authorized
denominations representing a like aggregate Percentage Interest, as requested by
the Certificateholder surrendering the same.
No service charge will be made to a Certificateholder for any such
registration of transfer or exchange, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
A-3-4
The Deposit Trust Agreement permits, with certain exceptions therein
provided, the amendment of the Deposit Trust Agreement and the modification of
the rights of the Certificateholders at any time by the Owner Trustee with the
consent of Certificateholders entitled to a majority of the Voting Rights
(except as provided in the Deposit Trust Agreement). Any consent by the
Certificateholder of this Owner Trust Certificate shall be conclusive and
binding on such Certificateholder and upon all future Certificateholders issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Owner Trust Certificate.
The obligations created by the Deposit Trust Agreement shall not
terminate until the Bonds have been paid in full and the Lien on the Trust
Estate created by the Indenture has been released; provided, however, that in no
event shall the Trust 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. Xxxxx, living on the date
hereof.
Unless the Certificate of Authentication on this Owner Trust
Certificate has been executed by or on behalf of the Certificate Registrar, by
manual signature, this Owner Trust Certificate shall not be entitled to any
benefit under the Deposit Trust Agreement or be valid for any purpose.
A-3-5
IN WITNESS WHEREOF, the Owner Trustee has caused this Owner Trust
Certificate to be duly executed.
-----------------------------------------------,
not individually, but solely in its capacity as
Owner Trustee
-----------------------------------------------
Authorized Officer
This is one of the Owner Trust Certificates referred to in the within-referenced
Deposit Trust Agreement.
Date:
-----------------------------------------------,
not individually, but solely in its capacity as
Certificate Registrar
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Authorized Officer
A-3-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
_________________________________________ [(Please print or typewrite name(s)
and address(es), including postal zip code of assignee(s)] ("Assignee(s)") that
portion of the interest in the Trust represented by the within Owner Trust
Certificate set forth below and hereby authorize(s) the transfer and
registration of transfer of such interest to Assignee(s) on the Certificate
Register of the Trust.
I (we) further direct the Certificate Registrar to issue a new Owner Trust
Certificate of the same Class for that portion of the interest in the Trust
represented by the within Owner Trust Certificate set forth below to the
above-named Assignee(s) and deliver such Owner Trust Certificate to the
following address: _____________________________________________________________
_______________________________________________________; to issue a new Owner
Trust Certificate of the same Class for the remainder of the interest in the
Trust represented by the within Owner Trust Certificate to the above-named
Assignor(s) and deliver such Owner Trust Certificate to the following address:
___________________________________; and to cancel the within Owner Trust
Certificate.
Date:_____________ __________________________________________
Signature by or on behalf of Assignor(s)
Percentage Interest
Transferred:________ _________________________________________
Taxpayer Identification Number
A-3-7
