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EXHIBIT 99.29
TRUST AGREEMENT
between
XXXXXXXXXX,
as Seller
and
XXXXXXXXXX
as Trustee
and
XXXXXXXXXX
as Individual Trustee
Dated as of June 11, 1993
$5,415,300
Mortgage Pass-Through Certificates
(BORDERS BOOKS, UTICA, MICHIGAN)
Series 1993
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TABLE OF CONTENTS
Page
----
PREFACE..................................................................... 1
ARTICLE I
DEFINITIONS................................................................. 1
ARTICLE II
CONVEYANCE OF MORTGAGE LOAN; TRUST FUND
Section 2.01 Conveyance of Mortgage Loan...................... 10
Section 2.02 Acceptance by Trustee............................ 11
Section 2.03 Trust Fund....................................... 12
Section 2.04 Execution and Authentication of
Certificates..................................... 12
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 3.01 Representations and Warranties of Seller.................... 12
ARTICLE IV
THE CERTIFICATES
Section 4.01 The Certificates................................. 16
Section 4.02 Registration of Transfer and Exchange of
Certificates..................................... 17
Section 4.03 Mutilated, Destroyed, Lost or Stolen
Certificates..................................... 19
Section 4.04 Persons Deemed Owners............................ 19
Section 4.05 Appointment of Paying Agent...................... 19
ARTICLE V
TRUSTEE'S DUTIES WITH RESPECT TO MORTGAGE LOAN;
ESTABLISHMENT OF ACCOUNTS
Section 5.01 Calculation of Distributions .................... 20
Section 5.02 Receipt of Lease Payments; Collection of
Lease and Lease Guaranty Payments;
Collection of Mortgage Loan Payments;
Investment Direction............................. 20
Section 5.03 Establishment of Certificate Account;
Deposits in Certificate Account ................. 21
Section 5.04 Permitted withdrawals From the Certificate
Account.......................................... 22
Section 5.05 Excess Revenue Account........................... 23
Section 5.06 Permitted withdrawals from the Excess
Revenue Account.................................. 23
Section 5.07 Extraordinary Expense Reserve Account............ 24
Section 5.08 Permitted Withdrawals from the
Extraordinary Expense Reserve Account............ 24
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Section 5.09 Capitalized Debt Service Account................. 26
Section 5.10 Realization Upon Defaulted Mortgage Loan......... 26
Section 5.11 Trustee Compensation............................. 27
Section 5.12 Rights of the Certificateholders................. 28
ARTICLE VI
PAYMENTS TO THE CERTIFICATEHOLDERS
Section 6.01 Distributions.................................... 28
Section 6.02 Statements to Certificateholders................. 29
Section 6.03 Advances by Trustee.............................. 30
ARTICLE VII
THE SELLER
Section 7.01 Indemnification; Third Party Claims.............. 30
Section 7.02 Maintaining Corporate Existence of the
Seller........................................... 30
Section 7.03 Limitation on Liability of the Seller............ 31
Section 7.04 Seller May Resign................................ 31
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default................................ 32
Section 8.02 Waiver of Defaults............................... 32
Section 8.03 Notification to Certificateholders............... 33
Section 8.04 Rights of Certificateholders to Direct
Proceedings...................................... 33
ARTICLE IX
CONCERNING THE TRUSTEES
Section 9.01 Duties of Trustees............................... 33
Section 9.02 Certain Matters Affecting Trustees............... 35
Section 9.03 Trustee Not Liable for Certificates or
Mortgage Loan.................................... 46
Section 9.04 Trustee May Own Certificates..................... 36
Section 9.05 Trustee's Fee and Expenses....................... 36
Section 9.06 Action by Individual Trustee..................... 37
Section 9.07 Eligibility Requirements for Trustee............. 37
Section 9.08 Resignation and Removal of Trustee............... 38
Section 9.09 Successor Trustee................................ 38
Section 9.10 Merger or Consolidation of Trustee............... 38
Section 9.11 Resignation of Individual Trustee................ 39
Section 9.12 Removal of Individual Trustee.................... 39
Section 9.13 Appointment of Successor to
Individual Trustee............................... 40
Section 9.14 Succession of Successor to Individual
Trustee.......................................... 40
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ARTICLE X
TERMINATION
Section 10.01 Termination....................................... 40
Section 10.02 Notice; Final Distribution........................ 41
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Severability of Provisions........................ 41
Section 11.02 Limitation on Rights of Certificateholders........ 42
Section 11.03 Amendment......................................... 43
Section 11.04 Solicitation of Certificateholders................ 43
Section 11.05 Recordation of Agreement.......................... 44
Section 11.06 Duration of Agreement............................. 44
Section 11.07 Governing Law..................................... 44
Section 11.08 Notices........................................... 44
Section 11.09 Counterparts...................................... 45
Section 11.10 Jurisdiction...................................... 45
Section 11.11 Gender; Number.................................... 45
TESTIMONIUM ............................................................... 45
EXHIBIT A-1--Mortgage Loan Schedule........................................ A-1-1
EXHIBIT A-2--Mortgage Certificate Schedule................................. A-2-1
EXHIBIT A-3--Contents of Mortgage File..................................... A-3-1
EXHIBIT B--Form of Certificate............................................. B-1
EXHIBIT C--Form of Trustee Certification................................... C-1
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TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of June 11, 1993, is executed by and
among XXXXXXXXXX, as seller (together with its permitted successors, in such
capacity, "Seller"), and XXXXXXXXXX, a New York banking corporation, as
trustee (together with its permitted successors and assigns, "Trustee") and
XXXXXXXXXX, as Individual Trustee (together with permitted successors and
assigns in such capacity "Individual Trustee" and collectively with Trustee,
"Trustees").
In consideration of the premises and the mutual agreements hereinafter
set forth, the Seller and the Trustees agree as follows:
PREFACE
Each Certificate evidences a beneficial ownership interest in the Trust
Fund, the assets of which include, among other things, a Mortgage Loan. The
Certificates are equally and ratably secured by and payable from the proceeds of
the Mortgage and Mortgage Note, respectively (as each such term is defined
herein).
Each Certificate is paid principal and/or interest, as set forth on the
Debt Service schedule on such Certificate, on a semiannual basis referred to
herein as the Remittance Dates, (the fifteenth day of the month of each Due
Date). Payments under the Mortgage Note are payable semiannually on the Due
Dates, (the fifteenth day of each month in which payment on the Mortgage Note is
due). The Available Distribution Amount is calculated on the Determination
Date.
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
"Administrative Expenses": The ordinary and necessary expenses incurred
in the course of administrating the affairs of the Trust, excluding any
Liquidation Expenses.
"Agreement": This Trust Agreement and all amendments hereof and
supplements hereto.
"Annual Rental": Has the meaning assigned in Article 4 of the Lease.
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"Appraisal": An appraisal or certification as to value made or caused
to be made by the Seller. Such appraisal shall be signed prior to the funding
of the Mortgage Loan by a qualified appraiser, duly appointed or approved by the
Seller, who at the time of such appraisal had no interest, direct or indirect,
in the Mortgaged Estate or in any loan made on the security thereof, and whose
compensation was not affected by the approval or disapproval of the Mortgage
Loan.
"Assignment of Mortgage": The Assignment of the Mortgage dated as of
June 11, 1993 between Seller and Trustee, the Assignment of Lease Assignment
dated as of June 11, 1993, between Seller and Trustee, and any other notice of
transfer or equivalent instrument, in recordable form, sufficient under the laws
of the jurisdiction where the Mortgaged Estate is located to reflect of record
the sale, conveyance, transfer and absolute assignment of the Mortgage to the
Trustee.
"Available Distribution Amount": As to any Remittance Date, an amount
equal to the amount on deposit in the Certificate Account as of the close of
business on the related Determination Date.
"Borrower": XXXXXXXXXX, formed under the laws of the State of
Michigan, and its successors and assigns, having its principal office at
XXXXXXXXXX.
"Business Day": Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking or savings and loan institutions in the city in which the
principal corporate trust offices of the Trustee are located are authorized or
obligated by law or executive order to be closed.
"Capitalized Debt Service Account": The trust account described in
Section 5.09.
"Capitalized Debt Service Reserve": Has the meaning assigned thereto in
Section 2 of the Loan Agreement.
"Cash Liquidation": Recovery of all cash proceeds by the Trustee with
respect to the termination of the defaulted Mortgage Loan following an Event of
Default, including Insurance Proceeds, condemnation awards and other payments or
recoveries (whether made at one time or over a period of time) which the
Trustees deem to be finally recoverable, in connection with the sale or
assignment of the Mortgage Loan, or a trustee's sale, foreclosure sale or other
disposition of the Mortgaged Estate, but only if title to the related Mortgaged
Estate was not acquired by foreclosure or deed in lieu of foreclosure by the
Trustees pursuant to Section 5.10 of this Agreement.
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"Certificate" or "Certificates": The Certificate or Certificates
evidencing a beneficial ownership interest in the Mortgage Loan executed by the
Trustee substantially in the form set forth in Exhibit B hereto.
"Certificate Account": The trust account described in Section 5.03.
"Certificate Balance": With respect to all the Certificates, the
original principal amount of the Certificates less all payments, prepayments
and redemptions of principal thereof, including without limitation any payments
of principal comprising Debt Service; and with respect to any Certificate, the
original principal amount of such Certificate less all payments, prepayments
and redemptions of principal thereof, including without limitation any payments
of principal comprising Debt Service on such Certificate.
"Certificate Differential": Has the meaning assigned to it in Section 2
of the Loan Agreement and Section 2.1 of the Note Put Agreement.
"Certificateholder", "Certificateholders", "Holder" or "Holders": The
person or persons in whose name a Certificate is registered in the Certificate
Register, except that, solely for the purposes of giving any consent, waiver,
request or demand pursuant to this Agreement, any Certificate registered in the
name of the Seller or any affiliate thereof shall be deemed not to be
outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage Interests
necessary to effect any such consent, waiver, request or demand has been
obtained. The Trustees shall be able to conclusively rely on a certificate of
the Seller in determining which Certificates are registered to an affiliate.
"Certificate Register": The register maintained pursuant to Section
4.02.
"Certificate Schedule": The Certificate Schedule attached hereto as
Exhibit A-2 setting forth the following information for each Certificate issued
as of the Closing Date: (i) Certificate Number; (ii) the Certificate Balance as
of the Closing Date; and (iii) the Debt Service on such Certificate.
"Closing Costs": An amount equal to $231,760.00 which shall be
disbursed to Placement Agent on the Closing Date.
"Closing Date": July 1, 1993 .
"Code": The Internal Revenue Code of 1986, as amended.
"Consent and Agreement": The Consent and Agreement dated as of June
11, 1993 among Kmart, Seller, Borrower, Tenant
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and Trustee relating to the Lease, the Lease Guaranty, the Note Put
Agreement and certain other related matters.
"Corporate Trust Office": The office of the Trustee in the State of
California at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this instrument is
located at XXXXXXXXXX.
"Debt Service": The interest and/or principal payable semiannually on
the Remittance Date as stated on a specific Certificate.
"Determination Date": The 5th day (or if such 5th day is not a Business
Day, the Business Day immediately following such 5th day) of the month of the
related Remittance Date.
"Due Date": With respect to the Mortgage Loan, the fifteenth day of the
month on which each Mortgage Payment is due on the Mortgage Loan, exclusive of
any days of grace.
"Due Period": With respect to any Remittance Date, the period ending on
the Due Date for the month of such Remittance Date and commencing on the Due
Date preceding such Remittance Date.
"Eligible Investments": One or more of the following:
(i) direct obligations of the United States of America,
(ii) obligations fully guaranteed, both as to principal and
interest, by the United States of America;
(iii) certificates of deposit issued by, or bankers' acceptances
of, or time deposits with, a bank or trust company organized under the laws of
the United States or any state thereof, having capital, surplus and undivided
profits aggregating at least $100,000,000 and whose long-term certificates of
deposit are, at the time of acquisition thereof, rated in the highest rating
category for such securities by S&P and Moodys'; and
(iv) taxable government money market portfolios restricted to
obligations with maturities of one year or less, issued or guaranteed by the
full faith and credit of the United States which, at the time of such
investment, are then rated in the highest rating category of S&P and Moody's
(the "highest rating category" as used in this definition shall mean (A) a
rating which would be assigned by S&P, as of the date first above written,
equivalent to or higher than "AAAm" or "AAAmG" with respect to money-market
securities; and (B) a rating which would
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be assigned by Moody's as of the date first above written, equivalent to or
higher than "Am" with respect to money-market securities).
provided that any such obligations of the types described in clauses (i)
through (iv) above shall not have a maturity later than the earlier of 90 days
and the Due Date immediately following the acquisition thereof; provided
further, that any such obligations of the types described in clauses (i) and
(ii) above may be made through a repurchase agreement in commercially
reasonable form with a bank or other financial institution (which may be the
Trustee) the senior unsecured debt of which is then assigned an A rating or
better by S&P or Moody's, so long as title to the underlying obligations shall
pass to the Trustee and that such underlying obligations shall be segregated in
a custodial or trust account of or for the benefit of the Trustee.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default": Any event of default described in Section 8.01.
"Excess Revenue Account": The trust account described in Section
5.05.
"Extraordinary Expense Advances": All reasonable and necessary
"out-of-pocket" costs and expenses of the Trustee in enforcing the Note
Documents or otherwise reimbursable pursuant to the provisions thereof, and in
compliance with the obligations under Section 5.10.
"Extraordinary Expense Reserve Account": The account or accounts
described in Section 5.07.
"FDIC": Federal Deposit Insurance Corporation or any successor
organization.
"Individual Trustee": Means XXXXXXXXXX and permitted successors or
assigns.
"Insurance Proceeds": Proceeds paid by any insurer pursuant to any
insurance policy including self-insurance proceeds paid by Kmart or any of its
subsidiaries, covering the Mortgaged Estate.
"Kmart": Means Kmart Corporation, a Michigan corporation, and its
successors and assigns.
"Lease": Has the meaning assigned thereto in Section 1.1 of the Loan
Agreement.
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"Lease Guaranty": Has the meaning assigned thereto in Section 1.1 of the
Loan Agreement.
"Liquidated Mortgage Loan": The Mortgage Loan after an Event of Default
when the Trustee has reasonably determined that all amounts which they expect to
recover from or on account of the Mortgage Loan have been recovered.
"Liquidation Expenses": Expenses which are incurred by the Trustee in
connection with the liquidation of the defaulted Mortgage Loan, such expenses
including, without limitation, legal fees and expenses, any unreimbursed amount
expended by the Trustee pursuant to Section 5.10 (to the extent such amount is
reimbursable under the terms of Section 5.10) respecting the Mortgage Loan and
any related and unreimbursed expenditures for real estate property taxes or for
property restoration or preservation.
"Liquidation Proceeds": Cash (including Insurance Proceeds) received by
the Trustees in connection with the liquidation of the Mortgage Loan, if
defaulted, whether through the sale of the Mortgage Loan, the sale of the
Mortgaged Estate pursuant to foreclosure sale or otherwise, or the sale of the
Mortgaged Estate if the Mortgaged Estate is acquired in satisfaction of the
Mortgage Loan other than amounts required to be paid to the Mortgagor pursuant
to law or the terms of the Mortgage Note.
"Loan Agreement": The Loan Agreement dated as of June 11, 1993, between
Seller and Borrower, pursuant to the terms and conditions of which the
Mortgage Loan was made.
"Make-Whole Premium": Has the meaning assigned to it in Section 2 of
the Loan Agreement and Section 2.1 of the Note Put Agreement. The Trustee shall
be provided with a certificate evidencing the calculation of such amount by
the Holders of Certificates evidencing Percentage Interests in the aggregate
not less than 66-2/3% at any time requested by the Trustee, or in the event of
their failure to provide such certificate, it shall be provided by Seller.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc., a corporation
organized and existing under the laws of the State of Delaware, its successors
and assigns.
"Mortgage": Has the meaning assigned thereto in Section 1.2 of the Loan
Agreement.
"Mortgage File": The items referred to in Exhibit A-3 annexed hereto
pertaining to the Mortgage Loan.
"Mortgage Loan": The loan pursuant to the Loan Agreement together with
all right, title and interest of Seller relating thereto, evidenced by the
Mortgage Note and secured by
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the Mortgage, sold, conveyed, transferred and absolutely assigned by the Seller
to the Trustee and which is the subject of this Agreement and included in the
Trust Fund. The Mortgage Loan is identified on the Mortgage Loan Schedule
annexed hereto as Exhibit A-1.
"Mortgage Loan Schedule": The schedule attached hereto as Exhibit A-1
setting forth the following information for the Mortgage Loan: (i) the
Mortgagor's name; (ii) the Mortgaged Estate; (iii) the maturity date; (iv) the
Mortgage Note rate; (v) the First Due Date; (vi) a schedule setting forth the
Mortgage Payments; and (vii) the original Principal Balance of the Mortgage
Loan.
"Mortgage Note": The 8.45% Collateralized Promissory Note executed by
the Mortgagor or other evidence of the indebtedness of the Mortgagor secured by
the Mortgage.
"Mortgage Payment": The scheduled payment set forth in Exhibit A-1 of
principal and interest on the Mortgage Loan. Specifically, with respect to
interest, each June 15 and December 15, commencing December 15, 1993 and
to and including June 15, 2014, and with respect to principal, each June 15,
commencing June 15, 1994 and to and including June 15, 2014 (before any
adjustment to such payments by reason of any bankruptcy or similar proceeding
or any moratorium or similar waiver or grace period).
"Mortgaged Estate": The real and personal property securing the
Mortgage Note and the improvements constructed with the proceeds of the Mortgage
Loan, if any.
"Mortgagor": The Borrower, as obligor on the Mortgage Note.
"NAIC": The National Association of Insurance Commissioners, its
successors and assigns or the Securities Valuation Office (SVO) thereof which
provides insurance companies with uniform prices and quality ratings.
"Net Liquidation Proceeds": Liquidation Proceeds net of Liquidation
Expenses.
"Note Documents": The Loan Agreement, the Mortgage Note, the Mortgage
and each other document which constitutes a Loan Document pursuant to the terms
and provisions of the Loan Agreement.
"Note Put Agreement": The Note Put Agreement, dated as of June 11,
1993, by and between Seller and Kmart pursuant to the terms and
conditions of which a put of the Mortgage Loan may be made on the occurrence of
certain events specified therein.
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"Officer's Certificate": A certificate signed by the Chairman of the
Board, the Chief Executive Officer, the President or a Vice President, the
Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries or any other duly authorized officer of the Seller and delivered
to the Trustee as required by this Agreement.
"Opinion of Counsel": A written opinion of an attorney at law admitted
to practice in any state of the United States or the District of Columbia, or a
written opinion of a law firm (such attorney or law firm herein referred to as
"Counsel"), who may, in the case of an attorney, except as otherwise expressly
provided in this Agreement, be in-house counsel for the Seller and reasonably
acceptable to the Trustee.
"Paying Agent": The Person designated as the Paying Agent pursuant to
Section 4.05.
"Percentage Interest": The percentage of the whole undivided
beneficial interest in the Trust Fund held by a Holder, to be evidenced by a
Certificate which shall state the percentage interest therein.
"Permitted Encumbrances": The Permitted Encumbrances as defined in the
Mortgage.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Placement Agent": XXXXXXXXXX and its successors and assigns.
"Pledge Agreement": Has the meaning assigned thereto in Section 1.2 of
the Loan Agreement.
"Principal Balance": The principal balance of the Mortgage Loan as of
any Due Date (before any adjustment to such amortization schedule by reason of
any delay caused by any bankruptcy or similar proceeding or any moratorium or
similar waiver or grace period) which for purposes hereof is initially
$5,187,000.
"Principal Prepayment": Any payment or other recovery of principal on
the Mortgage Loan, including any prepayment of principal pursuant to Section 3
of the Loan Agreement, Insurance Proceeds and condemnation awards to the extent
required to be deposited in the Certificate Account (other than Liquidation
Proceeds and monthly receipts of amounts referred to in Section 5.02(a)), which
is received in advance of its scheduled Due Date, and excluding any amount of
interest representing scheduled interest due.
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"Project": The facility comprised of a retail store constructed by
Borrower and Tenant for lease by the Tenant on real property which will be
acquired by Borrower and which such facility will be constructed on behalf of
Borrower using the proceeds of the Mortgage Loan.
"Purchase Agreement": The agreement between the Seller and XXXXXXXXXX,
as purchaser, to sell and purchase Certificates.
"Purchase Price": Has the meaning assigned thereto in Section 2.1 of the
Note Put Agreement.
"Put": The right to require purchase of the Mortgage Note by Kmart
pursuant to the Note Put Agreement.
"Rating Agency": With respect to the Certificates shall mean NAIC; if
NAIC or a successor is no longer in existence, "Rating Agency" shall be such
nationally recognized statistical credit rating agency, or other comparable
Person, designated by Holders of Certificates evidencing Percentage Interests
in the aggregate of not less than 66-2/3% at any time requested by Trustee,
notice of which designation shall be given to the Trustee; references herein to
the two highest rating categories of a Rating Agency shall mean AA or better,
in the case of S&P and in the case of any other Rating Agency shall mean such
ratings without any plus or minus.
"Record Date": The close of business on the first Business Day of the
month of the related Remittance Date.
"Redemption": The redemption (or prepayment) of the Certificates, in
whole or in part, as provided in this Agreement.
"Redemption Date": The date determined in accordance with the
provisions of this Agreement for Redemption of the Certificates.
"Regulations": The Treasury Regulations, including proposed, temporary
and final regulations promulgated under the provisions of the Code.
"Remittance Date": With respect to the Certificates, an interest payment
date of December 15, 1993, and each December 15, and June 15, thereafter until
June 15, 2014, or the payment of the unpaid principal balance in full.
"Responsible Officer": When used with respect to the Trustee, the
Chairman or Vice Chairman of the Board of Directors of Trustee, the Chairman or
Vice Chairman of the Executive or Standing Committee of the Board of Directors
of Trustee, the President, the Chairman of the Committee on Trust Matters, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, the
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Cashier, any Assistant Cashier, any Trust Officer or Assistant Trust Officer,
the Controller and any Assistant Controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
"Seller": XXXXXXXXXX and its successors in interest.
"S & P": Standard & Poor's Corporation and its successor in interest.
"Tenant": Borders, Inc., which is a subsidiary of Kmart and has entered
into the Lease with Borrower to occupy a facility comprised of a retail store in
the Project.
"Transfer Assurance": A Transfer Assurance required pursuant to
Section 4.02(d).
"Trust": The grantor trust created pursuant to this Agreement.
"Trustee": XXXXXXXXXX, and its permitted
successors hereunder.
"Trustee's Fee": The amount of the annual fee paid to the Trustee for
its ordinary fees and expenses arising under this Agreement, equal to $3,000,
payable by Borrower pursuant to Section 9.13 of the Loan Agreement. Such fee
shall constitute all compensation payable under this Agreement, except for the
payment of certain additional amounts (which shall not be payable by Borrower)
for such extraordinary services and as otherwise provided in this Agreement.
"Trust Fund": The corpus of the Trust, to the extent described herein,
consisting of the Mortgage Loan, including all rights which secure the
obligation of the Borrower thereunder, all Note Documents, such assets as shall
from time to time be identified as deposited in the Certificate Account
(including the investment income thereon), property which secures the Mortgage
Loan and which has been acquired by foreclosure or deed in lieu of foreclosure
and the proceeds of insurance, condemnation awards and any other amounts
receivable under the Note Documents, and all funds advanced by the
Certificateholders to Trustee or otherwise held by Trustee (including without
limitation funds held in the Certificate Account, the Excess Revenue Account and
the Extraordinary Expense Reserve Account) in accordance with the provisions
hereof.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOAN; TRUST FUND
Section 2.01. Conveyance of Mortgage Loan. As grantor of the Trust,
the Seller, concurrently with the execution and delivery hereof, does hereby
sell, transfer, set over, convey and absolutely assign to the Trustees without
recourse (except as provided herein) in trust intending to establish the Trust,
all right, title and interest of the Seller in and to the Mortgage Loan,
including all interest, Make-Whole Premium and principal due or to become due
from the Borrower on or with respect to the Mortgage Loan.
In connection with such sale, conveyance, transfer and absolute
assignment, the Seller does hereby sell, transfer, convey and absolutely assign
and deliver to, and deposit with, the Trustees the documents constituting the
Mortgage File.
The ownership of the Mortgage Note, the Mortgage and the contents of
the Mortgage File is vested in the Trustees without reservation of any right,
title or interest whatsoever in the Seller. The Seller intends that the sale,
conveyance, transfer and absolute assignment of the Seller's right, title and
interest in and to the Mortgage Loan pursuant to this Agreement shall
constitute a purchase and sale and not a pledge of security for a loan.
However, if for any reason such conveyance is deemed not to be a sale, the
Seller intends that the rights and obligations of the parties shall
nevertheless be established pursuant to the terms of this Agreement and that
the Seller shall be deemed to have granted to the Trustee a first priority
security interest in all of the Seller's right, title and interest in, to and
under the Mortgage Loan, all payments of principal of or interest on the
Mortgage Loan, all other payments made in respect of the Mortgage Loan
(including, without limitation, Make-whole Premium), and all proceeds of any
thereof, and any other assets of the Trust Fund, and that this Agreement shall
constitute a security agreement under applicable law. If the Trust terminates
prior to the satisfaction of all claims of any Person in any Certificates, the
security interest created hereby shall continue in full force and effect and
the Trustee shall be deemed to be the collateral agent for the benefit of such
Person.
Section 2.02. Acceptance by Trustee. The Trustee acknowledges receipt
of the documents referred to in Section 2.01, subject to any exceptions noted
in a certificate of the Trustee delivered within 30 days after the Closing
Date, and declares that it holds and will hold such documents and any other
documents constituting a part of the Mortgage File delivered to it in trust for
the use and benefit of all present and future Certificateholders. At the
Closing Date the Trustee agrees, for the benefit of Certificateholders, to
review within 30 days after the Closing Date each of the documents described in
Section 2.01 delivered to it to ascertain that all required documents have
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been executed and received, and that such documents relate to the Mortgage Loan
identified in the Mortgage Loan Schedule, as supplemented, that have been sold,
conveyed, transferred and absolutely assigned to it. If the Trustee finds any
document or documents constituting a part of the documents described in Section
2.01 to be missing, mutilated, damaged, defaced, incomplete, improperly dated,
clearly forged or otherwise physically altered in any material respect, the
Trustee shall promptly (and in any event within no more than five Business Days
after such discovery so) notify the Seller. At the Closing Date the Trustee
shall also notify the Seller, if in examining such documents, or through any
other means, the Trustee had notice or knowledge (a) of any adverse claim, lien
or encumbrance against the Mortgage Loan or Mortgaged Estate, (b) that the
Mortgage Note was overdue or had been dishonored, (c) of evidence on the face
of the Mortgage Note or Mortgage of any security interest or other right or
interest therein, or (d) any defense against or claim to the Mortgage Note by
any party. The Seller shall correct such omission or other irregularity
referred to above within 90 days from the Closing Date. The Trustee shall
review the documents referred to in Section 2.01 only for the purpose set forth
above in this Section 2.02 and the Trustee shall be under no duty or obligation
to inspect, review or examine any such documents, instruments, certificates or
other papers to determine that they are genuine, enforceable, or appropriate
for the represented purpose or that they have actually been recorded or that
they are other than what they purport to be on their face.
Within thirty (30) days of the Closing Date, the Trustee shall deliver
to the Seller and the Certificateholders the Trustee's Certification attached
hereto as Exhibit C.
Section 2.03. Trust Fund. The Trustees acknowledge that they hold the
Trust Fund created pursuant to this Agreement in trust for the use and benefit
of all present and future Certificateholders.
Section 2.04. Execution of Certificates. The Trustees acknowledge the
sale, conveyance, transfer and absolute assignment to them of the Mortgage Loan
and the delivery of the documents specified in Section 2.01 to them, and,
concurrently with such delivery, the Trustee has caused to be executed and
delivered Certificates in authorized denominations evidencing ownership of the
entire Trust Fund.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 3.01. Representations and Warranties of Seller. The Seller
represents and warrants to, and covenants with, the Trustee and the
Certificateholders that as of the Closing Date:
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(i) Seller is duly organized, validly existing and in good standing as
a corporation under the laws of the State of Nevada and is qualified to
transact business in and is in good standing under the laws of the States of
Michigan and Arizona or is otherwise exempt under applicable law from such
qualification and no demand for such qualification has been made upon Seller.
The principal place of business and chief executive office of the Seller is
located in the State of Arizona;
(ii) Seller has the full power and authority to execute, deliver
and perform, and to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and performance of
this Agreement, has duly executed and delivered this Agreement, and this
Agreement constitutes the legal, valid and binding obligation of Seller,
enforceable against it in accordance with its terms;
(iii) Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement will conflict with
or result in a breach of any of the terms, conditions or provisions of Seller's
articles of incorporation or bylaws or any legal restriction or any agreement
or instrument to which Seller is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing,
or result in the violation of any law, rule, regulation, order, judgment or
decree to which Seller or its property is subject;
(iv) At the date hereof, Seller does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every covenant and
agreement of or by Seller contained in this Agreement;
(v) There is no litigation pending or, to Seller's knowledge,
threatened, which, if determined adversely to Seller, would adversely affect
the execution, delivery or enforceability of this Agreement or the Certificates
or would impair the ability of Seller to perform its obligations under this
Agreement, or, in Seller's reasonable judgment, which is likely to have a
material adverse effect on the financial condition of Seller;
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Seller of or compliance by Seller with this Agreement, the
issuance of the Certificates, or the consummation of the transactions
contemplated by this Agreement;
(vii) The sale, transfer, assignment and conveyance of the Mortgage
Loan by Seller pursuant to this Agreement is not subject to the bulk transfer
or any similar statutory provisions in effect in any applicable jurisdiction;
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(viii) Seller (a) has not engaged, and as of the date hereof, does not
engage in any business or investment activities other than those necessary for,
incident to, connected with or arising out of the Mortgage Loan, and (b) has
not incurred, and as of the date hereof, does not have, any indebtedness;
(ix) With respect to the Mortgage Loan:
(a) The information set forth in the Mortgage Loan Schedule is
true and correct in all respects;
(b) As of the Closing Date, the Mortgage Loan is not delinquent
in payment; Seller has not advanced funds, or actively induced, solicited or
knowingly received any advance of funds from a party other than the owner of
the Mortgaged Estate subject to the Mortgage, directly or indirectly, for the
payment of any amount required by the Mortgage Loan; there is no requirement
for future advances; and all costs, expenses and fees in connection with the
making, closing or recording of the Mortgage Loan have been paid;
(c) The terms of the Note Documents have not been impaired,
waived, altered or modified in any respect; each such impairment, waiver,
alteration or modification is reflected on the Mortgage Loan Schedule; no
instrument of waiver, alteration or modification has been executed, and
Mortgagor has not been released, in whole or in part;
(d) The Mortgage has not been satisfied, cancelled, subordinated
or rescinded, and the Mortgaged Estate has not been released from the lien of
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission;
(e) The lien of the Mortgage is insured by an ALTA lender's title
insurance policy or other generally acceptable form of policy of title
insurance, issued by a title insurer qualified to do business in the
jurisdiction where the Mortgaged Estate is located, insuring the first priority
lien of the Mortgage in the original principal amount of the Certificates
subject only to Permitted Encumbrances. After the transfer of the Mortgage
Loan to the Trustee pursuant to Section 2.01, the Trustee will be the named
insured of such lender's title insurance policy. To the best of Seller's
knowledge, no claims have been made under such lender's title insurance policy
and to the best of Seller's knowledge, no prior holder of the Mortgage,
including the Trustee has done, by act or omission, anything which would impair
the coverage of such policy;
(f) The Mortgaged Estate is located in the State of Michigan as
indicated on the Mortgage Loan Schedule;
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(g) To the best of Seller's knowledge, there is no default,
breach, violation or event of acceleration existing under the Note Documents
and no event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a default, breach, violation or
event permitting acceleration of the Mortgage Loan; and Seller has not waived
any default, breach, violation or event permitting acceleration;
(h) The Mortgage contains provisions for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan in the event the
related Mortgaged Estate is sold without satisfaction of certain conditions
precedent contained in the Mortgage;
(i) To the best of Seller's knowledge, the Mortgaged Estate is
free of damage and waste and to the best of Seller's knowledge, there is no
proceeding pending or, to the best of Seller's knowledge, threatened for the
total or partial condemnation thereof;
(j) Seller has not obtained any collateral for the Mortgage
Note other than the Mortgaged Estate;
(k) Seller had the legal capacity to enter into the Mortgage
Loan and to execute and deliver any and all documents relating to the Mortgage
Loan;
(l) The proceeds of the Mortgage Loan have been fully disbursed
to or for the benefit of the Borrower;
(m) Immediately before the sale, transfer, conveyance and
absolute assignment to the Trustee, the Mortgage Note and the Mortgage were not
subject to an assignment or pledge, and Seller had good title thereto and was
the sole owner thereof and had full right to sell, transfer, convey and
absolutely assign the Mortgage Loan to the Trustee free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security interest;
immediately upon the sale, transfer, conveyance and absolute assignment thereof
pursuant to Section 2.01, the Trustee, on behalf of the Certificateholders,
will have indefeasible title to, and will be the sole owner of the Mortgage
Loan, free and clear of any encumbrance, equity, lien, pledge, charge, claim or
security, except for Permitted Encumbrances;
(n) The Mortgage File contains the Appraisal of the Mortgaged
Estate; and
(o) Each of the parties to the Note Documents has the full power
and authority to execute, deliver and perform the respective Note Documents to
which it is a party, and such party has duly executed and delivered each such
Note Document, and each such Note Document constitutes the legal, valid and
binding obligation of such party, enforceable against it in accordance with its
terms.
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ARTICLE IV
THE CERTIFICATES
Section 4.01. The Certificates.
(a) Form and Terms. The Certificates shall be substantially in the
form annexed hereto as Exhibit B and shall be executed by Trustee. Each
Certificate shall bear interest and have the other terms as are set forth in
the Certificate Schedule and the Certificates.
Certificates shall not be subject to optional redemption except as
provided herein.
On the Closing Date, Trustee shall issue the Certificates indicated on
the Certificate Schedule. The principal amount of the Certificates to be
issued hereunder shall not exceed $5,415,300, except as provided in Section
4.02(b) and 4.02(c) or 4.03.
(b) Optional Prepayment Redemption. In the event of a prepayment of the
Mortgage Note pursuant to Section 3 of the Loan Agreement, upon receipt by
Trustee of the amount of such prepayment, Trustee shall promptly (but in any
event not later than the next Business Day following such receipt) redeem the
Certificates, in whole or in part, in a principal amount equal to the sum of
(i) the principal amount prepaid on the Mortgage Note, and (ii) the Certificate
Differential, by payment of such sum together with accrued interest thereon
plus a premium equal to the difference, if any, between the Make-Whole Premium
paid in respect of the Mortgage Note so prepaid and the amount set forth in
clause (ii) above (provided that such premium shall in no event be less than
zero).
(c) Note Put Redemption. Upon the direction in writing of the Holders
of Certificates evidencing Percentage Interests in the aggregate of not less
than 66-2/3%, Trustee shall exercise the Put in accordance with the terms and
provisions of the Note Put Agreement, Trustee shall designate the Purchase Date
under the Note Put Agreement (which Purchase Date shall be not more than ten
(10) Business Days after receipt of such direction and upon receipt of the
Purchase Price from Kmart, Trustee shall promptly (but in any event not later
than the next Business Day following such receipt) redeem the Certificates by
payment of the entire unpaid principal balance thereof, together with accrued
interest thereon plus a premium equal to the difference, if any, between the
Make-Whole Premium paid as part of the Purchase Price and the Certificate
Differential (provided that such premium shall in no event be less than zero).
(d) Notice of Redemption. Notice of Redemption pursuant to Section
4.01(b) shall be given by sending such
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notice, by first-class mail, postage prepaid, not less than 30 days nor more
than 60 days prior to the date fixed for Redemption. Notice of Redemption
pursuant to any other provision hereof shall be given as soon as reasonably
practicable following notice of the facts giving rise to such Redemption by the
Trustee. All notices of Redemption shall be mailed to the Certificateholder of
each Certificate to be prepaid in whole or in part at the address shown on the
registration books maintained by the Trustee. Neither the failure of any
Certificateholder to receive a notice mailed nor any defect in any notice so
mailed shall affect the validity of the proceedings for such Redemption. All
Certificates or portions thereof so called for Redemption will cease to accrue
interest on the specified Redemption Date provided funds for their Redemption
are on deposit at the Corporate Trust Office of the Trustee at that time.
(e) Rights of Holders to Payments. The rights of the
Certificateholders to receive payments with respect to the Trust Fund in
respect of the Certificates, and all ownership interests of the
Certificateholders in such payments, shall be as set forth in this Agreement.
(f) Application of Partial Prepayments. All partial prepayments of the
Certificates shall be applied on all outstanding Certificates ratably in
accordance with the unpaid principal amounts thereof.
Section 4.02. Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at its Corporate Trust Office or
at the office of its designated agent, a Certificate Register in which, subject
to such reasonable regulations as it may prescribe, the Trustee shall provide
for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee shall be the Certificate
Registrar. In preparing the Certificate Register, the Trustee shall initially
use the information regarding the Certificateholders provided in the Purchase
Agreement.
(b) Upon surrender for registration of transfer of any Certificate at
the Corporate Trust Office or at the office of any designated agent of the
Trustee maintained for such purpose, the Trustee shall execute and deliver, in
the name of the designated transferee or transferees, a new Certificate of a
like tenor and dated the date of such execution by the Trustee.
(c) No transfer of a Certificate shall be made (and the Trustee shall
have no obligation to register any attempted transfer) unless such transfer is
made pursuant to an effective registration statement or otherwise in accordance
with the requirements under the Securities Act of 1933, as amended ("Securities
Act"), and effective registration or qualification under applicable state
securities laws or is made in a
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transaction which does not require such registration or qualification under
state law. So long as the Certificates are not registered under the Securities
Act, each Certificate shall contain a legend to the following effect:
THIS CERTIFICATE MAY BE SOLD, PLEDGED, ASSIGNED, TRANSFERRED OR
HYPOTHECATED ONLY IN COMPLIANCE WITH THE PROVISIONS OF SECTION 4.02 OF THE
AGREEMENT.
The Trustee has no obligation to any Holder to register the
Certificates under, or to effect compliance with any exemption under, the
Securities Act. The Holder of a Certificate desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trustee and the Seller against
any liability that may result if the transfer is not so exempt or is not made
in accordance with such federal and state laws. The system of transfer of
Certificates established hereunder is intended to satisfy the requirements of
Section 163(f) of the Code and the Regulations promulgated thereunder.
(d) No transfer of a Certificate shall be made unless the Trustee shall
have received a Transfer Assurance consisting of either (i) a representation
letter from the transferee of such Certificate, reasonably acceptable to the
Trustee and Seller, to the effect that such transferee is not an employee
benefit plan subject to Section 406 of ERISA, nor a person acting on behalf of
any such plan, which representation letter shall not be an expense of the
Trustee or the Seller, or (ii) in the case of any such Certificate presented
for registration in the name of an employee benefit plan subject to ERISA and
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan, an Opinion of Counsel reasonably
satisfactory to the Trustee and Seller to the effect that the purchase or
holding of such Certificate will not result in the assets of the Trust Fund
being deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee or the Seller
to any obligation in addition to those undertaken in this Agreement, which
Opinion of Counsel shall not be an expense of the Trustee or the Seller.
(e) At the option of the Certificateholder, a Certificate may be
exchanged for another Certificate or Certificates of a like tenor, upon
surrender of the Certificate to be exchanged at the Corporate Trust Office or
at the office of any designated agent of the Trustee maintained for such
purpose. Whenever the Certificate is so surrendered for exchange, the Trustee
shall execute and deliver, a new Certificate which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for transfer or exchange shall (if so required by the Trustee) be
duly endorsed by, or be accompanied by a written instrument of transfer in the
form reasonably satisfactory to the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing.
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(f) No service charge shall be made to the Holder for any transfer or
exchange of the Certificate, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of the Certificate.
(g) All Certificates surrendered for transfer and exchange shall be
destroyed by the Trustee.
Section 4.03. Mutilated, Destroyed, Lost or Stolen Certificates. If
(i) any mutilated Certificate is surrendered to the Trustee or the Trustee
receives evidence to its reasonable satisfaction of the destruction, loss or
theft of any Certificate, and (ii) there is delivered to the Trustee such
reasonable security or indemnity as may be required by it to save it harmless,
then, in the absence of notice to the Trustee that such Certificate has been
acquired by a bona fide purchaser, the Trustee shall execute and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor. For purposes of satisfaction of
clause (ii) of this Section, a written indemnity from XXXXXXXXXX need not be
secured. Upon the issuance of any new Certificate under this Section, the
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 connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership
of the undivided interest of the Certificateholder in the Trust Fund, as if
originally issued, whether or not the mutilated, destroyed, lost or stolen
Certificate shall be found at any time.
Section 4.04. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Trustee may treat the Person in
whose name any Certificate is registered as the owner of such Certificate and
the undivided interest in the Trust Fund evidenced thereby for the purpose of
receiving remittances pursuant to Section 6.01 and for all other purposes
whatsoever, and the Trustee shall not be affected by notice to the contrary.
Section 4.05. Appointment of Paying Agent. The Trustee shall serve as
Paying Agent for the purposes of making distributions to Certificateholders
pursuant to Section 6.01.
ARTICLE V
TRUSTEE'S DUTIES WITH RESPECT TO MORTGAGE LOAN;
ESTABLISHMENT OF ACCOUNTS
Section 5.01. Calculation of Distributions. The Trustee shall
calculate the Available Distribution Amount, make
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distributions on each Remittance Date as set forth in Section 6.01 and have
full power and authority to do any and all things which it may deem necessary
or desirable in connection with such duties.
Section 5.02. Receipt of Lease Payments; Collection of Lease and Lease
Guaranty Payments; Collection of Mortgage Loan Payments; Investment Direction.
(a) The Trustee acknowledges that, pursuant to the Consent and
Agreement, the Trustee will be paid directly by Tenant under the Lease. All
Annual Rental payable by Tenant under the Lease and received by Trustee shall
be deposited by the Trustee in the Certificate Account as described in Section
5.03 hereof, and invested in Eligible Investments in accordance with Section
5.02(d) of this Agreement, and applied to the payment of principal, interest,
and premium, if any, due, or to become due, on the Mortgage Note.
(b) In the event the Trustee does not receive any monthly
installment of Annual Rental on the date set forth in the Lease, the Trustee is
hereby directed to and the Trustee shall notify the Borrower (as landlord), the
Tenant and Kmart in writing regarding the Tenant's failure to make such timely
payment. In the event the Trustee does not receive the monthly installment of
Annual Rental within five Business Days of giving such written notice, the
Trustee shall use its best efforts to enforce the provisions of the Lease and
Lease Guaranty by exercise of all of the remedies available to it at law and in
equity, including, but not limited to, the remedies available under the Lease
and the Lease Guaranty, provided however, the Trustee shall, in no event, give
notice of intent to terminate or take action to terminate the Lease without the
prior consent of Holders of Certificates evidencing Percentage Interests
aggregating not less than 66 and 2/3rds percent.
(c) Continuously from the date hereof until the principal and
interest on the Mortgage Loan are paid in full, the Trustee will use reasonable
best efforts to collect all payments due under the Mortgage Loan when the
same shall become due and payable. The Trustee shall also review any official
receipts from any taxing authority provided to it pursuant to Section 1.08(c)
of the Mortgage to monitor payment of Impositions (as defined in the Mortgage).
(d)(i) Prior to the Due Date of the corresponding payment on the
Mortgage Note for each Due Period, funds in the Certificate Account shall be
invested in Eligible Investments at the written direction of the Borrower
provided that such instruments shall mature on or prior to the Due Date and in
no event shall be invested in obligations maturing later than ninety days from
the investment date. The risk of investment loss during this period shall be
borne by the Borrower. Subsequent to such Due Date and prior to distribution
to the
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Certificateholders, funds in the Certificate Account shall be invested by the
Trustee in Eligible Investments as directed in writing by the
Certificateholders with a Maturity Date not less than two Business Days prior
to the anticipated date of distribution to the Certificateholders. The risk of
investment loss during this period shall be borne by the Certificateholders. On
or after the Due Date and prior to the Remittance Date for each Due Period, the
Trustee shall be prohibited from selling or transferring Eligible Investments
prior to maturity unless and until a default shall have occurred under the
Mortgage Note. In the event (i) the Trustee shall not have received at least
twenty-four hours' written notice as to any such investment direction upon the
maturity of an existing investment, or (ii) the Trustee shall have received no
investment direction by the Certificateholders as described in this Section
5.02(d), the Trustee shall be authorized to invest maturing amounts in Eligible
Investments described in subparagraph (iv) of the definition thereof (or in the
further proviso at the end of such definition) until further directed in
writing as to investments of such amounts. Investment earnings and losses
shall be deposited to or charged to a specific account as more fully set forth
in Sections 5.03(j), 5.05 and 5.07. The Trustee shall have no responsibility
for any loss on any Eligible Investments. No such investment or reinvestment
shall mature later than the two Business Days immediately preceding the next
Remittance Date or an earlier date to the extent such monies will be needed for
other payments set forth herein. Otherwise, Eligible Investments that impose
substantial breakage fees will not be deemed an Eligible Investment.
(ii) If an Event of Default occurs under the Note Documents, the
Borrower shall be prohibited from directing investments as contemplated above
and the Trustee shall invest in Eligible Investments described in subparagraph
(i), (ii) or (iv) of the definition thereof (or in the further proviso at the
end of such definition) until such Event of Default is cured.
Section 5.03. Establishment of Certificate Account; Deposits in
Certificate Account. with respect to the Mortgage Loan, the Trustee shall cause
to be segregated and held all funds collected and received pursuant to the
Mortgage Loan separate and apart from any of its own funds and general assets
and shall cause to be established and maintained a Certificate Account in the
form of a trust account titled "Mortgage Pass-Through Certificates (Borders
Books, Utica, Michigan) Series 1993, Certificate Account" in trust for the
benefit of the Certificateholders.
The Trustee shall cause to be deposited in the Certificate Account on a
daily basis, and retained therein:
(a) All scheduled payments due on account of principal on the
Mortgage Loan, and all Principal Prepayments collected;
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(b) All payments on account of interest on the Mortgage Loan;
(c) Net Liquidation Proceeds;
(d) All Insurance Proceeds received by the Trustee under any
title, hazard or other insurance policy;
(e) All awards or settlements in respect of condemnation
proceedings affecting the Mortgaged Estate which are not released to the
Mortgagor in accordance with the terms of the documents contained in the
Mortgage File;
(f) All proceeds paid to Trustee by Kmart following an exercise
of the Put pursuant to the Note Put Agreement;
(g) All Extraordinary Expense Advances made by the Trustee;
(h) All revenues from the Mortgaged Estate acquired by the
Trustee by foreclosure or deed in lieu of foreclosure net of any
Extraordinary Expense Advances with respect to the Mortgaged Estate;
(i) All payments received pursuant to the terms of the Lease
(except those amounts described in Section 5.06(d)(i) which shall be deposited
in the Excess Revenue Account), and Lease Guaranty;
(j) All earnings (or losses) on funds held in the Certificate
Account derived from Eligible Investments with respect to which the
Certificateholders or the Trustee had the power to direct investments, under
Section 5.02; and
(k) All amounts required to be deposited therein in accordance
with any other provisions of this Agreement.
The foregoing requirements for deposit in the Certificate Account shall be
exclusive.
Section 5.04. Permitted Withdrawals From the Certificate Account. The
Trustee shall, from time to time, cause the withdrawal of funds from the
Certificate Account for the following purposes:
(a) to make payments to the Certificateholders in the amounts
and in the manner provided for in Section 6.01; and
(b) on each Due Date, any excess Annual Rental payments and
earnings thereon remaining after the satisfaction of the Borrower's obligations
under the Mortgage Loan shall be transferred to the Excess Revenue Account;
and
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(c) to make any payments to clear and terminate the Certificate
Account upon the termination of this Agreement.
Notwithstanding the foregoing, on each Remittance Date, the Trustee
shall retain in the Certificate Account until the next succeeding Remittance
Date, and shall not permit the withdrawal of the amount equal to the excess, if
any, of (i) all scheduled principal payments and interest payments received in
respect of the Mortgage Loan on the Due Date for the month of such initial
Remittance Date, over (ii) the amount equal to the Debt Service due on such
initial Remittance Date on the Certificates.
Section 5.05. Excess Revenue Account. The Seller (on behalf of the
Borrower) hereby establishes the Excess Revenue Account with the Trustee. This
account shall be maintained as a fund separate and distinct from other accounts
created under this Agreement. The Excess Revenue Account shall remain the
property of the Borrower, subject to the rights of the Trustee under Sections
5.06(b) and 5.06(c) and the Pledge Agreement. Funds in the Excess Revenue
Account shall be invested in Eligible Investments at the written direction of
the Borrower provided that such instruments shall mature on or prior to each
Remittance Date. The risk of loss shall be borne by the Borrower. Upon
satisfaction of the Borrower's obligations under the Mortgage Loan, amounts
remaining in the Excess Revenue Account shall be remitted to the Borrower as
set forth below.
The Trustee shall credit to the Excess Revenue Account (i) the amounts
deposited pursuant to Section 5.04(b) and (ii) all amounts received on earnings
on or income from (or losses due from) any investments or reinvestments of
amounts in Eligible Investments in the Excess Revenue Account.
Section 5.06. Permitted Withdrawals From the Excess Revenue Account.
The Trustee shall cause the withdrawal of funds from the Excess Revenue Account
for the following purposes and in the following order of priority:
(a) to pay to the Certificate Account any amounts needed to
satisfy the Borrower's obligation with respect to the Mortgage Loan to the
extent not previously satisfied from amounts in the Certificate Account;
(b) to pay the Trustee for unpaid annual Trustee Fees payable by
Borrower pursuant to the Loan Agreement;
(c) to pay the Trustee for any unreimbursed Extraordinary Expense
Advances required by Borrower's default pursuant to the Note Documents and to
reimburse Trustee for any expenses, costs and liabilities for which it is
entitled to reimbursement under the Note Documents; prior to an Event of
Default the Trustee's right to reimburse itself (other than with
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respect to the Trustee Fees) pursuant to this clause (c) with respect
to the Mortgage Loan is limited to reimbursement or payments from related
Liquidation Proceeds, condemnation proceeds and amounts representing Insurance
Proceeds; however, subsequent to an Event of Default the Trustee shall have a
prior lien on all moneys in the Excess Revenue Account for payment or
reimbursement of its Trustee Fees payable by Borrower and Extraordinary Expense
Advances and other amounts owed it and payable by Borrower under any provision
of the Note Documents;
(d) to disburse to Borrower, without requisition, (i) on or
before the fifteenth day of each calendar month any monthly installment of
Annual Rental received by Trustee for any calendar month commencing June 1,
1993 to and including May 1, 1994, and (ii) any amounts remaining in the Excess
Revenue Account promptly following each Remittance Date on which principal
payments are made after paying or providing for the payment or withdrawal of
amounts described in clauses (a), (b) and (c) above.
Section 5.07. Extraordinary Expense Reserve Account. The Seller (on
behalf of the Borrower) hereby establishes the Extraordinary Expense Reserve
Account with the Trustee in the initial amount of Five Thousand Dollars
($5,000). This account shall be maintained as a fund separate and distinct
from all other accounts created under this Agreement. The Extraordinary
Expense Reserve Account shall remain the property of the Seller subject to the
rights of the Trustee under the terms of this Agreement and the Pledge
Agreement. Upon satisfaction of the Borrower's obligations under the Mortgage
Loan and under this Agreement, amounts remaining in the Extraordinary Expense
Reserve Account shall be remitted to the Seller.
Funds in the Extraordinary Expense Reserve Account shall be invested in
Eligible Investments at the written direction of the Seller provided that such
instruments shall mature on or prior to each Remittance Date. The risk of loss
shall be borne by Seller. The Trustee shall credit to the Extraordinary
Expense Reserve Account all amounts received as earnings on or income from (or
losses due from) any investments or reinvestments of amounts in Eligible
Investments in the Extraordinary Expense Reserve Account.
Section 5.08. Permitted withdrawals from the Extraordinary Expense
Reserve Account. The Trustee shall cause the withdrawal of funds from the
Extraordinary Expense Reserve Account for the following purposes and in the
following order of priority:
(a) to pay to the Certificate Account any amounts needed to
satisfy the Borrower's obligations under the Mortgage Loan;
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(b) to pay the Administrative Expenses of the Trust, including
but not limited to the expenses incurred by the entity retained pursuant to
Section 6.02 to prepare tax returns and reports;
(c) to pay the Trustee for unpaid Trustee's Fees payable by
Borrower pursuant to the Loan Agreement;
(d) to pay the Trustee for any unreimbursed Extraordinary Expense
Advances required by Borrower's default pursuant to the Note Documents for any
expenses, costs and liabilities for which it is entitled to reimbursement under
Section 6.03 or 7.03; provided, however, that (i) prior to an Event of Default
the Trustee's right to reimburse itself (other than with respect to the
Trustee's Fee) pursuant to this clause (d) with respect to the Mortgage Loan is
limited to reimbursement or payments from related Liquidation Proceeds,
condemnation proceeds and amounts representing Insurance Proceeds; and (ii)
subsequent to an Event of Default the Trustee shall have a prior lien on all
moneys in the Extraordinary Expense Reserve Account for payment or
reimbursement of its Trustee's Fee payable by Borrower and Extraordinary
Expense Advances and other amounts owed it and payable by Borrower under any
provision of the Note Documents;
(e) to the extent insufficient amounts are available from the
Trustee's Fee to fund all customary, reasonable and necessary costs and
expenses incurred in the performance by the Trustee of its obligations
hereunder, the Trustee may draw upon the Extraordinary Expense Reserve Account;
written notice of such a draw shall be made to the Certificateholders within
thirty (30) days after such draw; such written notice shall set forth the
amount of the draw, its use and the balance remaining in the Extraordinary
Expense Reserve Account; and
(f) to disburse to Borrower, without requisition, any amounts
remaining in the Extraordinary Expense Reserve Account promptly following
termination of the Trust provided, however, prior to the distribution of such
excess amounts the Trustee shall ensure that there remains, set aside in the
Extraordinary Expense Reserve Account amounts sufficient to pay for the
Administrative Expenses related to terminating the Trust, including, but not
limited to, the filing of any final tax returns.
Section 5.09. Capitalized Debt Service Account. The Seller (on behalf
of the Borrower) hereby establishes the Capitalized Debt Service Account with
the Trustee. This account shall be maintained as a fund separate and distinct
from other accounts created under this Agreement. The Capitalized Debt Service
Account shall remain the property of the Borrower subject to the rights of the
Trustee under the terms of this Agreement and the pledge thereof by Borrower
pursuant to the Pledge
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Agreement to secure the Mortgage Loan. Funds in the Capitalized Debt Service
Account shall be invested in Eligible Investments at the written direction of
Borrower provided that such instruments shall mature on or prior to each
Remittance Date. The risk of loss shall be borne by the Borrower. The Trustee
shall cause to be deposited into the Capitalized Debt Service Account (i) the
amount of the Capitalized Debt Service Reserve received on the Closing Date and
(ii) all amounts received on earnings on or income from (or losses due from)
any investments or reinvestments of the Capitalized Debt Service Reserve in
Eligible Investments.
On each Remittance Date through and including June 15, 1994, the
Trustee shall cause the transfer of funds from the Capitalized Debt Service
Account to the Certificate Account in an amount necessary to satisfy Debt
Service on the Certificates on such Remittance Date.
After June 15, 1994 and upon the payment of all Debt Service on the
Certificates prior to and including such date, and upon the transfer to the
Certificate Account of the annual Trustee Fee for the period commencing June
15, 1994 through June 15, 1995, and provided that no default or Event of
Default shall have occurred and be continuing under any one or more of the Note
Documents, Trustee shall disburse to the Borrower without requisition any
amounts remaining in the Capitalized Debt Service Account.
Section 5.10. Realization Upon Defaulted Mortgage Loan.
(a) If an Event of Default has occurred and is continuing and if
Certificateholders holding Percentage Interests aggregating not less than
66-2/3% direct, the Trustee shall use its best efforts to foreclose upon or
otherwise comparably convert the ownership of the Mortgaged Estate securing the
Mortgage Loan; shall manage, conserve and protect the Mortgaged Estate for the
purposes of its prompt disposition and sale; and shall dispose of the Mortgaged
Estate on such terms and conditions as the Certificateholders deem to be in
their best interests after the Trustee has received indemnity for its
reasonable costs, expenses and liabilities with respect thereto to its
reasonable satisfaction from the Certificateholders in accordance with Section
9.02 (iii). A written agreement from XXXXXXXXXX to pay such costs, expenses
and liabilities shall be deemed as satisfactory.
(b) Notwithstanding the foregoing, if the Trustee has actual
knowledge or reasonably believes that all or any part of the Mortgaged Estate
is affected by hazardous or toxic wastes or substances, the Trustee need
not cause the Trust to acquire title to the Mortgaged Estate in a foreclosure
or similar proceeding. In connection with such activities, the Trustee shall
follow such practices and procedures as it shall
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deem necessary or advisable, as shall be normal and usual in its trustee
activities, and, in particular, the Trustee shall be furnished with such
certificates of appropriate public officials and agencies, if any, a history of
the Mortgaged Estate and its uses, other evidence reasonably satisfactory to
the Trustee showing that the Mortgaged Estate conforms to existing
environmental laws, regulations and rules, and that no conditions exist in, on
or beneath the surface of the Mortgaged Estate that are or might become
hazardous materials, and including but not limited to an environmental report
or reports from a company reasonably satisfactory to Trustee, showing that
there has been no storage, disposal or release of any oil, fuels, gases,
chemicals, trash, garbage or other solid wastes or hazardous materials which
report or reports shall be based upon complete and thorough on-site inspections
of the Mortgaged Estate, including but not limited to investigations of the
soil, surface water and groundwater, to confirm the absence of any hazardous
materials on or beneath the surface of the Mortgaged Estate or adjacent lands.
(c) The activities set forth in Section 5.10(a) are also subject
to the proviso that the Trustee shall not be required to expend its own funds
in connection with any foreclosure or towards the restoration of the Mortgaged
Estate unless it shall determine that (i) such restoration or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan to Certificateholders
after reimbursement for such expenses and (ii) such expenses will be
recoverable either through Liquidation Proceeds, or revenues from the Mortgaged
Estate. The Trustee shall have no power under this Section 5.10 to perform any
act which, if consummated, would cause the entity created hereunder to fail to
be characterized as a trust for federal income tax purposes. The Trustee may
rely upon an Opinion of Counsel, as set forth in Section 9.02, if it reasonably
believes that such an act may cause the Trust to fail to be characterized as a
trust for federal income tax purposes.
Section 5.11. Trustee Compensation. The Trustee, as compensation for
its activities hereunder, shall be entitled to receive (a) on the Closing Date
and each Remittance Date on which a principal payment is made the amounts
provided for as the Trustee's Fee and (b) amounts representing reimbursement
for Extraordinary Expense Advances and reimbursement for certain expenses, as
specified by Sections 5.06(c) and 5.08(d). As so specified, from and after the
occurrence of an Event of Default, the Trustee will have a prior lien on the
Trust Fund for all such amounts.
The Trustee shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as specifically provided in Section 5.06(c) and
(d) and Section 5.08(c), (d) and (e).
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Section 5.12. Rights of the Certificateholders. The Trustee shall
afford the Certificateholders, upon reasonable notice and during normal
business hours, access to all records maintained by the Trustee in respect of
its rights and obligations hereunder and access to officers of the Trustee
responsible for such obligations. Upon request, the Trustee shall furnish the
Certificateholders with its most recent financial statements and such other
information as the Trustee possesses regarding its business, property and
condition, financial or otherwise.
ARTICLE VI
PAYMENTS TO THE CERTIFICATEHOLDERS
Section 6.01. Distributions.
(a) The Trustee shall cause to be distributed, from funds in the
Certificate Account, the following amounts:
(i) an amount equal to the Debt Service due on such
Remittance Date on the Certificate or Certificates held by such
Certificateholder; and
(ii) on the date provided for redemption of Certificates
pursuant to Section 4.01(b) or (c), to each Certificateholder an amount equal
to the amount payable on the Certificate or Certificates held by such
Certificateholder pursuant to Section 4.01(b) or (c), as the case may be; and
(iii) upon the termination of the Trust pursuant to
Section 10.01 hereunder, to each Certificateholder an amount equal to the
product of (a) all amounts remaining in the Certificate Account after giving
effect to the distributions provided for in clauses (i) and (ii) hereof, and
(b) the Percentage Interest of such Certificateholder.
(b) All distributions made to Certificateholders on each
Remittance Date shall be made to the Certificateholders of record on the Record
Date (other than as provided in this Agreement or in the form of Certificate
respecting the final distribution), (i) by wire transfer in immediately
available funds to the account of such Holder at a bank or other Financial or
depository institution having appropriate facilities therefor, if such Holder
has so notified the Trustee in writing by the Record Date at least 10 Business
Days prior to such Remittance Date and such Holders hold Certificates in the
aggregate principal amount of $1,000,000 or more or (ii) for all other Holders
of Certificates, by check mailed to the address of the Person entitled thereto
as it appears on the Certificate Register. All distributions in respect of the
Certificates shall be made without presentation or surrender, except that the
final distribution in Redemption of the Certificates will be made only upon
presentation and surrender of the Certificates at the
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Corporate Trust Office or such other agency of the Trustee specified in the
final distribution notice to Certificateholders. If on any Determination Date,
the Trustee reasonably determines that the Mortgage Loan is not outstanding and
there are no other funds or assets in the Trust Fund other than the funds in
the Certificate Account, the Trustee shall send the final distribution notice
to each Certificateholder and make provision for the final distribution in
accordance with Section 10.02.
Section 6.02. Statements to Certificateholders. Not later than each
Remittance Date, Trustee will cause to be sent to each Certificateholder a
statement setting forth the following information with respect to each
Certificate (which information may be aggregated for all Certificates held by
the same Holder), after giving effect to the distributions to be made pursuant
to Section 6.01 on or as of such Remittance Date:
(i) the amount of such distribution allocable to
principal;
(ii) the amount of such distribution allocable to interest;
(iii) the amount of any Extraordinary Expense Advance by
the Trustee pursuant to Section 6.03; and
(iv) If applicable, whether the Mortgage Loan is
delinquent.
In addition, not more than 90 days after the end of each calendar year
or by such earlier time as may be required under the Code, the Trustee will
furnish a report to each holder of a Certificate at any time during such
calendar year, an annual statement of interest paid in accordance with the
requirements of applicable federal income tax law listing the Principal Balance
of the Mortgage Loan outstanding at the end of such calendar year.
Concurrent with execution of this Agreement, Seller shall appoint
Coopers & ▇▇▇▇▇▇▇ or a similar organization which regularly engages in the
preparation and filing of such documents on a continuous basis for profit and
which represents itself to be expert in such matters, as required by applicable
law, which shall cause to be prepared and which shall file, any and all tax
returns, information statements or other filings required to be delivered to
(a) any governmental taxing authorities or (b) the Certificateholders pursuant
to any applicable law with respect to the Trust Fund and the transactions
contemplated hereby; provided, however, that (i) any reasonable fees of the
organization appointed as provided above shall be paid from the Extraordinary
Expense Reserve Account and (ii) the Trustee shall cooperate in good faith in
providing any necessary information which it possesses regarding the Trust Fund
and the Certificates to such organization. Notice of any such appointment
shall be
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given to the Trustee by the party making such appointment at the time of such
appointment.
Section 6.03. Advances by Trustee.
(a) The Trustee may from time to time make such Extraordinary
Expense Advances as Trustee in its sole discretion deems advisable, provided,
however, that (i) it is satisfied as to the availability of immediate
and direct reimbursement and (ii) the payment thereof to Trustee shall not
impair the payment of any distribution on the Certificates pursuant to Section
6.01.
(b) In order to make an Extraordinary Expense Advance, the
Trustee shall deposit in the Certificate Account an amount equal to such
Advance. Any moneys being held for future distribution to Certificateholders
in the Certificate Account shall not be so used.
ARTICLE VII
THE SELLER
Section 7.01. Indemnification; Third Party Claims. Subject to the
limitations of Section 9.01 with respect to the Trustees, the Seller shall
indemnify the Trustees and hold the Trustees harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, fees and expenses that the Trustees may sustain
in any way related to their failure to perform their duties in strict
compliance with the terms of this Agreement, other than any failure arising
from the gross negligence or willful misconduct of the Trustees. The Seller
shall immediately notify the Trustees if a claim is made by a third party with
respect to this Agreement or the Mortgage Loan, assume (with the consent of the
Trustee) the defense of any such claim and pay all expenses in connection
therewith, including counsel fees and expenses, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or the Trustees
in respect of such claim.
Section 7.02. Maintaining Corporate Existence of the Seller. The
Seller will keep in full effect its existence, rights and franchises as a
corporation, and will obtain and preserve its qualification to do business as a
foreign corporation in the jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of this Agreement, the
Certificates or the Mortgage Loan and to perform its duties under this
Agreement.
The Seller will not, on or after the date of execution of this
Agreement (i) engage in any business or investment activities other than those
necessary for, incident to, connected with or arising out of the Mortgage Loan,
(ii) incur any indebtedness, or (iii) amend, or propose to its
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shareholders for their consent any amendment of, its Articles of Incorporation
or Bylaws without giving notice thereof in writing not less than 30 days nor
more than 90 days prior to the date on which such amendment is to become
effective to Trustee and without first obtaining the written Consent of
Trustee.
Section 7.03. Limitation on Liability of the Seller. Neither the
Seller nor any of the directors, officers, employees or agents of the Seller
shall be under any liability to the Trustee or the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Seller or any such person against any
breach of any warranty or representation made herein, or failure to perform its
obligations in strict compliance with any standard of care set forth in this
Agreement, or any liability which would otherwise be imposed by reason of any
willful misfeasance, bad faith or negligence in the performance of its duties
or by reason of reckless disregard of obligations and duties hereunder. The
Seller and any director, officer, employee or agent of the Seller may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder.
The Seller shall not be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties in accordance
with this Agreement and which in its opinion may involve it in any expense or
liability; provided, however, that the Seller may in its discretion undertake
any such action which it may deem necessary or desirable with respect to this
Agreement and the rights and duties of the parties hereto and the interests of
the Certificateholders hereunder. In such event, the legal expenses and costs
of such action and any liability resulting therefrom shall be expenses, costs
and liabilities which the Seller shall be entitled to be reimbursed for out of
the Extraordinary Expense Reserve Account as provided by Section 5.06(b).
Section 7.04. Seller May Resign. The Seller may resign from the
obligations and duties hereby imposed on it with respect to its role as Seller;
provided that such resignation shall not be effective unless and until a
successor shall be appointed, which successor shall be a wholly-owned
subsidiary of Seller which shall assume all duties of the Seller hereunder; and
provided, further, that this provision shall not relieve the Seller from any
breach of its representations and warranties made in Article III; however, such
liability shall be limited as set forth in Section 7.03.
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ARTICLE VIII
DEFAULT
Section 8.01. Events of Default. The (a) nonpayment to any
Certificateholder of any payment required to be made under the terms of this
Agreement, which continues unremedied for a period of five days, (b) default in
the performance or observance of any covenant, contract or provision contained
herein, or (c) occurrence of any event constituting an Event of Default under
the Note Documents or any other document in the Mortgage File shall constitute
an Event of Default under this Agreement. If an Event of Default shall occur
and be continuing, then, and in each and every such case, so long as the Event
of Default shall not have been remedied, the Trustee may, and at the written
direction of the Holders of Certificates of Percentage Interests aggregating
not less than 66-2/3%, the Trustees shall, exercise any rights and remedies
that they may have pursuant to the Note Documents or at law or equity to
damages, including injunctive relief and specific performance, provided that
the Trustees shall have no such power which, if exercised, would cause the
Trust to fail to be characterized as a trust for federal income tax purposes.
The Trustees may rely upon an Opinion of Counsel, as set forth in Section 9.02,
if they reasonably believe that such an act may cause the Trust to fail to be
characterized as a trust for federal income tax purposes. The Trustees will
have no obligation to take any action or institute, conduct or defend any
litigation under this Agreement at the request, order or direction of any of
the Certificateholders, unless such Certificateholders have offered to the
Trustees reasonable indemnity against the costs, expenses and liabilities which
the Trustees may incur. A written agreement from XXXXXXXXXX to pay such costs,
expenses and liabilities shall be deemed as satisfactory. The Trustees shall
apply the proceeds recovered in the enforcement of the rights and remedies
under this Agreement in accordance with the terms of this Agreement.
Section 8.02. Waiver of Defaults. The Trustees may, and at the
direction of Holders of Certificates of Percentage Interests aggregating not
less than 66-2/3%, the Trustees shall, waive any default hereunder and its
consequences, except that a default in the making of any required distribution
on the Certificates may only be waived by the affected Certificateholders. The
Trustees shall have no authority to exercise the right of waiver if, as a
result thereof, this Trust would fail to be characterized as a trust for
federal income tax purposes. The Trustees may rely upon an Opinion of Counsel
as set forth in Section 9.02 if they reasonably believe that such an act may
cause the Trust to fail to be characterized as a trust for federal income tax
purposes. Upon any such waiver of a past default, such default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
remedied
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for every purpose of this Agreement. No such waiver shall extend to any
subsequent Event of Default or impair any right consequent thereon except to
the extent expressly so waived.
Section 8.03. Notification to Certificateholders. Within 30 days after
acquiring actual knowledge of the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Holders of Certificates notice of each
such Event of Default hereunder known to the Trustee, unless such Event of
Default shall have been cured or waived.
Section 8.04. Rights of Certificateholders to Direct Proceedings.
Anything in this Agreement to the contrary notwithstanding, the Holders of
Percentage Interests aggregating not less than 66-2/3% shall have the right, at
any time during the continuance of an Event of Default, by an instrument or
instruments in writing executed and delivered to the Trustee, to direct the
time, place and method of conducting all proceedings to be taken in connection
with the enforcement of the terms and conditions of this Agreement; provided,
however that such direction shall not be otherwise than in accordance with the
provisions of law and this Agreement and provided that such Holders shall have
provided to the Trustee the reasonable indemnity pursuant to Section 9.02 (iii)
against the costs, expenses and liabilities which the Trustee may incur in
connection with such proceedings. A written agreement from XXXXXXXXXX to pay
such costs, expenses and liabilities shall be deemed to be satisfactory.
ARTICLE IX
CONCERNING THE TRUSTEES
Section 9.01. Duties of Trustees. The Trustees, prior to the
occurrence of an Event of Default and after the curing of all Events of Default
which may have occurred, undertake to perform such duties and only such duties
as are specifically set forth in this Agreement, including without limitation
the duties set forth in Sections 5.01 and 6.02. In case an Event of Default has
occurred (which has not been cured), the Trustees shall exercise such of the
rights and powers vested in them by this Agreement, and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of such man's own affairs. No permissive
rights of the Trustees shall be construed as a mandatory duty of the Trustees.
The Trustees, upon receipt of any resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustees which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement and if they are deemed to be
deficient, Trustees shall request cure of any such
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deficiency within a reasonable period of time for such cure. If such deficiency
is not cured to the satisfaction of Trustees, the Trustees may treat the
requirement pursuant to which such instrument is furnished as not having been
satisfied.
No provision of this Agreement shall be construed to relieve the
Trustees from liability for their own negligent action, their own negligent
failure to act or their own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and
after the curing of all such Events of Default which may have occurred, the
duties and obligations of the Trustees shall be determined solely by the
express provisions of this Agreement, the Trustees shall not be liable except
for the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustees and, in the absence of bad faith on the
part of the Trustees, the Trustees may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustees and conforming to the
requirements of this Agreement;
(ii) The Trustees shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustees were
negligent in ascertaining the pertinent facts;
(iii) The Trustees shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by them in good
faith in accordance with the direction of holders of Certificates evidencing
Percentage Interests aggregating not less than 66-2/3% as to the time, method
and place of conducting any proceeding for any remedy available to the
Trustees, or exercising any trust or power conferred upon the Trustees, under
this Agreement; and
(iv) The Trustees shall have no authority to perform any
act which, if consummated, would cause the entity created hereunder to fail to
be characterized as a trust for federal income tax purposes. The Trustees may
rely upon an Opinion of Counsel, as set forth in Section 9.02, if they
reasonably believe that such an act may cause the Trust to fail to be
characterized as a trust for federal income tax purposes.
The Trustees shall not be required to expend or risk their own funds
or otherwise incur financial liability in the performance of any of their
duties hereunder, or in the exercise of any rights or powers, if there is
reasonable grounds for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to them.
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Section 9.02. Certain Matters Affecting Trustees. Except as otherwise
provided in Section 9.01:
(i) The Trustees may rely and shall be protected in
acting or refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it or them to be genuine and to have
been signed or presented by the proper party or parties;
(ii) The Trustees may consult with counsel, and any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by them hereunder in good
faith and in accordance with such Opinion of Counsel (costs associated
therewith shall be chargeable to the Extraordinary Expense Reserve Account);
(iii) The Trustees shall be under no obligation to exercise
any of the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have offered
to the Trustees reasonable indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby (the written agreement of
XXXXXXXXXX to pay such costs, expenses and liabilities shall be deemed as
satisfactory); the right of the Trustees to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustees
shall not be answerable for other than negligence or willful misconduct in
performance of such act. Nothing contained herein shall, however, relieve the
Trustees of the obligation, upon the occurrence of an Event of Default (which
has not been cured), to exercise such of the rights and powers vested in them
by this Agreement, and to use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in the
conduct of such man's own affairs;
(iv) The Trustees shall not be personally liable for any
action taken, suffered or omitted by them in good faith and believed by them to
be authorized or within the discretion or rights or powers conferred upon them
by this Agreement;
(v) Except with respect to notice of deficient or missing
documents described in Section 2.02, prior to the occurrence of an Event of
Default hereunder and after the curing of all Events of Default which may have
occurred, the Trustees shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in
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writing so to do by Holders of Certificates evidencing Percentage
Interests aggregating not less than 66-2/3%; provided, however, that if the
payment within a reasonable time to the Trustees of the costs, expenses or
liabilities likely to be incurred by them in the making of such investigation
is, in the opinion of the Trustees, not reasonably assured to the Trustees by
the security afforded to it by the terms of this Agreement, the Trustees may
require reasonable indemnity against such expense or liability as a condition
to such proceeding. A written agreement of XXXXXXXXXX to pay such costs,
expenses and liabilities shall be deemed as satisfactory. The reasonable
expense of every such examination shall be paid from the Extraordinary Expense
Reserve Account, if an Event of Default shall have occurred and is continuing,
and otherwise by the Certificateholder requesting the investigation; and
(vi) The Trustees may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys.
Section 9.03. Trustees Not Liable for Certificates or Mortgage Loan.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Seller and the Trustees assume no responsibility for
its correctness. The Trustees make no representations or warranties as to the
validity or sufficiency of this Agreement or of the Certificates (except that
the Certificates shall be duly and validly authenticated by the Trustee) or of
the Mortgage Loan or related documents. The Trustees shall not be accountable
for the use or application by the Seller of any of the Certificates or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Seller with respect to the Mortgage Loan.
Section 9.04. Trustee May Own Certificates. The Trustee in its
corporate or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not Trustee.
Section 9.05. Trustee's Fee and Expenses. The Trustee shall be
entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust) for all services rendered by it in the execution of the trust hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, and the Trustee shall be reimbursed for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Agreement (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all persons not regularly in its employ), but solely from amounts available
in the Extraordinary Expense Reserve Account and Excess Revenue Account as
provided herein. Notwithstanding the above, no such expense, disbursement or
advance shall be reimbursable as may arise from its negligence or bad faith.
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Section 9.06. Action by Individual Trustee. The Individual
Trustee shall act as and be such upon the following terms and conditions:
(a) Subject to the provisions of Section 9.14, all
rights, powers, duties and obligations conferred or imposed upon the Trustees
shall be conferred or imposed solely upon and solely exercised and performed by
the Trustee except as expressly provided otherwise in this Agreement and except
to the extent that under any law or any jurisdiction in which any particular
act or acts are to be performed, the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations shall be exercised and performed by the Individual
Trustee;
(b) No power granted by this Agreement to, or which this
Agreement provides may be exercised by, the Individual Trustee shall be
exercised by the Individual Trustee except jointly with, or with the consent in
writing of, the Trustee, anything contained to the contrary notwithstanding;
and
(c) The Individual Trustee may at any time by an
instrument in writing, constitute the Trustee or its successor in trust
hereunder his agent or attorney-in-fact, with full power and authority, to the
extent which may be permitted by law, to do any and all acts and things and
exercise any and all discretion which he is authorized or permitted to do or
exercise, for and in his behalf and in his name.
Section 9.07. Eligibility Requirements for Trustee. The Trustee
hereunder shall at ail times be a corporation having its principal office in a
state and city acceptable to the Holders of Certificates evidencing Percentage
Interests aggregating not less than 66-2/3%, and organized and doing business
under the laws of such state or the United States of America, authorized under
such laws to exercise corporate trust powers, having (or, in the case of a
corporation included in a bank holding company system, the related bank holding
company shall have) a combined capital and surplus of at least $50,000,000 in
the case of XXXXXXXXXX and of at least $100,000,000 in the case of any
successor trustee and subject to supervision or examination by federal or state
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 9.08.
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Section 9.08. Resignation and Removal of Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Certificateholders. Upon receiving such notice
of resignation, the Certificateholders evidencing Percentage Interests
aggregating not less than 66-2/3% shall promptly appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
If at any time, the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.07 and shall fail to resign after written
request therefor by Certificateholders evidencing Percentage Interests
aggregating not less than 66-2/3%, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation then the
Certificateholders evidencing Percentage Interests aggregating not less than
66-2/3% may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee.
The Certificateholders evidencing Percentage Interests aggregating not
less than 66-2/3% may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Trustee so removed and one complete set
to the successor so appointed.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall
become effective only upon acceptance of appointment by the successor trustee
as provided in Section 9.09.
Section 9.09. Successor Trustee. Any successor trustee appointed as
provided in Section 9.07 or 9.08 shall execute, acknowledge and deliver to the
Certificateholders and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee shall
become effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
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named as trustee herein. The predecessor trustee shall deliver to the
successor trustee the Mortgage File and related documents and statements held
by it hereunder, and the Seller and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for more fully and certainly vesting and confirming in the successor trustee
all such rights, powers, duties and obligations.
No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 9.07.
Upon acceptance of appointment by a successor trustee as provided in
this Section, the Seller shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Seller fails to mail such notice within 10 days
after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Seller.
Section 9.10. Merger or Consolidation of Trustee. Any corporation into
which the 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 Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be eligible under the
provisions of Section 9.07, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 9.11. Resignation of Individual Trustee. The Individual
Trustee or any of his successors may resign, and may be discharged of the
trusts created by this Agreement by giving written notice thereof to the
Certificateholders and to the Trustee.
Such resignation shall take effect immediately upon the acceptance of
appointment by a Person succeeding to the office of the Individual Trustee
appointed by the Holders of Certificates evidencing Percentage Interests
aggregating not less than 66 2/3%, as provided in Section 9.13.
Section 9.12. Removal of Individual Trustee. The Individual Trustee or any of
his successors may be removed at any time by the Holders of Certificates
evidencing Percentage Interests aggregating not less than 66 2/3%, by delivery
of a notice of such removal to the Individual Trustee, to the Seller, and to
the Trustee, signed by such holders, and such removal shall be effective upon
the date specified in such notice, and the Individual Trustee's duties and
obligations hereunder shall thereupon cease, except as specified in Section
9.14.
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Section 9.13. Appointment of Successor to Individual Trustee. If at
any time the Individual Trustee or any of his successors shall die, resign or
be removed or otherwise become incapable of acting, or if for any reason the
office of Individual Trustee shall become vacant, a successor to the Individual
Trustee shall forthwith be appointed by the Holders of Certificates evidencing
Percentage Interests aggregating not less than 66 2/3% by an instrument signed
by such Certificateholders.
Section 9.14. Succession of Successor to Individual Trustee. Any
Person appointed as a successor to the Individual Trustee shall execute,
acknowledge and deliver to the Certificateholders, his predecessor, to the
Trustee and to the Seller, an instrument accepting such appointment hereunder,
and thereupon such Person without any further act, deed or conveyance shall
become vested with all estates, properties, rights, powers, duties and trusts
of his predecessor in the trusts hereunder with like effect as if originally
named as Individual Trustee herein; but nevertheless, on the written request of
the Seller or Holders of Certificates evidencing Percentage Interests
aggregating not less than 66 2/3% or of the Trustee or of the new Individual
Trustee, the predecessor shall execute and deliver an instrument transferring
to the new Individual Trustee, upon the trusts expressed in this Agreement, all
the estates, properties, rights, powers and trusts granted to him by this
Agreement and shall duly assign, transfer, deliver and pay over to the new
Individual Trustee any property and money subject to the lien of this Agreement
held by such predecessor. Should any instrument in writing from the Seller or
from Holders of Certificates evidencing Percentage Interests aggregating not
less than 66 2/3% or from the Trustee be required by any person who becomes the
Individual Trustee for more fully and certainly vesting in and confirming to
such Individual Trustee such estates, properties, rights, powers and trusts,
then, on request, any and all such instruments in writing shall be made,
executed, acknowledged and delivered by the Seller and/or the Trustee.
Any Individual Trustee which has resigned or been removed shall
nevertheless retain all rights of indemnity.
ARTICLE X
TERMINATION
Section 10.01. Termination. The respective obligations and
responsibilities of the Seller and the Trustees under this Agreement (except
the duty to pay the Trustee's Fee and to provide indemnification under the
terms of this Agreement) shall, so long as such termination does not result in
the imposition of a tax on the Trust Fund, terminate upon the first to occur of
the final payment, prepayment in full or other liquidation (or any advance with
respect thereto) of the Mortgage Loan or the
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disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of the Mortgage Loan and the remittance of all funds due hereunder;
provided, however, that in no event shall the trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Section 10.02. Notice; Final Distribution.
(a) Notice of any termination pursuant to Section 10.01,
specifying the Remittance Date after which all Certificateholders shall
surrender their Certificates to the Trustee for payment and cancellation, shall
be given promptly by the Trustee by letter to Certificateholders mailed no
later than 15 days prior to such final distribution specifying (i) the
Remittance Date upon which final payment on the Certificates will be made and
following which the Certificateholders shall present and surrender their
Certificates at the Corporate Trust Office or the office of any designated
agent of the Trustee therein designated, and (ii) the amount of any such final
payment, and (iii) payments will be made only upon presentation and surrender
of the Certificates at the office or agency of the Trustee therein specified.
After giving such notice, the Trustee shall not register the transfer or
exchange of any Certificates. On the Remittance Date upon presentation and
surrender of the Certificates, the Trustee shall cause to be distributed to
Certificateholders an amount equal to the amount distributable on such
Remittance Date.
(b) If all of the Certificateholders shall not surrender
their Certificates for cancellation within three months after the time
specified in the above-mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within three months after the second notice all the Certificates
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate and reasonable
steps, to contact the remaining Certificateholders concerning surrender of
their Certificates, and the cost thereof shall be paid out of the funds and
other assets which remain in the Trust.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or
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terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 11.02. Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No Certificateholder shall have any right to vote (except as expressly
provided herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any provision
of this Agreement to institute any suit, action or proceeding in equity
or at law upon or under or with respect to this Agreement, unless such Holder
previously shall have given to the Trustees a written notice of the occurrence
of an Event of Default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of Certificates evidencing in the
aggregate not less than 66-2/3% of the related Percentage Interest shall have
made written request upon the Trustees to institute such action, suit or
proceeding in their own name as Trustees hereunder and shall have offered to
the Trustees such reasonable indemnity as they may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustees,
for 60 days after their receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted by
each Certificateholder with every other Certificateholder and the Trustees,
that no one or more Holders of Certificates shall have any right in any manner
whatever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the common benefit of Certificateholders. A written agreement
of XXXXXXXXXX to pay such costs, expenses and liabilities shall be deemed as
satisfactory. For the protection and enforcement of the provisions of this
Section, each and every Certificateholder and the Trustees shall be entitled to
such relief as can be given either at law or in equity.
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Section 11.03 Amendment. This Agreement may be amended from time to
time by the Seller and the Trustees with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66-2/3% of the
Percentage Interest for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of,
or delay the timing of, payments on the Mortgage Loan or distributions required
to be made hereunder on any Certificate without the consent of the Holder of
such Certificate or (ii) reduce the aforesaid percentage of Certificates the
Holders of which are required to consent to any such amendment, without the
consent of all Certificateholders.
Promptly after the execution of any such amendment the Trustee shall
furnish written notification of the substance of such amendment to each
Certificateholder.
The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
No such amendment shall be effective, notwithstanding anything in this
Agreement to the contrary, unless the Trustee and Counsel shall have received
an Opinion of Counsel, in form and substance reasonably acceptable to each of
them, to the effect that such amendment, if consummated would not cause the
Trust to fail to be characterized as a trust for federal income tax purposes.
Section 11.04. Solicitation of Certificateholders. The Trustee will
not solicit, request or negotiate for or with respect to any direction or
proposed waiver or amendment of any of the provisions of this Agreement or the
Certificates, unless each Holder of the Certificates (irrespective of the
amount of Certificates then owned by it) shall be informed thereof by the
Trustee and shall be afforded the opportunity of considering the same and shall
be supplied by the Trustee with sufficient information to enable it to make an
informed decision with respect thereto. Executed or true and correct copies of
any waiver effected pursuant to the provisions of this Section shall be
delivered by the Trustee to each Holder of outstanding Certificates forthwith
following the date on which the same shall have been executed and delivered by
the Holder or Holders of the requisite percentage of outstanding Certificates.
Neither the Seller nor the Trustee nor any Affiliate thereof will, directly or
indirectly, pay or cause to be paid any remuneration, whether by way of
supplemental or additional interest, fee or otherwise, to any
Certificateholders as consideration for or as an inducement to the entering
into by any Certificateholders of any waiver or amendment of any of the terms
and provisions of this
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Agreement unless such remuneration is concurrently paid, on the same terms,
ratably to all Certificateholders.
Under any provisions of this Agreement that relate to consent, waiver,
direction, request or demand of or by Certificateholders, each and every
Certificateholder shall be entitled to give or make any such consent, waiver,
direction, request or demand without request or demand for such action by the
Trustee.
In the event any such direction or similar action is so received by
the Trustee under any provision hereof from the Certificateholders of requisite
Percentage Interests, the Trustee shall follow the direction of such
Certificateholders.
Section 11.05. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in appropriate public
offices for real property records in the county or other comparable
jurisdiction in which the Mortgaged Estate is situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Trustee accompanied by an Opinion of Counsel to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders or is necessary in connection with the Mortgage Loan.
Section 11.06. Duration of Agreement. This Agreement shall continue in
existence and effect until terminated as herein provided.
Section 11.07. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CHOICE OF LAW PRINCIPLES THEREOF AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.08. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by first class or registered mail, postage
prepaid, to (i) in the case of the Seller, XXXXXXXXXX, XXXXXXXXXX, Attention:
XXXXXXXXXX, and (ii) in the case of the Trustee, XXXXXXXXXX, c/o XXXXXXXXXX,
Attention: Corporate Trust Division, and in the case of the Individual Trustee,
XXXXXXXXXX, or (iii) in the case of any of the foregoing Persons, such other
addresses as such Persons furnish to the other Persons. Any notice required or
permitted to be mailed to a Certificateholder shall be given by registered
mail, postage prepaid, or by express delivery service, at the address of such
Certificateholder as shown in the Certificate Register.
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Section 11.09. Counterparts. For the purpose of facilitating the
recordation of this Agreement as herein provided and for other purposes, this
Agreement may be executed simultaneously in any number of counterparts, each of
which counterparts shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
Section 11.10. Submission to Jurisdiction. Each party hereto hereby
consents to the jurisdiction of any state or federal court located within the
County of New York, State of New York and irrevocably agrees that all actions
or proceedings relating to this Agreement may be litigated in such courts and
each such party waives any objection which it may have based on improper venue
or forum non conveniens to the conduct of any proceeding in any such court,
waives personal service of any and all process upon it and consents that all
such service or process be made by registered or certified mail (return receipt
requested) or messengered to it at its address set forth in Section 11.08 or to
its Agent referred to below at such Agent's address set forth below and that
service so made shall be deemed to be completed in accordance with Section
11.08. Each party hereto hereby appoints the Prentice Hall Corporation System,
Inc., with an office on the date hereof at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ as its Agent for the purpose of accepting service of any process
within the State of New York and shall execute any confirmation thereof
requested by the other party hereto. Nothing in this Section shall effect the
right of any party hereto to serve legal process in any other manner permitted
by law to bring any action or proceeding in the courts of any jurisdiction
against the other party or to enforce a judgment obtained in the courts of any
other jurisdiction.
Section 11.11. Gender; Number. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, neuter, singular or
plural, as the context shall require.
THE BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, the Seller and the Trustees have caused their
names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
XXXXXXXXXX, a
Nevada corporation
By /s/
--------------------------
Name
------------------------
Title Assistant Secretary
-----------------------
XXXXXXXXXX, a New York banking
corporation
By /s/
---------------------------
Name
-------------------------
Title
------------------------
XXXXXXXXXX, as Individual
Trustee
By XXXXXXXXXX
XXXXXXXXXX
STATE OF Arizona ]
-----------
] ss.
CITY OF Phoenix ]
-----------
On the 10th day of June, 1993 before me, a Notary Public in and for
said State, personally appeared /s/______________ known to me (or proved to me
on the basis of satisfactory evidence) to be the person who executed the within
instrument as Assistant Secretary on behalf of XXXXXXXXXX, a Nevada
corporation, and acknowledged to me that such Corporation executed the within
instrument pursuant to its Bylaws or a resolution of its Board of Directors.
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51
IN WITNESS WHEREOF, the Seller and the Trustees have caused their
names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
XXXXXXXXXX, a
Nevada corporation
By
--------------------------
Name
------------------------
Title
-----------------------
XXXXXXXXXX, a New York banking
corporation
By XXXXXXXXXX
--------------------------
Name XXXXXXXXXX
------------------------
Title Authorized Signer
-----------------------
XXXXXXXXXX, as Individual
Trustee
By XXXXXXXXXX
--------------------
XXXXXXXXXX
STATE OF Arizona ]
-----------
] ss.
CITY OF Phoenix ]
-----------
On the 10th day of June, 1993 before me, a Notary Public in and for
said State, personally appeared ________________, known to me (or proved to me
on the basis of satisfactory evidence) to be the person who executed the within
instrument as Assistant Secretary on behalf of XXXXXXXXXX, a Nevada
corporation, and acknowledged to me that such Corporation executed the within
instrument pursuant to its Bylaws or a resolution of its Board of Directors.
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52
IN WITNESS WHEREOF, I have hereunto set my hand and my official seal
the day and year first above written.
/s/
_______________________
Notary Public
[NOTARIAL SEAL]
_______________
STATE OF CALIFORNIA ]
] SS.
CITY OF LOS ANGELES ]
On the 24th day of July, 1993 before me, a Notary Public in and for
said State, personally appeared XXXXXXXXXX, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person who executed the
within instrument as to be a ___________ on behalf of XXXXXXXXXX, a New York
banking corporation, and acknowledged to me that such association executed the
within instrument pursuant to its Bylaws or a resolution of its Board of
Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
[NOTARIAL SEAL]
_______________________
Notary Public
My Commission Expires:
___________________________
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53
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
(NOTARIAL SEAL] _______________________________
Notary Public
MY Commission Expires:
_____________________________
STATE OF CALIFORNIA ]
] SS.
CITY OF LOS ANGELES ]
On the 25th day of June, 1993 before me, a Notary Public in and for
said State, personally appeared XXXXXXXXXX, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as to be an authorized signer on behalf of
XXXXXXXXXX, a New York banking corporation, and acknowledged to me that such
association executed the within instrument pursuant to its Bylaws or a
resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year first above written.
[NOTARIAL SEAL] ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________
Notary Public
OFFICIAL SEAL
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public-California
LOS ANGELES COUNTY
My Commission Expires:
2-27-95
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STATE OF CALIFORNIA ]
] SS.
CITY OF LOS ANGELES ]
On the 25th day of June of 1993 before me, a Notary Public in and for
said State, personally appeared XXXXXXXXXX, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument on behalf of XXXXXXXXXX, as Individual
Trustee.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
[NOTARIAL SEAL] ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________
Notary Public
OFFICIAL SEAL
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public-California
LOS ANGELES COUNTY
My Commission Expires:
2-27-95
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