EXHIBIT 10(s)
CRIIMI MAE COMMERCIAL MORTGAGE TRUST,
a trust acting through WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner Trustee,
as Issuer,
and
LASALLE NATIONAL BANK,
as Indenture Trustee
-----------------------------
TERMS INDENTURE
Dated as of May 8, 1998
------------------------------
$1,470,948,000
COMMERCIAL MORTGAGE BONDS,
SERIES 1998-C1
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT 4
GRANTING CLAUSES 4
SECTION 1. Designation. 7
SECTION 2. Certain Defined Terms. 7
SECTION 3. Date of the Bonds. 18
SECTION 4. Forms of the Bonds. 18
SECTION 5. Denominations of the Bonds. 18
SECTION 6. Book-Entry Bonds. 18
SECTION 7. Initial Aggregate Principal Amount; Classes; Terms. 19
SECTION 8. Administration of the Trust Estate. 20
SECTION 9. Collection of Monies. 22
SECTION 11. Reports to Bondholders and Others. 23
SECTION 12. Certain Communications with the Rating Agency. 24
SECTION 14. Restrictions on Transfer of Bonds. 25
SECTION ▇▇.▇▇▇▇ Account. 28
SECTION 16. Payments on the Bonds. 29
SECTION 17. Optional Redemption of the Bonds. 36
SECTION 18. Additional Negative Covenants and Issuer Events of Default. 36
SECTION 20. Certain Matters Regarding the Indenture Trustee. 38
SECTION 23. Tax Treatment. 41
SECTION 25. Miscellaneous. 42
SCHEDULES AND EXHIBITS
SCHEDULE I Schedule of Pledged Securities
EXHIBIT A-1 Form of Class ▇-▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇-▇ Form of Class A-2 Bond
EXHIBIT A-3 Form of Class B Bond
EXHIBIT A-4 Form of Class C Bond
EXHIBIT A-5 Form of Class ▇-▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇-▇ Form of Class ▇-▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇-▇ Form of Class E Bond
EXHIBIT A-8 Form of Class F Bond
EXHIBIT A-9 Form of Class G Bond
EXHIBIT A-10 Form of Class H-1 Bond
EXHIBIT A-11 Form of Class H-2 Bond
EXHIBIT A-12 Form of Class J Bond
EXHIBIT B-1 Form of Payment Date Statement
EXHIBIT B-2 Form of Delinquency Report
EXHIBIT B-3 Form of Specially Serviced Mortgage Loan Report
EXHIBIT B-4 Form of Modified Loan Report
EXHIBIT B-5 Form of Realized Loss Report
EXHIBIT C-1A Form I of Transferor Certificate for Transfers of
Definitive Bonds
EXHIBIT C-1B Form II of Transferor Certificate for Transfers of
Definitive Bonds
EXHIBIT C-2A Form of Transferee Certificate for Transfers of
Definitive Bonds
EXHIBIT C-2B Form of Transferee Certificate for Transfers of
Interests in Book-Entry Bonds
EXHIBIT D Form of DTC Letter of Representations
EXHIBIT E Standard Indenture Provisions
TERMS INDENTURE dated as of May 8, 1998 between CRIIMI MAE COMMERCIAL
MORTGAGE TRUST (the "Issuer", which term includes any successor entity
hereunder), a business trust created under the laws of Delaware pursuant to the
Deposit Trust Agreement referred to below and acting through WILMINGTON TRUST
COMPANY, not in its individual capacity but solely as owner-trustee under such
Deposit Trust Agreement (the "Owner Trustee", which term includes any successor
entity hereunder and thereunder), and LASALLE NATIONAL BANK, as trustee (the
"Indenture Trustee", which term includes any successor entity hereunder).
PRELIMINARY STATEMENT
The Issuer is a Trust organized by the Depositor pursuant to a Deposit
Trust Agreement dated as of May 8, 1998 (the "Deposit Trust Agreement"), by and
between the Owner Trustee and the Company. The Issuer will act at all times
through the Owner Trustee. The Issuer has duly authorized the execution and
delivery of this Terms Indenture to provide for the issuance of $1,470,948,000
in aggregate Principal Amount of its Commercial Mortgage Bonds, Series 1998-C1
(the "Bonds"). The Bonds are issuable as provided in this Terms Indenture and in
those certain Standard Indenture Provisions of the Company, dated as of May 8,
1998 and relating to the issuance of collateralized mortgage obligations, in
Series, by separate Trusts organized by the Company (the "Standard Indenture
Provisions"), which Standard Indenture Provisions are attached hereto as Exhibit
E and are incorporated herein by reference as and to the extent provided in
Section 19. The Terms Indenture, together with the Standard Indenture Provisions
(as and to the extent incorporated herein by reference), constitute one and the
same instrument and are herein, collectively and as amended or supplemented from
time to time as set forth in the Standard Indenture Provisions, referred to as
the "Indenture".
All covenants and agreements made by the Issuer in this Indenture are for
the benefit and security of the Holders of the Bonds. The Issuer is entering
into this Indenture, and the Indenture Trustee is accepting the trust created
hereby, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged. All things necessary to cause the Bonds, when the
Bonds are executed by the Issuer and authenticated and delivered by the
Indenture Trustee as provided herein, to constitute the valid and legally
binding obligations of the Issuer enforceable in accordance with their terms,
and to cause this Indenture to constitute a valid and legally binding agreement
of the Issuer enforceable in accordance with its terms, have been done.
GRANTING CLAUSES
The Issuer hereby Grants to the Indenture Trustee at the Closing Date, as
Indenture Trustee for the benefit of the Bondholders, all of the Issuer's right,
title and interest in and to (i) the Pledged Securities and all payments thereon
from and after the commencement of the initial Collection Period, (ii) the Bond
Account, (iii) the rights of the Issuer to enforce remedies against the Manager
under the Management Agreement (provided that the Issuer retains the right to
give instructions and directions to the Manager thereunder), against the Company
under the Deposit Trust Agreement, and, as assignee of the Company, against
CRIIMI MAE under the Contribution Agreement, (iv) all present and future claims,
demands, causes and
chooses in action in respect of the foregoing, including (subject to
Section 8) the rights of the Issuer under the Pledged Securities, and (v) all
proceeds of the foregoing of every kind and nature whatsoever, including,
without limitation, all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts
receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts,
rights to payment of any and every kind and other forms of obligations and
receivables, instruments and other property that at any time constitute all or
part of or are included in the proceeds of the foregoing (the items described in
the preceding clauses (i), (ii), (iii), (iv) and (v), collectively, the "Trust
Estate").
The foregoing Grant is made in trust to secure the payment of principal of
and interest on, and any other amounts owing in respect of, the Bonds, and to
secure compliance with the provisions of this Indenture, all as provided in this
Indenture.
In furtherance of the foregoing, the Issuer hereby delivers or causes to be
delivered to the Indenture Trustee or the Indenture Trustee's designee each of
the following documents or instruments relating to each Pledged Security (or, in
the case of item (ii) below, all the Pledged Securities):
(i) either (A) if such Pledged Security is held in
fully registered certificated form, a duly issued and authenticated
physical certificate evidencing such Pledged Security endorsed to
"LaSalle National Bank as Indenture Trustee under the Indenture, dated
as of May 8, 1998, relating to CRIIMI MAE Commercial Mortgage Trust,
Commercial Mortgage Bonds, Series 1998-C1" or its Nominee, together
with such Opinions of Counsel and completed and fully-executed copies
of such other documents as shall be necessary to cause registration of
transfer of such Pledged Security to the Indenture Trustee to be made
and to obtain a duly issued and authenticated physical certificate
evidencing such Pledged Security registered in the name of the
Indenture Trustee or its Nominee; or (B) if such Pledged Security is
held in book-entry form, completed and fully-executed copies of such
instruments of transfer, directions, certificates or other documents as
are necessary to cause registration of transfer of such Pledged
Security in the name of the Indenture Trustee or its Nominee on the
books and records of the Depository and applicable Depository
Participant (including, without limitation, the entity through whom the
Indenture Trustee holds book-entry securities with the Depository);
(ii) two Uniform Commercial Code Financing Statements
covering the Trust Estate and executed, in one case, by the Company as
debtor in favor of the Issuer as secured party and the Indenture
Trustee as its assignee and, in the second case, by the Issuer as
debtor in favor of Indenture Trustee as secured party;
(iii) a copy (which may be on electronic media) of the
related Pledged Security Agreement; and
(iv) all other items relating to the foregoing as
reasonably requested by the Indenture Trustee.
The Indenture Trustee hereby acknowledges the receipt by it of each of the
Pledged Securities and the other documents and instruments referenced above, in
good faith and without actual notice of any adverse claim, and declares that it
holds and will hold such Pledged Securities and such other documents and
instruments, and that it holds and will hold all other assets and documents
included in the Trust Estate, in trust for the exclusive use and benefit of all
present and future Bondholders.
Except as expressly provided herein, the Indenture Trustee shall not
assign, sell, dispose of or transfer any interest in the Pledged Securities or
any other asset constituting the Trust Estate or permit the Pledged Securities
or any other asset constituting the Trust Estate to be subjected to any lien,
claim or encumbrance arising by, through or under the Indenture Trustee or any
Person claiming by, through or under the Indenture Trustee.
Promptly after the Closing Date, the Indenture Trustee, with such
assistance of the Company and the Issuer as it may reasonably request, shall
cause registration of transfer to it of each Pledged Security to be made on the
books and records of the registrar for such Pledged Security or on the books and
records of the Depository or the appropriate Depository Participant, as
applicable; and, other than in the case of Pledged Securities held in book-entry
form, the Indenture Trustee, with such assistance of the Company and the Issuer
as it may reasonably request, shall obtain a duly issued and authenticated
physical certificate evidencing such Pledged Security registered in the name of
the Indenture Trustee or its Nominee. Also promptly following the Closing Date,
other than in the case of Pledged Securities held in book-entry form, the
Indenture Trustee, with such assistance of the Company and the Issuer as it may
reasonably request, shall notify and direct the parties responsible under the
respective Pledged Security Agreements for making distributions on the Pledged
Securities to remit, commencing in June 1998, all future payments on account of
the Pledged Securities directly to the Indenture Trustee (by wire transfer to
the Bond Account if permitted) and to continue to do so until such time as the
Issuer or the Indenture Trustee notifies such parties to the contrary following
the date on which this Indenture shall have been discharged and released. The
Indenture Trustee shall hold or cause the holding of the Pledged Securities held
by it in fully registered certificated form, in the State of Illinois. If any
Pledged Security is not accepted for transfer by the applicable registrar, the
Indenture Trustee, with such assistance of the Company and the Issuer as it may
reasonably request, shall resubmit such Pledged Security for registration of
transfer; provided, however, that the Company shall bear the sole responsibility
for correcting any mistakes or completing any deficiencies that caused the
rejection of a request for transfer.
The Indenture Trustee hereby appoints LaSalle National Bank, in its
individual capacity ("LaSalle"), to act as the Indenture Trustee's "securities
intermediary" hereunder. LaSalle hereby accepts such appointment and agrees to
so act. LaSalle hereby represents and warrants to the Indenture Trustee and the
Issuer that (i) an account (the "Securities Account") has been established by it
in the name of the Indenture Trustee for the benefit of the Bondholders, (ii)
except for the claims and interests of the Indenture Trustee in the Securities
Account and the financial assets carried therein, it has no claim to or interest
in the Securities Account or in such financial assets and it does not know of
any claim to or interest in the Securities Account or in such financial assets
and (iii) it has not entered into, and will not enter into, any agreement with
any other person relating to the Securities Account or any financial
asset carried therein pursuant to which it has agreed to comply with
"entitlement orders" (as defined in Section 8-102(a)(8) of the UCC) of such
person. LaSalle, the Indenture Trustee and the Issuer agree that all property
that is held by LaSalle as a "securities intermediary" for the Indenture Trustee
in the Securities Account will be treated as a "financial asset" under Article 8
of the UCC. LaSalle shall comply with "entitlement orders" (as defined in
Section 1.02(a)(8) of the UCC) originated by the Indenture Trustee concerning
the Securities Account and the "financial assets" (as defined in Section
9-102(a)(9) of the UCC) carried therein without further consent of the Issuer
and will identify the Indenture Trustee as having a securities entitlement in
the Securities Account and such financial assets.
AND IT IS HEREBY COVENANTED AND DECLARED that the Bonds are to be
authenticated and delivered by the Indenture Trustee, that the Trust Estate is
to be held by or on behalf of the Indenture Trustee and that monies in the Trust
Estate are to be applied by the Indenture Trustee for the benefit of the
Bondholders, subject to the further covenants, conditions and trusts hereinafter
set forth, and the Issuer does hereby represent and warrant, and covenant and
agree, to and with the Indenture Trustee, for the equal and proportionate
benefit and security of each Bondholder, as follows:
SECTION 1. Designation.
The Bonds shall be designated generally as, and all references to "Bonds"
and "Series" in the Standard Indenture Provisions shall be deemed to be to, the
Issuer's Commercial Mortgage Bonds, Series 1998-C1. The Bonds consist of twelve
Classes to be designated Class A-1, Class A-2, Class B, Class C, Class D-1,
Class D-2, Class E, Class F, Class G, Class H-1, Class H-2 and Class J. The
Class A-1 and Class A-2 Bonds are Senior Bonds. The Class B, Class C, Class D-1,
Class D-2, Class E, Class F, Class G, Class H-1, Class H-2 and Class J Bonds are
Subordinate Bonds.
No Class of Bonds constitutes Compound Interest Bonds, Interest Only Bonds
or Principal Only Bonds and, accordingly, the provisions of the Standard
Indenture Provisions that relate solely to Compound Interest Bonds, Interest
Only Bonds and Principal Only Bonds, or solely to any such types of bonds, shall
be inapplicable with respect to the Bonds.
SECTION 2. Certain Defined Terms.
Section 1.01 of the Standard Indenture Provisions provides that the meaning
of certain defined terms used in the Standard Indenture Provisions shall be as
defined in Section 1.01 of the Standard Indenture Provisions except to the
extent otherwise provided in, or subject to such further specification by, this
Terms Indenture. With respect to the Bonds, the following definitions shall
govern the defined terms set forth below:
"Accrual Date": May 1, 1998.
"Accrued Bond Interest": With respect to any Class of Bonds for any
Interest Accrual Period, all interest at the applicable Bond Interest Rate
accrued during such Interest Accrual Period on the Aggregate Principal Amount of
such Class of Bonds outstanding immediately prior to the related Payment Date,
calculated in accordance with Section 7(b).
"Administrative Expenses": The Indenture Trustee Fee and other fees and
expenses of the Indenture Trustee payable thereto pursuant to Section 6.07 of
the Standard Indenture Provisions, the Owner Trustee Fee, the Management Fee,
and the fees of the Rating Agency in connection with the Bonds, to the extent
such fees of the Rating Agency are due and payable after the Closing Date.
"Aggregate Collateral Principal Amount": As of any date of determination,
the then aggregate Security Principal Balance of the Pledged Securities and the
Net Security Principal Balance of the CMM 96-C1 Pledged Bonds (as defined in the
Memorandum), together with all distributions allocable to principal of the
Pledged Securities then held on deposit in the Bond Account for future payment
on the Bonds.
"Aggregate Principal Amount": With respect to any Class or Classes of
Bonds, as of any date of determination, the then aggregate Principal Amount of
all Bonds of such Class or Classes. Each Class of Bonds shall be issued in the
initial Aggregate Principal Amount specified in Section 7(a). The Aggregate
Principal Amount of each Class of Bonds shall be reduced on each Payment Date by
the amount of any payments of principal made thereon on such date pursuant to
(i) Section 3.01 of the Standard Indenture Provisions and Section 16(b) hereof,
(ii) Section 5.06 of the Standard Indenture Provisions and Section 17 hereof or
(iii) Article X of the Standard Indenture Provisions and Section 17 hereof.
"Anticipated Repayment Date": As defined in the definition of
"Hyper-Amortization Loan".
"Assumed Final Payment Date": With respect to any Class of Bonds, the
Payment Date specified as such in Section 7, on which the final payment would
occur with respect to such Class based on the Maturity Assumptions.
"Available Funds": With respect to any Payment Date, the aggregate of all
amounts on deposit in the Bond Account as of the commencement of business at the
Corporate Trust Office on such date, exclusive of any portion thereof that may
be withdrawn from the Bond Account pursuant to any of clauses (ii)-(iv) of
Section 15(c).
"Bond Factor": With respect to any Class of Bonds, as of any date of
determination, a fraction, expressed as a decimal carried to six places and
truncated, the numerator of which is the then Aggregate Principal Amount of such
Class, and the denominator of which is the initial Aggregate Principal Amount of
such Class.
"Class A Bond": Any Class A-1 Bond or Class A-2 Bond. "Class A-1 Bond": Any
of the Bonds with a "Class A-1" designation on the face thereof, executed by the
Issuer and authenticated by the Indenture Trustee or the Authenticating Agent,
if any, substantially in the form of Exhibit A-1 attached hereto.
"Class A-2 Bond": Any of the Bonds with a "Class A-2" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
or the Authenticating Agent, if any, substantially in the form of Exhibit A-2
attached hereto.
"Class B Bond": Any of the Bonds with a "Class B" designation on the face
thereof, executed by the Issuer and authenticated by the Indenture Trustee or
the Authenticating Agent, if any, substantially in the form of Exhibit A-3
attached hereto.
"Class C Bond": Any of the Bonds with a "Class C" designation on the face
thereof, executed by the Issuer and authenticated by the Indenture Trustee or
the Authenticating Agent, if any, substantially in the form of Exhibit A-4
attached hereto.
"Class D Bond": Any Class D-1 Bond or Class D-2 Bond.
"Class D-1 Bond": Any of the Bonds with a "Class D-1" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
or the Authenticating Agent, if any, substantially in the form of Exhibit A-5
attached hereto.
"Class D-2 Bond": Any of the Bonds with a "Class D-2" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
or the Authenticating Agent, if any, substantially in the form of Exhibit A-6
attached hereto.
"Class E Bond": Any of the Bonds with a "Class E" designation on the face
thereof, executed by the Issuer and authenticated by the Indenture Trustee or
the Authenticating Agent, if any, substantially in the form of Exhibit A-7
attached hereto.
"Class Exemption": A class exemption granted by the DOL, which provides
relief from some or all of the prohibited transaction provisions of ERISA and
the related excise tax provisions of the Code.
"Class F Bond": Any of the Bonds with a "Class F" designation on the face
thereof, executed by the Issuer and authenticated by the Indenture Trustee or
the Authenticating Agent, if any, substantially in the form of Exhibit A-8
attached hereto.
"Class G Bond": Any of the Bonds with a "Class G" designation on the face
thereof, executed by the Issuer and authenticated by the Indenture Trustee or
the Authenticating Agent, if any, substantially in the form of Exhibit A-9
attached hereto.
"Class H Bond": Any Class H-1 Bond or Class H-2 Bond.
"Class H-1 Bond": Any of the Bonds with a "Class H-1" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
or the Authenticating Agent, if any, substantially in the form of Exhibit A-10
attached hereto.
"Class H-2 Bond": Any of the Bonds with a "Class H-2" designation on the
face thereof, executed by the Issuer and authenticated by the Indenture Trustee
or the Authenticating Agent, if any, substantially in the form of Exhibit A-11
attached hereto.
"Class J Bond": Any of the Bonds with a "Class J" designation on the face
thereof, executed by the Issuer and authenticated by the Indenture Trustee or
the Authenticating Agent, if any, substantially in the form of Exhibit A-12
attached hereto.
"Closing Date": May 8, 1998.
"CMM 96-C1 Payment Date": The 30th day (or, in the case of February, the
28th day) of each calendar month (or, if such day is not a Business Day (as such
term is defined in the CMM 96-C1 Pledged Security Agreement), the next
succeeding Business Day).
"CMM 96-C1 Pledged Bonds": The CRIIMI MAE Trust I, Commercial Mortgage
Bonds, Series 1996-C1, Classes C, D and E, issued pursuant to the CMM 96-C1
Pledged Security Agreement.
"CMM 96-C1 Pledged Certificates": The subordinated certificates pledged
pursuant to the CMM 96-C1 Pledged Security Agreement to secure payment of the
CMM 96-C1 Pledged Bonds and the other bonds of the same series.
"CMM 96-C1 Pledged Security Agreement": That certain Indenture dated as of
December 20, 1996 between CRIIMI MAE Trust I, as issuer, and The Chase Manhattan
Bank, as indenture trustee.
"Collection Period": The period commencing immediately following the end of
the prior such period (or, in the case of the initial Collection Period,
commencing on and including June 1, 1998) and ending on and including the next
succeeding CMM 96-C1 Payment Date that follows the commencement of such period.
"Company": CRIIMI MAE CMBS Corp. or any successor thereto. The Company
constitutes the "Depositor" under the Standard Indenture Provisions.
"Contribution Agreement": The Contribution Agreement, dated as of May 8,
1998, between CRIIMI MAE Inc. and the Company, pursuant to which CRIIMI MAE Inc.
contributed the Pledged Securities to the Company.
"Controlling Class": The most subordinate (based on the payment priorities
of Section 16(b) hereof) Class of Bonds Outstanding (the Class A-1 and Class A-2
Bonds, the Class D-1 and Class D-2 Bonds and the Class H-1 and Class H-2 Bonds
being treated, in the case of each such pair of Classes, as a single Class for
this purpose) that has a Net Aggregate Principal Amount at least equal to 25% of
its initial actual Aggregate Principal Amount (or, if no Class of Bonds has a
Net Aggregate Principal Amount at least equal to 25% of its initial actual
Aggregate Principal Amount, then the "Controlling Class" will be the Class of
Bonds with the largest Net Aggregate Principal Amount then outstanding);
provided that for purposes of determining the Controlling Class and exercising
the rights thereof under Section 8, Bonds held by an Interested Person shall be
deemed to be Outstanding.
"Controlling Class Representative": As defined in Section 8(c) hereof.
"Delinquency Report": As defined in Section 11(b) hereof.
"Deposit Trust Agreement": The Deposit Trust Agreement, dated as of May 8,
1998, between the Depositor and the Owner Trustee, pursuant to which the Issuer
was created.
"Distribution Date": With respect to any Pledged Security, the date each
month on which payments are made to the registered holder of such Pledged
Security in accordance with the related Pledged Security Agreement.
"DOL": The Department of Labor or any successor thereto.
"DOL Regulations": The regulations promulgated at 29 ▇.▇.▇.▇▇. 2510.3-101.
"Eligible Account": Either (i) an account maintained with a federal or
state chartered depository institution or trust company having corporate trust
powers, the short-term deposit or debt obligations of which (or of such
institution's parent holding company) are rated in one of the three highest
short-term rating categories of the Rating Agency and the long-term unsecured
debt obligations of which (or of such institution's parent holding company) are
rated in one of the three highest long-term rating categories of the Rating
Agency or (ii) a segregated trust account or accounts maintained with a federal
or state chartered depository institution or trust company having corporate
trust powers acting in its fiduciary capacity and, in the case of a state
chartered depository institution or trust company, subject to regulations
regarding fiduciary funds on deposit therein substantially similar to Title 12
of the Code of Federal Regulations Section 9.10(b). Eligible Accounts may bear
interest.
"Extraordinary Expense": Any amounts payable or reimbursable to the
Indenture Trustee pursuant to Section 6.07(a)(2) of the Standard Indenture
Provisions and any amounts payable from the Bond Account in respect of taxes
pursuant to Section 3.06 of the Standard Indenture Provisions, and any other
costs, expenses and liabilities (exclusive of Administrative Expenses) that are
required to be borne by the Trust Estate in accordance with applicable law or
the terms of this Indenture (including, without limitation, the cost of various
opinions of and advice from counsel required to be obtained in connection with
the Indenture Trustee's performance of its duties under this Indenture).
Extraordinary Expenses constitute Additional Expenses under the Standard
Indenture Provisions.
"Final Payment Date": The Payment Date on which the final payment on the
Bonds of any Class is made hereunder by reason of all principal, interest and
other amounts due and payable on such Bonds having been paid or the Collateral
having been exhausted.
"Hyper-Amortization Loan": A Mortgage Loan that provides that if it is not
paid in full by a specified date (the "Anticipated Repayment Date"), the
otherwise fixed rate at which interest accrues on such loan will be subject to
increase and a portion of the net cash flow from the related Mortgaged Property
(after payment of certain property expenses and the minimum scheduled payment of
debt service) will be applied to make payments of principal on such loan.
"Indenture Trustee": As defined in the first paragraph of this Terms
Indenture.
"Indenture Trustee Fee": A monthly fee payable on each Payment Date equal
to one-twelfth of 0.02% of the Aggregate Collateral Principal Amount immediately
prior to such Payment Date.
"Initial Purchasers": ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation and Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Inc.
"Interest Accrual Period": With respect to any Payment Date, the second
calendar month preceding the month in which such Payment Date occurs.
"Interested Person": As of any date of determination, the Issuer, the Owner
Trustee, the Manager or, in each such case, any of their respective affiliates.
"Issuer": As defined in the first paragraph of this Terms Indenture.
"Issuer Owner": Any Person that directly holds any of the certificates of
ownership in the Issuer under the Deposit Trust Agreement.
"Liquidated Loan": Any Mortgage Loan which has been liquidated in
connection with a default thereon (through foreclosure or otherwise) or as to
which an REO Property has been acquired in respect thereof and subsequently
liquidated.
"Make-Whole Amount": in connection with any optional redemption of any
Class of Bonds (other than the Class A-2 Bonds), an amount, as calculated by the
Issuer and confirmed by the Indenture Trustee, equal to the excess, if any, of
(i) the aggregate present value as of the date of such redemption of each dollar
of principal being redeemed and the amount of interest (exclusive of interest
accrued to the date of redemption) that would have been payable in respect of
each such dollar (assuming that no Mortgage Loan (or Mortgage Loan underlying
any Mortgage Participation) pays any remaining principal prior to its stated
maturity (or, in the case of a Hyper-Amortization Loan, prior to its Anticipated
Repayment Date) (each such term as defined in the Memorandum)) if such
redemption had not been made, determined by discounting, on a monthly basis,
such principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date notice of such redemption is given) from the
respective dates on which such principal and interest would have been payable if
such redemption had not been made, to the date of redemption, over (ii) the
Aggregate Principal Amount of the Class of Bonds being redeemed.
"Management Agreement": The Management Agreement, dated as of the date
hereof, among the Owner Trustee on behalf of the Issuer and the Manager,
pursuant to which the Manager shall perform various obligations of the Issuer
hereunder.
"Management Fee": A monthly fee payable on each Payment Date equal to
one-twelfth of 0.005% of the Aggregate Collateral Principal Amount immediately
prior to such Payment Date.
"Manager": The Person acting as the "Manager" from time to time under the
Management Agreement, which initially shall be CRIIMI MAE Services Limited
Partnership.
"Maturity Assumptions": The assumption that no Mortgage Loan (or Mortgage
Loan underlying any Mortgage Participation) is prepaid, extended, modified or
defaulted prior to its stated maturity (or, in the case of a Hyper-Amortization
Loan, prior to its Anticipated
Repayment Date), together with such additional assumptions designated as
the Modeling Assumptions in the Memorandum.
"Memorandum": The Private Offering Memorandum, dated May 6, 1998, relating
to the Class A, Class B and Class C Bonds.
"Modified Loan": Any Mortgage Loan as to which the related payment terms
have been modified in connection with a default and work-out.
"Modified Loan Report": As defined in Section 11(b) hereof.
"Mortgage Loan": Any "Mortgage Loan" (within the meaning of the Standard
Indenture Provisions) that directly or indirectly underlies any Pledged
Security.
"Mortgage Participation": Any participation in a Mortgage Loan.
"Net Aggregate Principal Amount": With respect to either Class of Class A
Bonds, as of any date of determination, an amount equal to the lesser of (a) the
then actual Aggregate Principal Amount thereof and (b) the product of (i) the
then Aggregate Collateral Principal Amount, multiplied by (ii) a fraction, the
numerator of which is the then actual Aggregate Principal Amount of such Class
of Class A Bonds, and the denominator of which is the then actual Aggregate
Principal Amount of all the Class A Bonds; with respect to either Class of Class
D Bonds, as of any date of determination, an amount equal to the lesser of (m)
the then actual Aggregate Principal Amount thereof and (n) the product of (i)
the then Aggregate Collateral Principal Amount, reduced (to not less than zero)
by the then actual Aggregate Principal Amount of the Class A, Class B and Class
C Bonds, multiplied by (ii) a fraction, the numerator of which is the then
actual Aggregate Principal Amount of such Class of Class D Bonds, and the
denominator of which is the then actual Aggregate Principal Amount of all the
Class D Bonds; with respect to either Class of Class H Bonds, as of any date of
determination, an amount equal to the lesser of (s) the then actual Aggregate
Principal Amount thereof and (t) the product of (i) the then Aggregate
Collateral Principal Amount, reduced (to not less than zero) by the then actual
Aggregate Principal Amount of the Class A, Class B, Class C, Class D, Class E,
Class F and Class G Bonds, multiplied by (ii) a fraction, the numerator of which
is the then actual Aggregate Principal Amount of such Class of Class H Bonds,
and the denominator of which is the then actual Aggregate Principal Amount of
all the Class H Bonds; and with respect to any other Class of Bonds, as of any
date of determination, an amount equal to the lesser of (x) then the actual
Aggregate Principal Amount of such Class of Bonds and (y) the then Aggregate
Collateral Principal Amount reduced (to not less than zero) by the then actual
Aggregate Principal Amount of all other Classes of Bonds that are senior (based
on the payment priorities of Section 16(b) hereof) to such Class of Bonds.
"Net Security Principal Balance": With respect to the CMM 96-C1 Pledged
Bonds, the portion of the aggregate Security Principal Balance thereof that is
collateralized by the CMM 96-
C1 Pledged Certificates, taking account of all bonds of the same series
that are senior to the CMM 96-C1 Pledged Bonds. The Net Security Principal
Balance of the CMM 96-C1 Pledged Bonds at any time shall equal the then
aggregate of the "Net Aggregate Principal Amounts" (within the meaning of the
CMM 96-C1 Pledge Security Agreement) of such bonds.
"Nondisqualification Opinion": An opinion of Independent counsel that a
contemplated action will not cause a tax to be imposed on the Issuer, except as
may otherwise be provided in the Management Agreement.
"Overcollateralization Amount": As of any date of determination, the
amount, if any, by which the then Aggregate Collateral Principal Amount exceeds
the then Aggregate Principal Amount of all the Bonds.
"Owner Trustee": As defined in the first paragraph of this Terms Indenture.
"Owner Trustee Fee": An annual fee of $4,000.
"Payment Date": The second Business Day following the end of each
Collection Period. The first Payment Date is July 2, 1998.
"Payment Date Statement": As defined in Section 11(a) hereof.
"Permitted Investments": Any one or more of the following obligations or
securities:
(i) direct obligations of, or obligations fully
guaranteed as to timely payment of principal and interest by, the
United States or any agency or instrumentality thereof, provided such
obligations are backed by the full faith and credit of the United
States, have a predetermined, fixed amount of principal due at maturity
(that cannot vary or change), do not have an "r" highlight attached to
any rating, and each such obligation has a fixed interest rate or has
its interest rate tied to a single interest rate index plus a single
fixed spread;
(ii) repurchase agreements on obligations specified in
clause (i) maturing not more than one month from the date of
acquisition thereof, provided that the unsecured obligations of the
party agreeing to repurchase such obligations are at the time rated by
the Rating Agency in one of two highest short-term ratings available;
(iii) federal funds, unsecured certificates of deposit,
time deposits, bankers' acceptances and repurchase agreements having
maturities of not more than 365 days, of any bank or trust company
organized under the laws of the United States or any state thereof,
provided that such items are rated in one of the two highest short-term
debt rating categories of the Rating Agency (or have such lower rating
as will not result in a qualification, downgrading or withdrawal of the
rating then assigned to any Class of Bonds by the Rating Agency (as
evidenced in writing by the Rating Agency)), do not have an "r"
highlight affixed to such rating and have a predetermined fixed amount
of principal due at maturity (that cannot vary or change), and each
such obligation has a fixed interest rate or has its interest rate tied
to a single interest rate index plus a single fixed spread;
(iv) commercial paper (having original maturities of not
more than 365 days) of any corporation incorporated under the laws of
the United States or any state thereof (or of any corporation not so
incorporated, provided that the commercial paper is United States
Dollar denominated and amounts payable thereunder are not subject to
any withholding imposed by any non-United States jurisdiction) which is
rated in one of the two highest short-term debt rating categories of
the Rating Agency (or have such lower rating as will not result in a
qualification, downgrading or withdrawal of the rating then assigned to
any Class of Bonds by the Rating Agency (as evidenced in writing by the
Rating Agency)), do not have an "r" highlight affixed to such rating
and have a predetermined fixed amount of principal due at maturity
(that cannot vary or change), and each such obligation has a fixed
interest rate or has its interest rate tied to a single interest rate
index plus a single fixed spread;
(v) units of money market funds which maintain a
constant net asset value and which are rated in one of the two highest
applicable rating categories of the Rating Agency (or have such lower
rating as will not result in a qualification, downgrading or withdrawal
of the rating then assigned to any Class of Bonds by the Rating Agency
(as evidenced in writing by the Rating Agency)); or
(vi) any other obligation or security acceptable to the
Rating Agency, which will not result in a qualification, downgrading or
withdrawal of the rating then assigned to any Class of Bonds by the
Rating Agency (as evidenced in writing by the Rating Agency);
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity (that
cannot vary or change).
"Plan": As defined in Section 14(b) hereof.
"Pledged Security": Any one of the securities transferred to the Indenture
Trustee by the Issuer pursuant to the Granting Clause, as from time to time are
held as a part of the Trust Estate and as are more fully described on Schedule I
attached hereto.
"Pledged Security Agreement": With respect to any Pledged Security, the
pooling and servicing agreement, trust agreement, indenture or other governing
agreement, together with all exhibits thereto and any amendment thereof,
pursuant to which such Pledged Security was issued.
"Pledged Security Reports": As defined in Section 8(a) hereof.
"Portfolio Summary": As defined in Section 11(b) hereof.
"Portfolio Summary Diskette": As defined in Section 11(b) hereof.
"Principal Amount": With respect to any Bond, as of any date, the principal
amount stated on the face of such Bond less any principal previously paid on
such Bond.
"Principal Payment Amount": With respect to any Payment Date, an amount
equal to: (i) the portion of all payments received on or in respect of the
Pledged Securities during the related Collection Period that are allocable to
principal of the Pledged Securities, as reported by the respective trustees for
the Pledged Securities; and (ii) in the case of any Payment Date subsequent to
the initial Payment Date, the amount, if any, by which the Principal Payment
Amount for the preceding Payment Date exceeded the aggregate payments of
principal made on the Bonds on such preceding Payment Date.
"PTCE": A Prohibited Transaction Class Exemption.
"Purchase Agreement": The Purchase Agreement, dated as of May 6, 1998,
among CRIIMI MAE Inc. and the Initial Purchasers.
"Rating Agency": Standard & Poor's.
"Realized Loss Report": As defined in Section 11(b) hereof.
"Record Date": With respect to any Payment Date, the last Business Day of
the second calendar month preceding the month in which such Payment Date occurs.
"Redemption Price": With respect to any Class of Bonds (other than the
Class A-2 Bonds) and any Payment Date that constitutes a Redemption Date, a
price (calculated after taking into account payments made on the Bonds out of
Available Funds on such Payment Date) equal to 100% of the unpaid Aggregate
Principal Amount of the Bonds to be redeemed, plus accrued and unpaid interest
thereon to the last day of the related Interest Accrual Period, plus the
Make-Whole Amount.
"Reinvestment Rate": For purposes of calculating the Make-Whole Amount, if
any, in connection with the redemption of any Class of Bonds, the arithmetic
mean of the yields under the heading "Week Ending" published in the most recent
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the Assumed Final
Payment Date for the Class of Bonds being redeemed. If no maturity exactly
corresponds to such Assumed Final Payment Date, yields for the two published
maturities most closely corresponding to such Assumed Final Payment Date shall
be calculated pursuant to the immediately preceding sentence and the
Reinvestment Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding in each of such relevant periods to the nearest
month. For the purposes of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used. If the format or content of the Statistical
Release changes in a manner that precludes determination of the Treasury yield
in the above manner, then the Treasury yield shall be determined in the manner
that most closely approximates the above manner, as reasonably determined by the
Issuer.
"REO Loan": Any Mortgage Loan (including a Mortgage Loan underlying a
Mortgage Participation) as to which the related Mortgaged Property has become an
owned real estate.
"Security Principal Balance": With respect to each Pledged Security, the
principal balance thereof outstanding from time to time.
"Specially Serviced Mortgage Loan": Any Mortgage Loan designated as such,
and being serviced by a special servicer, under the terms of the related Pledged
Security Agreement.
"Specially Serviced Mortgage Loan Report": As defined in Section 11(b)
hereof.
"Stated Maturity": With respect to each Class of Bonds, the Payment Date on
which the final payment of principal and interest on the Bonds of such Class
becomes finally due and payable, as set forth in Section 7(a).
"Standard Indenture Provisions": As defined in the Preliminary Statement.
"Terms Indenture": This terms indenture, as amended or supplemented from
time to time in accordance with Article IX of the Standard Indenture Provisions.
"Transfer": Any direct or indirect transfer, sale, pledge, hypothecation,
or other form of assignment of any Ownership Interest in a Bond.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Bond.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Bond.
"Trust Estate": As defined in the Granting Clause.
SECTION 3. Date of the Bonds.
The Bonds that are authenticated and delivered by the Indenture Trustee to
or upon an Issuer Order on the Closing Date shall be dated the Closing Date. All
Bonds which are authenticated and delivered after the Closing Date shall be
dated the date of their authentication.
SECTION 4. Forms of the Bonds.
The Bonds shall be in the respective forms attached hereto as Exhibits A-1
through A-12, according to the Class designation appearing on the first page of
each such exhibit; provided that any of the Bonds may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to
comply with any law or with rules or regulations pursuant thereto, or with
the rules of any securities market in which the Bonds are admitted to trading,
or to conform to general usage.
SECTION 5. Denominations of the Bonds.
The Class A-1, Class A-2, Class B and Class C Bonds shall be issuable only
in denominations corresponding to initial Principal Amounts as of the Closing
Date of $100,000 and any whole dollar denomination in excess thereof. The Class
D, Class E, Class F, Class G, Class H and Class J Bonds shall be issuable only
in denominations corresponding to initial Principal Amounts as of the Closing
Date of $250,000 and any whole dollar denomination in excess thereof.
SECTION 6. Book-Entry Bonds.
The Class A-1, Class A-2, Class B and Class C Bonds will be Book-Entry
Bonds. The Bonds of each such Class shall initially be issued as one or more
Bonds registered in the name of the Depository or its nominee and, except as
provided in Section 2.12(c) of the Standard Indenture Provisions, transfer of
such Bonds may not be registered by the Bond Registrar unless such transfer is
to a successor Depository that agrees to hold such Bonds for the respective Bond
Owners with Ownership Interests therein.
The Issuer hereby designates The Depository Trust Company, at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as the initial Depository for the Book-Entry
Bonds and directs the Indenture Trustee to execute and deliver the Letter of
Representations (the form of which is attached hereto as Exhibit D). The bond
certificate or certificates representing each Class of the Book-Entry Bonds
shall be registered in the name of the nominee of the Depository designated in
the Letter of Representations.
SECTION 7. Initial Aggregate Principal Amount; Classes;
Terms.
(a) The aggregate Principal Amount of the Bonds that
may be authenticated and delivered under this Indenture is limited to
$1,470,948,000, except for Bonds authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Bonds pursuant to
Sections 2.05 or 2.06 of the Standard Indenture Provisions. Such aggregate
Principal Amount shall be divided among twelve Classes having the respective
Class designations, initial aggregate Principal Amounts, Bond Interest Rates,
Stated Maturities and Assumed Final Payment Dates as follows:
Class Initial Aggregate Bond Stated Assumed Final
Designation Principal Amount Interest Rate(1) Maturity Payment Date
----------- ----------------- ---------------- -------- -------------
Class A-1 $ 62,612,000 7.00% June 2033 November 2006
Class A-2 $ 345,000,000 7.00% June 2033 March 2011
Class B $ 150,639,000 7.00% June 2033 November 2011
Class C $ 115,195,000 7.00% June 2033 November 2012
Class D-1 $ 159,500,000 7.00% June 2033 May 2013
Class D-2 $ 159,501,000 7.00% June 2033 August 2013
Class E $ 70,889,000 7.00% June 2033 February 2014
Class F $ 35,444,000 7.00% June 2033 June 2014
Class G $ 88,612,000 7.00% June 2033 February 2015
Class H-1 $ 88,611,000 7.00% June 2033 November 2015
Class H-2 $ 88,611,000 7.00% June 2033 August 2016
Class J $ 106,334,000 7.00% June 2033 June 2017
----------------------
(1) Expressed as a percent per annum
(b) Each Class of Bonds shall bear interest, such
interest to commence accruing on the Accrual Date. In the case of each Class of
Bonds, such interest shall accrue during each Interest Accrual Period, in
accordance with Section 2.07(b) of the Standard Indenture Provisions, at the
applicable Bond Interest Rate on the aggregate Principal Amount of such Class of
Bonds outstanding immediately prior to the related Payment Date. The interest
accrued in respect of each Class of Bonds during any Interest Accrual Period
will be due and payable thereon on the related Payment Date and, to the extent
not paid in full on such Payment Date, on each succeeding Payment Date until
paid in full. No interest will accrue on overdue interest in respect of any
Bond.
(c) The respective Classes of Bonds will be issued on
the Closing Date in the aggregate Principal Amounts set forth above. The
aggregate Principal Amount of any Class of Bonds, and the Principal Amount of
any particular Bond of such Class, will be reduced only by actual payments of
principal made thereon on any Payment Date.
(d) Each Bond of a particular Class shall rank pari
passu with each other Bond of such Class and be equally and ratably secured by
the Trust Estate.
(e) This Indenture shall evidence a continuing lien on
and security interest in the Trust Estate to secure the full payment of the
principal, interest and other amounts due and payable on all the Bonds from time
to time, which payments, in the case of any Class of Bonds, shall in all
respects be equally and ratably secured hereby without preference, priority or
distinction on account of the actual time or times of the authentication and
delivery of the Bonds of such Class.
(f) The Bonds shall be authenticated and delivered to
or at the direction of the Issuer by the Indenture Trustee only upon
satisfaction of the conditions set forth in Section 2.10(a) of the Standard
Indenture Provisions.
(g) Upon initial issuance, all of the Bonds shall
constitute Rated Bonds and shall have been assigned the following ratings by the
Rating Agency:
Class Rating
----- ------
Class A-1 A
Class A-2 A
Class B BBB
Class C BBB-
Class D-1 BB+
Class D-2 BB+
Class E BB
Class F BB-
Class G B+
Class H-1 B
Class H-2 B
Class J B-
SECTION 8. Administration of the Trust Estate.
(a) Whenever the Indenture Trustee, as registered
holder of the Pledged Securities, is requested in such capacity, whether by the
Issuer, a Bondholder or a party to any Pledged Security Agreement, to take any
action or to give any consent, approval or waiver that it is entitled to take or
give in such capacity, including, without limitation, in connection with an
amendment of any Pledged Security Agreement or the occurrence of a default
thereunder, the purchase or workout of any defaulted Mortgage Loan or the
replacement of the special servicer in respect of a pool of Mortgage Loans, the
Indenture Trustee shall promptly notify the Issuer, the Manager and, if
applicable, all of the Bondholders or all of the Bondholders of the Controlling
Class, as appropriate, of such request in such detail as is available to it and,
subject to Section 8(d), shall, on behalf of the Issuer and the Bondholders,
take such action in connection with the exercise and/or enforcement of any
rights and/or remedies available to it in such capacity with respect to such
request as the Issuer (or, if the Overcollateralization Amount is zero or an
Event of Default has occurred and is continuing, the Controlling Class
Representative) shall direct in writing; provided that if no such direction is
received prior to the date that is established for taking such action or giving
such consent, approval or waiver (notice of which date shall be given by the
Indenture Trustee to the Issuer, the Manager and, if applicable, the Bondholders
or the Bondholders of the Controlling Class, as appropriate), the Indenture
Trustee shall abstain from taking such action or giving such consent, approval
or waiver; and provided, further, that if the Issuer (or, if the
Overcollateralization Amount is zero or an Event of Default has occurred and is
continuing, the Controlling Class Representative) is authorized pursuant to the
applicable Pledged Security Agreement to take any of the actions or give any of
the consents, approvals or waivers referred to above, then the Issuer (or, if
the Overcollateralization Amount is zero or an Event of Default has occurred and
is continuing, the Controlling Class Representative) shall take such actions
and/or give such consents, approvals or waivers directly, and the Indenture
Trustee shall not be required to so act or give any of the consents, approvals
or waivers specified above; and provided, further, that the Indenture Trustee
shall in no event be required to expend or risk its own funds or otherwise incur
financial liability in connection with exercising such rights and/or remedies
and may require reasonable indemnity against such expense or liability as a
condition to taking any action at the direction of the Issuer or the Controlling
Class Representative; and provided, further, that the Indenture Trustee shall
not be liable for any action taken by it in good faith at the direction of the
Issuer (or, if the Overcollateralization Amount is zero or an Event of Default
has occurred and is continuing, the Controlling Class Representative)
(or for any action taken directly by such party) in accordance with this
Section 8(a); and provided, further, that any amendment to a Pledged Security
Agreement shall be agreed to by the Indenture Trustee only with the consent of
the Issuer and the Holders of the Bonds representing greater than 50% of the
aggregate Principal Amount of the Bonds (or, if such amendment would affect the
payment terms of a Pledged Security, only with the consent of the Issuer and all
the Bondholders); and, provided, further, that, prior to replacing any special
servicer under a Pledged Security Agreement or other servicing agreement, the
Issuer or the Controlling Class Representative, as applicable, shall obtain
written confirmation from the Rating Agency that such act would not result in a
qualification, downgrade or withdrawal of any then-current rating assigned
thereby to the Bonds. If not available through website, fax-back or other
electronic form, the Indenture Trustee shall forward to the Issuer, the Manager,
the Rating Agency and, upon written request, any Bondholder, on the Payment Date
following its receipt thereof (or, in connection with a written request by a
Bondholder, at any time thereafter), copies of any and all notices, statements,
reports and/or other material communications and information (converted to
written form if not already in such form) (collectively, "Pledged Security
Reports") that it receives in connection with the Pledged Securities, the
Mortgage Loans and Mortgage Participations, and the Pledged Security Agreements
and the parties thereto.
(b) Except as expressly provided in Articles IV and
V of the Standard Indenture Provisions, the Indenture Trustee shall not assign,
sell, dispose of or transfer any asset of the Trust Estate or permit any asset
of the Trust Estate to be subjected to any lien, claim or encumbrance arising
by, through or under the Indenture Trustee or any Person claiming by, through or
under the Indenture Trustee; provided that the Indenture Trustee is authorized
and obligated to surrender a Pledged Security in accordance with the terms of
the related Pledged Security Agreement in connection with receiving the final
distribution or payment thereon.
(c) For purposes of exercising any rights and/or
remedies under any Pledged Security at such time as the Overcollateralization
Amount is zero or an Event of Default has occurred and is continuing, the
Holders of Outstanding Bonds representing greater than 50% of the Aggregate
Principal Amount of the Controlling Class of Bonds shall appoint, and shall
designate in writing to the Indenture Trustee, a representative (the
"Controlling Class Representative"). Bonds held by Interested Persons shall be
deemed to be Outstanding for purposes of this Section 8.
(d) If the Issuer or any group of Bondholders post
collateral pursuant to any Pledged Security Agreement, in connection with
exercising the workout and/or foreclosure process with respect to a defaulted
Mortgage Loan, then, for so long as the Issuer's or such Bondholders' collateral
is at risk, then the Issuer or such Bondholders, as the case may be, shall
continue to exercise such right (whether directly or through the Indenture
Trustee) in respect of such Mortgage Loan, notwithstanding that the
Overcollateralization Amount has been reduced to zero or an Event of Default has
occurred and is continuing, in the case of the Issuer, or such Bondholders no
longer belong to the Controlling Class, in the case of such Bondholders.
SECTION 9. Collection of Monies.
All amounts received by the Indenture Trustee on or in respect of the
Pledged Securities shall be deposited in the Bond Account upon receipt. In
connection with its receipt of any distribution or payment on a Pledged Security
on any Distribution Date, the Indenture Trustee may conclusively rely on the
related Pledged Security Reports and, absent manifest error, the Indenture
Trustee shall have no obligation to recompute, recalculate or verify the
information contained therein. If the Indenture Trustee shall not have received
a distribution or payment on any Pledged Security by the close of business on
the date on which such distribution or payment was to be received by the
Indenture Trustee, the Indenture Trustee shall notify the trustee or other party
responsible for effectuating distributions or payments under the related Pledged
Security Agreement, and (i) if such distribution or payment shall not have been
received by the Indenture Trustee one Business Day following such notice or (ii)
a Responsible Officer of the Indenture Trustee shall gain actual knowledge of
any event of default under any Pledged Security Agreement, the Indenture Trustee
shall promptly notify the Rating Agency and the Bondholders in writing and such
parties shall proceed in accordance with the terms and conditions of Section 8.
Notwithstanding the foregoing, notice shall not be required to be given pursuant
to this Section 9 in the case of any payments made by check unless such check is
not received within five Business Days of the related Distribution Date.
SECTION 10. Access to Certain Documentation and
Information with respect to the Pledged Securities.
The Indenture Trustee shall provide to the Bondholders access to the
Pledged Securities and all reports, documents and records maintained by the
Indenture Trustee in respect of its duties hereunder, such access being afforded
without charge but only upon reasonable written request and during normal
business hours at offices designated by the Indenture Trustee.
SECTION 11. Reports to Bondholders and Others.
(a) Based on information provided in the Pledged
Security Reports received from time to time, the Indenture Trustee shall prepare
and forward, within three Business Days following each Payment Date, to each
Bondholder, the Issuer, the Manager, and the Rating Agency a statement (the
"Payment Date Statement"), substantially in the form of Exhibit B-1 hereto,
detailing payments on the Bonds on such Payment Date.
(b) If and to the extent that the Indenture Trustee
can, using reasonable efforts, obtain the requisite information, the Indenture
Trustee shall prepare and distribute the following reports (together with the
next Payment Date Statement that is distributed thereto) to Bondholders and the
Rating Agency (provided that the Portfolio Summary shall only be distributed to
Bondholders upon request):
(i) a monthly report (the "Delinquency Report")
substantially in the form of Exhibit B-2 hereto, setting forth, on a
loan-by-loan basis, those Mortgage Loans (including the Mortgage Loans
underlying the Mortgage Participations) that are or have become during
the one-month period covered by such report (a) 30 - 59 days delinquent
in respect of any monthly payment of principal and/or interest, (b) 60
- 89 days delinquent in respect of any monthly payment of principal
and/or interest, (c) 90 or
more days delinquent in respect of any monthly payment of principal
and/or interest, (d) Modified Loans, (e) REO Loans and/or (f)
Liquidated Loans; and
(ii) a monthly report (the "Specially Serviced Mortgage
Loan Report") substantially in the form of Exhibit B-3 hereto, setting
forth, on a loan-by-loan basis, those Mortgage Loans (including
Mortgage Loans underlying the Mortgage Participations) that are or have
become during the one-month period covered by such report Specially
Serviced Mortgage Loans and the reason such Mortgage Loans have become
Specially Serviced Mortgage Loans;
(iii) a monthly report (the "Modified Loan Report")
substantially in the form of Exhibit B-4 hereto, setting forth, on a
loan-by-loan basis, for the current one-month period and on a
cumulative basis from the Closing Date, those Mortgage Loans (including
Mortgage Loans underlying the Mortgage Participations) that have been
modified and the reason for such modification;
(iv) a monthly report (the "Realized Loss Report")
substantially in the form of Exhibit B-5 hereto, setting forth, on a
loan-by-loan basis, for the current one-month period and on a
cumulative basis from the Closing Date, those Mortgage Loans (including
Mortgage Loans underlying the Mortgage Participations) that have
suffered a loss thereon, and the details of the liquidation proceeds
and expenses paid in connection therewith; and
(v) a monthly online summary (the "Online Portfolio
Summary") containing a report (the "Portfolio Summary"), which sets
forth, on a loan-by-loan basis, as to each Mortgage Loan (including
Mortgage Loans underlying the Mortgage Participations) as of the most
recent due date for such Mortgage Loan, among other things, (a) the
unpaid principal balance, after application of all payments due on or
before such due date, whether or not received, (b) the mortgage
interest rate, and (c) the maturity date as such may have been extended
in connection with any modification of such loan.
(c) Bond Owners who have certified to the Indenture
Trustee as to their Ownership Interest of any Book-Entry Bond may also obtain
copies of any of the statements, reports and other information delivered to
Bondholders pursuant to Sections 8(a), 11(a) and 11(b).
(d) Within 60 days after the end of each calendar year,
the Indenture Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a Bond a statement containing information
regarding payments of principal, interest and other amounts on such Person's
Bonds, aggregated for such calendar year or the applicable portion thereof
during which such person was a Bondholder. Such obligation shall be deemed to
have been satisfied to the extent that substantially comparable information is
provided pursuant to any requirements of the Code as are from time to time in
force.
SECTION 12. Certain Communications with the Rating
Agency.
The Indenture Trustee shall send, in the case of all material items, and
shall endeavor to send, in the case of all other items, a copy of each
supplement, notice, certificate, request, demand, financial statement and
amortization schedule sent by it or received by it pursuant to or in connection
with the Indenture or the Trust Estate or any part thereof, other than
statements of the Indenture Trustee's fees and expenses sent by it to the Issuer
and any other communications of a similarly solely administrative nature in the
Indenture Trustee's sole opinion, to the Rating Agency.
SECTION 13. Access to Certain Documentation and
Information with respect to this Indenture.
(a) The Indenture Trustee shall provide to the Issuer,
the Manager, the Bondholders and the Rating Agency access to all reports,
statements, certificates, documents and records maintained by the Indenture
Trustee in respect of its duties hereunder, such access being afforded without
charge but only upon reasonable written request and during normal business hours
at offices designated by the Indenture Trustee. Upon the written request of any
Bondholder, the Indenture Trustee shall promptly seek to obtain (and, upon
obtaining, shall promptly deliver to the requesting Bondholder) any reports,
statements, certificates, documents, records and/or other information available
to it as owner of the Pledged Securities under the respective Pledged Security
Agreements; provided that if it must pay any fee or other charge under any
Pledged Security Agreement in connection therewith, it may in turn require the
requesting Bondholder to pay such fee or other charge.
(b) Promptly following the first sale of a Bond of any
Class to an Independent third party, the Issuer shall provide to the Indenture
Trustee three copies of any private placement memorandum or other disclosure
document used by the Issuer or their Affiliates in connection with the offer and
sale of such Class of Bonds, in each case in a form suitable for copying. In
addition, if any such private placement memorandum or disclosure document is
revised, amended or supplemented at any time following the delivery thereof to
the Indenture Trustee, the Issuer promptly shall inform the Indenture Trustee of
such event and shall deliver to the Indenture Trustee three copies of the
private placement memorandum or disclosure document, as revised, amended or
supplemented. Upon the written request of the Issuer, the Rating Agency or any
Bondholder, Bond Owner (provided that it has certified to the Indenture Trustee
as to its Ownership Interest in a Book-Entry Bond) or prospective purchaser of a
Bond or interest therein identified to the Indenture Trustee by a Bondholder or
Bond Owner, the Indenture Trustee as soon as reasonably practicable, shall
provide such Person with copies (at their expense) of (i) this Indenture and the
Pledged Security Agreements and any supplements or amendments hereto or thereto,
(ii) all Payment Date Statements, Pledged Security Reports, Delinquency Reports,
Specially Serviced Mortgage Loan Reports, Modified Loan Reports, Realized Loss
Reports, Portfolio Summaries and other information items required (or, upon
request, available) to be forwarded to Bondholders since the Closing Date
pursuant to Section 8 and/or Section 11, (iii) agreements governing the issuance
of the CMM 96-C1 Pledged Certificates, and (iv) any private placement memoranda
or other disclosure documents relating to the Bonds, in each such case in the
form most recently provided to the Indenture Trustee, accompanied by any
appropriate written disclaimers relating to the Indenture Trustee's lack of
responsibility for the information contained therein and relating to the
potential staleness of the Mortgage Loan information contained therein.
(c) The Indenture Trustee will make available, upon
reasonable advance notice and at the expense of the requesting party, copies of
the items referred to in Section 11(b) hereof to any Bondholder or Bond Owner
and to prospective purchasers of Bonds or interests therein; provided that the
Indenture Trustee will require (a) in the case of a Bond Owner of Book-Entry
Bonds, a confirmation executed by the requesting Person in form reasonably
acceptable to the Indenture Trustee generally to the effect that such Person is
a beneficial owner of Book-Entry Bonds, is requesting the information solely for
use in evaluating such person's or entity's investment in such Book-Entry Bonds
and will otherwise keep such information confidential and (b) in the case of a
prospective purchaser, a confirmation executed by the requesting Person in form
reasonably acceptable to the Indenture Trustee generally to the effect that such
Person is a prospective purchaser of Bonds or interests therein, is requesting
the information solely for use in evaluating a possible investment in Bonds and
will otherwise keep such information confidential. Holders of Definitive Bonds,
by their acceptance thereof, will be deemed to have agreed to keep such
information confidential.
SECTION 14. Restrictions on Transfer of Bonds.
(a) No transfer, sale, pledge or other disposition of
any Non-Registered Bond or interest therein shall be made unless that transfer,
sale, pledge or other disposition is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Bond which is a
Definitive Bond is to be made without registration under the Securities Act
(other than in connection with the initial issuance thereof or a transfer
thereof by the Issuer or one of its Affiliates), then the Bond Registrar shall
refuse to register such transfer unless it receives (and upon receipt, it may
conclusively rely upon): (i) a certificate from the Bondholder desiring to
effect such transfer substantially in the form attached as Exhibit C-1A hereto;
or (ii) a certificate from the Bondholder desiring to effect such transfer
substantially in the form attached as Exhibit C-1B hereto and a certificate from
such Bondholder's prospective Transferee substantially in the form attached as
Exhibit C-2A hereto; or (iii) an Opinion of Counsel satisfactory to the
Indenture Trustee to the effect that such transfer may be made without
registration under the Securities Act (it being understood that the counsel
rendering such Opinion of Counsel shall take into consideration, among other
things, any posting by the Bondholder desiring to effect such transfer, any
agent of such Bondholder or any affiliate of such Bondholder or such agent of
information relating to the Bonds, the Trust Estate and the Issuer on the
Bloomberg Financial Markets system, the Datapoint system or any similar system)
(which Opinion of Counsel shall not be an expense of the Trust Estate or of the
Issuer, the Manager, the Owner Trustee, the Indenture Trustee or the Bond
Registrar in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the Bondholder
desiring to effect such transfer and/or such Bondholder's prospective Transferee
on which such Opinion of Counsel is based. If a transfer of any interest in a
Non-Registered Bond which is a Book-Entry Bond is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Book-Entry Bonds or a transfer of any interest therein by the
Issuer or
one of its Affiliates), then the Bond Owner of such Book-Entry Bond
desiring to effect such transfer must obtain from such Bond Owner's prospective
transferee a certificate substantially in the form attached as Exhibit C-2B
hereto. None of the Issuer, the Depositor, the Indenture Trustee, the Manager,
the Owner Trustee or the Bond Registrar is obligated to register or qualify any
Class of Non-Registered Bonds under the Securities Act or any other securities
law or to take any action not otherwise required under this Agreement to permit
the transfer of any Non-Registered Bond or interest therein without registration
or qualification. Any Holder of a Non-Registered Bond desiring to effect a
transfer of such Non-Registered Bond or interest therein shall, and does hereby
agree to, indemnify, the Issuer, the Manager, the Owner Trustee, the Company,
the Indenture Trustee and the Bond Registrar against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
As of the Closing Date, the Class A-1, Class A-2, Class B, Class C, Class
D-1, Class D-2, Class E, Class F, Class G, Class H-1, Class H-2 and Class J
Bonds will constitute Non-Registered Bonds.
(b) Any beneficial owner of a Class ▇-▇, ▇▇▇▇▇ ▇-▇,
Class B or Class C Bond which is a Book-Entry Bond that desires to transfer its
interest therein shall be required to obtain from its prospective transferee,
and the Bond Registrar shall refuse to register the transfer of a Class ▇-▇,
▇▇▇▇▇ ▇-▇, Class B or Class C Bond which is a Definitive Bond unless it receives
from the prospective transferee, a certification generally to the effect that
either (A) such transferee is not (i) an employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to Title I of ERISA, (ii) a plan (as
defined in Section 4975 of the Code) that is subject to Section 4975 of the
Code, or (iii) an entity deemed for any purpose of ERISA or Section 4975 of the
Code to hold assets of any such employee benefit plan or plan, including without
limitation, as applicable, an insurance company general account (each of (i),
(ii) and (iii), a "Plan"), and is not directly or indirectly purchasing such
Bonds or interests therein being transferred to it, on behalf of, for the
benefit of, or otherwise using assets of a Plan or (B) the purchase and holding
of such Bonds or interests therein being transferred to it does not and will not
constitute or otherwise result in a non-exempt "prohibited transaction" under,
and as defined in , Section 406 of ERISA or Section 4975 of the Code, by reason
of the application of one or more statutory or administrative exemptions.
No transfer of any Class D-1, Class D-2, Class E, Class F, Class G, Class
H-1, Class H-2 or Class J Bond or any interest therein shall be made to a Plan
or to any Person who is directly or indirectly purchasing such Bond or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, unless the prospective Transferee of such Bond or interest therein
provides the Bond Registrar (in the case of a Definitive Bond) or the Bond Owner
(in the case of a Book-Entry Bond) with a certification of facts and an Opinion
of Counsel which establish to the satisfaction of the Indenture Trustee (in the
case of a Definitive Bond) or the Bond Owner (in the case of a Book-Entry Bond)
that the purchase and holding of such Bond or interest therein will not
constitute or result in a non-exempt prohibited transaction under ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code and will not subject the Issuer, the Owner Trustee,
Manager, the Company, the Bond Registrar or the Indenture Trustee to any
obligation in addition to those undertaken in this Indenture.
Each Person who acquires any Class D-1, Class D-2, Class E, Class F, Class
G, Class H-1, Class H-2 or Class J Bond or interest therein (unless it shall
have delivered to the Bond Registrar a certification of facts and an Opinion of
Counsel as described in preceding paragraph) shall be deemed to have represented
and warranted to and for the benefit of the Issuer, the Owner Trustee, the
Manager, the Company, the Bond Registrar and the Indenture Trustee that either:
(i) it is neither a Plan nor any Person who is directly or indirectly purchasing
such Bond or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; or (ii) the purchase and holding of such Bond or
any interest therein by or on behalf of, or with assets of, such Person will not
result in any non-exempt prohibited transaction under ERISA or Section 4975 of
the Code or the imposition of an excise tax under Section 4975 of the Code (and,
will not subject the Issuer, the Owner Trustee, the Manager, the Company, the
Bond Registrar or the Indenture Trustee to any obligation in addition to those
undertaken in the Indenture).
(c) No transfer of any Class A-1, Class A-2, Class B or
Class C Bond not purchased by the Initial Purchasers pursuant to the Purchase
Agreement, any Class D-1, Class D-2, Class E, Class F, Class G, Class H-1, Class
H-2 or Class J Bond, any Owner Trust Certificates or any interest in any of the
foregoing shall be made by CRIIMI MAE or any subsidiary thereof unless, (i) in
the case of any such Bonds, the Indenture Trustee shall have received an Opinion
of Counsel to the effect that any such Bonds to be transferred would be
characterized as indebtedness for federal income tax purposes upon the transfer
thereof, or (ii) the Indenture Trustee shall have received an Opinion of Counsel
to the effect that such transfer will not cause the Issuer to be subject to an
entity-level federal income tax to which REITs and QRSs are not otherwise
subject; provided that (x) the Bonds may be pledged by CRIIMI MAE or any
subsidiary thereof to secure indebtedness of CRIIMI MAE or such subsidiary and
may be the subject of repurchase agreements treated as secured indebtedness of
CRIIMI MAE or a subsidiary thereof for federal income tax purposes and (y) no
such Opinion of Counsel shall be required in connection with the sale of any
such Bonds by the related lender upon a default under any such indebtedness.
(d) If a Person is acquiring any Bond or interest
therein as a fiduciary or agent for one or more accounts, such Person shall be
required to deliver to the Bond Registrar (or, in the case of an interest in
such a Bond that constitutes a Book-Entry Bond, to the Bond Owner that is
transferring such interest) a certification to the effect that, and such other
evidence as may be reasonably required by the Indenture Trustee (or such Bond
Owner) to confirm that, it has (i) sole investment discretion with respect to
each such account and (ii) full power to make the foregoing acknowledgments,
representations, warranties, certifications and agreements with respect to each
such account as set forth in subsections (a) and (b), as applicable, of this
Section 14.
SECTION ▇▇.▇▇▇▇ Account.
(a) On or prior to the date hereof, the Indenture
Trustee shall establish (and, at all times thereafter, the Indenture Trustee
shall maintain) the Bond Account for the Bonds. The Bond Account shall consist
solely of one or more Eligible Accounts established and maintained in the name
of the Indenture Trustee (in such capacity) and, in each case, bearing a
designation
clearly indicating that such account and all funds deposited therein are
held for the exclusive benefit of the Bondholders and, subject to the lien of
this Indenture, the Issuer.
The Indenture Trustee shall deposit or cause to be deposited in the Bond
Account, upon receipt, (i) any and all payments and other collections received
on or in respect of the Pledged Securities subsequent to the commencement of the
initial Collection Period and (ii) any amounts required to be deposited by the
Indenture Trustee in connection with losses incurred with respect to investments
of funds held in the Bond Account. Except as provided in this Indenture, the
Indenture Trustee, in accordance with the terms of this Indenture, shall have
exclusive control and sole right of withdrawal with respect to the Bond Account.
Funds in the Bond Account shall not be commingled with any other monies. All
monies deposited from time to time in the Bond Account (including any securities
or instruments in which such monies are invested) shall be held by and under the
control of the Indenture Trustee in the Bond Account for the benefit of the
Bondholders and the Issuer as herein provided; provided, however, that all
income and gain, if any, from monies or investments on deposit in the Bond
Account shall constitute additional compensation for the Indenture Trustee and
shall be subject to withdrawal by it from time to time. Any losses resulting
from or arising in connection with investments of funds in the Bond Account
shall be for the account of the Indenture Trustee (who shall promptly deposit
into the Bond Account the amount of any such losses).
(b) All of the funds on deposit in the Bond Account may
be invested and reinvested by the Indenture Trustee in one or more Permitted
Investments, subject to the following requirements:
(i) such Permitted Investments shall mature not later
than one Business Day prior to the next Payment Date;
(ii) the securities purchased with the monies in the
Bond Account shall be deemed to befunds deposited in the Bond
Account;
(iii) each such Permitted Investment shall be made in the
name of the Indenture Trustee (in its capacity as such) or in the name
of a nominee of the Indenture Trustee under the Indenture Trustee's
complete and exclusive dominion and control (or, if applicable law
provides for perfection of pledges of an instrument not evidenced by a
certificate or other instrument through registration of such pledge on
books maintained by or on behalf of the issuer of such investment, a
Permitted Investment may be made in such instrument notwithstanding
that such instrument is not under the dominion and control of the
Indenture Trustee, provided that such pledge is so registered);
(iv) the Indenture Trustee shall have the sole control
over such investment, the income thereon and the proceeds thereof;
(v) other than the investments described in the second
parenthetical phrase in clause (iii) above, any certificate or other
instrument evidencing such investment shall be delivered directly to
the Indenture Trustee or its agent; and
(vi) the proceeds of each investment shall be remitted
by the purchaser thereof directly to the Indenture Trustee for deposit
in the Bond Account, subject to withdrawal by the Indenture Trustee as
provided herein.
(c) Unless the Bonds have been declared due and payable
pursuant to Section 5.02 of the Standard Indenture Provisions and payments and
other collections from the Trust Estate are being applied pursuant to Section
5.06 of the Standard Indenture Provisions, the Indenture Trustee is authorized
to make withdrawals from the Bond Account (the order set forth hereafter not
constituting an order of priority for such withdrawals) (i) to make payments on
the Bonds as provided herein, (ii) to pay itself interest and other income
earned on funds on deposit in the Bond Account, (iii) to pay all Administrative
Expenses and Extraordinary Expenses in respect of the Issuer or the Trust
Estate, and (iv) to withdraw any amounts deposited in the Bond Account in error.
SECTION 16. Payments on the Bonds.
(a) All payments of interest, principal and other
amounts made with respect to any Class of Bonds will be allocated pro rata among
the Outstanding Bonds of such Class based on the respective Principal Amounts
thereof.
(b) On each Payment Date, unless the Bonds have been
declared due and payable pursuant to Section 5.02 of the Standard Indenture
Provisions and payments and other collections from the Trust Estate are being
applied pursuant to Section 5.06 of the Standard Indenture Provisions, the
Indenture Trustee shall withdraw from the Bond Account and apply the Available
Funds for such Payment Date among the respective Classes of Bondholders and the
Issuer for the following purposes and in the following order of priority, in
each case to the extent of remaining funds:
(i) to make payments of interest to the Holders of the
Class A Bonds, pro rata as between the two Classes of Class A
Bondholders based on entitlement, up to an amount equal to all Accrued
Bond Interest in respect of each such Class of Bonds for the related
Interest Accrual Period and, to the extent not previously paid, for all
prior Interest Accrual Periods;
(ii) to make payments of principal to the Holders of the
Class A-1 Bonds, up to an amount equal to the lesser of (a) the then
Aggregate Principal Amount of the Class A-1 Bonds and (b) the Principal
Payment Amount for such Payment Date;
(iii) after the Aggregate Principal Amount of the Class
A-1 Bonds has been reduced to zero, to make payments of principal to
the Holders of the Class A-2 Bonds, up to an amount equal to the lesser
of (a) the then Aggregate Principal Amount of the Class A-2 Bonds and
(b) the excess, if any, of the Principal Payment Amount for such
Payment Date over any amounts paid on such Payment Date in retirement
of the Class A-1 Bonds pursuant clause (ii) above;
(iv) to make any payments of interest to the Holders of
the Class B Bonds, up to an amount equal to all Accrued Bond Interest
in respect of such Class of Bonds for the
related Interest Accrual Period and, to the extent not previously paid,
for all prior Interest Accrual Periods;
(v) after the Aggregate Principal Amount of the Class A
Bonds has been reduced to zero, to make payments of principal to the
Holders of the Class B Bonds, up to an amount equal to the lesser of
(a) the then Aggregate Principal Amount of the Class B Bonds and (b)
the excess, if any, of the Principal Payment Amount for such Payment
Date over any amounts paid on such Payment Date in retirement of the
Class A Bonds pursuant to clauses (ii) and (iii) above;
(vi) to make payments of interest to the Holders of the
Class C Bonds, up to an amount equal to all Accrued Bond Interest in
respect of such Class of Bonds for the related Interest Accrual Period
and, to the extent not previously paid, for all prior Interest Accrual
Periods;
(vii) after the Aggregate Principal Amount of the Class A
and Class B Bonds has been reduced to zero, to make payments of
principal to the Holders of the Class C Bonds, up to an amount equal to
the lesser of (a) the then Aggregate Principal Amount of the Class C
Bonds and (b) the excess, if any, of the Principal Payment Amount for
such Payment Date over any amounts paid on such Payment Date in
retirement of the Class A and/or Class B Bonds pursuant to clauses
(ii), (iii) and (v) above;
(viii) to make payments of interest to the Holders of the
Class D-1 and Class D-2 Bonds, pro rata between the two Classes of
Class D Bondholders based on entitlement, up to an amount equal to all
Accrued Bond Interest in respect of each such Class of Bonds for the
related Interest Accrual Period and, to the extent not previously paid,
for all prior Interest Accrual Periods;
(ix) after the Aggregate Principal Amount of the Class
A, Class B and Class C Bonds has been reduced to zero, to make payments
of principal to the Holders of the Class D-1 Bonds, up to an amount
equal to the lesser of (a) the then Aggregate Principal Amount of the
Class D-1 Bonds and (b) the excess, if any, of the Principal Payment
Amount for such Payment Date over any amounts paid on such Payment Date
in retirement of the Class A, Class B and/or Class C Bonds pursuant to
clauses (ii), (iii), (v) and (vii) above;
(x) after the Aggregate Principal Amount of the Class
A, Class B, Class C and Class D-1 Bonds has been reduced to zero, to
make payments of principal to the Holders of the Class D-2 Bonds, up to
an amount equal to the lesser of (a) the then Aggregate Principal
Amount of the Class D-2 Bonds and (b) the excess, if any, of the
Principal Payment Amount for such Payment Date over any amounts paid on
such Payment Date in retirement of the Class A, Class B, Class C and/or
Class D-1 Bonds pursuant to clauses (ii), (iii), (v), (vii) and (ix)
above;
(xi) to make payments of interest to the Holders of the
Class E Bonds, up to an amount equal to all Accrued Bond Interest in
respect of such Class of Bonds for the
related Interest Accrual Period and, to the extent not previously paid,
for all prior Interest Accrual Periods;
(xii) after the Aggregate Principal Amount of the Class
A, Class B, Class C and Class D Bonds has been reduced to zero, to make
payments of principal to the Holders of the Class E Bonds, up to an
amount equal to the lesser of (a) the then Aggregate Principal Amount
of the Class E Bonds and (b) the excess, if any, of the Principal
Payment Amount for such Payment Date over any amounts paid on such
Payment Date in retirement of the Class A, Class B, Class C and/or
Class D Bonds pursuant to clauses (ii), (iii), (v), (vii), (ix) and (x)
above;
(xiii) to make payments of interest to the Holders of the
Class F Bonds, up to an amount equal to all Accrued Bond Interest in
respect of such Class of Bonds for the related Interest Accrual Period
and, to the extent not previously paid, for all prior Interest Accrual
Periods;
(xiv) after the Aggregate Principal Amount of the Class
A, Class B, Class C, Class D and Class E Bonds has been reduced to
zero, to make payments of principal to Holders of the Class F Bonds, up
to an amount equal to the lesser of (a) the then Aggregate Principal
Amount of the Class F Bonds and (b) the excess, if any, of the
Principal Payment Amount for such Payment Date over any amounts paid on
such Payment Date in retirement of the Class A, Class B, Class C, Class
D and/or Class E Bonds pursuant to clauses (ii), (iii), (v), (vii),
(ix), (x) and (xii) above;
(xv) to make payments of interest to the Holders of the
Class G Bonds, up to an amount equal to all Accrued Bond Interest in
respect of such Class of Bonds for the related Interest Accrual Period
and, to the extent not previously paid, for all prior Interest Accrual
Periods;
(xvi) after the Aggregate Principal Amount of the Class
A, Class B, Class C, Class D, Class E and Class F Bonds has been
reduced to zero, to make payments of principal to the Holders of the
Class G Bonds, up to an amount equal to the lesser of (a) the then
Aggregate Principal Amount of the Class G Bonds and (b) the excess, if
any, of the Principal Payment Amount for such Payment Date over any
amounts paid on such Payment Date in retirement of the Class A, Class
B, Class C, Class D, Class E and/or Class F Bonds pursuant to clauses
(ii), (iii), (v), (vii), (ix), (x), (xii) and (xiv) above;
(xvii) to make payments of interest to the Holders of the
Class H-1 and Class H-2 Bonds, pro rata between the two Classes of
Class H Bondholders based on entitlement, up to an amount equal to all
Accrued Bond Interest in respect of each such Class of Bonds for the
related Interest Accrual Period and, to the extent not previously paid,
for all prior Interest Accrual Periods;
(xviii) after the Aggregate Principal Amount of the Class A,
Class B, Class C, Class D, Class E, Class F and Class G Bonds has been
reduced to zero, to make payments of principal to the Holders of the
Class H-1 Bonds up to an amount equal to the lesser of
(a) the then Aggregate Principal Amount of the Class H-1 Bonds and
(b) the excess, if any, of the Principal Payment Amount for such
Payment Date over any amounts paid on such Payment Date in retirement
of the Class A, Class B, Class C, Class D, Class E, Class F and/or
Class G Bonds pursuant to clauses (ii), (iii), (v), (vii), (ix), (x),
(xii), (xiv) and (xvi) above;
(xix) after the Aggregate Principal Amount of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G and Class H-1
Bonds has been reduced to zero, to make payments of principal to the
Holders of the Class H-2 Bonds, up to an amount equal to the lesser of
(a) the then Aggregate Principal Amount of the Class H-2 Bonds and (b)
the excess, if any, of the Principal Payment Amount for such Payment
Date over any amounts paid on such Payment Date in retirement of the
Class A, Class B, Class C, Class D, Class E, Class F, Class G and/or
Class H-1 Bonds pursuant to clauses (ii), (iii), (v), (vii), (ix), (x),
(xii), (xiv), (xvi) and (xviii) above;
(xx) to make payments of interest to the Holders of the
Class J Bonds, up to an amount equal to all Accrued Bond Interest in
respect of such Class of Bonds for the related Interest Accrual Period
and, to the extent not previously paid, for all prior Interest Accrual
Periods;
(xxi) after the Aggregate Principal Amount of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Bonds has been reduced to zero, to make payments of principal to the
Holders of the Class J Bonds, up to an amount equal to the lesser of
(a) the then Aggregate Principal Amount of the Class J Bonds and (b)
the excess, if any, of the Principal Payment Amount for such Payment
Date over any amounts paid on such Payment Date in retirement of the
Class A, Class B, Class C, Class D, Class E, Class F, Class G and/or
Class H Bonds pursuant to clauses (ii), (iii), (v), (vii), (ix), (x),
(xii), (xiv), (xvi), (xiv), (xvi), (xviii) and (xix) above;
(xxii) if, after giving effect to the payments of
principal on the Bonds contemplated by clauses (ii), (iii), (v), (vii),
(ix), (x), (xii), (xiv), (xvi), (xviii), (xix) and (xxi) above, the
Aggregate Principal Amount of all the Bonds exceeds the then Aggregate
Collateral Principal Amount, then to make payments of principal to the
Holders of Class A Bonds (allocable as between the two Classes of Class
A Bondholders on a pro rata basis in accordance with the respective
Aggregate Principal Amounts of their Bonds), the Class B Bonds, the
Class C Bonds, the Class D Bonds (allocable as between the two Classes
of Class D Bondholders on a pro rata basis in accordance with the
respective Aggregate Principal Amounts of their Bonds), the Class E
Bonds, the Class F Bonds, the Class G Bonds, the Class H Bonds
(allocable as between the two Classes of Class H Bondholders on a pro
rata basis in accordance with the respective Aggregate Principal
Amounts of their Bonds) and the Class J Bonds, in that order, in
respect of principal, until (in the case of each such Class or pair of
Classes of Bonds on which payments of principal are so made) such
excess (or the Aggregate Principal Amount of such Class or Classes of
Bonds) is reduced to zero (whichever occurs first); and
(xxiii) to or at the direction of the Issuer to the extent
of any remaining Available Funds for such Payment Date;
provided that, if the aggregate of the Net Aggregate Principal Amounts of the
Subordinate Bonds has been reduced to zero, then the payment of principal to the
Holders of the Class A Bonds contemplated by clauses (ii) and (iii) above will
instead be made on a pro rata basis between the two Classes of Class A
Bondholders based on the respective Aggregate Principal Amounts of the two
Classes of Class A Bonds, up to the Aggregate Principal Amount of each Class of
Class A Bonds.
(c) On each Payment Date, if the Bonds have been
declared due and payable pursuant to Section 5.02 of the Standard Indenture
Provisions following an Issuer Event of Default, such declaration and its
consequences have not been rescinded and annulled and payments and other
collections from the Trust Estate are being applied pursuant to Section 5.06 of
the Standard Indenture Provisions, any such payments or other collections
allocable to payments on the Bonds on such date in accordance with such Section
5.06 of the Standard Indenture Provisions will be applied for the following
purposes and in the following order of priority, in each case to the extent of
remaining funds:
(i) to make payments of interest to the Holders of the
Class A Bonds, pro rata as between the two Classes of Class A
Bondholders based on entitlement, up to an amount equal to all Accrued
Bond Interest in respect of each such Class of Bonds for the related
Interest Accrual Period and, to the extent not previously paid, for all
prior Interest Accrual Periods;
(ii) to make payments of principal to the Holders of the
Class A Bonds, pro rata as between the two Classes of Class A
Bondholders based on the respective Aggregate Principal Amounts of
their Bonds, until such Bonds are retired;
(iii) to make payments of interest to the Holders of the
Class B Bonds, up to an amount equal to all Accrued Bond Interest in
respect of such Class of Bonds for the related Interest Accrual Period
and, to the extent not previously paid, for all prior Interest Accrual
Periods;
(iv) after the Aggregate Principal Amount of the Class A
Bonds has been reduced to zero, to make payments of principal to the
Holders of the Class B Bonds, until such Bonds are retired;
(v) to make payments of interest to the Holders of the
Class C Bonds, up to an amount equal to all Accrued Bond Interest in
respect of such Class of Bonds for the related Interest Accrual Period
and, to the extent not previously paid, for all prior Interest Accrual
Periods;
(vi) after the Aggregate Principal Amount of the Class A
and Class B Bonds has been reduced to zero, to make payments of
principal to the Holders of the Class C Bonds, until such Bonds are
retired;
(vii) to make payments of interest to the Holders of the
Class D Bonds, pro rata as between the two Classes of Class D
Bondholders based on entitlement, up to an amount equal to all Accrued
Bond Interest in respect of each such Class of Bonds for the related
Interest Accrual Period and, to the extent not previously paid, for all
prior Interest Accrual Periods;
(viii) after the Aggregate Principal Amount of the Class
A, Class B and Class C Bonds has been reduced to zero, to make payments
of principal to the Holders of the Class D Bonds, pro rata as between
the two Classes of Class D Bondholders based on the respective
Aggregate Principal Amounts of their Bonds, until such Bonds are
retired;
(ix) to make payments of interest to the Holders of the
Class E Bonds, up to an amount equal to all Accrued Bond Interest in
respect of such Class of Bonds for the related Interest Accrual Period
and, to the extent not previously paid, for all prior Interest Accrual
Periods;
(x) after the Aggregate Principal Amount of the Class
A, Class B, Class C and Class D Bonds has been reduced to zero, to make
payments of principal to the Holders of the Class E Bonds, until such
Bonds are retired;
(xi) to make payments of interest to the Holders of the
Class F Bonds, up to an amount equal to all Accrued Bond Interest in
respect of such Class of Bonds for the related Interest Accrual Period
and, to the extent not previously paid, for all prior Interest Accrual
Periods;
(xii) after the Aggregate Principal Amount of the Class
A, Class B, Class C, Class D and Class E Bonds has been reduced to
zero, to make payments of principal to the Holders of the Class F
Bonds, until such Bonds are retired;
(xiii) to make payments of interest to the Holders of the
Class G Bonds, up to an amount equal to all Accrued Bond Interest in
respect of such Class of Bonds for the related Interest Accrual Period
and, to the extent not previously paid, for all prior Interest Accrual
Periods;
(xiv) after the Aggregate Principal Amount of the Class
A, Class B, Class C, Class D, Class E and Class F Bonds has been
reduced to zero, to make payments of principal to the Holders of the
Class G Bonds, until such Bonds are retired;
(xv) to make payments of interest to the Holders of the
Class H Bonds, pro rata between the two Classes of Class H Bondholders
based on entitlement, up to an amount equal to all Accrued Bond
Interest in respect of each such Class of Bonds for the related
Interest Accrual Period and, to the extent not previously paid, for all
prior Interest Accrual Periods;
(xvi) after the Aggregate Principal Amount of the Class
A, Class B, Class C, Class D, Class E, Class F and Class G Bonds has
been reduced to zero, to make payments of principal to the Holders of
the Class H Bonds, pro rata as between the two Classes of
Class H Bondholders based on the respective Aggregate Principal Amounts
of their Bonds, until such Bonds are retired;
(xvii) to make payments of interest to the Holders of the
Class J Bonds, up to an amount equal to all Accrued Bond Interest in
respect of such Class of Bonds for the related Interest Accrual Period
and, to the extent not previously paid, for all prior Interest Accrual
Periods; and
(xviii) after the Aggregate Principal Amount of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G and Class H Bonds
has been reduced to zero, to make payments of principal to the Holders
of the Class J Bonds, until such Bonds are retired.
(d) Until such time as the Indenture Trustee receives
contrary instructions from the Owner Trustee in writing, the Indenture Trustee
is hereby authorized and agrees to make all payments that are to be made to or
at the direction of the Issuer pursuant to either subsection (b) of this Section
16 or pursuant to Section 5.06 of the Standard Indenture Provisions directly to
the Company as the sole holder of all the Owner Trust Certificates, by wire
transfer in accordance with written wiring instructions provided by the
Depositor. This Section 16(d) shall constitute a direction made by the Owner
Trustee in accordance with Section 4.1 of the Deposit Trust Agreement, and all
payments made pursuant to this Section 16(d) shall constitute distributions made
pursuant to Sections 4.1 and 4.2 of the Deposit Trust Agreement. The Indenture
Trustee agrees to accept and act in accordance with such alternative payment
instructions with respect to monies payable to or at the direction of the Issuer
as the Owner Trustee shall provide in writing no less than five Business Days
prior to the related Payment Date. In connection with making any payments
pursuant to this Section 16(d), the Indenture Trustee shall promptly provide to
the Owner Trustee and the Manager by facsimile transmission and first-class
mail, postage prepaid, a written statement detailing the amounts so paid.
(e) There will be no Credit Support Agreements, Cash
Flow Agreements, Servicing and Administration Agreements or Reserve Funds with
respect to the Bonds and, accordingly, the provisions of the Standard Indenture
Provisions that relate to such agreements and funds will be inapplicable solely
with respect to the Bonds.
SECTION 17. Optional Redemption of the Bonds.
(a) Provided that no Issuer Event of Default has
occurred and is continuing, the Issuer may, at its option, pursuant to Section
10.01 of the Standard Indenture Provisions, redeem Bonds of any Class (other
than the Class A-2 Bonds), in whole but not in part, at the Redemption Price
therefor, on any Payment Date as of which the Aggregate Principal Amount of such
Class is less than 15% of the initial aggregate Principal Amount thereof and in
any event subject to and in accordance with Article X of the Standard Indenture
Provisions. The Class A-2 Bonds shall not be subject to optional redemption.
Notwithstanding anything herein to the contrary, the Issuer may at any time
irrevocably waive its right to redeem any Class of Bonds (other than the Class
A-2 Bonds).
(b) On any Redemption Date, following the payments to
be made on such date pursuant to Section 16(b), the Indenture Trustee shall
withdraw from the Bond Account and, subject to Section 2.07(e) of the Standard
Indenture Provisions, pay to the Holders of the Bonds to be redeemed the full
Redemption Price therefor.
SECTION 18. Additional Negative Covenants and Issuer Events
of Default.
(a) In addition to the negative covenants contained in
Section 3.11 of the Standard Indenture Provisions, the Issuer shall not: (i)
issue any other Series if such issuance, as confirmed in writing by the Rating
Agency, would result in an Adverse Rating Event with respect to any Class of
Bonds; or (ii) act in a manner that would endanger its status as a QRS.
(b) In addition to the requirements for a Successor
Person set forth in Section 3.13(a)(i), such Successor Person must be a QRS.
(c) In addition to the Issuer Events of Default
contained in Section 5.01 of the Standard Indenture Provisions, the following
shall be Issuer Events of Default:
(i) if the Issuer ceases to be a QRS for 60 consecutive
days;
(ii) the entry by a court having jurisdiction over any
Issuer Owner of (A) a decree or order for relief in respect of such
Issuer Owner in an involuntary case or proceeding under any applicable
federal or state delinquency, bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging such Issuer Owner
as bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of such Issuer Owner under any applicable federal or state law,
or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of or for such Issuer Owner or
of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order not stayed or
dismissed and in effect for a period of more than ninety (90)
consecutive days; and
(iii) the commencement by any Issuer Owner of a voluntary
case or proceeding under any applicable federal or state delinquency,
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by any Issuer Owner to the entry of a decree or order for
relief in respect of such Issuer Owner in an involuntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the
filing by any Issuer Owner of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or
the consent by any Issuer Owner to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of or
for such Issuer Owner or of any substantial part of its property, or
the making by any Issuer Owner of an assignment for the benefit of
creditors, or the admission by any Issuer Owner in writing
of its inability to pay its debts generally as they become due, or the
taking of corporate action by any Issuer Owner in furtherance of any
such action.
SECTION 19. Incorporation of the Standard Indenture
Provisions by Reference; Amendment and Ratification of Standard Indenture
Provisions.
(a) The Standard Indenture Provisions, as amended by
Section 19(b), are incorporated herein in their entirety by this reference to
the extent that (other than with respect to Section 12.07 of the Standard
Indenture Provisions) they do not conflict with any express term or condition
hereof and unless otherwise explicitly stated herein to the contrary. This
Indenture has not been qualified under the TIA.
(b) Insofar as they relate to the Bonds being issued
under this Terms Indenture (but only insofar as they relate to such Bonds) the
Standard Indenture Provisions are hereby amended as follows:
(i) Any capitalized term that is defined both in this
Terms Indenture and in the Standard Indenture Provisions shall have the
meaning assigned to it in this Terms Indenture.
(ii) References to "66-2/3%" in Sections 5.04 and 5.12 of
the Standard Indenture Provisions are hereby changed to "a majority".
(iii) The second paragraph of Section 5.05 of the
Standard Indenture Provisions and all references to the application of
funds in accordance with Section 5.05 of the Standard Indenture
Provisions are hereby deleted.
(c) Subject to Sections 19(a) and 19(b), the
Standard Indenture Provisions, as incorporated into and amended by
this Terms Indenture, are in all respects ratified and confirmed, and this Terms
Indenture and the Standard Indenture Provisions (as so incorporated and amended)
together shall be read, taken and construed as one and the same instrument.
SECTION 20. Certain Matters Regarding the Indenture Trustee.
(a) As of the Closing Date, the Corporate Trust Office
is located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇.
(b) As compensation pursuant to Section 6.07 of the
Standard Indenture Provisions, the Indenture Trustee shall be entitled to the
Indenture Trustee Fee.
(c) In addition to the eligibility requirements set
forth in Section 6.08 of the Standard Indenture Provisions, the Indenture
Trustee must have (i) a combined capital, surplus and undivided profits of at
least $50,000,000 and (ii) a long-term unsecured debt rating of at least "A" (or
the equivalent) from the Rating Agency, must meet the requirements of Section
26(a)(1) of the Investment Company Act and shall not be an Affiliate of the
Issuer or of any Person involved in the organization or operation of the Issuer.
(d) The Indenture Trustee hereby represents and
warrants to the Issuer and for the benefit of the Bondholders that:
(i) it is a banking organization duly formed, validly
existing and in good standing under federal law;
(ii) it is duly authorized under applicable federal law,
its charter and its by-laws to execute and deliver this Indenture, and
to perform its obligations hereunder, including, without limitation,
that it is duly authorized to accept the Grant to it for the benefit of
the Bondholders of the Trust Estate and is authorized to authenticate
the Bonds, and that all corporate action necessary or required therefor
has been duly and effectively taken or obtained and all federal and
state governmental consents and approvals required with respect thereto
have been obtained;
(iii) it has duly executed and delivered this Indenture;
(iv) the Indenture constitutes its valid, legal, binding
and enforceable obligation, in its individual capacity, enforceable
against it in accordance with its terms, except as such terms may be
limited by insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally and by general principles
of equity;
(v) the execution and delivery of the Indenture by it,
and the performance of its obligations hereunder will not violate the
provisions of its charter or bylaws, conflict with any provision of any
law or regulation to which it is subject, or conflict with, result in a
breach of, or constitute a default under any of the terms, conditions
or provisions of, any agreement or instrument to which it is a party or
by which it is bound, or any order or decree applicable to it or result
in the creation or imposition of any Lien on any of the its assets or
property, which would materially and adversely affect the ability of it
to carry out the transactions contemplated by this Indenture or such
other documents executed in connection herewith; no consent, approval,
authorization or order of or filing with or notice to any court or
governmental agency or body is required for the execution, delivery and
performance by it of this Indenture;
(vi) there is no action, suit or proceeding pending
against it in any court or by or before any other governmental agency
or instrumentality which would materially and adversely affect the
validity of the Pledged Securities or the ability of it or the
Bondholders to carry out the transactions contemplated by this
Indenture.
(e) In the event of the resignation or removal of
LaSalle National Bank ("LaSalle") as Indenture Trustee hereunder, the Issuer
hereby agrees, and each Bondholder by acceptance of its Bonds shall be deemed to
agree, that ▇▇▇▇▇ Fargo & Company ("WFC") shall have a right of first refusal to
assume or designate a party that may assume the duties and rights of the
Indenture Trustee with an express right to subcontract out to one or more
parties portions of the rights and duties of the Indenture Trustee in accordance
with Section 6.13 of the Standard Indenture Provisions; provided, however, that,
in no event, shall WFC (or its designee) be permitted to succeed to the duties
and rights of Indenture Trustee hereunder, unless WFC (or its
designee) then shall meet the eligibility requirements with respect to the
Indenture Trustee set forth in Section 20(c) hereof and Section 6.08 of the
Standard Indenture Provisions. Consistent with the foregoing, if WFC shall
select another party to be the Indenture Trustee, WFC shall have the right to
act as such party's agent or as a co-trustee in performing any of the Indenture
Trustee's duties and rights.
(f) The Issuer and the Manager agree that any
information either of them receives or any facts either of them learns
concerning the unsatisfactory performance of the Indenture Trustee under this
Indenture or a decline in the financial standing of the Indenture Trustee shall
promptly be brought to the attention of WFC.
(g) The Indenture Trustee and any Paying Agent shall
each have in place a fidelity bond and errors and omissions policy, each in such
form and amount as is customarily required, commercially reasonable and
consistent with transactions of the kind contemplated by this Indenture.
SECTION 21. Representations and Warranties of the Issuer.
The Issuer hereby represents and warrants to the Indenture Trustee and for
the benefit of the Bondholders that as of the Closing Date:
(a) It is duly formed, validly existing and in good
standing as a business trust under the laws of the State of Delaware.
(b) It is duly authorized under applicable law and the
Deposit Trust Agreement to create and issue the Bonds, to execute and deliver
this Indenture, the other documents referred to herein to which it is a party
and all instruments included in the Trust Estate which it has executed and
delivered, and that all corporate action and governmental consents,
authorizations and approvals necessary or required therefor have been duly and
effectively taken or obtained. The Bonds, when issued, will be, and this
Indenture and such other documents are, valid and legally binding obligations of
the Issuer enforceable in accordance with their terms.
(c) The Indenture constitutes its valid, legal, binding
and enforceable obligation, in its individual capacity, enforceable against it
in accordance with its terms, except as such terms may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
rights of creditors generally and by general principles of equity.
(d) The execution and delivery of the Indenture by it,
and the performance of its obligations hereunder will not violate the provisions
of its certificate of incorporation or bylaws, conflict with any provision of
any law or regulation to which it is subject, or conflict with, result in a
breach of, or constitute a default under any of the terms, conditions or
provisions of, any agreement or instrument to which it is a party or by which it
is bound, or any order or decree applicable to it or result in the creation or
imposition of any Lien on any of the its assets or property, which would
materially and adversely affect the ability of it to carry out the transactions
contemplated by this Indenture or such other documents executed in connection
herewith; no consent, approval, authorization or order of or filing with or
notice to any court or
governmental agency or body is required for the execution, delivery and
performance by it of this Indenture.
(e) There is no action, suit or proceeding pending
against it in any court or by or before any other governmental agency or
instrumentality which would materially and adversely affect the ability of it to
carry out the transactions contemplated by this Indenture.
(f) Immediately prior to its Grant of the Trust Estate
provided for herein, it had good title to, and was the sole owner of, each
Pledged Security, free and clear of any pledge, lien, encumbrance or security
interest.
(g) The Indenture Trustee has a valid and enforceable
first priority security interest in the Trust Estate, subject only to exceptions
permitted hereby.
(h) It is a QRS.
(i) This Indenture is not required to be qualified
under the TIA and the Issuer is not required to be registered as an "investment
company" under the Investment Company Act.
SECTION 22. Notice to the Indenture Trustee, the Issuer and
Certain Other Persons.
Any communication provided for or permitted hereunder shall be in writing
and, unless otherwise expressly provided herein, shall be deemed to have been
duly given when delivered to: (i) in the case of the Issuer, c/o Wilmington
Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration, facsimile
number: (▇▇▇) ▇▇▇-▇▇▇▇; (ii) in the case of the Indenture Trustee, LaSalle
National Bank, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Asset Backed Securities Trust Services Group - CRIIMI MAE Series
1998-C1, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇; and (iii) in the case of the Rating
Agency: Standard & Poor's Ratings Services, Attention: Commercial Mortgage
Surveillance Manager, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇; or as to each such
Person such other address and/or facsimile number as may hereafter be furnished
by such Person to the parties hereto in writing.
SECTION 23. Tax Treatment.
The Issuer has entered into this Indenture, and the Bonds will be issued,
with the intention that, for federal, state and local income, single business
and franchise tax purposes, the Bonds will qualify as indebtedness of the Issuer
secured by the Trust Estate. The Issuer, by entering into this Indenture, and
each Bondholder, by its acceptance of a Bond (and each Bond Owner by its
acceptance of an interest in the applicable Book-Entry Bond), agree to treat the
Bonds for federal, state and local income, single business and franchise tax
purposes as indebtedness of the Issuer.
SECTION 24. Performance of Issuer's Duties by the Owner
Trustee and Manager.
(a) The Indenture Trustee hereby acknowledges and
agrees that the duties of the Issuer will be performed on behalf of the Issuer
by the Owner Trustee pursuant to the Deposit Trust Agreement or the Manager
pursuant to the Management Agreement and hereby acknowledges and accepts the
terms of each such agreement as of the date hereof. The Indenture Trustee is
authorized and instructed to pay out of the Bond Account, prior to making
payments on the Bonds, the Owner Trustee Fee to the Owner Trustee in accordance
with the Deposit Trust Agreement and the Management Fee to the Manager in
accordance with the Management Agreement. The Owner Trustee, on behalf of itself
and the Issuer, agrees not to permit any modification of the Deposit Trust
Agreement or the Management Agreement without the consent of the Holders of
Bonds representing greater than 50% of the Aggregate Principal Amount of the
Outstanding Bonds.
(b) Any successor to the Owner Trustee appointed
pursuant to the terms of the Deposit Trust Agreement shall be the successor
Owner Trustee under this Indenture without the execution or filing of any paper,
instrument or further act to be done on the part of the parties hereto.
SECTION 25. Miscellaneous.
(a) Notwithstanding Section 2.07(g) of the Standard
Indenture Provisions, the Bonds shall be recourse obligations of the
Issuer.
(b) WFC shall be an intended third party beneficiary
with respect to Section 20(e) and (f) hereof.
(c) For the avoidance of doubt, the parties hereto
hereby acknowledge and agree that no substitution of Collateral as contemplated
by Section 2.11 of the Standard Indenture Provisions shall be permitted
hereunder.
(d) Notwithstanding anything to the contrary in Section
3.14 of the Standard Indenture Provisions, the Issuer may not reacquire Bonds by
open market purchases in privately negotiated transactions.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
CRIIMI MAE COMMERCIAL MORTGAGE
TRUST
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as
Owner
Trustee
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
LASALLE NATIONAL BANK,
as Indenture Trustee
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: First Vice President
LASALLE NATIONAL BANK,
as Securities Intermediary
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: First Vice President
STATE OF NEW YORK)
): ss.:
COUNTY OF NEW YORK)
On this 8th day of May, 1998, before me, the undersigned officer,
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ , and acknowledged himself to me to be the
Vice President of Wilmington Trust Co., and that as such officer, being duly
authorized to do so pursuant to such entity's by-laws or a resolution of its
board of directors, executed and acknowledged the foregoing instrument for the
purposes therein contained, by signing the name of such entity by himself or
herself as such officer as his or her free and voluntary act and deed and the
free and voluntary act and deed of said entity.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Notary Public
NOTARIAL SEAL
STATE OF )
): ss.:
COUNTY OF )
On this 8th day of May, 1998, before me, the undersigned officer,
personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇, and acknowledged himself to me to be the
First Vice President of LaSalle National Bank, and that as such officer, being
duly authorized to do so pursuant to such entity's by-laws or a resolution of
its board of directors, executed and acknowledged the foregoing instrument for
the purposes therein contained, by signing the name of such entity by himself or
herself as such officer as his or her free and voluntary act and deed and the
free and voluntary act and deed of said entity.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/▇▇▇▇▇▇ ▇▇▇▇
-------------------
Notary Public
NOTARIAL SEAL
SCHEDULE 1
SCHEDULE OF PLEDGED SECURITIES
Securitization Pledged Pledged Security
Securities Principal Balance*
-------------- ---------- -------------------
1. Nomura Asset Securities Corporation, Commercial Class B-1(A) $70,000,0000
Mortgage Pass-Through Certificates, Series 1998-D6 Class B-2 37,226,863
Class B-3 37,226,863
Class B-4 65,147,000
Class B-5 18,613,431
Class B-6 27,920,147
2. CRIIMI Mae Trust I, Commercial Mortgage Bonds, Class C $22,000,000
Series 1996-C1 Class D 73,000,000
Class E 100,000,000
3. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., Mortgage Class F $62,607,000
Pass-Through Certificates, Series 1996-C2 Class G 39,841,000
Class H 34,147,859
4. First Union-▇▇▇▇▇▇ Brothers Commercial Mortgage Class H $16,527,208
Trust, Commercial Mortgage Pass-Through Class J 44,070,046
Certificates, Series 1997-C2 Class K 22,035,023
Class L 27,543,779
Class M 16,526,269
5. Asset Securitization Corporation, Commercial Class A-CS2(IO)(B) N/A
Mortgage Pass-Through Certificates, Series 1995-MD Class B-1 $38,687,431
IV Class B-2 67,703,006
Class A-CS3(IO) N/A
6. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., Mortgage Class E $48,541,000
Pass-Through Certificates, Series 1996-C1 Class F 32,361,000
Class G 19,417,459
7. Asset Securitization Corporation, Commercial Class B-1 $43,042,284
Mortgage Pass-Through Certificates, Series 1996-D3 Class B-2 27,390,544
Class B-3 7,825,869
Class B-4 15,650,746
8. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., Commercial Mortgage Class G $38,286,000
Pass-Through Certificates, Series 1998-WF1 Class H(C) 7,830,750
Class J(D) 20,833,750
Class K(E) 7,830,000
Class L(F) 18,273,257
9. Commercial Mortgage Acceptance Corp., Commercial Class F2 $40,909,000
Mortgage Pass-Through Certificates, Series 1997-ML1 Class G 50,909,929
Securitization Pledged Pledged Security
Securities Principal Balance*
-------------- ---------- -------------------
10. First Union-▇▇▇▇▇▇ Brothers Commercial Mortgage Class F(G) $10,800,000
Trust, Commercial Mortgage Pass-Through Class G 13,054,813
Certificates, Series 1997-C1 Class H 26,108,964
Class J 13,054,483
Class K 26,108,964
11. ▇.▇. ▇▇▇▇▇▇ Commercial Mortgage Finance Corp., Class F $39,820,000
Mortgage Pass-Through Certificates, Series 1998-C6 Class G 19,910,000
Class H 5,973,000
Class NR(H) 12,400,000
12. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., Mortgage Class F(I) $25,727,970
Pass-Through Certificates, Series 1997-C1 Class G 8,408,000
Class H 16,816,000
Class J 21,019,856
13. DLJ Mortgage Acceptance Corp., Commercial Mortgage Class B-3 $30,600,000
Pass-Through Certificates, Series 1996-CF2 Class B-4 17,800,000
Class C(J) 16,890,000
14. Mortgage Capital Funding, Inc., Class G $8,705,772
Multifamily/Commercial Mortgage Pass-Through Class H 19,587,989
Certificates, Series 1997-MC2 Class J 10,882,216
Class K 17,411,549
15. LB Commercial Conduit Mortgage Trust II, Multiclass Class F $21,846,137
Pass-Through Certificates, Series 1996-C2 Class G 13,902,087
Class H 5,958,037
Class J 9,930,062
16. Mortgage Capital Funding, Inc., Class F(K) $10,000,000
Multifamily/Commercial Mortgage Pass-Through Class G 6,585,416
Certificates, Series 1997-MC1 Class H 13,170,833
Class J 9,878,125
Class K 6,585,420
17. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., Mortgage Class F(L) $3,437,250
Pass-Through Certificates, Series 1997-C2 Class G 6,863,000
Class H 12,011,000
Class J 6,864,000
Class K 13,726,931
18. DLJ Mortgage Acceptance Corp., Commercial Mortgage Class B-4 $19,900,000
Pass-Through Certificates, Series 1997-CF2 Class B-5 3,300,000
Class C(M) 15,941,168
Securitization Pledged Pledged Security
Securities Principal Balance*
-------------- ---------- -------------------
19. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., Commercial Mortgage Class F(N) $8,450,000
Pass-Through Certificates, Series 1997-WF1 Class G(O) 3,916,000
Class H(P) 5,872,000
Class J(Q) 5,871,000
Class K(R) 3,916,971
20. ▇▇▇▇▇▇ Pass-Through Securities Inc., Trust Class 1 $3,247,664
Certificates, Series 1994-A
* The aggregate Security Principal Balances of the respective
Pledged Securities were, in each case, calculated immediately following
the Distribution Date with respect thereto in March 1998.
(A) The NASC-98-D6 Class B-1 Pledged Certificate constitutes only
approximately 44.2% of the aggregate Certificate Notional Amount of all
the NASC-98-D6 Class B-1 Certificates.
(B) The ASC 95-MDIV Class A-CS2(IO) Pledged Security constitutes
only approximately 7.08% of the aggregate Certificate Notional Amount
of all the ASC 95-MDIV Class A-CS2(IO) Certificates.
(C) The MSCI 98-WF1 Class H Pledged Security constitutes
approximately 75% of the aggregate Certificate Principal Balance of all
the MSCI 98-WF1 Class H Certificates.
(D) The MSCI 98-WF1 Class J Pledged Security constitutes
approximately 75% of the aggregate Certificate Principal Balance of all
the MSCI 98-WF1 Class J Certificates.
(E) The MSCI 98-WF1 Class K Pledged Security constitutes
approximately 75% of the aggregate Certificate Principal Balance of all
the MSCI 98-WF1 Class K Certificates.
(F) The MSCI 98-WF1 Class L Pledged Security constitutes
approximately 75% of the aggregate Certificate Principal Balance of all
the MSCI 98-WF1 Class L Certificates.
(G) The FULBCMT 97-C1 Class F Pledged Security constitutes only
approximately 15% of the aggregate Certificate Principal Balance of all
the FULBCMT 97-C1 Class F Certificates.
(H) The JPMCMFC 98-C6 Class NR Pledged Security constitutes
approximately 88.9% of the aggregate Certificate Principal Balance of
all the JPMCMFC 98-C6 Class NR Certificates.
(I) The MLMI 97-C1 Class F Pledged Security constitutes
approximately 51% of the aggregate Certificate Principal Balance of all
the MLMI 97-C1 Class F Certificates.
(J) The DLJMAC 96-CF2 Class C Pledged Security constitutes
approximately 95% of the aggregate Certificate Principal Balance of all
the DLJMAC 97-CF2 Class C Certificates.
(K) The MCFI 97-MC1 Class F Pledged Security constitutes only
approximately 23.5% of the aggregate Certificate Principal Balance of
all the MCFI 97-MC1 Class F Certificates.
(L) The MLMI 97-C2 Class F Pledged Security constitutes only
approximately 9.11% of the aggregate Certificate Principal Balance of
all the MLMI 97-C2 Class F Certificates.
(M) The DLJMAC 97-CF2 Class C Pledged Security constitutes
approximately 96.7% of the aggregate Certificate Principal Balance of
all the DLJMAC 97-CF2 Class C Certificates.
(N) The MSCI 97-WF1 Class F Pledged Security constitutes only
approximately 25.2% of the aggregate Certificate Principal Balance of
all the MSCI 97-WF1 Class F Certificates.
(O) The MSCI 97-WF1 Class G Pledged Security constitutes
approximately 70% of the aggregate Certificate Principal Balance of all
the MSCI 97-WF1 Class G Certificates.
(P) The MSCI 97-WF1 Class H Pledged Security constitutes
approximately 70% of the aggregate Certificate Principal Balance of all
the MSCI 97-WF1 Class H Certificates.
(Q) The MSCI 97-WF1 Class J Pledged Security constitutes
approximately 70% of the aggregate Certificate Principal Balance of all
the MSCI 97-WF1 Class J Certificates.
(R) The MSCI 97-WF1 Class K Pledged Security constitutes
approximately 70% of the aggregate Certificate Principal Balance of all
the MSCI 97-WF1 Class K Certificates.
EXHIBIT A-1
CLASS A-1 BOND
CRIIMI MAE COMMERCIAL MORTGAGE TRUST
CLASS A-1 COMMERCIAL MORTGAGE BOND
SERIES 1998-C1
Bond Interest Rate: 7.00% per annum Aggregate Principal Amount of the
Class A-1
Date of Indenture: As of May 8, 1998 Bonds as of the Closing Date:
$62,612,000
Accrual Date: May 1, 1998 Initial Principal Amount of this
Class A-1 Bond as of the Closing Date:
Closing Date: May 8, 1998 $
First Payment Date: July 2, 1998 Initial Aggregate Collateral Principal
Amount: $1,772,226,951
Stated Maturity: June 2033
Issuer: CRIIMI MAE Commercial Mortgage
Trust Indenture Trustee: LaSalle National
Bank
Owner Trustee: Wilmington Trust Company
Bond No. A-1- CUSIP No. ▇▇▇▇▇▇▇▇▇
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE INDENTURE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
BOND ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS BOND HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS BOND OR ANY INTEREST
HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 14 OF THE TERMS INDENTURE
REFERRED TO HEREIN.
NO TRANSFER OF THIS BOND OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS BOND OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 14 OF THE TERMS INDENTURE REFERRED TO HEREIN.
THIS BOND REPRESENTS AN OBLIGATION OF THE ISSUER AND WILL BE PAID SOLELY FROM
THE COLLATERAL SECURING THIS BOND. NEITHER THIS BOND NOR THE COLLATERAL THEREFOR
IS INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY
OTHER PERSON.
PAYMENTS IN REDUCTION OF THE PRINCIPAL AMOUNT OF THIS BOND MAY BE MADE MONTHLY
AS SET FORTH IN THE INDENTURE REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
BOND PRINCIPAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN
ABOVE.
This certifies that Cede & Co. is the registered owner of this Bond which
is one of a series of commercial mortgage bonds (collectively, the "Bonds")
issued by the Issuer referred to above in multiple classes (each, a "Class")
pursuant to the Standard Indenture Provisions,
dated as of May 8, 1998 (the "Standard Indenture Provisions"), and the
Terms Indenture, dated as of May 8, 1998 (the "Terms Indenture"; the Terms
Indenture, together with the Standard Indenture Provisions, is hereinafter
referred to as the "Indenture") between Owner Trustee referred to above, on
behalf of the Issuer and the Indenture Trustee referred to above, on behalf of
the holders of the Bonds (the "Bondholders"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein have the respective meanings assigned in
the Indenture. This Bond is issued under and is subject to the terms, provisions
and conditions of the Indenture, to which Indenture the Holder of this Bond by
virtue of the acceptance hereof assents and by which such Holder is bound.
The Issuer, a Delaware business trust, for value received, hereby promises
to pay to Cede & Co. or registered assigns, the principal sum of $62,612,000 no
later than June 2033.
Pursuant to the terms of the Indenture, payments will be made on the Class
of Bonds to which this Bond belongs, pro rata among the Bonds of such Class
based on their respective Principal Amounts, on the second Business Day
following the end of each Collection Period (each, a "Payment Date"), commencing
on the first Payment Date specified above, to the Person in whose name this Bond
is registered at the close of business on the related Record Date. All payments
made under the Indenture on this Bond will be made by the Indenture Trustee by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Bondholder shall have provided the Indenture Trustee with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent payments), or otherwise by check mailed to the
address of such Bondholder as it appears in the Bond Register. Notwithstanding
the foregoing, the final payment on this Bond will be made in like manner, but
only upon presentation and surrender of this Bond at the offices of the
Indenture Trustee or such other location specified in the notice to the Holder
hereof of such final payment. Notwithstanding anything herein to the contrary,
no payments will be made with respect to a Bond that has previously been
surrendered as contemplated by the preceding sentence or, with limited
exception, that should have been surrendered as contemplated by the preceding
sentence.
The Bonds are limited in right of payment to certain distributions on the
Pledged Securities, all as more specifically set forth herein and in the
Indenture. As provided in the Indenture, withdrawals from the Bond Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, payments to Bondholders, such purposes including the reimbursement of
certain expenses incurred by the Indenture Trustee under the Indenture.
Any payment to the Holder of this Bond in reduction of the Principal Amount
hereof is binding on such Holder and all future Holders of this Bond and any
Bond issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such payment is made upon this Bond.
The Class of Bonds to which this Bond relates, are issuable in fully
registered form only without coupons in minimum denominations specified in the
Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, this Bond is exchangeable for
new Bonds of the same Class in authorized denominations evidencing the same
Aggregate Principal Amount, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Bond or interest
therein may be made by an investor unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws.
Initially, this Bond will be held in book-entry form (all such Bonds held from
time to time in such form, the "Book-Entry Bonds"). If a transfer of any
interest in a Book-Entry Bond is to be made without registration under the
Securities Act, then the beneficial owner of such Book-Entry Bond desiring to
effect such transfer must obtain from such beneficial owner's prospective
transferee a certificate substantially in the form attached to the Terms
Indenture as Exhibit C-2B with respect to compliance with the requirements of
certain rules and regulations under the Securities Act and the provisions of the
Indenture. In addition, in connection with its acquisition of an interest in any
Book-Entry Bond, the transferee will be deemed to have made to and for the
benefit of the Issuer, the Company and the Indenture Trustee each of the
representations, warranties and covenants contained in such certificate to be so
delivered to the transferor. Under certain circumstances described herein, this
Bond may cease to be held in book-entry form and will be held in fully
registered, physical form (all such Bonds held from time to time in such form
the "Definitive Bonds"). If a transfer of any Definitive Bond is to be made
without registration under the Securities Act, then the registrar for the Bonds
(the "Bond Registrar", which shall initially be the Indenture Trustee) is
required to refuse to register such transfer unless it receives: (i) a
certificate from the Bondholder desiring to effect such transfer substantially
in the form attached to the Terms Indenture as Exhibit C-1A; (ii) a certificate
from the Bondholder desiring to effect such transfer substantially in the form
attached to the Terms Indenture as Exhibit C-1B and a certificate from such
Bondholder's prospective transferee substantially in the form attached to the
Terms Indenture as Exhibit C-2A; or (iii) an opinion of counsel satisfactory to
the Indenture Trustee to the effect that such transfer may be made without
registration under the Securities Act (which opinion of counsel shall not be an
expense of the Trust Estate (as defined herein) or of the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee or the Bond Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the Bondholder
desiring to effect such transfer and/or such Bondholder's prospective transferee
on which such opinion of counsel is based. Any investor desiring to effect a
transfer of any Bond or interest therein without registration under the
Securities Act and registration or qualification under applicable state
securities laws will be required to, and by acceptance of its Bonds or interests
therein will be deemed to have agreed to, indemnify the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee and the Bond Registrar
against any liability that may result if the transfer is not exempt from such
registration and/or qualification or is not made in accordance with such federal
and state laws.
No transfer of this Bond or any interest herein may be made to a Plan, or
to any person who is directly or indirectly purchasing this Bond or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, unless the party acquiring this Bond or any interest herein provides the
transferor of such interest (in the case of an interest in a Book-Entry Bond) or
the Bond Registrar (in the case of a Definitive Bond) with a certification
generally to the effect that either (A) such transferee is not (i) an employee
benefit plan (as defined in Section 3 (3) of ERISA) that is subject to Title I
of ERISA, (ii) a plan (as defined in Section 4975 of the Code) that is subject
to Section 4975 of the Code, or (iii) an entity deemed for any purpose of ERISA
or Section 4975 of the Code to hold assets of any such employee benefit plan or
plan, including, without limitation, as applicable, an insurance company general
account (each of (i), (ii) and (iii), a "Plan"), and is not directly or
indirectly purchasing such Bonds or interests therein being transferred to it,
on behalf of, for the benefit of, or otherwise using assets of a Plan or (B) the
purchase and holding of such Bonds or interests therein being transferred to it
does not and will not constitute or otherwise result in a non-exempt "prohibited
transaction" under, and as defined in, Section 406 of ERISA or Section 4975 of
the Code, by reason of the application of one or more statutory or
administrative exemptions.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond is registrable in the Bond Register upon
surrender of this Bond for registration of transfer at the offices of the Bond
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Bond Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Bonds of the same Class in authorized denominations evidencing the same
Aggregate Principal Amount will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Bond, but the Indenture Trustee or the Bond Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Bond.
Notwithstanding the foregoing, if and for so long as this Bond is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Bond shall be
made through the book-entry facilities of DTC, and accordingly, this Bond shall
constitute a Book-Entry Bond.
The Company, the Issuer, the Owner Trustee, the Indenture Trustee, the Bond
Registrar and any agent thereof may treat the Person in whose name this Bond is
registered as the owner hereof for all purposes, and none of the Company, the
Issuer, the Owner Trustee, the Indenture Trustee, the Bond Registrar or any such
agent shall be affected by notice to the contrary.
The Indenture will be discharged (except with respect to certain continuing
rights specified in the Indenture) (a)(1) upon the delivery to the Indenture
Trustee for cancellation of all of the Bonds other than Bonds which have been
mutilated, lost or stolen and have been replaced or paid and Bonds for which
money has been deposited in trust for the full payment thereof (and thereafter
repaid to the Issuer and discharged from such trust) as provided in the
Indenture or (2) at such time as all Bonds not previously cancelled by the
Indenture Trustee have become, or, on the next Payment Date, will become, due
and payable or called for redemption and the Issuer shall have deposited with
the Indenture Trustee an amount sufficient to repay all of the Bonds and (b) the
Issuer shall have paid all other amounts payable under the Indenture.
With the consent of the Holders of Bonds representing more than 50% of the
Aggregate Principal Amount (or, in the case of a Class of Interest Only Bonds,
the aggregate Notional Amount) of each Class of any Series, the Issuer and the
Indenture Trustee may amend the Indenture or enter into one or more indentures
supplemental thereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of the Indenture with respect to
such Series or of modifying in any manner the rights of the Bondholders of such
Series under the Indenture; provided that no such amendment or supplemental
indenture shall result in an Adverse Rating Event in respect of any Class of
Bonds of such Series (as confirmed in writing by each applicable Rating Agency);
and, provided further, that no such amendment or supplemental indenture shall,
without the consent of the Holder of each Outstanding Bond affected thereby,
among other things, (i) change the date of payment of any installment of
principal of or interest or premium, if any, on any Bond, or reduce the
Principal Amount thereof, the Bond Interest Rate thereon or the Redemption Price
with respect thereto, change the provisions of the Indenture relating to the
application of payments, collections and/or distributions on, or the proceeds of
the sale of, the related Trust Estate to payments of principal of or interest or
premium, if any, on any Bonds or change any place of payment where, or the coin
or currency in which, any Bond or the interest or premium, if any, thereon is
payable, or impair the right to institute suit for the enforcement of the
provisions of the Indenture requiring the application of funds available
therefor, as provided in Article V of the Standard Indenture Provisions, to the
payment of any such amount due on any Bond on or after the respective due dates
thereof (or, in the case of redemption, on or after the applicable Redemption
Date); (ii) reduce the percentage of the Voting Rights for or allocated to, or
the percentage of the Aggregate Principal Amount or Notional Amount of, any
Class and/or Series, the consent of the Holders of Bonds representing which is
required for any such supplemental indenture, or the consent of the Holders of
Bonds representing which is required for any waiver of compliance with certain
provisions of the Indenture or certain defaults thereunder and their
consequences provided for in the Indenture; (iii) modify or alter the provisions
of the proviso to the definition of the term "Outstanding"; (iv) reduce the
percentage of the Voting Rights allocated to, or the percentage of the Aggregate
Principal Amount or Notional Amount of, any Class of any Series, the consent or
direction of the Holders of Bonds representing which is required to allow or
direct the Indenture Trustee to sell or liquidate the Trust Estate pursuant to
Section 5.04 or Section 5.12 of the Standard Indenture Provisions; (v) modify
any provision of Section 9.02 of the Standard Indenture Provisions, except to
increase any percentage specified herein or to provide that certain additional
provisions of the Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Bond affected thereby; (vi) modify any of the
provisions of the Indenture in such manner as to affect the calculation of the
amount of any payment of interest, premium (if any) or principal due on any Bond
on any Payment Date (including the calculation of any of the individual
components of such calculation) or to affect the rights of the Holders of any
Series to the benefit of any provisions for the mandatory redemption of the
Bonds of such Series contained therein; or (vii) permit the creation of any lien
ranking prior to or on a parity with the lien of the Indenture with respect to
any part of the Trust Estate securing any Series or terminate the lien of the
Indenture on any property at any time subject thereto or deprive the Holder of
any Bond of the security afforded by the lien of the Indenture, except as
otherwise expressly permitted thereby.
Provided that no Issuer Event of Default has occurred and is continuing,
the Issuer may, at its option, pursuant to the Indenture redeem this Bond, in
whole but not in part, at the Redemption Price therefor, on any Payment Date as
of which the Aggregate Principal Amount of such Class is less than 15% of the
initial Aggregate Principal Amount thereof and in any event subject to and in
accordance with Article X of the Standard Indenture Provisions. Notwithstanding
anything herein to the contrary, the Issuer may at any time irrevocably waive
its right to redeem this Bond. On any Redemption Date, following the payments to
be made on such date pursuant to Section 17(b) of the Terms Indenture, the
Indenture Trustee shall withdraw from the Bond Account and, subject to Section
2.07(e) of the Standard Indenture Provisions, pay to the Holders of the Bonds to
be redeemed the full Redemption Price therefor.
Unless the certificate of authentication hereon has been executed by the
Bond Registrar, by manual signature, this Bond shall not be entitled to any
benefit under the Indenture or be valid for any purpose.
This Bond shall be construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company not in its individual capacity but solely
as Owner Trustee.
Dated:
CRIIMI MAE COMMERCIAL MORTGAGE
TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely in its capacity as
Owner Trustee
By:______________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Bonds referred to in the within-mentioned
Terms Indenture.
Dated:
LASALLE NATIONAL BANK,
as Bond Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
--------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the obligation of the Issuer evidenced by
the within Commercial Mortgage Bond and hereby authorize(s) the registration of
transfer of such interest to assignee on the Bond Register.
I (we) further direct the Bond Registrar to issue a new Commercial Mortgage
Bond of a like percentage interest and Class to the above named assignee and
deliver such Bond to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
PAYMENT INSTRUCTIONS
The Assignee should include the following for purposes of
payment:
Payments shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to
-----------------------------
-----------------------------------------------------------------------------
for the account of
----------------------------------------------------------.
Payments made by check (such check to be made payable to
) and all applicable statements and notices should be mailed
--------------------
to
--------------------------------------------------------------------------.
This information is provided by , the Assignee
----------------------------
named above, or , as its agent.
-----------------------------------
EXHIBIT A-2
CLASS A-2 BOND
CRIIMI MAE COMMERCIAL MORTGAGE TRUST
CLASS A-2 COMMERCIAL MORTGAGE BOND
SERIES 1998-C1
Bond Interest Rate: 7.00% per annum Aggregate Principal Amount of the
Class A-2
Bonds as of the Closing Date:
$345,000,000
Date of Indenture: As of May 8, 1998
Initial Principal Amount of this
Accrual Date: May 1, 1998 Class A-2 Bond as of the Closing Date:
$
Closing Date: May 8, 1998
Initial Aggregate Collateral
Principal
First Payment Date: July 2, ▇▇▇▇ ▇▇▇▇▇▇: $1,772,226,951
Stated Maturity: June 2033
Indenture Trustee:
LaSalle National Bank
Issuer: CRIIMI MAE Commercial Mortgage Trust
Owner Trustee: Wilmington Trust Company
Bond No. A-2- CUSIP No. ▇▇▇▇▇▇▇▇▇
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE INDENTURE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
BOND ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS BOND HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS BOND OR ANY INTEREST
HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 14 OF THE TERMS INDENTURE
REFERRED TO HEREIN.
NO TRANSFER OF THIS BOND OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS BOND OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 14 OF THE TERMS INDENTURE REFERRED TO HEREIN.
THIS BOND REPRESENTS AN OBLIGATION OF THE ISSUER AND WILL BE PAID SOLELY FROM
THE COLLATERAL SECURING THIS BOND. NEITHER THIS BOND NOR THE COLLATERAL THEREFOR
IS INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY
OTHER PERSON.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND. THE
ISSUE DATE OF THIS BOND IS MAY 8, 1998. ASSUMING THAT THE MORTGAGE LOANS
UNDERLYING THE PLEDGED SECURITIES ARE NOT SUBJECT TO ANY VOLUNTARY OR
INVOLUNTARY PREPAYMENT, THIS BOND HAS BEEN ISSUED WITH NO MORE THAN $______ OF
OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS ____% PER
ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL PRINCIPAL AMOUNT, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS UNDERLYING THE PLEDGED
SECURITIES WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY
PARTICULAR RATE.
PAYMENTS IN REDUCTION OF THE PRINCIPAL AMOUNT OF THIS BOND MAY BE MADE MONTHLY
AS SET FORTH IN THE INDENTURE REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING BOND PRINCIPAL AMOUNT HEREOF AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of this Bond which
is one of a series of commercial mortgage bonds (collectively, the "Bonds")
issued by the Issuer referred to above in multiple classes (each, a "Class")
pursuant to the Standard Indenture Provisions, dated as of May 8, 1998 (the
"Standard Indenture Provisions"), and the Terms Indenture, dated as of May 8,
1998 (the "Terms Indenture"; the Terms Indenture, together with the Standard
Indenture Provisions, is hereinafter referred to as the "Indenture") between
Owner Trustee referred to above, on behalf of the Issuer and the Indenture
Trustee referred to above, on behalf of the holders of the Bonds (the
"Bondholders"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
have the respective meanings assigned in the Indenture. This Bond is issued
under and is subject to the terms, provisions and conditions of the Indenture,
to which Indenture the Holder of this Bond by virtue of the acceptance hereof
assents and by which such Holder is bound.
The Issuer, a Delaware business trust, for value received, hereby promises
to pay to Cede & Co. or registered assigns, the principal sum of $[200,000,000]
[145,000,000] no later than June 2033.
Pursuant to the terms of the Indenture, payments will be made on the Class
of Bonds to which this Bond belongs, pro rata among the Bonds of such Class
based on their respective Principal Amounts, on the second Business Day
following the end of each Collection Period (each, a "Payment Date"), commencing
on the first Payment Date specified above, to the Person in whose name this Bond
is registered at the close of business on the related Record Date. All payments
made under the Indenture on this Bond will be made by the Indenture Trustee by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Bondholder shall have provided the Indenture Trustee with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent payments), or otherwise by check mailed to the
address of such Bondholder as it appears in the Bond Register. Notwithstanding
the foregoing, the final payment on this Bond will be made in like manner, but
only upon presentation and surrender of this Bond at the offices of the
Indenture Trustee or such other location specified in the notice to the Holder
hereof of such final payment. Notwithstanding anything herein to the contrary,
no payments will be made with respect to a Bond that has previously been
surrendered as contemplated by the preceding sentence or, with limited
exception, that should have been surrendered as contemplated by the preceding
sentence.
The Bonds are limited in right of payment to certain distributions on the
Pledged Securities, all as more specifically set forth herein and in the
Indenture. As provided in the Indenture, withdrawals from the Bond Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, payments to Bondholders, such purposes including the reimbursement of
certain expenses incurred by the Indenture Trustee under the Indenture.
Any payment to the Holder of this Bond in reduction of the Principal Amount
hereof is binding on such Holder and all future Holders of this Bond and any
Bond issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such payment is made upon this Bond.
The Class of Bonds to which this Bond relates, are issuable in fully
registered form only without coupons in minimum denominations specified in the
Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, this Bond is exchangeable for new Bonds of the same Class in
authorized denominations evidencing the same Aggregate Principal Amount, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Bond or interest
therein may be made by an investor unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws.
Initially, this Bond will be held in book-entry form (all such Bonds held from
time to time in such form, the "Book-Entry Bonds"). If a transfer of any
interest in a Book-Entry Bond is to be made without registration under the
Securities Act, then the beneficial owner of such Book-Entry Bond desiring to
effect such transfer must obtain from such beneficial owner's prospective
transferee a certificate substantially in the form attached to the Terms
Indenture as Exhibit C-2B with respect to compliance with the requirements of
certain rules and regulations under the Securities Act and the provisions of the
Indenture. In addition, in connection with its acquisition of an interest in any
Book-Entry Bond, the transferee will be deemed to have made to and for the
benefit of the Issuer, the Company and the Indenture Trustee each of the
representations, warranties and covenants contained in such certificate to be so
delivered to the transferor. Under certain circumstances described herein, this
Bond may cease to be held in book-entry form and will be held in fully
registered, physical form (all such Bonds held from time to time in such form
the "Definitive Bonds"). If a transfer of any Definitive Bond is to be made
without registration under the Securities Act, then the registrar for the Bonds
(the "Bond Registrar", which shall initially be the Indenture Trustee) is
required to refuse to register such transfer unless it receives: (i) a
certificate from the Bondholder desiring to effect such transfer substantially
in the form attached to the Terms Indenture as Exhibit C-1A; (ii) a certificate
from the Bondholder desiring to effect such transfer substantially in the form
attached to the Terms Indenture as Exhibit C-1B and a certificate from such
Bondholder's prospective transferee substantially in the form attached to the
Terms Indenture as Exhibit C-2A; or (iii) an opinion of counsel satisfactory to
the Indenture Trustee to the effect that such transfer may be made without
registration under the Securities Act (which opinion of counsel shall not be an
expense of the Trust Estate (as defined herein) or of the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee or the Bond Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the Bondholder
desiring to effect such transfer and/or such Bondholder's prospective transferee
on which such opinion of counsel is based. Any investor desiring to effect a
transfer of any Bond or interest therein without registration under the
Securities Act and registration or qualification under applicable state
securities laws will be required to, and by acceptance of its Bonds or interests
therein will be deemed to have agreed to, indemnify the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee and the Bond Registrar
against any liability that may result if the transfer is not exempt from such
registration and/or qualification or is not made in accordance with such federal
and state laws.
No transfer of this Bond or any interest herein may be made to a Plan, or
to any person who is directly or indirectly purchasing this Bond or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, unless the party acquiring this Bond or any interest herein provides the
transferor of such interest (in the case of an interest in a Book-Entry Bond) or
the Bond Registrar (in the case of a Definitive Bond) with a certification
generally to the effect that either (A) such transferee is not (i) an employee
benefit plan (as defined in Section 3 (3) of ERISA) that is subject to Title I
of ERISA, (ii) a plan (as defined in Section 4975 of the Code) that is subject
to Section 4975 of the Code, or (iii) an entity deemed for any purpose of ERISA
or Section 4975 of the Code to hold assets of any such employee benefit plan or
plan, including, without limitation, as applicable, an insurance company general
account (each of (i), (ii) and (iii), a "Plan"), and is not directly or
indirectly purchasing such Bonds or interests therein being transferred to it,
on behalf of, for the benefit of, or otherwise using assets of a Plan or (B) the
purchase and holding of such Bonds or interests therein being transferred to it
does not and will not constitute or otherwise result in a non-exempt "prohibited
transaction" under, and as defined in, Section 406 of ERISA or Section 4975 of
the Code, by reason of the application of one or more statutory or
administrative exemptions.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond is registrable in the Bond Register upon
surrender of this Bond for registration of transfer at the offices of the Bond
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Bond Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Bonds of the same Class in authorized denominations evidencing the same
Aggregate Principal Amount will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Bond, but the Indenture Trustee or the Bond Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Bond.
Notwithstanding the foregoing, if and for so long as this Bond is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Bond shall be
made through the book-entry facilities of DTC, and accordingly, this Bond shall
constitute a Book-Entry Bond.
The Company, the Issuer, the Owner Trustee, the Indenture Trustee, the Bond
Registrar and any agent thereof may treat the Person in whose name this Bond is
registered as the owner hereof for all purposes, and none of the Company, the
Owner Trustee, the Indenture Trustee, the Bond Registrar or any such agent shall
be affected by notice to the contrary.
The Indenture will be discharged (except with respect to certain continuing
rights specified in the Indenture) (a)(1) upon the delivery to the Indenture
Trustee for cancellation of all of the Bonds other than Bonds which have been
mutilated, lost or stolen and have been replaced or paid and Bonds for which
money has been deposited in trust for the full payment thereof (and thereafter
repaid to the Issuer and discharged from such trust) as provided in the
Indenture or (2) at such time as all Bonds not previously cancelled by the
Indenture Trustee have become, or, on the next Payment Date, will become, due
and payable or called for redemption and the Issuer shall have deposited with
the Indenture Trustee an amount sufficient to repay all of the Bonds and (b) the
Issuer shall have paid all other amounts payable under the Indenture.
With the consent of the Holders of Bonds representing more than 50% of the
Aggregate Principal Amount (or, in the case of a Class of Interest Only Bonds,
the aggregate Notional Amount) of each Class of any Series, the Issuer and the
Indenture Trustee may amend the Indenture or enter into one or more indentures
supplemental thereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of the Indenture with respect to
such Series or of modifying in any manner the rights of the Bondholders of such
Series under the Indenture; provided that no such amendment or supplemental
indenture shall result in an Adverse Rating Event in respect of any Class of
Bonds of such Series (as confirmed in writing by each applicable Rating Agency);
and, provided further, that no such amendment or supplemental indenture shall,
without the consent of the Holder of each Outstanding Bond affected thereby,
among other things, (i) change the date of payment of any installment of
principal of or interest or premium, if any, on any Bond, or reduce the
Principal Amount thereof, the Bond Interest Rate thereon or the Redemption Price
with respect thereto, change the provisions of the Indenture relating to the
application of payments, collections and/or distributions on, or the proceeds of
the sale of, the related Trust Estate to payments of principal of or interest or
premium, if any, on any Bonds or change any place of payment where, or the coin
or currency in which, any Bond or the interest or premium, if any, thereon is
payable, or impair the right to institute suit for the enforcement of the
provisions of the Indenture requiring the application of funds available
therefor, as provided in Article V
of the Standard Indenture Provisions, to the payment of any such amount due
on any Bond on or after the respective due dates thereof (or, in the case of
redemption, on or after the applicable Redemption Date); (ii) reduce the
percentage of the Voting Rights for or allocated to, or the percentage of the
Aggregate Principal Amount or Notional Amount of, any Class and/or Series, the
consent of the Holders of Bonds representing which is required for any such
supplemental indenture, or the consent of the Holders of Bonds representing
which is required for any waiver of compliance with certain provisions of the
Indenture or certain defaults thereunder and their consequences provided for in
the Indenture; (iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding"; (iv) reduce the percentage of the Voting
Rights allocated to, or the percentage of the Aggregate Principal Amount or
Notional Amount of, any Class of any Series, the consent or direction of the
Holders of Bonds representing which is required to allow or direct the Indenture
Trustee to sell or liquidate the Trust Estate pursuant to Section 5.04 or
Section 5.12 of the Standard Indenture Provisions; (v) modify any provision of
Section 9.02 of the Standard Indenture Provisions, except to increase any
percentage specified herein or to provide that certain additional provisions of
the Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Bond affected thereby; (vi) modify any of the provisions of the
Indenture in such manner as to affect the calculation of the amount of any
payment of interest, premium (if any) or principal due on any Bond on any
Payment Date (including the calculation of any of the individual components of
such calculation) or to affect the rights of the Holders of any Series to the
benefit of any provisions for the mandatory redemption of the Bonds of such
Series contained therein; or (vii) permit the creation of any lien ranking prior
to or on a parity with the lien of the Indenture with respect to any part of the
Trust Estate securing any Series or terminate the lien of the Indenture on any
property at any time subject thereto or deprive the Holder of any Bond of the
security afforded by the lien of the Indenture, except as otherwise expressly
permitted thereby.
Provided that no Issuer Event of Default has occurred and is continuing,
the Issuer may, at its option, pursuant to the Indenture redeem this Bond, in
whole but not in part, at the Redemption Price therefor, on any Payment Date as
of which the Aggregate Principal Amount of such Class is less than 15% of the
initial Aggregate Principal Amount thereof and in any event subject to and in
accordance with Article X of the Standard Indenture Provisions. Notwithstanding
anything herein to the contrary, the Issuer may at any time irrevocably waive
its right to redeem this Bond. On any Redemption Date, following the payments to
be made on such date pursuant to Section 17(b) of the Terms Indenture, the
Indenture Trustee shall withdraw from the Bond Account and, subject to Section
2.07(e) of the Standard Indenture Provisions, pay to the Holders of the Bonds to
be redeemed the full Redemption Price therefor.
This Bond is not subject to optional redemption.
Unless the certificate of authentication hereon has been executed by the
Bond Registrar, by manual signature, this Bond shall not be entitled to any
benefit under the Indenture or be valid for any purpose.
This Bond shall be construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated:
CRIIMI MAE COMMERCIAL MORTGAGE
TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely in its capacity as
Owner Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Bonds referred to in the within-mentioned
Terms Indenture.
Dated:
LASALLE NATIONAL BANK,
as Bond Registrar
By:______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the obligation of the Issuer evidenced by
the within Commercial Mortgage Bond and hereby authorize(s) the registration of
transfer of such interest to assignee on the Bond Register.
I (we) further direct the Bond Registrar to issue a new Commercial Mortgage
Bond of a like percentage interest and Class to the above named assignee and
deliver such Bond to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
PAYMENT INSTRUCTIONS
The Assignee should include the following for purposes of payment:
Payments shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to
-----------------------------------------------
-------------------------------------------------------------------------------
for the account of
-----------------------------------------------------------.
Payments made by check (such check to be made payable to
) and all applicable statements and notices should be mailed
--------------------
to
--------------------------------------------------------------------------.
This information is provided by , the Assignee
----------------------------
named above, or , as its agent.
------------------------------------
EXHIBIT A-3
CLASS B BOND
CRIIMI MAE COMMERCIAL MORTGAGE TRUST
CLASS B COMMERCIAL MORTGAGE BOND
SERIES 1998-C1
Bond Interest Rate: 7.00% per annum Aggregate Principal Amount of the Class B
Bonds as of the Closing Date:
$150,639,000
Date of Indenture: As of May 8, 1998
Initial Principal Amount of this
Accrual Date: May 1, 1998 Class B Bond as of the Closing Date:
$
Closing Date: May 8, 1998
Initial Aggregate Collateral Principal
First Payment Date: July 2, ▇▇▇▇ ▇▇▇▇▇▇: $1,772,226,951
Stated Maturity: June 2033
Indenture Trustee:
LaSalle National Bank
Issuer: CRIIMI MAE Commercial Mortgage Trust
Owner Trustee: Wilmington Trust Company
Bond No. B-
CUSIP No. ▇▇▇▇▇▇▇▇▇
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE INDENTURE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
BOND ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS BOND HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS BOND OR ANY INTEREST
HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 14 OF THE TERMS INDENTURE
REFERRED TO HEREIN.
NO TRANSFER OF THIS BOND OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS BOND OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 14 OF THE TERMS INDENTURE REFERRED TO HEREIN.
THIS BOND REPRESENTS AN OBLIGATION OF THE ISSUER AND WILL BE PAID SOLELY FROM
THE COLLATERAL SECURING THIS BOND. NEITHER THIS BOND NOR THE COLLATERAL THEREFOR
IS INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY
OTHER PERSON.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND. THE
ISSUE DATE OF THIS BOND IS MAY 8, 1998. ASSUMING THAT THE MORTGAGE LOANS
UNDERLYING THE PLEDGED SECURITIES ARE NOT SUBJECT TO ANY VOLUNTARY OR
INVOLUNTARY PREPAYMENT, THIS BOND HAS BEEN ISSUED WITH NO MORE THAN $______ OF
OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS ____% PER
ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL PRINCIPAL AMOUNT, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS UNDERLYING THE PLEDGED
SECURITIES WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY
PARTICULAR RATE.
PAYMENTS IN REDUCTION OF THE PRINCIPAL AMOUNT OF THIS BOND MAY BE MADE MONTHLY
AS SET FORTH IN THE INDENTURE REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING BOND PRINCIPAL AMOUNT HEREOF AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of this Bond which
is one of a series of commercial mortgage bonds (collectively, the "Bonds")
issued by the Issuer referred to above in multiple classes (each, a "Class")
pursuant to the Standard Indenture Provisions, dated as of May 8, 1998 (the
"Standard Indenture Provisions"), and the Terms Indenture, dated as of May 8,
1998 (the "Terms Indenture"; the Terms Indenture, together with the Standard
Indenture Provisions, is hereinafter referred to as the "Indenture") between
Owner Trustee referred to above, on behalf of the Issuer and the Indenture
Trustee referred to above, on behalf of the holders of the Bonds (the
"Bondholders"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
have the respective meanings assigned in the Indenture. This Bond is issued
under and is subject to the terms, provisions and conditions of the Indenture,
to which Indenture the Holder of this Bond by virtue of the acceptance hereof
assents and by which such Holder is bound.
The Issuer, a Delaware business trust, for value received, hereby promises
to pay to Cede & Co. or registered assigns, the principal sum of $150,639,000 no
later than June 2033.
Pursuant to the terms of the Indenture, payments will be made on the Class
of Bonds to which this Bond belongs, pro rata among the Bonds of such Class
based on their respective Principal Amounts, on the second Business Day
following the end of each Collection Period (each, a "Payment Date"), commencing
on the first Payment Date specified above, to the Person in whose name this Bond
is registered at the close of business on the related Record Date. All payments
made under the Indenture on this Bond will be made by the Indenture Trustee by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Bondholder shall have provided the Indenture Trustee with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent payments), or otherwise by check mailed to the
address of such Bondholder as it appears in the Bond Register. Notwithstanding
the foregoing, the final payment on this Bond will be made in like manner, but
only upon presentation and surrender of this Bond at the offices of the
Indenture Trustee or such other location specified in the notice to the Holder
hereof of such final payment. Notwithstanding anything herein to the contrary,
no payments will be made with respect to a Bond that has previously been
surrendered as contemplated by the preceding sentence or, with limited
exception, that should have been surrendered as contemplated by the preceding
sentence.
The Bonds are limited in right of payment to certain distributions on the
Pledged Securities, all as more specifically set forth herein and in the
Indenture. As provided in the Indenture, withdrawals from the Bond Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, payments to Bondholders, such purposes including the reimbursement of
certain expenses incurred by the Indenture Trustee under the Indenture.
Any payment to the Holder of this Bond in reduction of the Principal Amount
hereof is binding on such Holder and all future Holders of this Bond and any
Bond issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such payment is made upon this Bond.
The Class of Bonds to which this Bond relates, are issuable in fully
registered form only without coupons in minimum denominations specified in the
Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, this Bond is exchangeable for new Bonds of the same Class in
authorized denominations evidencing the same Aggregate Principal Amount, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Bond or interest
therein may be made by an investor unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws.
Initially, this Bond will be held in book-entry form (all such Bonds held from
time to time in such form, the "Book-Entry Bonds"). If a transfer of any
interest in a Book-Entry Bond is to be made without registration under the
Securities Act, then the beneficial owner of such Book-Entry Bond desiring to
effect such transfer must obtain from such beneficial owner's prospective
transferee a certificate substantially in the form attached to the Terms
Indenture as Exhibit C-2B with respect to compliance with the requirements of
certain rules and regulations under the Securities Act and the provisions of the
Indenture. In addition, in connection with its acquisition of an interest in any
Book-Entry Bond, the transferee will be deemed to have made to and for the
benefit of the Issuer, the Company and the Indenture Trustee each of the
representations, warranties and covenants contained in such certificate to be so
delivered to the transferor. Under certain circumstances described herein, this
Bond may cease to be held in book-entry form and will be held in fully
registered, physical form (all such Bonds held from time to time in such form
the "Definitive Bonds"). If a transfer of any Definitive Bond is to be made
without registration under the Securities Act, then the registrar for the Bonds
(the "Bond Registrar", which shall initially be the Indenture Trustee) is
required to refuse to register such transfer unless it receives: (i) a
certificate from the Bondholder desiring to effect such transfer substantially
in the form attached to the Terms Indenture as Exhibit C-1A; (ii) a certificate
from the Bondholder desiring to effect such transfer substantially in the form
attached to the Terms Indenture as Exhibit C-1B and a certificate from such
Bondholder's prospective transferee substantially in the form attached to the
Terms Indenture as Exhibit C-2A; or (iii) an opinion of counsel satisfactory to
the Indenture Trustee to the effect that such transfer may be made without
registration under the Securities Act (which opinion of counsel shall not be an
expense of the Trust Estate (as defined herein) or of the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee or the Bond Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the Bondholder
desiring to effect such transfer and/or such Bondholder's prospective transferee
on which such opinion of counsel is based. Any investor desiring to effect a
transfer of any Bond or interest therein without registration under the
Securities Act and registration or qualification under applicable state
securities laws will be required to, and by acceptance of its Bonds or interests
therein will be deemed to have agreed to, indemnify the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee and the Bond Registrar
against any liability that may result if the transfer is not exempt from such
registration and/or qualification or is not made in accordance with such federal
and state laws.
No transfer of this Bond or any interest herein may be made to a Plan, or
to any person who is directly or indirectly purchasing this Bond or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, unless the party acquiring this Bond or any interest herein provides the
transferor of such interest (in the case of an interest in a Book-Entry Bond) or
the Bond Registrar (in the case of a Definitive Bond) with a certification
generally to the effect that either (A) such transferee is not (i) an employee
benefit plan (as defined in Section 3 (3) of ERISA) that is subject to Title I
of ERISA, (ii) a plan (as defined in Section 4975 of the Code) that is subject
to Section 4975 of the Code, or (iii) an entity deemed for any purpose of ERISA
or Section 4975 of the Code to hold assets of any such employee benefit plan or
plan, including, without limitation, as applicable, an insurance company general
account (each of (i), (ii) and (iii), a "Plan"), and is not directly or
indirectly purchasing such Bonds or interests therein being transferred to it,
on behalf of, for the benefit of, or otherwise using assets of a Plan or (B) the
purchase and holding of such Bonds or interests therein being transferred to it
does not and will not constitute or otherwise result in a non-exempt "prohibited
transaction" under, and as defined in, Section 406 of ERISA or Section 4975 of
the Code, by reason of the application of one or more statutory or
administrative exemptions.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond is registrable in the Bond Register upon
surrender of this Bond for registration of transfer at the offices of the Bond
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Bond Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Bonds of the same Class in authorized denominations evidencing the same
Aggregate Principal Amount will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Bond, but the Indenture Trustee or the Bond Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Bond.
Notwithstanding the foregoing, if and for so long as this Bond is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Bond shall be
made through the book-entry facilities of DTC, and accordingly, this Bond shall
constitute a Book-Entry Bond.
The Company, the Issuer, the Owner Trustee, the Indenture Trustee, the Bond
Registrar and any agent thereof may treat the Person in whose name this Bond is
registered as the owner hereof for all purposes, and none of the Company, the
Issuer, the Owner Trustee, the Indenture Trustee, the Bond Registrar or any such
agent shall be affected by notice to the contrary.
The Indenture will be discharged (except with respect to certain continuing
rights specified in the Indenture) (a)(1) upon the delivery to the Indenture
Trustee for cancellation of all of the Bonds other than Bonds which have been
mutilated, lost or stolen and have been replaced or paid and Bonds for which
money has been deposited in trust for the full payment thereof (and thereafter
repaid to the Issuer and discharged from such trust) as provided in the
Indenture or (2) at such time as all Bonds not previously cancelled by the
Indenture Trustee have become, or, on the next Payment Date, will become, due
and payable or called for redemption and the Issuer shall have deposited with
the Indenture Trustee an amount sufficient to repay all of the Bonds and (b) the
Issuer shall have paid all other amounts payable under the Indenture.
With the consent of the Holders of Bonds representing more than 50% of the
Aggregate Principal Amount (or, in the case of a Class of Interest Only Bonds,
the aggregate Notional Amount) of each Class of any Series, the Issuer and the
Indenture Trustee may amend the Indenture or enter into one or more indentures
supplemental thereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of the Indenture with respect to
such Series or of modifying in any manner the rights of the Bondholders of such
Series under the Indenture; provided that no such amendment or supplemental
indenture shall result in an Adverse Rating Event in respect of any Class of
Bonds of such Series (as confirmed in writing by each applicable Rating Agency);
and, provided further, that no such amendment or supplemental indenture shall,
without the consent of the Holder of each Outstanding Bond affected thereby,
among other things, (i) change the date of payment of any installment of
principal of or interest or premium, if any, on any Bond, or reduce the
Principal Amount thereof, the Bond Interest Rate thereon or the Redemption Price
with respect thereto, change the provisions of the Indenture relating to the
application of payments, collections and/or distributions on, or the proceeds of
the sale of, the related Trust Estate to payments of principal of or interest or
premium, if any, on any Bonds or change any place of payment where, or the coin
or currency in which, any Bond or the interest or premium, if any, thereon is
payable, or impair the right to institute suit for the enforcement of the
provisions of the Indenture requiring the application of funds available
therefor, as provided in Article V
of the Standard Indenture Provisions, to the payment of any such amount due
on any Bond on or after the respective due dates thereof (or, in the case of
redemption, on or after the applicable Redemption Date); (ii) reduce the
percentage of the Voting Rights for or allocated to, or the percentage of the
Aggregate Principal Amount or Notional Amount of, any Class and/or Series, the
consent of the Holders of Bonds representing which is required for any such
supplemental indenture, or the consent of the Holders of Bonds representing
which is required for any waiver of compliance with certain provisions of the
Indenture or certain defaults thereunder and their consequences provided for in
the Indenture; (iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding"; (iv) reduce the percentage of the Voting
Rights allocated to, or the percentage of the Aggregate Principal Amount or
Notional Amount of, any Class of any Series, the consent or direction of the
Holders of Bonds representing which is required to allow or direct the Indenture
Trustee to sell or liquidate the Trust Estate pursuant to Section 5.04 or
Section 5.12 of the Standard Indenture Provisions; (v) modify any provision of
Section 9.02 of the Standard Indenture Provisions, except to increase any
percentage specified herein or to provide that certain additional provisions of
the Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Bond affected thereby; (vi) modify any of the provisions of the
Indenture in such manner as to affect the calculation of the amount of any
payment of interest, premium (if any) or principal due on any Bond on any
Payment Date (including the calculation of any of the individual components of
such calculation) or to affect the rights of the Holders of any Series to the
benefit of any provisions for the mandatory redemption of the Bonds of such
Series contained therein; or (vii) permit the creation of any lien ranking prior
to or on a parity with the lien of the Indenture with respect to any part of the
Trust Estate securing any Series or terminate the lien of the Indenture on any
property at any time subject thereto or deprive the Holder of any Bond of the
security afforded by the lien of the Indenture, except as otherwise expressly
permitted thereby.
Provided that no Issuer Event of Default has occurred and is continuing,
the Issuer may, at its option, pursuant to the Indenture redeem this Bond, in
whole but not in part, at the Redemption Price therefor, on any Payment Date as
of which the Aggregate Principal Amount of such Class is less than 15% of the
initial Aggregate Principal Amount thereof and in any event subject to and in
accordance with Article X of the Standard Indenture Provisions. Notwithstanding
anything herein to the contrary, the Issuer may at any time irrevocably waive
its right to redeem this Bond. On any Redemption Date, following the payments to
be made on such date pursuant to Section 17(b) of the Terms Indenture, the
Indenture Trustee shall withdraw from the Bond Account and, subject to Section
2.07(e) of the Standard Indenture Provisions, pay to the Holders of the Bonds to
be redeemed the full Redemption Price therefor.
Unless the certificate of authentication hereon has been executed by the
Bond Registrar, by manual signature, this Bond shall not be entitled to any
benefit under the Indenture or be valid for any purpose.
This Bond shall be construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated:
CRIIMI MAE COMMERCIAL MORTGAGE
TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely in its capacity as
Owner Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Bonds referred to in the within-mentioned Terms
Indenture.
Dated:
LASALLE NATIONAL BANK,
as Bond Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the obligation of the Issuer evidenced by
the within Commercial Mortgage Bond and hereby authorize(s) the registration of
transfer of such interest to assignee on the Bond Register.
I (we) further direct the Bond Registrar to issue a new Commercial Mortgage
Bond of a like percentage interest and Class to the above named assignee and
deliver such Bond to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
PAYMENT INSTRUCTIONS
The Assignee should include the following for purposes of payment:
Payments shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to
----------------------------------------------
------------------------------------------------------------------------------
for the account of
-----------------------------------------------------------.
Payments made by check (such check to be made payable to
) and all applicable statements and notices should be mailed
--------------------
to
--------------------------------------------------------------------------.
This information is provided by , the Assignee
---------------------------
named above, or , as its agent.
------------------------------------
EXHIBIT A-4
CLASS C BOND
CRIIMI MAE COMMERCIAL MORTGAGE TRUST
CLASS C COMMERCIAL MORTGAGE BOND
SERIES 1998-C1
Bond Interest Rate: 7.00% per annum Aggregate Principal Amount of the
Class C
Bonds as of the Closing Date:
$115,195,000
Date of Indenture: As of May 8, 1998
Initial Principal Amount of this
Accrual Date: May 1, 1998 Class C Bond as of the Closing Date:
$
Closing Date: May 8, 1998
Initial Aggregate Collateral Principal
First Payment Date: July 2, ▇▇▇▇ ▇▇▇▇▇▇: $1,772,226,951
Stated Maturity: June 2033
Issuer: CRIIMI MAE Commercial Mortgage Trust Indenture Trustee: LaSalle
National Bank
Owner Trustee: Wilmington Trust Company
Bond No. C- CUSIP No. ▇▇▇▇▇▇▇▇▇
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE INDENTURE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
BOND ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS BOND HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS BOND OR ANY INTEREST
HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 14 OF THE TERMS INDENTURE
REFERRED TO HEREIN.
NO TRANSFER OF THIS BOND OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS BOND OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 14 OF THE TERMS INDENTURE REFERRED TO HEREIN.
THIS BOND REPRESENTS AN OBLIGATION OF THE ISSUER AND WILL BE PAID SOLELY FROM
THE COLLATERAL SECURING THIS BOND. NEITHER THIS BOND NOR THE COLLATERAL THEREFOR
IS INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY
OTHER PERSON.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND. THE
ISSUE DATE OF THIS BOND IS MAY 8, 1998. ASSUMING THAT THE MORTGAGE LOANS
UNDERLYING THE PLEDGED SECURITIES ARE NOT SUBJECT TO ANY VOLUNTARY OR
INVOLUNTARY PREPAYMENT, THIS BOND HAS BEEN ISSUED WITH NO MORE THAN $______ OF
OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS ____% PER
ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL PRINCIPAL AMOUNT, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS UNDERLYING THE PLEDGED
SECURITIES WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY
PARTICULAR RATE.
PAYMENTS IN REDUCTION OF THE PRINCIPAL AMOUNT OF THIS BOND MAY BE MADE MONTHLY
AS SET FORTH IN THE INDENTURE REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING BOND PRINCIPAL AMOUNT HEREOF AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of this Bond which
is one of a series of commercial mortgage bonds (collectively, the "Bonds")
issued by the Issuer referred to above in multiple classes (each, a "Class")
pursuant to the Standard Indenture Provisions, dated as of May 8, 1998 (the
"Standard Indenture Provisions"), and the Terms Indenture, dated as of May 8,
1998 (the "Terms Indenture"; the Terms Indenture, together with the Standard
Indenture Provisions, is hereinafter referred to as the "Indenture") between
Owner Trustee referred to above, on behalf of the Issuer and the Indenture
Trustee referred to above, on behalf of the holders of the Bonds (the
"Bondholders"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
have the respective meanings assigned in the Indenture. This Bond is issued
under and is subject to the terms, provisions and conditions of the Indenture,
to which Indenture the Holder of this Bond by virtue of the acceptance hereof
assents and by which such Holder is bound.
The Issuer, a Delaware business trust, for value received, hereby promises
to pay to Cede & Co. or registered assigns the principal sum of $115,195,000 no
later than June 2033.
Pursuant to the terms of the Indenture, payments will be made on the Class
of Bonds to which this Bond belongs, pro rata among the Bonds of such Class
based on their respective Principal Amounts, on the second Business Day
following the end of each Collection Period (each, a "Payment Date"), commencing
on the first Payment Date specified above, to the Person in whose name this Bond
is registered at the close of business on the related Record Date. All payments
made under the Indenture on this Bond will be made by the Indenture Trustee by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Bondholder shall have provided the Indenture Trustee with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent payments), or otherwise by check mailed to the
address of such Bondholder as it appears in the Bond Register. Notwithstanding
the foregoing, the final payment on this Bond will be made in like manner, but
only upon presentation and surrender of this Bond at the offices of the
Indenture Trustee or such other location specified in the notice to the Holder
hereof of such final payment. Notwithstanding anything herein to the contrary,
no payments will be made with respect to a Bond that has previously been
surrendered as contemplated by the preceding sentence or, with limited
exception, that should have been surrendered as contemplated by the preceding
sentence.
The Bonds are limited in right of payment to certain distributions on the
Pledged Securities, all as more specifically set forth herein and in the
Indenture. As provided in the Indenture, withdrawals from the Bond Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, payments to Bondholders, such purposes including the reimbursement of
certain expenses incurred by the Indenture Trustee under the Indenture.
Any payment to the Holder of this Bond in reduction of the Principal Amount
hereof is binding on such Holder and all future Holders of this Bond and any
Bond issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such payment is made upon this Bond.
The Class of Bonds to which this Bond relates, are issuable in fully
registered form only without coupons in minimum denominations specified in the
Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, this Bond is exchangeable for new Bonds of the same Class in
authorized denominations evidencing the same Aggregate Principal Amount, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Bond or interest
therein may be made by an investor unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws.
Initially, this Bond will be held in book-entry form (all such Bonds held from
time to time in such form, the "Book-Entry Bonds"). If a transfer of any
interest in a Book-Entry Bond is to be made without registration under the
Securities Act, then the beneficial owner of such Book-Entry Bond desiring to
effect such transfer must obtain from such beneficial owner's prospective
transferee a certificate substantially in the form attached to the Terms
Indenture as Exhibit C-2B with respect to compliance with the requirements of
certain rules and regulations under the Securities Act and the provisions of the
Indenture. In addition, in connection with its acquisition of an interest in any
Book-Entry Bond, the transferee will be deemed to have made to and for the
benefit of the Issuer, the Company and the Indenture Trustee each of the
representations, warranties and covenants contained in such certificate to be so
delivered to the transferor. Under certain circumstances described herein, this
Bond may cease to be held in book-entry form and will be held in fully
registered, physical form (all such Bonds held from time to time in such form
the "Definitive Bonds"). If a transfer of any Definitive Bond is to be made
without registration under the Securities Act, then the registrar for the Bonds
(the "Bond Registrar", which shall initially be the Indenture Trustee) is
required to refuse to register such transfer unless it receives: (i) a
certificate from the Bondholder desiring to effect such transfer substantially
in the form attached to the Terms Indenture as Exhibit C-1A; (ii) a certificate
from the Bondholder desiring to effect such transfer substantially in the form
attached to the Terms Indenture as Exhibit C-1B and a certificate from such
Bondholder's prospective transferee substantially in the form attached to the
Terms Indenture as Exhibit C-2A; or (iii) an opinion of counsel satisfactory to
the Indenture Trustee to the effect that such transfer may be made without
registration under the Securities Act (which opinion of counsel shall not be an
expense of the Trust Estate (as defined herein) or of the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee or the Bond Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the Bondholder
desiring to effect such transfer and/or such Bondholder's prospective transferee
on which such opinion of counsel is based. Any investor desiring to effect a
transfer of any Bond or interest therein without registration under the
Securities Act and registration or qualification under applicable state
securities laws will be required to, and by acceptance of its Bonds or interests
therein will be deemed to have agreed to, indemnify the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee and the Bond Registrar
against any liability that may result if the transfer is not exempt from such
registration and/or qualification or is not made in accordance with such federal
and state laws.
No transfer of this Bond or any interest herein may be made to a Plan, or
to any person who is directly or indirectly purchasing this Bond or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, unless the party acquiring this Bond or any interest herein provides the
transferor of such interest (in the case of an interest in a Book-Entry Bond) or
the Bond Registrar (in the case of a Definitive Bond) with a certification
generally to the effect that either (A) such transferee is not (i) an employee
benefit plan (as defined in Section 3 (3) of ERISA) that is subject to Title I
of ERISA, (ii) a plan (as defined in Section 4975 of the Code) that is subject
to Section 4975 of the Code, or (iii) an entity deemed for any purpose of ERISA
or Section 4975 of the Code to hold assets of any such employee benefit plan or
plan, including, without limitation, as applicable, an insurance company general
account (each of (i), (ii) and (iii), a "Plan"), and is not directly or
indirectly purchasing such Bonds or interests therein being transferred to it,
on behalf of, for the benefit of, or otherwise using assets of a Plan or (B) the
purchase and holding of such Bonds or interests therein being transferred to it
does not and will not constitute or otherwise result in a non-exempt "prohibited
transaction" under, and as defined in, Section 406 of ERISA or Section 4975 of
the Code, by reason of the application of one or more statutory or
administrative exemptions.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond is registrable in the Bond Register upon
surrender of this Bond for registration of transfer at the offices of the Bond
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Bond Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Bonds of the same Class in authorized denominations evidencing the same
Aggregate Principal Amount will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Bond, but the Indenture Trustee or the Bond Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Bond.
Notwithstanding the foregoing, if and for so long as this Bond is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Bond shall be
made through the book-entry facilities of DTC, and accordingly, this Bond shall
constitute a Book-Entry Bond.
The Company, the Issuer, the Owner Trustee, the Indenture Trustee, the Bond
Registrar and any agent thereof may treat the Person in whose name this Bond is
registered as the owner hereof for all purposes, and none of the Company, the
Issuer, the Owner Trustee, the Indenture Trustee, the Bond Registrar or any such
agent shall be affected by notice to the contrary.
The Indenture will be discharged (except with respect to certain continuing
rights specified in the Indenture) (a)(1) upon the delivery to the Indenture
Trustee for cancellation of all of the Bonds other than Bonds which have been
mutilated, lost or stolen and have been replaced or paid and Bonds for which
money has been deposited in trust for the full payment thereof (and thereafter
repaid to the Issuer and discharged from such trust) as provided in the
Indenture or (2) at such time as all Bonds not previously cancelled by the
Indenture Trustee have become, or, on the next Payment Date, will become, due
and payable or called for redemption and the Issuer shall have deposited with
the Indenture Trustee an amount sufficient to repay all of the Bonds and (b) the
Issuer shall have paid all other amounts payable under the Indenture.
With the consent of the Holders of Bonds representing more than 50% of the
Aggregate Principal Amount (or, in the case of a Class of Interest Only Bonds,
the aggregate Notional Amount) of each Class of any Series, the Issuer and the
Indenture Trustee may amend the Indenture or enter into one or more indentures
supplemental thereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of the Indenture with respect to
such Series or of modifying in any manner the rights of the Bondholders of such
Series under the Indenture; provided that no such amendment or supplemental
indenture shall result in an Adverse Rating Event in respect of any Class of
Bonds of such Series (as confirmed in writing by each applicable Rating Agency);
and, provided further, that no such amendment or supplemental indenture shall,
without the consent of the Holder of each Outstanding Bond affected thereby,
among other things, (i) change the date of payment of any installment of
principal of or interest or premium, if any, on any Bond, or reduce the
Principal Amount thereof, the Bond Interest Rate thereon or the Redemption Price
with respect thereto, change the provisions of the Indenture relating to the
application of payments, collections and/or distributions on, or the proceeds of
the sale of, the related Trust Estate to payments of principal of or interest or
premium, if any, on any Bonds or change any place of payment where, or the coin
or currency in which, any Bond or the interest or premium, if any, thereon is
payable, or impair the right to institute suit for the enforcement of the
provisions of the Indenture requiring the application of funds available
therefor, as provided in Article V
of the Standard Indenture Provisions, to the payment of any such amount due
on any Bond on or after the respective due dates thereof (or, in the case of
redemption, on or after the applicable Redemption Date); (ii) reduce the
percentage of the Voting Rights for or allocated to, or the percentage of the
Aggregate Principal Amount or Notional Amount of, any Class and/or Series, the
consent of the Holders of Bonds representing which is required for any such
supplemental indenture, or the consent of the Holders of Bonds representing
which is required for any waiver of compliance with certain provisions of the
Indenture or certain defaults thereunder and their consequences provided for in
the Indenture; (iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding"; (iv) reduce the percentage of the Voting
Rights allocated to, or the percentage of the Aggregate Principal Amount or
Notional Amount of, any Class of any Series, the consent or direction of the
Holders of Bonds representing which is required to allow or direct the Indenture
Trustee to sell or liquidate the Trust Estate pursuant to Section 5.04 or
Section 5.12 of the Standard Indenture Provisions; (v) modify any provision of
Section 9.02 of the Standard Indenture Provisions, except to increase any
percentage specified herein or to provide that certain additional provisions of
the Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Bond affected thereby; (vi) modify any of the provisions of the
Indenture in such manner as to affect the calculation of the amount of any
payment of interest, premium (if any) or principal due on any Bond on any
Payment Date (including the calculation of any of the individual components of
such calculation) or to affect the rights of the Holders of any Series to the
benefit of any provisions for the mandatory redemption of the Bonds of such
Series contained therein; or (vii) permit the creation of any lien ranking prior
to or on a parity with the lien of the Indenture with respect to any part of the
Trust Estate securing any Series or terminate the lien of the Indenture on any
property at any time subject thereto or deprive the Holder of any Bond of the
security afforded by the lien of the Indenture, except as otherwise expressly
permitted thereby.
Provided that no Issuer Event of Default has occurred and is continuing,
the Issuer may, at its option, pursuant to the Indenture redeem this Bond, in
whole but not in part, at the Redemption Price therefor, on any Payment Date as
of which the Aggregate Principal Amount of such Class is less than 15% of the
initial Aggregate Principal Amount thereof and in any event subject to and in
accordance with Article X of the Standard Indenture Provisions. Notwithstanding
anything herein to the contrary, the Issuer may at any time irrevocably waive
its right to redeem this Bond. On any Redemption Date, following the payments to
be made on such date pursuant to Section 17(b) of the Terms Indenture, the
Indenture Trustee shall withdraw from the Bond Account and, subject to Section
2.07(e) of the Standard Indenture Provisions, pay to the Holders of the Bonds to
be redeemed the full Redemption Price therefor.
Unless the certificate of authentication hereon has been executed by the
Bond Registrar, by manual signature, this Bond shall not be entitled to any
benefit under the Indenture or be valid for any purpose.
This Bond shall be construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated:
CRIIMI MAE COMMERCIAL MORTGAGE
TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely in its capacity as
Owner Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Bonds referred to in the within-mentioned Terms
Indenture.
Dated:
LASALLE NATIONAL BANK,
as Bond Registrar
By:______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
------------------------------------------------------------
-----------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the obligation of the Issuer evidenced by
the within Commercial Mortgage Bond and hereby authorize(s) the registration of
transfer of such interest to assignee on the Bond Register.
I (we) further direct the Bond Registrar to issue a new Commercial Mortgage
Bond of a like percentage interest and Class to the above named assignee and
deliver such Bond to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
PAYMENT INSTRUCTIONS
The Assignee should include the following for purposes of payment:
Payments shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to
----------------------------------------------
for the
--------------------------------------------------------------------
account of
------------------------------------------------------------------.
Payments made by check (such check to be made payable to
) and all applicable statements and notices should be mailed
--------------------
to
---------------------------------------------------------------------------.
This information is provided by , the Assignee
----------------------------
named above, or , as its agent.
------------------------------------
EXHIBIT A-5
CLASS D-1 BOND
CRIIMI MAE COMMERCIAL MORTGAGE TRUST
CLASS D COMMERCIAL MORTGAGE BOND
SERIES 1998-C1
Bond Interest Rate: 7.00% per annum Aggregate Principal Amount of the
Class D-1
Bonds as of the Closing Date:
$159,500,000
Date of Indenture: As of May 8, 1998
Initial Principal Amount of this
Accrual Date: May 1, 1998 Class D-1 Bond as of the Closing Date:
$
Closing Date: May 8, 1998
Initial Aggregate Collateral Principal
First Payment Date: July 2, ▇▇▇▇ ▇▇▇▇▇▇: $1,772,226,951
Stated Maturity: June 2033
Issuer: CRIIMI MAE Commercial Mortgage Trust Indenture Trustee: LaSalle
National Bank
Owner Trustee: Wilmington Trust Company
Bond No. D-1-
THIS BOND HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS BOND OR ANY INTEREST
HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 14 OF THE TERMS INDENTURE
REFERRED TO HEREIN.
NO TRANSFER OF THIS BOND OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS BOND OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 14 OF THE TERMS INDENTURE REFERRED TO HEREIN.
BECAUSE THE TRUST ESTATE SECURING THIS BOND AND OTHER BONDS OF THE SAME SERIES
HAS NOT BEEN REGISTERED AS AN INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"), THIS BOND IS SUBJECT TO
FURTHER TRANSFER RESTRICTIONS ASSOCIATED THEREWITH.
THIS BOND REPRESENTS AN OBLIGATION OF THE ISSUER AND WILL BE PAID SOLELY FROM
THE COLLATERAL SECURING THIS BOND. NEITHER THIS BOND NOR THE COLLATERAL THEREFOR
IS INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY
OTHER PERSON.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND. THE
ISSUE DATE OF THIS BOND IS MAY 8, 1998. ASSUMING THAT THE MORTGAGE LOANS
UNDERLYING THE PLEDGED SECURITIES ARE NOT SUBJECT TO ANY VOLUNTARY OR
INVOLUNTARY PREPAYMENT, THIS BOND HAS BEEN ISSUED WITH NO MORE THAN $______ OF
OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS ____% PER
ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL PRINCIPAL AMOUNT, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS UNDERLYING THE PLEDGED
SECURITIES WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY
PARTICULAR RATE.
THIS BOND IS SUBORDINATE TO OTHER BONDS OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE INDENTURE REFERRED TO HEREIN.
PAYMENTS IN REDUCTION OF THE PRINCIPAL AMOUNT OF THIS BOND MAY BE MADE MONTHLY
AS SET FORTH IN THE INDENTURE REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that is the registered owner (the
----------------------
"Holder") of this Bond which is one of a series of commercial mortgage bonds
(collectively, the "Bonds") issued by the Issuer referred to above in multiple
classes (each, a "Class") pursuant to the Standard Indenture Provisions, dated
as of May 8, 1998 (the "Standard Indenture Provisions"), and the Terms
Indenture, dated as of May 8, 1998 (the "Terms Indenture"; the Terms Indenture,
together with the Standard Indenture Provisions, is hereinafter referred to as
the "Indenture") between Owner Trustee referred to above, on behalf of the
Issuer and the Indenture Trustee referred to above, on behalf of the holders of
the Bonds (the "Bondholders"), a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned in the Indenture. This
Bond is issued under and is subject to the terms, provisions and conditions of
the Indenture, to which Indenture the Holder of this Bond by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Issuer, a Delaware business trust, for value received, hereby promises
to pay to the Holder hereof or registered assigns the principal sum of $
no later than June 2033.
---------------------
Pursuant to the terms of the Indenture, payments will be made on the Class
of Bonds to which this Bond belongs, pro rata among the Bonds of such Class
based on their respective Principal Amounts, on the second Business Day
following the end of each Collection Period (each, a "Payment Date"), commencing
on the first Payment Date specified above, to the Person in whose name this Bond
is registered at the close of business on the related Record Date. All payments
made under the Indenture on this Bond will be made by the Indenture Trustee by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Bondholder shall have provided the Indenture Trustee with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent payments) or otherwise by check mailed to the
address of such Bondholder as it appears in the Bond Register. Notwithstanding
the foregoing, the final payment on this Bond will be made in like manner, but
only upon presentation and surrender of this Bond at the offices of the
Indenture Trustee or such other location specified in the notice to the Holder
hereof of such final payment. Notwithstanding anything herein to the contrary,
no payments will be made with respect to a Bond that has previously been
surrendered as contemplated by the preceding sentence or, with limited
exception, that should have been surrendered as contemplated by the preceding
sentence.
The Bonds are limited in right of payment to certain distributions on the
Pledged Securities, all as more specifically set forth herein and in the
Indenture. As provided in the Indenture, withdrawals from the Bond Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, payments to Bondholders, such purposes including the reimbursement of
certain expenses incurred by the Indenture Trustee under the Indenture.
Any payment to the Holder of this Bond in reduction of the Principal Amount
hereof is binding on such Holder and all future Holders of this Bond and any
Bond issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such payment is made upon this Bond.
The Class of Bonds to which this Bond relates, are issuable in fully
registered form only without coupons in minimum denominations specified in the
Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, this Bond is exchangeable for new Bonds of the same Class in
authorized denominations evidencing the same Aggregate Principal Amount, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Bond or interest
therein may be made by an investor unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws.
Initially, this Bond will be held in book-entry form (all such Bonds held from
time to time in such form, the "Book-Entry Bonds"). If a transfer of any
interest in a Book-Entry Bond is to be made without registration under the
Securities Act, then the beneficial owner of such Book-Entry Bond desiring to
effect such transfer must obtain from such beneficial owner's prospective
transferee a certificate substantially in the form attached to the Terms
Indenture as Exhibit C-2B with respect to compliance with the requirements of
certain rules and regulations under the Securities Act and the provisions of the
Indenture. In addition, in connection with its acquisition of an interest in any
Book-Entry Bond, the transferee will be deemed to have made to and for the
benefit of the Issuer, the Company and the Indenture Trustee each of the
representations, warranties and covenants contained in such certificate to be so
delivered to the transferor. Under certain circumstances described herein, this
Bond may cease to be held in book-entry form and will be held in fully
registered, physical form (all such Bonds held from time to time in such form
the "Definitive Bonds"). If a transfer of any Definitive Bond is to be made
without registration under the Securities Act, then the registrar for the Bonds
(the "Bond Registrar", which shall initially be the Indenture Trustee) is
required to refuse to register such transfer unless it receives: (i) a
certificate from the Bondholder desiring to effect such transfer substantially
in the form attached to the Terms Indenture as Exhibit C-1A; (ii) a certificate
from the Bondholder desiring to effect such transfer substantially in the form
attached to the Terms Indenture as Exhibit C-1B and a certificate from such
Bondholder's prospective transferee substantially in the form attached to the
Terms Indenture as Exhibit C-2A; or (iii) an opinion of counsel satisfactory to
the Indenture Trustee to the effect that such transfer may be made without
registration under the Securities Act (which opinion of counsel shall not be an
expense of the Trust Estate (as defined herein) or of the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee or the Bond Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the Bondholder
desiring to effect such transfer and/or such Bondholder's prospective transferee
on which such opinion of counsel is based. Any investor desiring to effect a
transfer of any Bond or interest therein without registration under the
Securities Act and registration or qualification under applicable state
securities laws will be required to, and by acceptance of its Bonds or interests
therein will be deemed to have agreed to, indemnify the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee and the Bond Registrar
against any liability that may result if the transfer is not exempt from such
registration and/or qualification or is not made in accordance with such federal
and state laws.
The Trust Estate has not been registered as an investment company under the
Investment Company Act, and no transfer of this Bond shall be made to any Person
other than an Affiliate of the Issuer, a QIB or an Institutional Accredited
Investor. If any such transfer of this Bond is to be made, then the Indenture
Trustee shall require, in order to assure compliance with the foregoing, unless
the transferee is an Affiliate of the Issuer or unless a transferor
certification in the form attached to the Terms Indenture as Exhibit C-1A or a
transferee certification in the form attached to the Terms Indenture as Exhibit
C-2A has already been delivered pursuant to Section 14 of the Terms Indenture,
that the prospective transferee of this Bond certify in writing that it is a QIB
or an Institutional Accredited Investor.
No transfer of this Bond or any interest herein shall be made to a Plan, or
to any person who is directly or indirectly purchasing this Bond or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, unless the prospective Transferee of this Bond or any interest herein
provides the Bond Registrar (in the case of a Definitive Bond) or the Bond Owner
(in the case of
a Book-Entry Bond) with a certification of facts and an Opinion of Counsel
which establish to the satisfaction of the Indenture Trustee (in the case of a
Definitive Bond) or the Bond Owner (in the case of a Book-Entry Bond) that the
purchase and holding of this Bond or any interest herein will not constitute or
result in a non-exempt prohibited transaction under ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
and will not subject the Issuer, the Owner Trustee, the Manager, the Company,
the Bond Registrar or the Indenture Trustee to any obligation in addition to
those undertaken in the Indenture.
Each Person who acquires this Bond or any interest herein (unless it shall
have delivered to the Bond Registrar a certification of facts and Opinion of
Counsel as described in the preceding paragraph) shall be deemed to have
represented and warranted to and for the benefit of the Issuer, the Owner
Trustee, the Manager, the Company, the Bond Registrar and the Indenture Trustee
that either: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing this Bond or any interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) the purchase and
holding of this Bond or any interest herein by or on behalf of, or with assets
of, such Person will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code or the imposition of an excise tax under
Section 4975 of the Code (and, will not subject the Issuer, the Owner Trustee,
the Manager, the Company, the Bond Registrar or the Indenture Trustee to any
obligation in addition to those undertaken in the Indenture).
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond is registrable in the Bond Register upon
surrender of this Bond for registration of transfer at the offices of the Bond
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Bond Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Bonds of the same Class in authorized denominations evidencing the same
Aggregate Principal Amount will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Bond, but the Indenture Trustee or the Bond Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Bond.
The Company, the Issuer, the Owner Trustee, the Indenture Trustee, the Bond
Registrar and any agent thereof may treat the Person in whose name this Bond is
registered as the owner hereof for all purposes, and none of the Company, the
Issuer, the Owner Trustee, the Indenture Trustee, the Bond Registrar or any such
agent shall be affected by notice to the contrary.
The Indenture will be discharged (except with respect to certain continuing
rights specified in the Indenture) (a)(1) upon the delivery to the Indenture
Trustee for cancellation of all of the Bonds other than Bonds which have been
mutilated, lost or stolen and have been replaced or paid and Bonds for which
money has been deposited in trust for the full payment thereof (and thereafter
repaid to the Issuer and discharged from such trust) as provided in the
Indenture or (2) at such time as all Bonds not previously cancelled by the
Indenture Trustee have become, or, on the next Payment Date, will become, due
and payable or called for redemption and the Issuer shall have deposited with
the Indenture Trustee an amount sufficient to repay all of the Bonds and (b) the
Issuer shall have paid all other amounts payable under the Indenture.
With the consent of the Holders of Bonds representing more than 50% of the
Aggregate Principal Amount (or, in the case of a Class of Interest Only Bonds,
the aggregate Notional Amount) of each Class of any Series, the Issuer and the
Indenture Trustee may amend the Indenture or enter into one or more indentures
supplemental thereto for the purpose of adding any provisions to or changing in
any
manner or eliminating any of the provisions of the Indenture with respect to
such Series or of modifying in any manner the rights of the Bondholders of such
Series under the Indenture; provided that no such amendment or supplemental
indenture shall result in an Adverse Rating Event in respect of any Class of
Bonds of such Series (as confirmed in writing by each applicable Rating Agency);
and, provided further, that no such amendment or supplemental indenture shall,
without the consent of the Holder of each Outstanding Bond affected thereby,
among other things, (i) change the date of payment of any installment of
principal of or interest or premium, if any, on any Bond, or reduce the
Principal Amount thereof, the Bond Interest Rate thereon or the Redemption Price
with respect thereto, change the provisions of the Indenture relating to the
application of payments, collections and/or distributions on, or the proceeds of
the sale of, the related Trust Estate to payments of principal of or interest or
premium, if any, on any Bonds or change any place of payment where, or the coin
or currency in which, any Bond or the interest or premium, if any, thereon is
payable, or impair the right to institute suit for the enforcement of the
provisions of the Indenture requiring the application of funds available
therefor, as provided in Article V of the Standard Indenture Provisions, to the
payment of any such amount due on any Bond on or after the respective due dates
thereof (or, in the case of redemption, on or after the applicable Redemption
Date); (ii) reduce the percentage of the Voting Rights for or allocated to, or
the percentage of the Aggregate Principal Amount or Notional Amount of, any
Class and/or Series, the consent of the Holders of Bonds representing which is
required for any such supplemental indenture, or the consent of the Holders of
Bonds representing which is required for any waiver of compliance with certain
provisions of the Indenture or certain defaults thereunder and their
consequences provided for in the Indenture; (iii) modify or alter the provisions
of the proviso to the definition of the term "Outstanding"; (iv) reduce the
percentage of the Voting Rights allocated to, or the percentage of the Aggregate
Principal Amount or Notional Amount of, any Class of any Series, the consent or
direction of the Holders of Bonds representing which is required to allow or
direct the Indenture Trustee to sell or liquidate the Trust Estate pursuant to
Section 5.04 or Section 5.12 of the Standard Indenture Provisions; (v) modify
any provision of Section 9.02 of the Standard Indenture Provisions, except to
increase any percentage specified herein or to provide that certain additional
provisions of the Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Bond affected thereby; (vi) modify any of the
provisions of the Indenture in such manner as to affect the calculation of the
amount of any payment of interest, premium (if any) or principal due on any Bond
on any Payment Date (including the calculation of any of the individual
components of such calculation) or to affect the rights of the Holders of any
Series to the benefit of any provisions for the mandatory redemption of the
Bonds of such Series contained therein; or (vii) permit the creation of any lien
ranking prior to or on a parity with the lien of the Indenture with respect to
any part of the Trust Estate securing any Series or terminate the lien of the
Indenture on any property at any time subject thereto or deprive the Holder of
any Bond of the security afforded by the lien of the Indenture, except as
otherwise expressly permitted thereby.
Provided that no Issuer Event of Default has occurred and is continuing,
the Issuer may, at its option, pursuant to the Indenture redeem this Bond, in
whole but not in part, at the Redemption Price therefor, on any Payment Date as
of which the Aggregate Principal Amount of such Class is less than 15% of the
initial Aggregate Principal Amount thereof and in any event subject to and in
accordance with Article X of the Standard Indenture Provisions. Notwithstanding
anything herein to the contrary, the Issuer may at any time irrevocably waive
its right to redeem this Bond. On any Redemption Date, following the payments to
be made on such date pursuant to Section 17(b) of the Terms Indenture, the
Indenture Trustee shall withdraw from the Bond Account and, subject to Section
2.07(e) of the Standard Indenture Provisions, pay to the Holders of the Bonds to
be redeemed the full Redemption Price therefor.
Unless the certificate of authentication hereon has been executed by the
Bond Registrar, by manual signature, this Bond shall not be entitled to any
benefit under the Indenture or be valid for any purpose.
This Bond shall be construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated:
CRIIMI MAE COMMERCIAL MORTGAGE
TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely in its capacity as Owner
Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class D-1 Bonds referred to in the within-mentioned
Terms Indenture.
Dated:
LASALLE NATIONAL BANK,
as Bond Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the obligation of the Issuer evidenced by
the within Commercial Mortgage Bond and hereby authorize(s) the registration of
transfer of such interest to assignee on the Bond Register.
I (we) further direct the Bond Registrar to issue a new Commercial Mortgage
Bond of a like percentage interest and Class to the above named assignee and
deliver such Bond to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
PAYMENT INSTRUCTIONS
The Assignee should include the following for purposes of payment:
Payments shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to
----------------------------------------------
------------------------------------------------------------------------------
for the account of .
-----------------------------------------------------------
Payments made by check (such check to be made payable to
) and all applicable statements and notices should be mailed
--------------------
to
------------------------------------------------------------------------.
This information is provided by , the Assignee
---------------------------
named above, or , as its agent.
-----------------------------------
EXHIBIT A-6
CLASS D-2 BOND
CRIIMI MAE COMMERCIAL MORTGAGE TRUST
CLASS D COMMERCIAL MORTGAGE BOND
SERIES 1998-C1
Bond Interest Rate: 7.00% per annum Aggregate Principal Amount of the
Class D-2
Bonds as of the Closing Date:
$159,501,000
Date of Indenture: As of May 8, 1998
Initial Principal Amount of this
Accrual Date: May 1, 1998 Class D-2 Bond as of the Closing Date:
$
Closing Date: May 8, 1998
Initial Aggregate Collateral Principal
First Payment Date: July 2, ▇▇▇▇ ▇▇▇▇▇▇: $1,772,226,951
Stated Maturity: June 2033
Issuer: CRIIMI MAE Commercial Mortgage Trust Indenture Trustee: LaSalle
National Bank
Owner Trustee: Wilmington Trust Company
Bond No. D-2-
THIS BOND HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS BOND OR ANY INTEREST
HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 14 OF THE TERMS INDENTURE
REFERRED TO HEREIN.
NO TRANSFER OF THIS BOND OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS BOND OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 14 OF THE TERMS INDENTURE REFERRED TO HEREIN.
BECAUSE THE TRUST ESTATE SECURING THIS BOND AND OTHER BONDS OF THE SAME SERIES
HAS NOT BEEN REGISTERED AS AN INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"), THIS BOND IS SUBJECT TO
FURTHER TRANSFER RESTRICTIONS ASSOCIATED THEREWITH.
THIS BOND REPRESENTS AN OBLIGATION OF THE ISSUER AND WILL BE PAID SOLELY FROM
THE COLLATERAL SECURING THIS BOND. NEITHER THIS BOND NOR THE COLLATERAL THEREFOR
IS INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY
OTHER PERSON.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND. THE
ISSUE DATE OF THIS BOND IS MAY 8, 1998. ASSUMING THAT THE MORTGAGE LOANS
UNDERLYING THE PLEDGED SECURITIES ARE NOT SUBJECT TO ANY VOLUNTARY OR
INVOLUNTARY PREPAYMENT, THIS BOND HAS BEEN ISSUED WITH NO MORE THAN $______ OF
OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS ____% PER
ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL PRINCIPAL AMOUNT, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS UNDERLYING THE PLEDGED
SECURITIES WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY
PARTICULAR RATE.
THIS BOND IS SUBORDINATE TO OTHER BONDS OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE INDENTURE REFERRED TO HEREIN.
PAYMENTS IN REDUCTION OF THE PRINCIPAL AMOUNT OF THIS BOND MAY BE MADE MONTHLY
AS SET FORTH IN THE INDENTURE REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that is the registered owner (the
----------------------
"Holder") of this Bond which is one of a series of commercial mortgage bonds
(collectively, the "Bonds") issued by the Issuer referred to above in multiple
classes (each, a "Class") pursuant to the Standard Indenture Provisions, dated
as of May 8, 1998 (the "Standard Indenture Provisions"), and the Terms
Indenture, dated as of May 8, 1998 (the "Terms Indenture"; the Terms Indenture,
together with the Standard Indenture Provisions, is hereinafter referred to as
the "Indenture") between Owner Trustee referred to above, on behalf of the
Issuer and the Indenture Trustee referred to above, on behalf of the holders of
the Bonds (the "Bondholders"), a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned in the Indenture. This
Bond is issued under and is subject to the terms, provisions and conditions of
the Indenture, to which Indenture the Holder of this Bond by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Issuer, a Delaware business trust, for value received, hereby promises
to pay to the Holder hereof or registered assigns the principal sum of $
no later than June 2033.
---------------------
Pursuant to the terms of the Indenture, payments will be made on the Class
of Bonds to which this Bond belongs, pro rata among the Bonds of such Class
based on their respective Principal Amounts, on the second Business Day
following the end of each Collection Period (each, a "Payment Date"), commencing
on the first Payment Date specified above, to the Person in whose name this Bond
is registered at the close of business on the related Record Date. All payments
made under the Indenture on this Bond will be made by the Indenture Trustee by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Bondholder shall have provided the Indenture Trustee with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent payments), or otherwise by check mailed to the
address of such Bondholder as it appears in the Bond Register. Notwithstanding
the foregoing, the final payment on this Bond will be made in like manner, but
only upon presentation and surrender of this Bond at the offices of the
Indenture Trustee or such other location specified in the notice to the Holder
hereof of such final payment. Notwithstanding anything herein to the contrary,
no payments will be made with respect to a Bond that has previously been
surrendered as contemplated by the preceding sentence or, with limited
exception, that should have been surrendered as contemplated by the preceding
sentence.
The Bonds are limited in right of payment to certain distributions on the
Pledged Securities, all as more specifically set forth herein and in the
Indenture. As provided in the Indenture, withdrawals from the Bond Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, payments to Bondholders, such purposes including the reimbursement of
certain expenses incurred by the Indenture Trustee under the Indenture.
Any payment to the Holder of this Bond in reduction of the Principal Amount
hereof is binding on such Holder and all future Holders of this Bond and any
Bond issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such payment is made upon this Bond.
The Class of Bonds to which this Bond relates, are issuable in fully
registered form only without coupons in minimum denominations specified in the
Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, this Bond is exchangeable for new Bonds of the same Class in
authorized denominations evidencing the same Aggregate Principal Amount, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Bond or interest
therein may be made by an investor unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws.
Initially, this Bond will be held in book-entry form (all such Bonds held from
time to time in such form, the "Book-Entry Bonds"). If a transfer of any
interest in a Book-Entry Bond is to be made without registration under the
Securities Act, then the beneficial owner of such Book-Entry Bond desiring to
effect such transfer must obtain from such beneficial owner's prospective
transferee a certificate substantially in the form attached to the Terms
Indenture as Exhibit C-2B with respect to compliance with the requirements of
certain rules and regulations under the Securities Act and the provisions of the
Indenture. In addition, in connection with its acquisition of an interest in any
Book-Entry Bond, the transferee will be deemed to have made to and for the
benefit of the Issuer, the Company and the Indenture Trustee each of the
representations, warranties and covenants contained in such certificate to be so
delivered to the transferor. Under certain circumstances described herein, this
Bond may cease to be held in book-entry form and will be held in fully
registered, physical form (all such Bonds held from time to time in such form
the "Definitive Bonds"). If a transfer of any Definitive Bond is to be made
without registration under the Securities Act, then the registrar for the Bonds
(the "Bond Registrar", which shall initially be the Indenture Trustee) is
required to refuse to register such transfer unless it receives: (i) a
certificate from the Bondholder desiring to effect such transfer substantially
in the form attached to the Terms Indenture as Exhibit C-1A; (ii) a certificate
from the Bondholder desiring to effect such transfer substantially in the form
attached to the Terms Indenture as Exhibit C-1B and a certificate from such
Bondholder's prospective transferee substantially in the form attached to the
Terms Indenture as Exhibit C-2A; or (iii) an opinion of counsel satisfactory to
the Indenture Trustee to the effect that such transfer may be made without
registration under the Securities Act (which opinion of counsel shall not be an
expense of the Trust Estate (as defined herein) or of the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee or the Bond Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the Bondholder
desiring to effect such transfer and/or such Bondholder's prospective transferee
on which such opinion of counsel is based. Any investor desiring to effect a
transfer of any Bond or interest therein without registration under the
Securities Act and registration or qualification under applicable state
securities laws will be required to, and by acceptance of its Bonds or interests
therein will be deemed to have agreed to, indemnify the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee and the Bond Registrar
against any liability that may result if the transfer is not exempt from such
registration and/or qualification or is not made in accordance with such federal
and state laws.
The Trust Estate has not been registered as an investment company under the
Investment Company Act, and no transfer of this Bond shall be made to any Person
other than an Affiliate of the Issuer, a QIB or an Institutional Accredited
Investor. If any such transfer of this Bond is to be made, then the Indenture
Trustee shall require, in order to assure compliance with the foregoing, unless
the transferee is an Affiliate of the Issuer or unless a transferor
certification in the form attached to the Terms Indenture as Exhibit C-1A or a
transferee certification in the form attached to the Terms Indenture as Exhibit
C-2A has already been delivered pursuant to Section 14 of the Terms Indenture,
that the prospective transferee of this Bond certify in writing that it is a QIB
or an Institutional Accredited Investor.
No transfer of this Bond or any interest herein shall be made to a Plan, or
to any person who is directly or indirectly purchasing this Bond or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, unless the prospective Transferee of this Bond or any interest herein
provides the Bond Registrar (in the case of a Definitive Bond) or the Bond Owner
(in the case of a Book-Entry Bond) with a certification of facts and an Opinion
of Counsel which establish to the satisfaction of the Indenture Trustee (in the
case of a Definitive Bond) or the Bond Owner (in the case of
a Book-Entry Bond) that the purchase and holding of this Bond or any
interest herein will not constitute or result in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code or result in the imposition
of an excise tax under Section 4975 of the Code and will not subject the Issuer,
the Owner Trustee, the Manager, the Company, the Bond Registrar or the Indenture
Trustee to any obligation in addition to those undertaken in the Indenture.
Each Person who acquires this Bond or any interest herein (unless it shall
have delivered to the Bond Registrar a certification of facts and Opinion of
Counsel as described in the preceding paragraph) shall be deemed to have
represented and warranted to and for the benefit of the Issuer, the Owner
Trustee, the Manager, the Company, the Bond Registrar and the Indenture Trustee
that either: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing this Bond or any interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) the purchase and
holding of this Bond or any interest herein by or on behalf of, or with assets
of, such Person will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code or the imposition of an excise tax under
Section 4975 of the Code (and, will not subject the Issuer, the Owner Trustee,
the Manager, the Company, the Bond Registrar or the Indenture Trustee to any
obligation in addition to those undertaken in the Indenture).
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond is registrable in the Bond Register upon
surrender of this Bond for registration of transfer at the offices of the Bond
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Bond Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Bonds of the same Class in authorized denominations evidencing the same
Aggregate Principal Amount will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Bond, but the Indenture Trustee or the Bond Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Bond.
The Company, the Issuer, the Owner Trustee, the Indenture Trustee, the Bond
Registrar and any agent thereof may treat the Person in whose name this Bond is
registered as the owner hereof for all purposes, and none of the Company, the
Issuer, the Owner Trustee, the Indenture Trustee, the Bond Registrar or any such
agent shall be affected by notice to the contrary.
The Indenture will be discharged (except with respect to certain continuing
rights specified in the Indenture) (a)(1) upon the delivery to the Indenture
Trustee for cancellation of all of the Bonds other than Bonds which have been
mutilated, lost or stolen and have been replaced or paid and Bonds for which
money has been deposited in trust for the full payment thereof (and thereafter
repaid to the Issuer and discharged from such trust) as provided in the
Indenture or (2) at such time as all Bonds not previously cancelled by the
Indenture Trustee have become, or, on the next Payment Date, will become, due
and payable or called for redemption and the Issuer shall have deposited with
the Indenture Trustee an amount sufficient to repay all of the Bonds and (b) the
Issuer shall have paid all other amounts payable under the Indenture.
With the consent of the Holders of Bonds representing more than 50% of the
Aggregate Principal Amount (or, in the case of a Class of Interest Only Bonds,
the aggregate Notional Amount) of each Class of any Series, the Issuer and the
Indenture Trustee may amend the Indenture or enter into one or more indentures
supplemental thereto for the purpose of adding any provisions to or changing in
any
manner or eliminating any of the provisions of the Indenture with respect to
such Series or of modifying in any manner the rights of the Bondholders of such
Series under the Indenture; provided that no such amendment or supplemental
indenture shall result in an Adverse Rating Event in respect of any Class of
Bonds of such Series (as confirmed in writing by each applicable Rating Agency);
and, provided further, that no such amendment or supplemental indenture shall,
without the consent of the Holder of each Outstanding Bond affected thereby,
among other things, (i) change the date of payment of any installment of
principal of or interest or premium, if any, on any Bond, or reduce the
Principal Amount thereof, the Bond Interest Rate thereon or the Redemption Price
with respect thereto, change the provisions of the Indenture relating to the
application of payments, collections and/or distributions on, or the proceeds of
the sale of, the related Trust Estate to payments of principal of or interest or
premium, if any, on any Bonds or change any place of payment where, or the coin
or currency in which, any Bond or the interest or premium, if any, thereon is
payable, or impair the right to institute suit for the enforcement of the
provisions of the Indenture requiring the application of funds available
therefor, as provided in Article V of the Standard Indenture Provisions, to the
payment of any such amount due on any Bond on or after the respective due dates
thereof (or, in the case of redemption, on or after the applicable Redemption
Date); (ii) reduce the percentage of the Voting Rights for or allocated to, or
the percentage of the Aggregate Principal Amount or Notional Amount of, any
Class and/or Series, the consent of the Holders of Bonds representing which is
required for any such supplemental indenture, or the consent of the Holders of
Bonds representing which is required for any waiver of compliance with certain
provisions of the Indenture or certain defaults thereunder and their
consequences provided for in the Indenture; (iii) modify or alter the provisions
of the proviso to the definition of the term "Outstanding"; (iv) reduce the
percentage of the Voting Rights allocated to, or the percentage of the Aggregate
Principal Amount or Notional Amount of, any Class of any Series, the consent or
direction of the Holders of Bonds representing which is required to allow or
direct the Indenture Trustee to sell or liquidate the Trust Estate pursuant to
Section 5.04 or Section 5.12 of the Standard Indenture Provisions; (v) modify
any provision of Section 9.02 of the Standard Indenture Provisions, except to
increase any percentage specified herein or to provide that certain additional
provisions of the Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Bond affected thereby; (vi) modify any of the
provisions of the Indenture in such manner as to affect the calculation of the
amount of any payment of interest, premium (if any) or principal due on any Bond
on any Payment Date (including the calculation of any of the individual
components of such calculation) or to affect the rights of the Holders of any
Series to the benefit of any provisions for the mandatory redemption of the
Bonds of such Series contained therein; or (vii) permit the creation of any lien
ranking prior to or on a parity with the lien of the Indenture with respect to
any part of the Trust Estate securing any Series or terminate the lien of the
Indenture on any property at any time subject thereto or deprive the Holder of
any Bond of the security afforded by the lien of the Indenture, except as
otherwise expressly permitted thereby.
Provided that no Issuer Event of Default has occurred and is continuing,
the Issuer may, at its option, pursuant to the Indenture redeem this Bond, in
whole but not in part, at the Redemption Price therefor, on any Payment Date as
of which the Aggregate Principal Amount of such Class is less than 15% of the
initial Aggregate Principal Amount thereof and in any event subject to and in
accordance with Article X of the Standard Indenture Provisions. Notwithstanding
anything herein to the contrary, the Issuer may at any time irrevocably waive
its right to redeem this Bond. On any Redemption Date, following the payments to
be made on such date pursuant to Section 17(b) of the Terms Indenture, the
Indenture Trustee shall withdraw from the Bond Account and, subject to Section
2.07(e) of the Standard Indenture Provisions, pay to the Holders of the Bonds to
be redeemed the full Redemption Price therefor.
Unless the certificate of authentication hereon has been executed by the
Bond Registrar, by manual signature, this Bond shall not be entitled to any
benefit under the Indenture or be valid for any purpose.
This Bond shall be construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated:
CRIIMI MAE COMMERCIAL MORTGAGE
TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely in its capacity as Owner
Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class D-2 Bonds referred to in the within-mentioned
Terms Indenture.
Dated:
LASALLE NATIONAL BANK,
as Bond Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the obligation of the Issuer evidenced by
the within Commercial Mortgage Bond and hereby authorize(s) the registration of
transfer of such interest to assignee on the Bond Register.
I (we) further direct the Bond Registrar to issue a new Commercial Mortgage
Bond of a like percentage interest and Class to the above named assignee and
deliver such Bond to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
PAYMENT INSTRUCTIONS
The Assignee should include the following for purposes of payment:
Payments shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to
----------------------------------------------
for the account of
-----------------------------------------------------------.
Payments made by check (such check to be made payable to
) and all applicable statements and notices should be mailed
--------------------
to
--------------------------------------------------------------------------.
This information is provided by , the Assignee
---------------------------
named above, or , as its agent.
-----------------------------------
EXHIBIT A-7
CLASS E BOND
CRIIMI MAE COMMERCIAL MORTGAGE TRUST
CLASS E COMMERCIAL MORTGAGE BOND
SERIES 1998-C1
Bond Interest Rate: 7.00% per annum Aggregate Principal Amount of the Class E
Bonds as of the Closing Date: $70,889,000
Date of Indenture: As of May 8, 1998
Initial Principal Amount of this
Accrual Date: May 1, 1998 Class E Bond as of the Closing Date:
$
Closing Date: May 8, 1998
Initial Aggregate Collateral Principal
First Payment Date: July 2, ▇▇▇▇ ▇▇▇▇▇▇: $1,772,226,951
Stated Maturity: June 2033
Issuer: CRIIMI MAE Commercial Mortgage Trust Indenture Trustee: LaSalle
National Bank
Owner Trustee: Wilmington Trust Company
Bond No. E-
THIS BOND HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS BOND OR ANY INTEREST
HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 14 OF THE TERMS INDENTURE
REFERRED TO HEREIN.
NO TRANSFER OF THIS BOND OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS BOND OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 14 OF THE TERMS INDENTURE REFERRED TO HEREIN.
BECAUSE THE TRUST ESTATE SECURING THIS BOND AND OTHER BONDS OF THE SAME SERIES
HAS NOT BEEN REGISTERED AS AN INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"), THIS BOND IS SUBJECT TO
FURTHER TRANSFER RESTRICTIONS ASSOCIATED THEREWITH.
THIS BOND REPRESENTS AN OBLIGATION OF THE ISSUER AND WILL BE PAID SOLELY FROM
THE COLLATERAL SECURING THIS BOND. NEITHER THIS BOND NOR THE COLLATERAL THEREFOR
IS INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY
OTHER PERSON.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND. THE
ISSUE DATE OF THIS BOND IS MAY 8, 1998. ASSUMING THAT THE MORTGAGE LOANS
UNDERLYING THE PLEDGED SECURITIES ARE NOT SUBJECT TO ANY VOLUNTARY OR
INVOLUNTARY PREPAYMENT, THIS BOND HAS BEEN ISSUED WITH NO MORE THAN $______ OF
OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS ____% PER
ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL PRINCIPAL AMOUNT, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS UNDERLYING THE PLEDGED
SECURITIES WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY
PARTICULAR RATE.
THIS BOND IS SUBORDINATE TO OTHER BONDS OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE INDENTURE REFERRED TO HEREIN.
PAYMENTS IN REDUCTION OF THE PRINCIPAL AMOUNT OF THIS BOND MAY BE MADE MONTHLY
AS SET FORTH IN THE INDENTURE REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that is the registered owner (the
---------------------
"Holder") of this Bond which is one of a series of commercial mortgage bonds
(collectively, the "Bonds") issued by the Issuer referred to above in multiple
classes (each, a "Class") pursuant to the Standard Indenture Provisions, dated
as of May 8, 1998 (the "Standard Indenture Provisions"), and the Terms
Indenture, dated as of May 8, 1998 (the "Terms Indenture"; the Terms Indenture,
together with the Standard Indenture Provisions, is hereinafter referred to as
the "Indenture") between Owner Trustee referred to above, on behalf of the
Issuer and the Indenture Trustee referred to above, on behalf of the holders of
the Bonds (the "Bondholders"), a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned in the Indenture. This
Bond is issued under and is subject to the terms, provisions and conditions of
the Indenture, to which Indenture the Holder of this Bond by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Issuer, a Delaware business trust, for value received, hereby promises
to pay to the Holder hereof or registered assigns the principal sum of
$ no later than June 2033.
---------------------
Pursuant to the terms of the Indenture, payments will be made on the Class
of Bonds to which this Bond belongs, pro rata among the Bonds of such Class
based on their respective Principal Amounts, on the second Business Day
following the end of each Collection Period (each, a "Payment Date"), commencing
on the first Payment Date specified above, to the Person in whose name this Bond
is registered at the close of business on the Record Date. All payments made
under the Indenture on this Bond will be made by the Indenture Trustee by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Bondholder shall have provided the Indenture Trustee with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent payments), or otherwise by check mailed to the address of such
Bondholder as it appears in the Bond Register. Notwithstanding the foregoing,
the final payment on this Bond will be made in like manner, but only upon
presentation and surrender of this Bond at the offices of the Indenture Trustee
or such other location specified in the notice to the Holder hereof of such
final payment. Notwithstanding anything herein to the contrary, no payments will
be made with respect to a Bond that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.
The Bonds are limited in right of payment to certain distributions on the
Pledged Securities, all as more specifically set forth herein and in the
Indenture. As provided in the Indenture, withdrawals from the Bond Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, payments to Bondholders, such purposes including the reimbursement of
certain expenses incurred by the Indenture Trustee under the Indenture.
Any payment to the Holder of this Bond in reduction of the Principal Amount
hereof is binding on such Holder and all future Holders of this Bond and any
Bond issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such payment is made upon this Bond.
The Class of Bonds to which this Bond relates, are issuable in fully
registered form only without coupons in minimum denominations specified in the
Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, this Bond is exchangeable for new Bonds of the same Class in
authorized denominations evidencing the same Aggregate Principal Amount, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Bond or interest
therein may be made by an investor unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws.
Initially, this Bond will be held in book-entry form (all such Bonds held from
time to time in such form, the "Book-Entry Bonds"). If a transfer of any
interest in a Book-Entry Bond is to be made without registration under the
Securities Act, then the beneficial owner of such Book-Entry Bond desiring to
effect such transfer must obtain from such beneficial owner's prospective
transferee a certificate substantially in the form attached to the Terms
Indenture as Exhibit C-2B with respect to compliance with the requirements of
certain rules and regulations under the Securities Act and the provisions of the
Indenture. In addition, in connection with its acquisition of an interest in any
Book-Entry Bond, the transferee will be deemed to have made to and for the
benefit of the Issuer, the Company and the Indenture Trustee each of the
representations, warranties and covenants contained in such certificate to be so
delivered to the transferor. Under certain circumstances described herein, this
Bond may cease to be held in book-entry form and will be held in fully
registered, physical form (all such Bonds held from time to time in such form
the "Definitive Bonds"). If a transfer of any Definitive Bond is to be made
without registration under the Securities Act, then the registrar for the Bonds
(the "Bond Registrar", which shall initially be the Indenture Trustee) is
required to refuse to register such transfer unless it receives: (i) a
certificate from the Bondholder desiring to effect such transfer substantially
in the form attached to the Terms Indenture as Exhibit C-1A; (ii) a certificate
from the Bondholder desiring to effect such transfer substantially in the form
attached to the Terms Indenture as Exhibit C-1B and a certificate from such
Bondholder's prospective transferee substantially in the form attached to the
Terms Indenture as Exhibit C-2A; or (iii) an opinion of counsel satisfactory to
the Indenture Trustee to the effect that such transfer may be made without
registration under the Securities Act (which opinion of counsel shall not be an
expense of the Trust Estate (as defined herein) or of the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee or the Bond Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the Bondholder
desiring to effect such transfer and/or such Bondholder's prospective transferee
on which such opinion of counsel is based. Any investor desiring to effect a
transfer of any Bond or interest therein without registration under the
Securities Act and registration or qualification under applicable state
securities laws will be required to, and by acceptance of its Bonds or interests
therein will be deemed to have agreed to, indemnify the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee and the Bond Registrar
against any liability that may result if the transfer is not exempt from such
registration and/or qualification or is not made in accordance with such federal
and state laws.
The Trust Estate has not been registered as an investment company under the
Investment Company Act, and no transfer of this Bond shall be made to any Person
other than an Affiliate of the Issuer, a QIB or an Institutional Accredited
Investor. If any such transfer of this Bond is to be made, then the Indenture
Trustee shall require, in order to assure compliance with the foregoing, unless
the transferee is an Affiliate of the Issuer or unless a transferor
certification in the form attached to the Terms Indenture as Exhibit C-1A or a
transferee certification in the form attached to the Terms Indenture as Exhibit
C-2A has already been delivered pursuant to Section 14 of the Terms Indenture,
that the prospective transferee of this Bond certify in writing that it is a QIB
or an Institutional Accredited Investor.
No transfer of this Bond or any interest herein shall be made to a Plan, or
to any person who is directly or indirectly purchasing this Bond or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, unless the prospective Transferee of this Bond or any interest herein
provides the Bond Registrar (in the case of a Definitive Bond) or the Bond Owner
(in the case of
a Book-Entry Bond) with a certification of facts and an Opinion of Counsel
which establish to the satisfaction of the Indenture Trustee (in the case of a
Definitive Bond) or the Bond Owner (in the case of a Book-Entry Bond) that the
purchase and holding of this Bond or any interest herein will not constitute or
result in a non-exempt prohibited transaction under ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
and will not subject the Issuer, the Owner Trustee, the Manager, the Company,
the Bond Registrar or the Indenture Trustee to any obligation in addition to
those undertaken in the Indenture.
Each Person who acquires this Bond or any interest herein (unless it shall
have delivered to the Bond Registrar a certification of facts and Opinion of
Counsel as described in the preceding paragraph) shall be deemed to have
represented and warranted to and for the benefit of the Issuer, the Owner
Trustee, the Manager, the Company, the Bond Registrar and the Indenture Trustee
that either: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing this Bond or any interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) the purchase and
holding of this Bond or any interest herein by or on behalf of, or with assets
of, such Person will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code or the imposition of an excise tax under
Section 4975 of the Code (and, will not subject the Issuer, the Owner Trustee,
the Manager, the Company, the Bond Registrar or the Indenture Trustee to any
obligation in addition to those undertaken in the Indenture).
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond is registrable in the Bond Register upon
surrender of this Bond for registration of transfer at the offices of the Bond
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Bond Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Bonds of the same Class in authorized denominations evidencing the same
Aggregate Principal Amount will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Bond, but the Indenture Trustee or the Bond Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Bond.
The Company, the Issuer, the Owner Trustee, the Indenture Trustee, the Bond
Registrar and any agent thereof may treat the Person in whose name this Bond is
registered as the owner hereof for all purposes, and none of the Company, the
Issuer, the Owner Trustee, the Indenture Trustee, the Bond Registrar or any such
agent shall be affected by notice to the contrary.
The Indenture will be discharged (except with respect to certain continuing
rights specified in the Indenture) (a)(1) upon the delivery to the Indenture
Trustee for cancellation of all of the Bonds other than Bonds which have been
mutilated, lost or stolen and have been replaced or paid and Bonds for which
money has been deposited in trust for the full payment thereof (and thereafter
repaid to the Issuer and discharged from such trust) as provided in the
Indenture or (2) at such time as all Bonds not previously cancelled by the
Indenture Trustee have become, or, on the next Payment Date, will become, due
and payable or called for redemption and the Issuer shall have deposited with
the Indenture Trustee an amount sufficient to repay all of the Bonds and (b) the
Issuer shall have paid all other amounts payable under the Indenture.
With the consent of the Holders of Bonds representing more than 50% of the
Aggregate Principal Amount (or, in the case of a Class of Interest Only Bonds,
the aggregate Notional Amount) of each Class of any Series, the Issuer and the
Indenture Trustee may amend the Indenture or enter into one or more indentures
supplemental thereto for the purpose of adding any provisions to or changing in
any
manner or eliminating any of the provisions of the Indenture with respect to
such Series or of modifying in any manner the rights of the Bondholders of such
Series under the Indenture; provided that no such amendment or supplemental
indenture shall result in an Adverse Rating Event in respect of any Class of
Bonds of such Series (as confirmed in writing by each applicable Rating Agency);
and, provided further, that no such amendment or supplemental indenture shall,
without the consent of the Holder of each Outstanding Bond affected thereby,
among other things, (i) change the date of payment of any installment of
principal of or interest or premium, if any, on any Bond, or reduce the
Principal Amount thereof, the Bond Interest Rate thereon or the Redemption Price
with respect thereto, change the provisions of the Indenture relating to the
application of payments, collections and/or distributions on, or the proceeds of
the sale of, the related Trust Estate to payments of principal of or interest or
premium, if any, on any Bonds or change any place of payment where, or the coin
or currency in which, any Bond or the interest or premium, if any, thereon is
payable, or impair the right to institute suit for the enforcement of the
provisions of the Indenture requiring the application of funds available
therefor, as provided in Article V of the Standard Indenture Provisions, to the
payment of any such amount due on any Bond on or after the respective due dates
thereof (or, in the case of redemption, on or after the applicable Redemption
Date); (ii) reduce the percentage of the Voting Rights for or allocated to, or
the percentage of the Aggregate Principal Amount or Notional Amount of, any
Class and/or Series, the consent of the Holders of Bonds representing which is
required for any such supplemental indenture, or the consent of the Holders of
Bonds representing which is required for any waiver of compliance with certain
provisions of the Indenture or certain defaults thereunder and their
consequences provided for in the Indenture; (iii) modify or alter the provisions
of the proviso to the definition of the term "Outstanding"; (iv) reduce the
percentage of the Voting Rights allocated to, or the percentage of the Aggregate
Principal Amount or Notional Amount of, any Class of any Series, the consent or
direction of the Holders of Bonds representing which is required to allow or
direct the Indenture Trustee to sell or liquidate the Trust Estate pursuant to
Section 5.04 or Section 5.12 of the Standard Indenture Provisions; (v) modify
any provision of Section 9.02 of the Standard Indenture Provisions, except to
increase any percentage specified herein or to provide that certain additional
provisions of the Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Bond affected thereby; (vi) modify any of the
provisions of the Indenture in such manner as to affect the calculation of the
amount of any payment of interest, premium (if any) or principal due on any Bond
on any Payment Date (including the calculation of any of the individual
components of such calculation) or to affect the rights of the Holders of any
Series to the benefit of any provisions for the mandatory redemption of the
Bonds of such Series contained therein; or (vii) permit the creation of any lien
ranking prior to or on a parity with the lien of the Indenture with respect to
any part of the Trust Estate securing any Series or terminate the lien of the
Indenture on any property at any time subject thereto or deprive the Holder of
any Bond of the security afforded by the lien of the Indenture, except as
otherwise expressly permitted thereby.
Provided that no Issuer Event of Default has occurred and is continuing,
the Issuer may, at its option, pursuant to the Indenture redeem this Bond, in
whole but not in part, at the Redemption Price therefor, on any Payment Date as
of which the Aggregate Principal Amount of such Class is less than 15% of the
initial Aggregate Principal Amount thereof and in any event subject to and in
accordance with Article X of the Standard Indenture Provisions. Notwithstanding
anything herein to the contrary, the Issuer may at any time irrevocably waive
its right to redeem this Bond. On any Redemption Date, following the payments to
be made on such date pursuant to Section 17(b) of the Terms Indenture, the
Indenture Trustee shall withdraw from the Bond Account and, subject to Section
2.07(e) of the Standard Indenture Provisions, pay to the Holders of the Bonds to
be redeemed the full Redemption Price therefor.
Unless the certificate of authentication hereon has been executed by the
Bond Registrar, by manual signature, this Bond shall not be entitled to any
benefit under the Indenture or be valid for any purpose.
This Bond shall be construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated:
CRIIMI MAE COMMERCIAL MORTGAGE
TRUST
By: WILMINGTON TRUST COMPANY
not in its individual capacity
but solely in its capacity as
Owner Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Bonds referred to in the within-mentioned Terms
Indenture.
Dated:
LASALLE NATIONAL BANK,
as Bond Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the obligation of the Issuer evidenced by
the within Commercial Mortgage Bond and hereby authorize(s) the registration of
transfer of such interest to assignee on the Bond Register.
I (we) further direct the Bond Registrar to issue a new Commercial Mortgage
Bond of a like percentage interest and Class to the above named assignee and
deliver such Bond to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
PAYMENT INSTRUCTIONS
The Assignee should include the following for purposes of payment:
Payments shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to
----------------------------------------------
------------------------------------------------------------------------------
for the account of .
-----------------------------------------------------------
Payments made by check (such check to be made payable to
) and all applicable statements and notices should be mailed
--------------------
to .
--------------------------------------------------------------------------
This information is provided by , the Assignee
---------------------------
named above, or , as its agent.
------------------------------------
EXHIBIT A-8
CLASS F BOND
CRIIMI MAE COMMERCIAL MORTGAGE TRUST
CLASS F COMMERCIAL MORTGAGE BOND
SERIES 1998-C1
Bond Interest Rate: 7.00% per annum Aggregate Principal Amount of the
Class F
Bonds as of the Closing Date:
$35,444,000
Date of Indenture: As of May 8, 1998
Initial Principal Amount of this
Accrual Date: May 1, 1998 Class F Bond as of the Closing Date:
$
Closing Date: May 8, 1998
Initial Aggregate Collateral Principal
First Payment Date: July 2, ▇▇▇▇ ▇▇▇▇▇▇: $1,772,226,951
Stated Maturity: June 2033
Issuer: CRIIMI MAE Commercial Mortgage Trust Indenture Trustee: LaSalle
National Bank
Owner Trustee: Wilmington Trust Company
Bond No. F-
THIS BOND HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS BOND OR ANY INTEREST
HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 14 OF THE TERMS INDENTURE
REFERRED TO HEREIN.
NO TRANSFER OF THIS BOND OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS BOND OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 14 OF THE TERMS INDENTURE REFERRED TO HEREIN.
BECAUSE THE TRUST ESTATE SECURING THIS BOND AND OTHER BONDS OF THE SAME SERIES
HAS NOT BEEN REGISTERED AS AN INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"), THIS BOND IS SUBJECT TO
FURTHER TRANSFER RESTRICTIONS ASSOCIATED THEREWITH.
THIS BOND REPRESENTS AN OBLIGATION OF THE ISSUER AND WILL BE PAID SOLELY FROM
THE COLLATERAL SECURING THIS BOND. NEITHER THIS BOND NOR THE COLLATERAL THEREFOR
IS INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY
OTHER PERSON.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND. THE
ISSUE DATE OF THIS BOND IS MAY 8, 1998. ASSUMING THAT THE MORTGAGE LOANS
UNDERLYING THE PLEDGED SECURITIES ARE NOT SUBJECT TO ANY VOLUNTARY OR
INVOLUNTARY PREPAYMENT, THIS BOND HAS BEEN ISSUED WITH NO MORE THAN $______ OF
OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS ____% PER
ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL PRINCIPAL AMOUNT, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS UNDERLYING THE PLEDGED
SECURITIES WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY
PARTICULAR RATE.
THIS BOND IS SUBORDINATE TO OTHER BONDS OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE INDENTURE REFERRED TO HEREIN.
PAYMENTS IN REDUCTION OF THE PRINCIPAL AMOUNT OF THIS BOND MAY BE MADE MONTHLY
AS SET FORTH IN THE INDENTURE REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that is the registered owner (the
---------------------
"Holder") of this Bond which is one of a series of commercial mortgage bonds
(collectively, the "Bonds") issued by the Issuer referred to above in multiple
classes (each, a "Class") pursuant to the Standard Indenture Provisions, dated
as of May 8, 1998 (the "Standard Indenture Provisions"), and the Terms
Indenture, dated as of May 8, 1998 (the "Terms Indenture"; the Terms Indenture,
together with the Standard Indenture Provisions, is hereinafter referred to as
the "Indenture") between Owner Trustee referred to above, on behalf of the
Issuer and the Indenture Trustee referred to above, on behalf of the holders of
the Bonds (the "Bondholders"), a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned in the Indenture. This
Bond is issued under and is subject to the terms, provisions and conditions of
the Indenture, to which Indenture the Holder of this Bond by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Issuer, a Delaware business trust, for value received, hereby promises
to pay to the Holder hereof or registered assigns the principal sum of
$_____________ no later than June 2033.
Pursuant to the terms of the Indenture, payments will be made on the Class
of Bonds to which this Bond belongs, pro rata among the Bonds of such Class
based on their respective Principal Amounts, on the second Business Day
following the end of each Collection Period (each, a "Payment Date"), commencing
on the first Payment Date specified above, to the Person in whose name this Bond
is registered at the close of business on the related Record Date. All payments
made under the Indenture on this Bond will be made by the Indenture Trustee by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Bondholder shall have provided the Indenture Trustee with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent payments), or otherwise by check mailed to the
address of such Bondholder as it appears in the Bond Register. Notwithstanding
the foregoing, the final payment on this Bond will be made in like manner, but
only upon presentation and surrender of this Bond at the offices of the
Indenture Trustee or such other location specified in the notice to the Holder
hereof of such final payment. Notwithstanding anything herein to the contrary,
no payments will be made with respect to a Bond that has previously been
surrendered as contemplated by the preceding sentence or, with limited
exception, that should have been surrendered as contemplated by the preceding
sentence.
The Bonds are limited in right of payment to certain distributions on the
Pledged Securities, all as more specifically set forth herein and in the
Indenture. As provided in the Indenture, withdrawals from the Bond Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, payments to Bondholders, such purposes including the reimbursement of
certain expenses incurred by the Indenture Trustee under the Indenture.
Any payment to the Holder of this Bond in reduction of the Principal Amount
hereof is binding on such Holder and all future Holders of this Bond and any
Bond issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such payment is made upon this Bond.
The Class of Bonds to which this Bond relates, are issuable in fully
registered form only without coupons in minimum denominations specified in the
Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, this Bond is exchangeable for new Bonds of the same Class in
authorized denominations evidencing the same Aggregate Principal Amount, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Bond or interest
therein may be made by an investor unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws.
Initially, this Bond will be held in book-entry form (all such Bonds held from
time to time in such form, the "Book-Entry Bonds"). If a transfer of any
interest in a Book-Entry Bond is to be made without registration under the
Securities Act, then the beneficial owner of such Book-Entry Bond desiring to
effect such transfer must obtain from such beneficial owner's prospective
transferee a certificate substantially in the form attached to the Terms
Indenture as Exhibit C-2B with respect to compliance with the requirements of
certain rules and regulations under the Securities Act and the provisions of the
Indenture. In addition, in connection with its acquisition of an interest in any
Book-Entry Bond, the transferee will be deemed to have made to and for the
benefit of the Issuer, the Company and the Indenture Trustee each of the
representations, warranties and covenants contained in such certificate to be so
delivered to the transferor. Under certain circumstances described herein, this
Bond may cease to be held in book-entry form and will be held in fully
registered, physical form (all such Bonds held from time to time in such form
the "Definitive Bonds"). If a transfer of any Definitive Bond is to be made
without registration under the Securities Act, then the registrar for the Bonds
(the "Bond Registrar", which shall initially be the Indenture Trustee) is
required to refuse to register such transfer unless it receives: (i) a
certificate from the Bondholder desiring to effect such transfer substantially
in the form attached to the Terms Indenture as Exhibit C-1A; (ii) a certificate
from the Bondholder desiring to effect such transfer substantially in the form
attached to the Terms Indenture as Exhibit C-1B and a certificate from such
Bondholder's prospective transferee substantially in the form attached to the
Terms Indenture as Exhibit C-2A; or (iii) an opinion of counsel satisfactory to
the Indenture Trustee to the effect that such transfer may be made without
registration under the Securities Act (which opinion of counsel shall not be an
expense of the Trust Estate (as defined herein) or of the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee or the Bond Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the Bondholder
desiring to effect such transfer and/or such Bondholder's prospective transferee
on which such opinion of counsel is based. Any investor desiring to effect a
transfer of any Bond or interest therein without registration under the
Securities Act and registration or qualification under applicable state
securities laws will be required to, and by acceptance of its Bonds or interests
therein will be deemed to have agreed to, indemnify the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee and the Bond Registrar
against any liability that may result if the transfer is not exempt from such
registration and/or qualification or is not made in accordance with such federal
and state laws.
The Trust Estate has not been registered as an investment company under the
Investment Company Act, and no transfer of this Bond shall be made to any Person
other than an Affiliate of the Issuer, a QIB or an Institutional Accredited
Investor. If any such transfer of this Bond is to be made, then the Indenture
Trustee shall require, in order to assure compliance with the foregoing, unless
the transferee is an Affiliate of the Issuer or unless a transferor
certification in the form attached to the Terms Indenture as Exhibit C-1A or a
transferee certification in the form attached to the Terms Indenture as Exhibit
C-2A has already been delivered pursuant to Section 14 of the Terms Indenture,
that the prospective transferee of this Bond certify in writing that it is a QIB
or an Institutional Accredited Investor.
No transfer of this Bond or any interest herein shall be made to a Plan, or
to any person who is directly or indirectly purchasing this Bond or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, unless the prospective Transferee of this Bond or any interest herein
provides the Bond Registrar (in the case of a Definitive Bond) or the Bond Owner
(in the case of
a Book-Entry Bond) with a certification of facts and an Opinion of Counsel
which establish to the satisfaction of the Indenture Trustee (in the case of a
Definitive Bond) or the Bond Owner (in the case of a Book-Entry Bond) that the
purchase and holding of this Bond or any interest herein will not constitute or
result in a non-exempt prohibited transaction under ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
and will not subject the Issuer, the Owner Trustee, the Manager, the Company,
the Bond Registrar or the Indenture Trustee to any obligation in addition to
those undertaken in the Indenture.
Each Person who acquires this Bond or any interest herein (unless it shall
have delivered to the Bond Registrar a certification of facts and Opinion of
Counsel as described in the preceding paragraph) shall be deemed to have
represented and warranted to and for the benefit of the Issuer, the Owner
Trustee, the Manager, the Company, the Bond Registrar and the Indenture Trustee
that either: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing this Bond or any interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) the purchase and
holding of this Bond or any interest herein by or on behalf of, or with assets
of, such Person will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code or the imposition of an excise tax under
Section 4975 of the Code (and, will not subject the Issuer, the Owner Trustee,
the Manager, the Company, the Bond Registrar or the Indenture Trustee to any
obligation in addition to those undertaken in the Indenture).
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond is registrable in the Bond Register upon
surrender of this Bond for registration of transfer at the offices of the Bond
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Bond Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Bonds of the same Class in authorized denominations evidencing the same
Aggregate Principal Amount will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Bond, but the Indenture Trustee or the Bond Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Bond.
The Company, the Issuer, the Owner Trustee, the Indenture Trustee, the Bond
Registrar and any agent thereof may treat the Person in whose name this Bond is
registered as the owner hereof for all purposes, and none of the Company, the
Issuer, the Owner Trustee, the Indenture Trustee, the Bond Registrar or any such
agent shall be affected by notice to the contrary.
The Indenture will be discharged (except with respect to certain continuing
rights specified in the Indenture) (a)(1) upon the delivery to the Indenture
Trustee for cancellation of all of the Bonds other than Bonds which have been
mutilated, lost or stolen and have been replaced or paid and Bonds for which
money has been deposited in trust for the full payment thereof (and thereafter
repaid to the Issuer and discharged from such trust) as provided in the
Indenture or (2) at such time as all Bonds not previously cancelled by the
Indenture Trustee have become, or, on the next Payment Date, will become, due
and payable or called for redemption and the Issuer shall have deposited with
the Indenture Trustee an amount sufficient to repay all of the Bonds and (b) the
Issuer shall have paid all other amounts payable under the Indenture.
With the consent of the Holders of Bonds representing more than 50% of the
Aggregate Principal Amount (or, in the case of a Class of Interest Only Bonds,
the aggregate Notional Amount) of each Class of any Series, the Issuer and the
Indenture Trustee may amend the Indenture or enter into one or more indentures
supplemental thereto for the purpose of adding any provisions to or changing in
any
manner or eliminating any of the provisions of the Indenture with respect to
such Series or of modifying in any manner the rights of the Bondholders of such
Series under the Indenture; provided that no such amendment or supplemental
indenture shall result in an Adverse Rating Event in respect of any Class of
Bonds of such Series (as confirmed in writing by each applicable Rating Agency);
and, provided further, that no such amendment or supplemental indenture shall,
without the consent of the Holder of each Outstanding Bond affected thereby,
among other things, (i) change the date of payment of any installment of
principal of or interest or premium, if any, on any Bond, or reduce the
Principal Amount thereof, the Bond Interest Rate thereon or the Redemption Price
with respect thereto, change the provisions of the Indenture relating to the
application of payments, collections and/or distributions on, or the proceeds of
the sale of, the related Trust Estate to payments of principal of or interest or
premium, if any, on any Bonds or change any place of payment where, or the coin
or currency in which, any Bond or the interest or premium, if any, thereon is
payable, or impair the right to institute suit for the enforcement of the
provisions of the Indenture requiring the application of funds available
therefor, as provided in Article V of the Standard Indenture Provisions, to the
payment of any such amount due on any Bond on or after the respective due dates
thereof (or, in the case of redemption, on or after the applicable Redemption
Date); (ii) reduce the percentage of the Voting Rights for or allocated to, or
the percentage of the Aggregate Principal Amount or Notional Amount of, any
Class and/or Series, the consent of the Holders of Bonds representing which is
required for any such supplemental indenture, or the consent of the Holders of
Bonds representing which is required for any waiver of compliance with certain
provisions of the Indenture or certain defaults thereunder and their
consequences provided for in the Indenture; (iii) modify or alter the provisions
of the proviso to the definition of the term "Outstanding"; (iv) reduce the
percentage of the Voting Rights allocated to, or the percentage of the Aggregate
Principal Amount or Notional Amount of, any Class of any Series, the consent or
direction of the Holders of Bonds representing which is required to allow or
direct the Indenture Trustee to sell or liquidate the Trust Estate pursuant to
Section 5.04 or Section 5.12 of the Standard Indenture Provisions; (v) modify
any provision of Section 9.02 of the Standard Indenture Provisions, except to
increase any percentage specified herein or to provide that certain additional
provisions of the Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Bond affected thereby; (vi) modify any of the
provisions of the Indenture in such manner as to affect the calculation of the
amount of any payment of interest, premium (if any) or principal due on any Bond
on any Payment Date (including the calculation of any of the individual
components of such calculation) or to affect the rights of the Holders of any
Series to the benefit of any provisions for the mandatory redemption of the
Bonds of such Series contained therein; or (vii) permit the creation of any lien
ranking prior to or on a parity with the lien of the Indenture with respect to
any part of the Trust Estate securing any Series or terminate the lien of the
Indenture on any property at any time subject thereto or deprive the Holder of
any Bond of the security afforded by the lien of the Indenture, except as
otherwise expressly permitted thereby.
Provided that no Issuer Event of Default has occurred and is continuing,
the Issuer may, at its option, pursuant to the Indenture redeem this Bond, in
whole but not in part, at the Redemption Price therefor, on any Payment Date as
of which the Aggregate Principal Amount of such Class is less than 15% of the
initial Aggregate Principal Amount thereof and in any event subject to and in
accordance with Article X of the Standard Indenture Provisions. Notwithstanding
anything herein to the contrary, the Issuer may at any time irrevocably waive
its right to redeem this Bond. On any Redemption Date, following the payments to
be made on such date pursuant to Section 17(b) of the Terms Indenture, the
Indenture Trustee shall withdraw from the Bond Account and, subject to Section
2.07(e) of the Standard Indenture Provisions, pay to the Holders of the Bonds to
be redeemed the full Redemption Price therefor.
Unless the certificate of authentication hereon has been executed by the
Bond Registrar, by manual signature, this Bond shall not be entitled to any
benefit under the Indenture or be valid for any purpose.
This Bond shall be construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated:
CRIIMI MAE COMMERCIAL MORTGAGE
TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely in its capacity as
Owner Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Bonds referred to in the within-mentioned Terms
Indenture.
Dated:
LASALLE NATIONAL BANK,
as Bond Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the obligation of the Issuer evidenced by
the within Commercial Mortgage Bond and hereby authorize(s) the registration of
transfer of such interest to assignee on the Bond Register.
I (we) further direct the Bond Registrar to issue a new Commercial Mortgage
Bond of a like percentage interest and Class to the above named assignee and
deliver such Bond to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
PAYMENT INSTRUCTIONS
The Assignee should include the following for purposes of payment:
Payments shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to
----------------------------------------------
for the account of .
-----------------------------------------------------------
Payments made by check (such check to be made payable to
) and all applicable statements and notices should be mailed
--------------------
to .
-------------------------------------------------------------------------
This information is provided by , the Assignee
---------------------------
named above, or , as its agent.
------------------------------------
EXHIBIT A-9
CLASS G BOND
CRIIMI MAE COMMERCIAL MORTGAGE TRUST
CLASS G COMMERCIAL MORTGAGE BOND
SERIES 1998-C1
Bond Interest Rate: 7.00% per annum Aggregate Principal Amount of the
Class G
Bonds as of the Closing Date:
$88,612,000
Date of Indenture: As of May 8, 1998
Initial Principal Amount of this
Accrual Date: May 1, 1998 Class G Bond as of the Closing Date:
$
Closing Date: May 8, 1998
Initial Aggregate Collateral Principal
First Payment Date: July 2, ▇▇▇▇ ▇▇▇▇▇▇: $1,772,226,951
Stated Maturity: June 2033
Issuer: CRIIMI MAE Commercial Mortgage Trust Indenture Trustee: LaSalle
National Bank
Owner Trustee: Wilmington Trust Company
Bond No. G-
THIS BOND HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS BOND OR ANY INTEREST
HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 14 OF THE TERMS INDENTURE
REFERRED TO HEREIN.
NO TRANSFER OF THIS BOND OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS BOND OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT ,EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 14 OF THE TERMS INDENTURE REFERRED TO HEREIN.
BECAUSE THE TRUST ESTATE SECURING THIS BOND AND OTHER BONDS OF THE SAME SERIES
HAS NOT BEEN REGISTERED AS AN INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"), THIS BOND IS SUBJECT TO
FURTHER TRANSFER RESTRICTIONS ASSOCIATED THEREWITH.
THIS BOND REPRESENTS AN OBLIGATION OF THE ISSUER AND WILL BE PAID SOLELY FROM
THE COLLATERAL SECURING THIS BOND. NEITHER THIS BOND NOR THE COLLATERAL THEREFOR
IS INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY
OTHER PERSON.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND. THE
ISSUE DATE OF THIS BOND IS MAY 8, 1998. ASSUMING THAT THE MORTGAGE LOANS
UNDERLYING THE PLEDGED SECURITIES ARE NOT SUBJECT TO ANY VOLUNTARY OR
INVOLUNTARY PREPAYMENT, THIS BOND HAS BEEN ISSUED WITH NO MORE THAN $______ OF
OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS ____% PER
ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL PRINCIPAL AMOUNT, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS UNDERLYING THE PLEDGED
SECURITIES WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY
PARTICULAR RATE.
THIS BOND IS SUBORDINATE TO OTHER BONDS OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE INDENTURE REFERRED TO HEREIN.
PAYMENTS IN REDUCTION OF THE PRINCIPAL AMOUNT OF THIS BOND MAY BE MADE MONTHLY
AS SET FORTH IN THE INDENTURE REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that is the registered owner (the
----------------------
"Holder") of this Bond which is one of a series of commercial mortgage bonds
(collectively, the "Bonds") issued by the Issuer referred to above in multiple
classes (each, a "Class") pursuant to the Standard Indenture Provisions, dated
as of May 8, 1998 (the "Standard Indenture Provisions"), and the Terms
Indenture, dated as of May 8, 1998 (the "Terms Indenture"; the Terms Indenture,
together with the Standard Indenture Provisions, is hereinafter referred to as
the "Indenture") between Owner Trustee referred to above, on behalf of the
Issuer and the Indenture Trustee referred to above, on behalf of the holders of
the Bonds (the "Bondholders"), a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned in the Indenture. This
Bond is issued under and is subject to the terms, provisions and conditions of
the Indenture, to which Indenture the Holder of this Bond by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Issuer, a Delaware business trust, for value received, hereby promises
to pay to the Holder hereof or any registered assigns the principal sum of
$ no later than June 2033.
-------------
Pursuant to the terms of the Indenture, payments will be made on the Class
of Bonds to which this Bond belongs, pro rata among the Bonds of such Class
based on their respective Principal Amounts, on the second Business Day
following the end of each Collection Period (each, a "Payment Date"), commencing
on the first Payment Date specified above, to the Person in whose name this Bond
is registered at the close of business on the Record Date. All payments made
under the Indenture on this Bond will be made by the Indenture Trustee by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Bondholder shall have provided the Indenture Trustee with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent payments), or otherwise by check mailed to the address of such
Bondholder as it appears in the Bond Register. Notwithstanding the foregoing,
the final payment on this Bond will be made in like manner, but only upon
presentation and surrender of this Bond at the offices of the Indenture Trustee
or such other location specified in the notice to the Holder hereof of such
final payment. Notwithstanding anything herein to the contrary, no payments will
be made with respect to a Bond that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.
The Bonds are limited in right of payment to certain distributions on the
Pledged Securities, all as more specifically set forth herein and in the
Indenture. As provided in the Indenture, withdrawals from the Bond Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, payments to Bondholders, such purposes including the reimbursement of
certain expenses incurred by the Indenture Trustee under the Indenture.
Any payment to the Holder of this Bond in reduction of the Principal Amount
hereof is binding on such Holder and all future Holders of this Bond and any
Bond issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such payment is made upon this Bond.
The Class of Bonds to which this Bond relates, are issuable in fully
registered form only without coupons in minimum denominations specified in the
Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, this Bond is exchangeable for new Bonds of the same Class in
authorized denominations evidencing the same Aggregate Principal Amount, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Bond or interest
therein may be made by an investor unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws.
Initially, this Bond will be held in book-entry form (all such Bonds held from
time to time in such form, the "Book-Entry Bonds"). If a transfer of any
interest in a Book-Entry Bond is to be made without registration under the
Securities Act, then the beneficial owner of such Book-Entry Bond desiring to
effect such transfer must obtain from such beneficial owner's prospective
transferee a certificate substantially in the form attached to the Terms
Indenture as Exhibit C-2B with respect to compliance with the requirements of
certain rules and regulations under the Securities Act and the provisions of the
Indenture. In addition, in connection with its acquisition of an interest in any
Book-Entry Bond, the transferee will be deemed to have made to and for the
benefit of the Issuer, the Company and the Indenture Trustee each of the
representations, warranties and covenants contained in such certificate to be so
delivered to the transferor. Under certain circumstances described herein, this
Bond may cease to be held in book-entry form and will be held in fully
registered, physical form (all such Bonds held from time to time in such form
the "Definitive Bonds"). If a transfer of any Definitive Bond is to be made
without registration under the Securities Act, then the registrar for the Bonds
(the "Bond Registrar", which shall initially be the Indenture Trustee) is
required to refuse to register such transfer unless it receives: (i) a
certificate from the Bondholder desiring to effect such transfer substantially
in the form attached to the Terms Indenture as Exhibit C-1A; (ii) a certificate
from the Bondholder desiring to effect such transfer substantially in the form
attached to the Terms Indenture as Exhibit C-1B and a certificate from such
Bondholder's prospective transferee substantially in the form attached to the
Terms Indenture as Exhibit C-2A; or (iii) an opinion of counsel satisfactory to
the Indenture Trustee to the effect that such transfer may be made without
registration under the Securities Act (which opinion of counsel shall not be an
expense of the Trust Estate (as defined herein) or of the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee or the Bond Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the Bondholder
desiring to effect such transfer and/or such Bondholder's prospective transferee
on which such opinion of counsel is based. Any investor desiring to effect a
transfer of any Bond or interest therein without registration under the
Securities Act and registration or qualification under applicable state
securities laws will be required to, and by acceptance of its Bonds or interests
therein will be deemed to have agreed to, indemnify the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee and the Bond Registrar
against any liability that may result if the transfer is not exempt from such
registration and/or qualification or is not made in accordance with such federal
and state laws.
The Trust Estate has not been registered as an investment company under the
Investment Company Act, and no transfer of this Bond shall be made to any Person
other than an Affiliate of the Issuer, a QIB or an Institutional Accredited
Investor. If any such transfer of this Bond is to be made, then the Indenture
Trustee shall require, in order to assure compliance with the foregoing, unless
the transferee is an Affiliate of the Issuer or unless a transferor
certification in the form attached to the Terms Indenture as Exhibit C-1A or a
transferee certification in the form attached to the Terms Indenture as Exhibit
C-2A has already been delivered pursuant to Section 14 of the Terms Indenture,
that the prospective transferee of this Bond certify in writing that it is a QIB
or an Institutional Accredited Investor.
No transfer of this Bond or any interest herein shall be made to a Plan, or
to any person who is directly or indirectly purchasing this Bond or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, unless the prospective Transferee of this Bond or any interest herein
provides the Bond Registrar (in the case of a Definitive Bond) or the Bond Owner
(in the case of a Book-Entry Bond) with a certification of facts and an Opinion
of Counsel which establish to the satisfaction of the Indenture Trustee (in the
case of a Definitive Bond) or the Bond Owner (in the case of
a Book-Entry Bond) that the purchase and holding of this Bond or any
interest herein will not constitute or result in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code or result in the imposition
of an excise tax under Section 4975 of the Code and will not subject the Issuer,
the Owner Trustee, the Manager, the Company, the Bond Registrar or the Indenture
Trustee to any obligation in addition to those undertaken in the Indenture.
Each Person who acquires this Bond or any interest herein (unless it shall
have delivered to the Bond Registrar a certification of facts and Opinion of
Counsel as described in the preceding paragraph) shall be deemed to have
represented and warranted to and for the benefit of the Issuer, the Owner
Trustee, the Manager, the Company, the Bond Registrar and the Indenture Trustee
that either: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing this Bond or any interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) the purchase and
holding of this Bond or any interest herein by or on behalf of, or with assets
of, such Person will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code or the imposition of an excise tax under
Section 4975 of the Code (and, will not subject the Issuer, the Owner Trustee,
the Manager, the Company, the Bond Registrar or the Indenture Trustee to any
obligation in addition to those undertaken in the Indenture).
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond is registrable in the Bond Register upon
surrender of this Bond for registration of transfer at the offices of the Bond
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Bond Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Bonds of the same Class in authorized denominations evidencing the same
Aggregate Principal Amount will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Bond, but the Indenture Trustee or the Bond Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Bond.
The Company, the Issuer, the Owner Trustee, the Indenture Trustee, the Bond
Registrar and any agent thereof may treat the Person in whose name this Bond is
registered as the owner hereof for all purposes, and none of the Company, the
Issuer, the Owner Trustee, the Indenture Trustee, the Bond Registrar or any such
agent shall be affected by notice to the contrary.
The Indenture will be discharged (except with respect to certain continuing
rights specified in the Indenture) (a)(1) upon the delivery to the Indenture
Trustee for cancellation of all of the Bonds other than Bonds which have been
mutilated, lost or stolen and have been replaced or paid and Bonds for which
money has been deposited in trust for the full payment thereof (and thereafter
repaid to the Issuer and discharged from such trust) as provided in the
Indenture or (2) at such time as all Bonds not previously cancelled by the
Indenture Trustee have become, or, on the next Payment Date, will become, due
and payable or called for redemption and the Issuer shall have deposited with
the Indenture Trustee an amount sufficient to repay all of the Bonds and (b) the
Issuer shall have paid all other amounts payable under the Indenture.
With the consent of the Holders of Bonds representing more than 50% of the
Aggregate Principal Amount (or, in the case of a Class of Interest Only Bonds,
the aggregate Notional Amount) of each Class of any Series, the Issuer and the
Indenture Trustee may amend the Indenture or enter into one or more indentures
supplemental thereto for the purpose of adding any provisions to or changing in
any
manner or eliminating any of the provisions of the Indenture with respect to
such Series or of modifying in any manner the rights of the Bondholders of such
Series under the Indenture; provided that no such amendment or supplemental
indenture shall result in an Adverse Rating Event in respect of any Class of
Bonds of such Series (as confirmed in writing by each applicable Rating Agency);
and, provided further, that no such amendment or supplemental indenture shall,
without the consent of the Holder of each Outstanding Bond affected thereby,
among other things, (i) change the date of payment of any installment of
principal of or interest or premium, if any, on any Bond, or reduce the
Principal Amount thereof, the Bond Interest Rate thereon or the Redemption Price
with respect thereto, change the provisions of the Indenture relating to the
application of payments, collections and/or distributions on, or the proceeds of
the sale of, the related Trust Estate to payments of principal of or interest or
premium, if any, on any Bonds or change any place of payment where, or the coin
or currency in which, any Bond or the interest or premium, if any, thereon is
payable, or impair the right to institute suit for the enforcement of the
provisions of the Indenture requiring the application of funds available
therefor, as provided in Article V of the Standard Indenture Provisions, to the
payment of any such amount due on any Bond on or after the respective due dates
thereof (or, in the case of redemption, on or after the applicable Redemption
Date); (ii) reduce the percentage of the Voting Rights for or allocated to, or
the percentage of the Aggregate Principal Amount or Notional Amount of, any
Class and/or Series, the consent of the Holders of Bonds representing which is
required for any such supplemental indenture, or the consent of the Holders of
Bonds representing which is required for any waiver of compliance with certain
provisions of the Indenture or certain defaults thereunder and their
consequences provided for in the Indenture; (iii) modify or alter the provisions
of the proviso to the definition of the term "Outstanding"; (iv) reduce the
percentage of the Voting Rights allocated to, or the percentage of the Aggregate
Principal Amount or Notional Amount of, any Class of any Series, the consent or
direction of the Holders of Bonds representing which is required to allow or
direct the Indenture Trustee to sell or liquidate the Trust Estate pursuant to
Section 5.04 or Section 5.12 of the Standard Indenture Provisions; (v) modify
any provision of Section 9.02 of the Standard Indenture Provisions, except to
increase any percentage specified herein or to provide that certain additional
provisions of the Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Bond affected thereby; (vi) modify any of the
provisions of the Indenture in such manner as to affect the calculation of the
amount of any payment of interest, premium (if any) or principal due on any Bond
on any Payment Date (including the calculation of any of the individual
components of such calculation) or to affect the rights of the Holders of any
Series to the benefit of any provisions for the mandatory redemption of the
Bonds of such Series contained therein; or (vii) permit the creation of any lien
ranking prior to or on a parity with the lien of the Indenture with respect to
any part of the Trust Estate securing any Series or terminate the lien of the
Indenture on any property at any time subject thereto or deprive the Holder of
any Bond of the security afforded by the lien of the Indenture, except as
otherwise expressly permitted thereby.
Provided that no Issuer Event of Default has occurred and is continuing,
the Issuer may, at its option, pursuant to the Indenture redeem this Bond, in
whole but not in part, at the Redemption Price therefor, on any Payment Date as
of which the Aggregate Principal Amount of such Class is less than 15% of the
initial Aggregate Principal Amount thereof and in any event subject to and in
accordance with Article X of the Standard Indenture Provisions. Notwithstanding
anything herein to the contrary, the Issuer may at any time irrevocably waive
its right to redeem this Bond. On any Redemption Date, following the payments to
be made on such date pursuant to Section 17(b) of the Terms Indenture, the
Indenture Trustee shall withdraw from the Bond Account and, subject to Section
2.07(e) of the Standard Indenture Provisions, pay to the Holders of the Bonds to
be redeemed the full Redemption Price therefor.
Unless the certificate of authentication hereon has been executed by the
Bond Registrar, by manual signature, this Bond shall not be entitled to any
benefit under the Indenture or be valid for any purpose.
This Bond shall be construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated:
CRIIMI MAE COMMERCIAL MORTGAGE
TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely in its capacity as
Owner Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Bonds referred to in the within-mentioned Terms
Indenture.
Dated:
LASALLE NATIONAL BANK
as Bond Registrar
By:______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the obligation of the Issuer evidenced by
the within Commercial Mortgage Bond and hereby authorize(s) the registration of
transfer of such interest to assignee on the Bond Register.
I (we) further direct the Bond Registrar to issue a new Commercial Mortgage
Bond of a like percentage interest and Class to the above named assignee and
deliver such Bond to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
PAYMENT INSTRUCTIONS
The Assignee should include the following for purposes of payment:
Payments shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to
----------------------------------------------
for the account of .
-----------------------------------------------------------
Payments made by check (such check to be made payable to
) and all applicable statements and notices should be mailed
--------------------
to .
-------------------------------------------------------------------------
This information is provided by , the Assignee
---------------------------
named above, or , as its agent.
------------------------------------
EXHIBIT A-10
CLASS H-1 BOND
CRIIMI MAE COMMERCIAL MORTGAGE TRUST
CLASS H-1 COMMERCIAL MORTGAGE BOND
SERIES 1998-C1
Bond Interest Rate: 7.00% per annum Aggregate Principal Amount of the
Class H-1
Bonds as of the Closing Date:
$88,611,000
Date of Indenture: As of May 8, 1998
Initial Principal Amount of this
Accrual Date: May 1, 1998 Class H-1 Bond as of the Closing Date:
$
Closing Date: May 8, 1998
Initial Aggregate Collateral Principal
First Payment Date: July 2, ▇▇▇▇ ▇▇▇▇▇▇: $1,772,226,951
Stated Maturity: June 2033
Issuer: CRIIMI MAE Commercial Mortgage Trust Indenture Trustee: LaSalle
National Bank
Owner Trustee: Wilmington Trust Company
Bond No. H-1-
THIS BOND HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS BOND OR ANY INTEREST
HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 14 OF THE TERMS INDENTURE
REFERRED TO HEREIN.
NO TRANSFER OF THIS BOND OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS BOND OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT ,EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 14 OF THE TERMS INDENTURE REFERRED TO HEREIN.
BECAUSE THE TRUST ESTATE SECURING THIS BOND AND OTHER BONDS OF THE SAME SERIES
HAS NOT BEEN REGISTERED AS AN INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"), THIS BOND IS SUBJECT TO
FURTHER TRANSFER RESTRICTIONS ASSOCIATED THEREWITH.
THIS BOND REPRESENTS AN OBLIGATION OF THE ISSUER AND WILL BE PAID SOLELY FROM
THE COLLATERAL SECURING THIS BOND. NEITHER THIS BOND NOR THE COLLATERAL THEREFOR
IS INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY
OTHER PERSON.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND. THE
ISSUE DATE OF THIS BOND IS MAY 8, 1998. ASSUMING THAT THE MORTGAGE LOANS
UNDERLYING THE PLEDGED SECURITIES ARE NOT SUBJECT TO ANY VOLUNTARY OR
INVOLUNTARY PREPAYMENT, THIS BOND HAS BEEN ISSUED WITH NO MORE THAN $______ OF
OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS ____% PER
ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL PRINCIPAL AMOUNT, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS UNDERLYING THE PLEDGED
SECURITIES WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY
PARTICULAR RATE.
THIS BOND IS SUBORDINATE TO OTHER BONDS OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE INDENTURE REFERRED TO HEREIN.
PAYMENTS IN REDUCTION OF THE PRINCIPAL AMOUNT OF THIS BOND MAY BE MADE MONTHLY
AS SET FORTH IN THE INDENTURE REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that is the registered owner (the
---------------------
"Holder") of this Bond which is one of a series of commercial mortgage bonds
(collectively, the "Bonds") issued by the Issuer referred to above in multiple
classes (each, a "Class") pursuant to the Standard Indenture Provisions, dated
as of May 8, 1998 (the "Standard Indenture Provisions"), and the Terms
Indenture, dated as of May 8, 1998 (the "Terms Indenture"; the Terms Indenture,
together with the Standard Indenture Provisions, is hereinafter referred to as
the "Indenture") between Owner Trustee referred to above, on behalf of the
Issuer and the Indenture Trustee referred to above, on behalf of the holders of
the Bonds (the "Bondholders"), a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned in the Indenture. This
Bond is issued under and is subject to the terms, provisions and conditions of
the Indenture, to which Indenture the Holder of this Bond by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Issuer, a Delaware business trust, for value received, hereby promises
to pay to the Holder hereof or registered assigns the principal sum of
$ no later than June 2033.
-------------
Pursuant to the terms of the Indenture, payments will be made on the Class
of Bonds to which this Bond belongs, pro rata among the Bonds of such Class
based on their respective Principal Amounts, on the second Business Day
following the end of each Collection Period (each, a "Payment Date"), commencing
on the first Payment Date specified above, to the Person in whose name this Bond
is registered at the close of business on the Record Date. All payments made
under the Indenture on this Bond will be made by the Indenture Trustee by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Bondholder shall have provided the Indenture Trustee with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent payments), or otherwise by check mailed to the address of such
Bondholder as it appears in the Bond Register. Notwithstanding the foregoing,
the final payment on this Bond will be made in like manner, but only upon
presentation and surrender of this Bond at the offices of the Indenture Trustee
or such other location specified in the notice to the Holder hereof of such
final payment. Notwithstanding anything herein to the contrary, no payments will
be made with respect to a Bond that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.
The Bonds are limited in right of payment to certain distributions on the
Pledged Securities, all as more specifically set forth herein and in the
Indenture. As provided in the Indenture, withdrawals from the Bond Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, payments to Bondholders, such purposes including the reimbursement of
certain expenses incurred by the Indenture Trustee under the Indenture.
Any payment to the Holder of this Bond in reduction of the Principal Amount
hereof is binding on such Holder and all future Holders of this Bond and any
Bond issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such payment is made upon this Bond.
The Class of Bonds to which this Bond relates, are issuable in fully
registered form only without coupons in minimum denominations specified in the
Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, this Bond is exchangeable for new Bonds of the same Class in
authorized denominations evidencing the same Aggregate Principal Amount, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Bond or interest
therein may be made by an investor unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws.
Initially, this Bond will be held in book-entry form (all such Bonds held from
time to time in such form, the "Book-Entry Bonds"). If a transfer of any
interest in a Book-Entry Bond is to be made without registration under the
Securities Act, then the beneficial owner of such Book-Entry Bond desiring to
effect such transfer must obtain from such beneficial owner's prospective
transferee a certificate substantially in the form attached to the Terms
Indenture as Exhibit C-2B with respect to compliance with the requirements of
certain rules and regulations under the Securities Act and the provisions of the
Indenture. In addition, in connection with its acquisition of an interest in any
Book-Entry Bond, the transferee will be deemed to have made to and for the
benefit of the Issuer, the Company and the Indenture Trustee each of the
representations, warranties and covenants contained in such certificate to be so
delivered to the transferor. Under certain circumstances described herein, this
Bond may cease to be held in book-entry form and will be held in fully
registered, physical form (all such Bonds held from time to time in such form
the "Definitive Bonds"). If a transfer of any Definitive Bond is to be made
without registration under the Securities Act, then the registrar for the Bonds
(the "Bond Registrar", which shall initially be the Indenture Trustee) is
required to refuse to register such transfer unless it receives: (i) a
certificate from the Bondholder desiring to effect such transfer substantially
in the form attached to the Terms Indenture as Exhibit C-1A; (ii) a certificate
from the Bondholder desiring to effect such transfer substantially in the form
attached to the Terms Indenture as Exhibit C-1B and a certificate from such
Bondholder's prospective transferee substantially in the form attached to the
Terms Indenture as Exhibit C-2A; or (iii) an opinion of counsel satisfactory to
the Indenture Trustee to the effect that such transfer may be made without
registration under the Securities Act (which opinion of counsel shall not be an
expense of the Trust Estate (as defined herein) or of the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee or the Bond Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the Bondholder
desiring to effect such transfer and/or such Bondholder's prospective transferee
on which such opinion of counsel is based. Any investor desiring to effect a
transfer of any Bond or interest therein without registration under the
Securities Act and registration or qualification under applicable state
securities laws will be required to, and by acceptance of its Bonds or interests
therein will be deemed to have agreed to, indemnify the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee and the Bond Registrar
against any liability that may result if the transfer is not exempt from such
registration and/or qualification or is not made in accordance with such federal
and state laws.
The Trust Estate has not been registered as an investment company under the
Investment Company Act, and no transfer of this Bond shall be made to any Person
other than an Affiliate of the Issuer, a QIB or an Institutional Accredited
Investor. If any such transfer of this Bond is to be made, then the Indenture
Trustee shall require, in order to assure compliance with the foregoing, unless
the transferee is an Affiliate of the Issuer or unless a transferor
certification in the form attached to the Terms Indenture as Exhibit C-1A or a
transferee certification in the form attached to the Terms Indenture as Exhibit
C-2A has already been delivered pursuant to Section 14 of the Terms Indenture,
that the prospective transferee of this Bond certify in writing that it is a QIB
or an Institutional Accredited Investor.
No transfer of this Bond or any interest herein shall be made to a Plan, or
to any person who is directly or indirectly purchasing this Bond or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, unless the prospective Transferee of this Bond or any interest herein
provides the Bond Registrar (in the case of a Definitive Bond) or the Bond Owner
(in the case of a Book-Entry Bond) with a certification of facts and an Opinion
of Counsel which establish to the satisfaction of the Indenture Trustee (in the
case of a Definitive Bond) or the Bond Owner (in the case of
a Book-Entry Bond) that the purchase and holding of this Bond or any
interest herein will not constitute or result in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code or result in the imposition
of an excise tax under Section 4975 of the Code and will not subject the Issuer,
the Owner Trustee, the Manager, the Company, the Bond Registrar or the Indenture
Trustee to any obligation in addition to those undertaken in the Indenture.
Each Person who acquires this Bond or any interest herein (unless it shall
have delivered to the Bond Registrar a certification of facts and Opinion of
Counsel as described in the preceding paragraph) shall be deemed to have
represented and warranted to and for the benefit of the Issuer, the Owner
Trustee, the Manager, the Company, the Bond Registrar and the Indenture Trustee
that either: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing this Bond or any interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) the purchase and
holding of this Bond or any interest herein by or on behalf of, or with assets
of, such Person will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code or the imposition of an excise tax under
Section 4975 of the Code (and, will not subject the Issuer, the Owner Trustee,
the Manager, the Company, the Bond Registrar or the Indenture Trustee to any
obligation in addition to those undertaken in the Indenture).
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond is registrable in the Bond Register upon
surrender of this Bond for registration of transfer at the offices of the Bond
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Bond Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Bonds of the same Class in authorized denominations evidencing the same
Aggregate Principal Amount will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Bond, but the Indenture Trustee or the Bond Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Bond.
The Company, the Issuer, the Owner Trustee, the Indenture Trustee, the Bond
Registrar and any agent thereof may treat the Person in whose name this Bond is
registered as the owner hereof for all purposes, and none of the Company, the
Issuer, the Owner Trustee, the Indenture Trustee, the Bond Registrar or any such
agent shall be affected by notice to the contrary.
The Indenture will be discharged (except with respect to certain continuing
rights specified in the Indenture) (a)(1) upon the delivery to the Indenture
Trustee for cancellation of all of the Bonds other than Bonds which have been
mutilated, lost or stolen and have been replaced or paid and Bonds for which
money has been deposited in trust for the full payment thereof (and thereafter
repaid to the Issuer and discharged from such trust) as provided in the
Indenture or (2) at such time as all Bonds not previously cancelled by the
Indenture Trustee have become, or, on the next Payment Date, will become, due
and payable or called for redemption and the Issuer shall have deposited with
the Indenture Trustee an amount sufficient to repay all of the Bonds and (b) the
Issuer shall have paid all other amounts payable under the Indenture.
With the consent of the Holders of Bonds representing more than 50% of the
Aggregate Principal Amount (or, in the case of a Class of Interest Only Bonds,
the aggregate Notional Amount) of each Class of any Series, the Issuer and the
Indenture Trustee may amend the Indenture or enter into one or more indentures
supplemental thereto for the purpose of adding any provisions to or changing in
any
manner or eliminating any of the provisions of the Indenture with respect to
such Series or of modifying in any manner the rights of the Bondholders of such
Series under the Indenture; provided that no such amendment or supplemental
indenture shall result in an Adverse Rating Event in respect of any Class of
Bonds of such Series (as confirmed in writing by each applicable Rating Agency);
and, provided further, that no such amendment or supplemental indenture shall,
without the consent of the Holder of each Outstanding Bond affected thereby,
among other things, (i) change the date of payment of any installment of
principal of or interest or premium, if any, on any Bond, or reduce the
Principal Amount thereof, the Bond Interest Rate thereon or the Redemption Price
with respect thereto, change the provisions of the Indenture relating to the
application of payments, collections and/or distributions on, or the proceeds of
the sale of, the related Trust Estate to payments of principal of or interest or
premium, if any, on any Bonds or change any place of payment where, or the coin
or currency in which, any Bond or the interest or premium, if any, thereon is
payable, or impair the right to institute suit for the enforcement of the
provisions of the Indenture requiring the application of funds available
therefor, as provided in Article V of the Standard Indenture Provisions, to the
payment of any such amount due on any Bond on or after the respective due dates
thereof (or, in the case of redemption, on or after the applicable Redemption
Date); (ii) reduce the percentage of the Voting Rights for or allocated to, or
the percentage of the Aggregate Principal Amount or Notional Amount of, any
Class and/or Series, the consent of the Holders of Bonds representing which is
required for any such supplemental indenture, or the consent of the Holders of
Bonds representing which is required for any waiver of compliance with certain
provisions of the Indenture or certain defaults thereunder and their
consequences provided for in the Indenture; (iii) modify or alter the provisions
of the proviso to the definition of the term "Outstanding"; (iv) reduce the
percentage of the Voting Rights allocated to, or the percentage of the Aggregate
Principal Amount or Notional Amount of, any Class of any Series, the consent or
direction of the Holders of Bonds representing which is required to allow or
direct the Indenture Trustee to sell or liquidate the Trust Estate pursuant to
Section 5.04 or Section 5.12 of the Standard Indenture Provisions; (v) modify
any provision of Section 9.02 of the Standard Indenture Provisions, except to
increase any percentage specified herein or to provide that certain additional
provisions of the Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Bond affected thereby; (vi) modify any of the
provisions of the Indenture in such manner as to affect the calculation of the
amount of any payment of interest, premium (if any) or principal due on any Bond
on any Payment Date (including the calculation of any of the individual
components of such calculation) or to affect the rights of the Holders of any
Series to the benefit of any provisions for the mandatory redemption of the
Bonds of such Series contained therein; or (vii) permit the creation of any lien
ranking prior to or on a parity with the lien of the Indenture with respect to
any part of the Trust Estate securing any Series or terminate the lien of the
Indenture on any property at any time subject thereto or deprive the Holder of
any Bond of the security afforded by the lien of the Indenture, except as
otherwise expressly permitted thereby.
Provided that no Issuer Event of Default has occurred and is continuing,
the Issuer may, at its option, pursuant to the Indenture redeem this Bond, in
whole but not in part, at the Redemption Price therefor, on any Payment Date as
of which the Aggregate Principal Amount of such Class is less than 15% of the
initial Aggregate Principal Amount thereof and in any event subject to and in
accordance with Article X of the Standard Indenture Provisions. Notwithstanding
anything herein to the contrary, the Issuer may at any time irrevocably waive
its right to redeem this Bond. On any Redemption Date, following the payments to
be made on such date pursuant to Section 17(b) of the Terms Indenture, the
Indenture Trustee shall withdraw from the Bond Account and, subject to Section
2.07(e) of the Standard Indenture Provisions, pay to the Holders of the Bonds to
be redeemed the full Redemption Price therefor.
Unless the certificate of authentication hereon has been executed by the
Bond Registrar, by manual signature, this Bond shall not be entitled to any
benefit under the Indenture or be valid for any purpose.
This Bond shall be construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated:
CRIIMI MAE COMMERCIAL MORTGAGE
TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely in its capacity as
Owner Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class H-1 Bonds referred to in the within-mentioned
Terms Indenture.
Dated:
LASALLE NATIONAL BANK
as Bond Registrar
By:______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the obligation of the Issuer evidenced by
the within Commercial Mortgage Bond and hereby authorize(s) the registration of
transfer of such interest to assignee on the Bond Register.
I (we) further direct the Bond Registrar to issue a new Commercial Mortgage
Bond of a like percentage interest and Class to the above named assignee and
deliver such Bond to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
PAYMENT INSTRUCTIONS
The Assignee should include the following for purposes of payment:
Payments shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to
----------------------------------------------
for the account of .
-----------------------------------------------------------
Payments made by check (such check to be made payable to
) and all applicable statements and notices should be mailed
--------------------
to .
-------------------------------------------------------------------------
This information is provided by , the Assignee
---------------------------
named above, or , as its agent.
------------------------------------
EXHIBIT A-11
CLASS H-2 BOND
CRIIMI MAE COMMERCIAL MORTGAGE TRUST
CLASS H-2 COMMERCIAL MORTGAGE BOND
SERIES 1998-C1
Bond Interest Rate: 7.00% per annum Aggregate Principal Amount of the
Class H-2
Bonds as of the Closing Date:
$88,611,000
Date of Indenture: As of May 8, 1998
Initial Principal Amount of this
Accrual Date: May 1, 1998 Class H-2 Bond as of the Closing Date:
$
Closing Date: May 8, 1998
Initial Aggregate Collateral Principal
First Payment Date: July 2, ▇▇▇▇ ▇▇▇▇▇▇: $1,772,226,951
Stated Maturity: June 2033
Issuer: CRIIMI MAE Commercial Mortgage Trust Indenture Trustee: LaSalle
National Bank
Owner Trustee: Wilmington Trust Company
Bond No. H-2-
THIS BOND HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS BOND OR ANY INTEREST
HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 14 OF THE TERMS INDENTURE
REFERRED TO HEREIN.
NO TRANSFER OF THIS BOND OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS BOND OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT ,EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 14 OF THE TERMS INDENTURE REFERRED TO HEREIN.
BECAUSE THE TRUST ESTATE SECURING THIS BOND AND OTHER BONDS OF THE SAME SERIES
HAS NOT BEEN REGISTERED AS AN INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"), THIS BOND IS SUBJECT TO
FURTHER TRANSFER RESTRICTIONS ASSOCIATED THEREWITH.
THIS BOND REPRESENTS AN OBLIGATION OF THE ISSUER AND WILL BE PAID SOLELY FROM
THE COLLATERAL SECURING THIS BOND. NEITHER THIS BOND NOR THE COLLATERAL THEREFOR
IS INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY
OTHER PERSON.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND. THE
ISSUE DATE OF THIS BOND IS MAY 8, 1998. ASSUMING THAT THE MORTGAGE LOANS
UNDERLYING THE PLEDGED CERTIFICATES ARE NOT SUBJECT TO ANY VOLUNTARY OR
INVOLUNTARY PREPAYMENT, THIS BOND HAS BEEN ISSUED WITH NO MORE THAN $______ OF
OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS ____% PER
ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL PRINCIPAL AMOUNT, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS UNDERLYING THE PLEDGED
CERTIFICATES WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY
PARTICULAR RATE.
THIS BOND IS SUBORDINATE TO OTHER BONDS OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE INDENTURE REFERRED TO HEREIN.
PAYMENTS IN REDUCTION OF THE PRINCIPAL AMOUNT OF THIS BOND MAY BE MADE MONTHLY
AS SET FORTH IN THE INDENTURE REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that is the registered owner (the
---------------------
"Holder") of this Bond which is one of a series of commercial mortgage bonds
(collectively, the "Bonds") issued by the Issuer referred to above in multiple
classes (each, a "Class") pursuant to the Standard Indenture Provisions, dated
as of May 8, 1998 (the "Standard Indenture Provisions"), and the Terms
Indenture, dated as of May 8, 1998 (the "Terms Indenture"; the Terms Indenture,
together with the Standard Indenture Provisions, is hereinafter referred to as
the "Indenture") between Owner Trustee referred to above, on behalf of the
Issuer and the Indenture Trustee referred to above, on behalf of the holders of
the Bonds (the "Bondholders"), a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned in the Indenture. This
Bond is issued under and is subject to the terms, provisions and conditions of
the Indenture, to which Indenture the Holder of this Bond by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Issuer, a Delaware business trust, for value received, hereby promises
to pay to the Holder hereof or registered assigns, the principal sum of
$ no later than June 2033.
----------------------
Pursuant to the terms of the Indenture, payments will be made on the Class
of Bonds to which this Bond belongs, pro rata among the Bonds of such Class
based on their respective Principal Amounts, on the second Business Day
following the end of each Collection Period (each, a "Payment Date"), commencing
on the first Payment Date specified above, to the Person in whose name this Bond
is registered at the close of business on the related Record Date. All payments
made under the Indenture on this Bond will be made by the Indenture Trustee by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Bondholder shall have provided the Indenture Trustee with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent payments), or otherwise by check mailed to the
address of such Bondholder as it appears in the Bond Register. Notwithstanding
the foregoing, the final payment on this Bond will be made in like manner, but
only upon presentation and surrender of this Bond at the offices of the
Indenture Trustee or such other location specified in the notice to the Holder
hereof of such final payment. Notwithstanding anything herein to the contrary,
no payments will be made with respect to a Bond that has previously been
surrendered as contemplated by the preceding sentence or, with limited
exception, that should have been surrendered as contemplated by the preceding
sentence.
The Bonds are limited in right of payment to certain distributions on the
Pledged Securities, all as more specifically set forth herein and in the
Indenture. As provided in the Indenture, withdrawals from the Bond Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, payments to Bondholders, such purposes including the reimbursement of
certain expenses incurred by the Indenture Trustee under the Indenture.
Any payment to the Holder of this Bond in reduction of the Principal Amount
hereof is binding on such Holder and all future Holders of this Bond and any
Bond issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such payment is made upon this Bond.
The Class of Bonds to which this Bond relates, are issuable in fully
registered form only without coupons in minimum denominations specified in the
Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, this Bond is exchangeable for new Bonds of the same Class in
authorized denominations evidencing the same Aggregate Principal Amount, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Bond or interest
therein may be made by an investor unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws.
Initially, this Bond will be held in book-entry form (all such Bonds held from
time to time in such form, the "Book-Entry Bonds"). If a transfer of any
interest in a Book-Entry Bond is to be made without registration under the
Securities Act, then the beneficial owner of such Book-Entry Bond desiring to
effect such transfer must obtain from such beneficial owner's prospective
transferee a certificate substantially in the form attached to the Terms
Indenture as Exhibit C-2B with respect to compliance with the requirements of
certain rules and regulations under the Securities Act and the provisions of the
Indenture. In addition, in connection with its acquisition of an interest in any
Book-Entry Bond, the transferee will be deemed to have made to and for the
benefit of the Issuer, the Company and the Indenture Trustee each of the
representations, warranties and covenants contained in such certificate to be so
delivered to the transferor. Under certain circumstances described herein, this
Bond may cease to be held in book-entry form and will be held in fully
registered, physical form (all such Bonds held from time to time in such form
the "Definitive Bonds"). If a transfer of any Definitive Bond is to be made
without registration under the Securities Act, then the registrar for the Bonds
(the "Bond Registrar", which shall initially be the Indenture Trustee) is
required to refuse to register such transfer unless it receives: (i) a
certificate from the Bondholder desiring to effect such transfer substantially
in the form attached to the Terms Indenture as Exhibit C-1A; (ii) a certificate
from the Bondholder desiring to effect such transfer substantially in the form
attached to the Terms Indenture as Exhibit C-1B and a certificate from such
Bondholder's prospective transferee substantially in the form attached to the
Terms Indenture as Exhibit C-2A; or (iii) an opinion of counsel satisfactory to
the Indenture Trustee to the effect that such transfer may be made without
registration under the Securities Act (which opinion of counsel shall not be an
expense of the Trust Estate (as defined herein) or of the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee or the Bond Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the Bondholder
desiring to effect such transfer and/or such Bondholder's prospective transferee
on which such opinion of counsel is based. Any investor desiring to effect a
transfer of any Bond or interest therein without registration under the
Securities Act and registration or qualification under applicable state
securities laws will be required to, and by acceptance of its Bonds or interests
therein will be deemed to have agreed to, indemnify the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee and the Bond Registrar
against any liability that may result if the transfer is not exempt from such
registration and/or qualification or is not made in accordance with such federal
and state laws.
The Trust Estate has not been registered as an investment company under the
Investment Company Act, and no transfer of this Bond shall be made to any Person
other than an Affiliate of the Issuer, a QIB or an Institutional Accredited
Investor. If any such transfer of this Bond is to be made, then the Indenture
Trustee shall require, in order to assure compliance with the foregoing, unless
the transferee is an Affiliate of the Issuer or unless a transferor
certification in the form attached to the Terms Indenture as Exhibit C-1A or a
transferee certification in the form attached to the Terms Indenture as Exhibit
C-2A has already been delivered pursuant to Section 14 of the Terms Indenture,
that the prospective transferee of this Bond certify in writing that it is a QIB
or an Institutional Accredited Investor.
No transfer of this Bond or any interest herein shall be made to a Plan, or
to any person who is directly or indirectly purchasing this Bond or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, unless the prospective Transferee of this Bond or any interest herein
provides the Bond Registrar (in the case of a Definitive Bond) or the Bond Owner
(in the case of a Book-Entry Bond) with a certification of facts and an Opinion
of Counsel which establish to the satisfaction of the Indenture Trustee (in the
case of a Definitive Bond) or the Bond Owner (in the case of
a Book-Entry Bond) that the purchase and holding of this Bond or any
interest herein will not constitute or result in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code or result in the imposition
of an excise tax under Section 4975 of the Code and will not subject the Issuer,
the Owner Trustee, the Manager, the Company, the Bond Registrar or the Indenture
Trustee to any obligation in addition to those undertaken in the Indenture.
Each Person who acquires this Bond or any interest herein (unless it shall
have delivered to the Bond Registrar a certification of facts and Opinion of
Counsel as described in the preceding paragraph) shall be deemed to have
represented and warranted to and for the benefit of the Issuer, the Owner
Trustee, the Manager, the Company, the Bond Registrar and the Indenture Trustee
that either: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing this Bond or any interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) the purchase and
holding of this Bond or any interest herein by or on behalf of, or with assets
of, such Person will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code or the imposition of an excise tax under
Section 4975 of the Code (and, will not subject the Issuer, the Owner Trustee,
the Manager, the Company, the Bond Registrar or the Indenture Trustee to any
obligation in addition to those undertaken in the Indenture).
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond is registrable in the Bond Register upon
surrender of this Bond for registration of transfer at the offices of the Bond
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Bond Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Bonds of the same Class in authorized denominations evidencing the same
Aggregate Principal Amount will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Bond, but the Indenture Trustee or the Bond Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Bond.
The Company, the Issuer, the Owner Trustee, the Indenture Trustee, the Bond
Registrar and any agent thereof may treat the Person in whose name this Bond is
registered as the owner hereof for all purposes, and none of the Company, the
Issuer, the Owner Trustee, the Indenture Trustee, the Bond Registrar or any such
agent shall be affected by notice to the contrary.
The Indenture will be discharged (except with respect to certain continuing
rights specified in the Indenture) (a)(1) upon the delivery to the Indenture
Trustee for cancellation of all of the Bonds other than Bonds which have been
mutilated, lost or stolen and have been replaced or paid and Bonds for which
money has been deposited in trust for the full payment thereof (and thereafter
repaid to the Issuer and discharged from such trust) as provided in the
Indenture or (2) at such time as all Bonds not previously cancelled by the
Indenture Trustee have become, or, on the next Payment Date, will become, due
and payable or called for redemption and the Issuer shall have deposited with
the Indenture Trustee an amount sufficient to repay all of the Bonds and (b) the
Issuer shall have paid all other amounts payable under the Indenture.
With the consent of the Holders of Bonds representing more than 50% of the
Aggregate Principal Amount (or, in the case of a Class of Interest Only Bonds,
the aggregate Notional Amount) of each Class of any Series, the Issuer and the
Indenture Trustee may amend the Indenture or enter into one or more indentures
supplemental thereto for the purpose of adding any provisions to or changing in
any
manner or eliminating any of the provisions of the Indenture with respect to
such Series or of modifying in any manner the rights of the Bondholders of such
Series under the Indenture; provided that no such amendment or supplemental
indenture shall result in an Adverse Rating Event in respect of any Class of
Bonds of such Series (as confirmed in writing by each applicable Rating Agency);
and, provided further, that no such amendment or supplemental indenture shall,
without the consent of the Holder of each Outstanding Bond affected thereby,
among other things, (i) change the date of payment of any installment of
principal of or interest or premium, if any, on any Bond, or reduce the
Principal Amount thereof, the Bond Interest Rate thereon or the Redemption Price
with respect thereto, change the provisions of the Indenture relating to the
application of payments, collections and/or distributions on, or the proceeds of
the sale of, the related Trust Estate to payments of principal of or interest or
premium, if any, on any Bonds or change any place of payment where, or the coin
or currency in which, any Bond or the interest or premium, if any, thereon is
payable, or impair the right to institute suit for the enforcement of the
provisions of the Indenture requiring the application of funds available
therefor, as provided in Article V of the Standard Indenture Provisions, to the
payment of any such amount due on any Bond on or after the respective due dates
thereof (or, in the case of redemption, on or after the applicable Redemption
Date); (ii) reduce the percentage of the Voting Rights for or allocated to, or
the percentage of the Aggregate Principal Amount or Notional Amount of, any
Class and/or Series, the consent of the Holders of Bonds representing which is
required for any such supplemental indenture, or the consent of the Holders of
Bonds representing which is required for any waiver of compliance with certain
provisions of the Indenture or certain defaults thereunder and their
consequences provided for in the Indenture; (iii) modify or alter the provisions
of the proviso to the definition of the term "Outstanding"; (iv) reduce the
percentage of the Voting Rights allocated to, or the percentage of the Aggregate
Principal Amount or Notional Amount of, any Class of any Series, the consent or
direction of the Holders of Bonds representing which is required to allow or
direct the Indenture Trustee to sell or liquidate the Trust Estate pursuant to
Section 5.04 or Section 5.12 of the Standard Indenture Provisions; (v) modify
any provision of Section 9.02 of the Standard Indenture Provisions, except to
increase any percentage specified herein or to provide that certain additional
provisions of the Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Bond affected thereby; (vi) modify any of the
provisions of the Indenture in such manner as to affect the calculation of the
amount of any payment of interest, premium (if any) or principal due on any Bond
on any Payment Date (including the calculation of any of the individual
components of such calculation) or to affect the rights of the Holders of any
Series to the benefit of any provisions for the mandatory redemption of the
Bonds of such Series contained therein; or (vii) permit the creation of any lien
ranking prior to or on a parity with the lien of the Indenture with respect to
any part of the Trust Estate securing any Series or terminate the lien of the
Indenture on any property at any time subject thereto or deprive the Holder of
any Bond of the security afforded by the lien of the Indenture, except as
otherwise expressly permitted thereby.
Provided that no Issuer Event of Default has occurred and is continuing,
the Issuer may, at its option, pursuant to the Indenture redeem this Bond, in
whole but not in part, at the Redemption Price therefor, on any Payment Date as
of which the Aggregate Principal Amount of such Class is less than 15% of the
initial Aggregate Principal Amount thereof and in any event subject to and in
accordance with Article X of the Standard Indenture Provisions. Notwithstanding
anything herein to the contrary, the Issuer may at any time irrevocably waive
its right to redeem this Bond. On any Redemption Date, following the payments to
be made on such date pursuant to Section 17(b) of the Terms Indenture, the
Indenture Trustee shall withdraw from the Bond Account and, subject to Section
2.07(e) of the Standard Indenture Provisions, pay to the Holders of the Bonds to
be redeemed the full Redemption Price therefor.
Unless the certificate of authentication hereon has been executed by the
Bond Registrar, by manual signature, this Bond shall not be entitled to any
benefit under the Indenture or be valid for any purpose.
This Bond shall be construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated:
CRIIMI MAE COMMERCIAL MORTGAGE
TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely in its capacity as
Owner Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class H-2 Bonds referred to in the within-mentioned
Terms Indenture.
Dated:
LASALLE NATIONAL BANK
as Bond Registrar
By:______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the obligation of the Issuer evidenced by
the within Commercial Mortgage Bond and hereby authorize(s) the registration of
transfer of such interest to assignee on the Bond Register.
I (we) further direct the Bond Registrar to issue a new Commercial Mortgage
Bond of a like percentage interest and Class to the above named assignee and
deliver such Bond to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
PAYMENT INSTRUCTIONS
The Assignee should include the following for purposes of payment:
Payments shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to
----------------------------------------------
for the account of .
-----------------------------------------------------------
Payments made by check (such check to be made payable to
) and all applicable statements and notices should be mailed
--------------------
to .
-------------------------------------------------------------------------
This information is provided by , the Assignee
---------------------------
named above, or , as its agent.
------------------------------------
EXHIBIT A-12
CLASS J BOND
CRIIMI MAE COMMERCIAL MORTGAGE TRUST
CLASS J COMMERCIAL MORTGAGE BOND
SERIES 1998-C1
Bond Interest Rate: 7.00% per annum Aggregate Principal Amount of the Class J
Bonds as of the Closing Date: $106,334,000
Date of Indenture: As of May 8, 1998
Initial Principal Amount of this
Accrual Date: May 1, 1998 Class J Bond as of the Closing Date:
$
Closing Date: May 8, 1998
Initial Aggregate Collateral Principal
First Payment Date: July 2, ▇▇▇▇ ▇▇▇▇▇▇: $1,772,226,951
Stated Maturity: June 2033
Issuer: CRIIMI MAE Commercial Mortgage Trust Indenture Trustee: LaSalle
National Bank
Owner Trustee: Wilmington Trust Company
Bond No. J-
THIS BOND HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY
RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS BOND OR ANY INTEREST
HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 14 OF THE TERMS INDENTURE
REFERRED TO HEREIN.
NO TRANSFER OF THIS BOND OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS BOND OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT ,EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 14 OF THE TERMS INDENTURE REFERRED TO HEREIN.
BECAUSE THE TRUST ESTATE SECURING THIS BOND AND OTHER BONDS OF THE SAME SERIES
HAS NOT BEEN REGISTERED AS AN INVESTMENT COMPANY UNDER THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"), THIS BOND IS SUBJECT TO
FURTHER TRANSFER RESTRICTIONS ASSOCIATED THEREWITH.
THIS BOND REPRESENTS AN OBLIGATION OF THE ISSUER AND WILL BE PAID SOLELY FROM
THE COLLATERAL SECURING THIS BOND. NEITHER THIS BOND NOR THE COLLATERAL THEREFOR
IS INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY
OTHER PERSON.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND. THE
ISSUE DATE OF THIS BOND IS MAY 8, 1998. ASSUMING THAT THE MORTGAGE LOANS
UNDERLYING THE PLEDGED SECURITIES ARE NOT SUBJECT TO ANY VOLUNTARY OR
INVOLUNTARY PREPAYMENT, THIS BOND HAS BEEN ISSUED WITH NO MORE THAN $______ OF
OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS ____% PER
ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO
MORE THAN $____ PER $1,000 OF INITIAL PRINCIPAL AMOUNT, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS UNDERLYING THE PLEDGED
SECURITIES WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY
PARTICULAR RATE.
THIS BOND IS SUBORDINATE TO OTHER BONDS OF THE SAME SERIES, AS AND TO THE EXTENT
PROVIDED IN THE INDENTURE REFERRED TO HEREIN.
PAYMENTS IN REDUCTION OF THE PRINCIPAL AMOUNT OF THIS BOND MAY BE MADE MONTHLY
AS SET FORTH IN THE INDENTURE REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that is the registered owner (the
----------------------
"Holder") of this Bond which is one of a series of commercial mortgage bonds
(collectively, the "Bonds") issued by the Issuer referred to above in multiple
classes (each, a "Class") pursuant to the Standard Indenture Provisions, dated
as of May 8, 1998 (the "Standard Indenture Provisions"), and the Terms
Indenture, dated as of May 8, 1998 (the "Terms Indenture"; the Terms Indenture,
together with the Standard Indenture Provisions, is hereinafter referred to as
the "Indenture") between Owner Trustee referred to above, on behalf of the
Issuer and the Indenture Trustee referred to above, on behalf of the holders of
the Bonds (the "Bondholders"), a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned in the Indenture. This
Bond is issued under and is subject to the terms, provisions and conditions of
the Indenture, to which Indenture the Holder of this Bond by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Issuer, a Delaware business trust, for value received, hereby promises
to pay to the Holder hereof or registered assigns the principal sum of
$ no later than June 2033.
-------------
Pursuant to the terms of the Indenture, payments will be made on the Class
of Bonds to which this Bond belongs, pro rata among the Bonds of such Class
based on their respective Principal Amounts, on the second Business Day
following the end of each Collection Period (each, a "Payment Date"), commencing
on the first Payment Date specified above, to the Person in whose name this Bond
is registered at the close of business on the related Record Date. All payments
made under the Indenture on this Bond will be made by the Indenture Trustee by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Bondholder shall have provided the Indenture Trustee with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent payments), or otherwise by check mailed to the
address of such Bondholder as it appears in the Bond Register. Notwithstanding
the foregoing, the final payment on this Bond will be made in like manner, but
only upon presentation and surrender of this Bond at the offices of the
Indenture Trustee or such other location specified in the notice to the Holder
hereof of such final payment. Notwithstanding anything herein to the contrary,
no payments will be made with respect to a Bond that has previously been
surrendered as contemplated by the preceding sentence or, with limited
exception, that should have been surrendered as contemplated by the preceding
sentence.
The Bonds are limited in right of payment to certain distributions on the
Pledged Securities, all as more specifically set forth herein and in the
Indenture. As provided in the Indenture, withdrawals from the Bond Account may
be made from time to time for purposes other than, and, in certain cases, prior
to, payments to Bondholders, such purposes including the reimbursement of
certain expenses incurred by the Indenture Trustee under the Indenture.
Any payment to the Holder of this Bond in reduction of the Principal Amount
hereof is binding on such Holder and all future Holders of this Bond and any
Bond issued upon the transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such payment is made upon this Bond.
The Class of Bonds to which this Bond relates, are issuable in fully
registered form only without coupons in minimum denominations specified in the
Indenture. As provided in the Indenture and subject to certain limitations
therein set forth, this Bond is exchangeable for new Bonds of the same Class in
authorized denominations evidencing the same Aggregate Principal Amount, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Bond or interest
therein may be made by an investor unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws.
Initially, this Bond will be held in book-entry form (all such Bonds held from
time to time in such form, the "Book-Entry Bonds"). If a transfer of any
interest in a Book-Entry Bond is to be made without registration under the
Securities Act, then the beneficial owner of such Book-Entry Bond desiring to
effect such transfer must obtain from such beneficial owner's prospective
transferee a certificate substantially in the form attached to the Terms
Indenture as Exhibit C-2B with respect to compliance with the requirements of
certain rules and regulations under the Securities Act and the provisions of the
Indenture. In addition, in connection with its acquisition of an interest in any
Book-Entry Bond, the transferee will be deemed to have made to and for the
benefit of the Issuer, the Company and the Indenture Trustee each of the
representations, warranties and covenants contained in such certificate to be so
delivered to the transferor. Under certain circumstances described herein, this
Bond may cease to be held in book-entry form and will be held in fully
registered, physical form (all such Bonds held from time to time in such form
the "Definitive Bonds"). If a transfer of any Definitive Bond is to be made
without registration under the Securities Act, then the registrar for the Bonds
(the "Bond Registrar", which shall initially be the Indenture Trustee) is
required to refuse to register such transfer unless it receives: (i) a
certificate from the Bondholder desiring to effect such transfer substantially
in the form attached to the Terms Indenture as Exhibit C-1A; (ii) a certificate
from the Bondholder desiring to effect such transfer substantially in the form
attached to the Terms Indenture as Exhibit C-1B and a certificate from such
Bondholder's prospective transferee substantially in the form attached to the
Terms Indenture as Exhibit C-2A; or (iii) an opinion of counsel satisfactory to
the Indenture Trustee to the effect that such transfer may be made without
registration under the Securities Act (which opinion of counsel shall not be an
expense of the Trust Estate (as defined herein) or of the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee or the Bond Registrar
in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such transfer from the Bondholder
desiring to effect such transfer and/or such Bondholder's prospective transferee
on which such opinion of counsel is based. Any investor desiring to effect a
transfer of any Bond or interest therein without registration under the
Securities Act and registration or qualification under applicable state
securities laws will be required to, and by acceptance of its Bonds or interests
therein will be deemed to have agreed to, indemnify the Issuer, the Owner
Trustee, the Manager, the Company, the Indenture Trustee and the Bond Registrar
against any liability that may result if the transfer is not exempt from such
registration and/or qualification or is not made in accordance with such federal
and state laws.
The Trust Estate has not been registered as an investment company under the
Investment Company Act, and no transfer of this Bond shall be made to any Person
other than an Affiliate of the Issuer, a QIB or an Institutional Accredited
Investor. If any such transfer of this Bond is to be made, then the Indenture
Trustee shall require, in order to assure compliance with the foregoing, unless
the transferee is an Affiliate of the Issuer or unless a transferor
certification in the form attached to the Terms Indenture as Exhibit C-1A or a
transferee certification in the form attached to the Terms Indenture as Exhibit
C-2A has already been delivered pursuant to Section 14 of the Terms Indenture,
that the prospective transferee of this Bond certify in writing that it is a QIB
or an Institutional Accredited Investor.
No transfer of this Bond or any interest herein shall be made to a Plan, or
to any person who is directly or indirectly purchasing this Bond or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, unless the prospective Transferee of this Bond or any interest herein
provides the Bond Registrar (in the case of a Definitive Bond) or the Bond Owner
(in the case of a Book-Entry Bond) with a certification of facts and an Opinion
of Counsel which establish to the satisfaction of the Indenture Trustee (in the
case of a Definitive Bond) or the Bond Owner (in the case of
a Book-Entry Bond) that the purchase and holding of this Bond or any
interest herein will not constitute or result in a non-exempt prohibited
transaction under ERISA or Section 4975 of the Code or result in the imposition
of an excise tax under Section 4975 of the Code and will not subject the Issuer,
the Owner Trustee, the Manager, the Company, the Bond Registrar or the Indenture
Trustee to any obligation in addition to those undertaken in the Indenture.
Each Person who acquires this Bond or any interest herein (unless it shall
have delivered to the Bond Registrar a certification of facts and Opinion of
Counsel as described in the preceding paragraph) shall be deemed to have
represented and warranted to and for the benefit of the Issuer, the Owner
Trustee, the Manager, the Company, the Bond Registrar and the Indenture Trustee
that either: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing this Bond or any interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) the purchase and
holding of this Bond or any interest herein by or on behalf of, or with assets
of, such Person will not result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code or the imposition of an excise tax under
Section 4975 of the Code (and, will not subject the Issuer, the Owner Trustee,
the Manager, the Company, the Bond Registrar or the Indenture Trustee to any
obligation in addition to those undertaken in the Indenture).
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Bond is registrable in the Bond Register upon
surrender of this Bond for registration of transfer at the offices of the Bond
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Bond Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Bonds of the same Class in authorized denominations evidencing the same
Aggregate Principal Amount will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer or
exchange of this Bond, but the Indenture Trustee or the Bond Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Bond.
The Company, the Issuer, the Owner Trustee, the Indenture Trustee, the Bond
Registrar and any agent thereof may treat the Person in whose name this Bond is
registered as the owner hereof for all purposes, and none of the Company, the
Issuer, the Owner Trustee, the Indenture Trustee, the Bond Registrar or any such
agent shall be affected by notice to the contrary.
The Indenture will be discharged (except with respect to certain continuing
rights specified in the Indenture) (a)(1) upon the delivery to the Indenture
Trustee for cancellation of all of the Bonds other than Bonds which have been
mutilated, lost or stolen and have been replaced or paid and Bonds for which
money has been deposited in trust for the full payment thereof (and thereafter
repaid to the Issuer and discharged from such trust) as provided in the
Indenture or (2) at such time as all Bonds not previously cancelled by the
Indenture Trustee have become, or, on the next Payment Date, will become, due
and payable or called for redemption and the Issuer shall have deposited with
the Indenture Trustee an amount sufficient to repay all of the Bonds and (b) the
Issuer shall have paid all other amounts payable under the Indenture.
With the consent of the Holders of Bonds representing more than 50% of the
Aggregate Principal Amount (or, in the case of a Class of Interest Only Bonds,
the aggregate Notional Amount) of each Class of any Series, the Issuer and the
Indenture Trustee may amend the Indenture or enter into one or more indentures
supplemental thereto for the purpose of adding any provisions to or changing in
any
manner or eliminating any of the provisions of the Indenture with respect to
such Series or of modifying in any manner the rights of the Bondholders of such
Series under the Indenture; provided that no such amendment or supplemental
indenture shall result in an Adverse Rating Event in respect of any Class of
Bonds of such Series (as confirmed in writing by each applicable Rating Agency);
and, provided further, that no such amendment or supplemental indenture shall,
without the consent of the Holder of each Outstanding Bond affected thereby,
among other things, (i) change the date of payment of any installment of
principal of or interest or premium, if any, on any Bond, or reduce the
Principal Amount thereof, the Bond Interest Rate thereon or the Redemption Price
with respect thereto, change the provisions of the Indenture relating to the
application of payments, collections and/or distributions on, or the proceeds of
the sale of, the related Trust Estate to payments of principal of or interest or
premium, if any, on any Bonds or change any place of payment where, or the coin
or currency in which, any Bond or the interest or premium, if any, thereon is
payable, or impair the right to institute suit for the enforcement of the
provisions of the Indenture requiring the application of funds available
therefor, as provided in Article V of the Standard Indenture Provisions, to the
payment of any such amount due on any Bond on or after the respective due dates
thereof (or, in the case of redemption, on or after the applicable Redemption
Date); (ii) reduce the percentage of the Voting Rights for or allocated to, or
the percentage of the Aggregate Principal Amount or Notional Amount of, any
Class and/or Series, the consent of the Holders of Bonds representing which is
required for any such supplemental indenture, or the consent of the Holders of
Bonds representing which is required for any waiver of compliance with certain
provisions of the Indenture or certain defaults thereunder and their
consequences provided for in the Indenture; (iii) modify or alter the provisions
of the proviso to the definition of the term "Outstanding"; (iv) reduce the
percentage of the Voting Rights allocated to, or the percentage of the Aggregate
Principal Amount or Notional Amount of, any Class of any Series, the consent or
direction of the Holders of Bonds representing which is required to allow or
direct the Indenture Trustee to sell or liquidate the Trust Estate pursuant to
Section 5.04 or Section 5.12 of the Standard Indenture Provisions; (v) modify
any provision of Section 9.02 of the Standard Indenture Provisions, except to
increase any percentage specified herein or to provide that certain additional
provisions of the Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Bond affected thereby; (vi) modify any of the
provisions of the Indenture in such manner as to affect the calculation of the
amount of any payment of interest, premium (if any) or principal due on any Bond
on any Payment Date (including the calculation of any of the individual
components of such calculation) or to affect the rights of the Holders of any
Series to the benefit of any provisions for the mandatory redemption of the
Bonds of such Series contained therein; or (vii) permit the creation of any lien
ranking prior to or on a parity with the lien of the Indenture with respect to
any part of the Trust Estate securing any Series or terminate the lien of the
Indenture on any property at any time subject thereto or deprive the Holder of
any Bond of the security afforded by the lien of the Indenture, except as
otherwise expressly permitted thereby.
Provided that no Issuer Event of Default has occurred and is continuing,
the Issuer may, at its option, pursuant to the Indenture redeem this Bond, in
whole but not in part, at the Redemption Price therefor, on any Payment Date as
of which the Aggregate Principal Amount of such Class is less than 15% of the
initial Aggregate Principal Amount thereof and in any event subject to and in
accordance with Article X of the Standard Indenture Provisions. Notwithstanding
anything herein to the contrary, the Issuer may at any time irrevocably waive
its right to redeem this Bond. On any Redemption Date, following the payments to
be made on such date pursuant to Section 17(b) of the Terms Indenture, the
Indenture Trustee shall withdraw from the Bond Account and, subject to Section
2.07(e) of the Standard Indenture Provisions, pay to the Holders of the Bonds to
be redeemed the full Redemption Price therefor.
Unless the certificate of authentication hereon has been executed by the
Bond Registrar, by manual signature, this Bond shall not be entitled to any
benefit under the Indenture or be valid for any purpose.
This Bond shall be construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
Dated:
CRIIMI MAE COMMERCIAL MORTGAGE
TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely in its capacity as
Owner Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Bonds referred to in the within-mentioned Terms
Indenture.
Dated:
LASALLE NATIONAL BANK
as Bond Registrar
By:______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the obligation of the Issuer evidenced by
the within Commercial Mortgage Bond and hereby authorize(s) the registration of
transfer of such interest to assignee on the Bond Register.
I (we) further direct the Bond Registrar to issue a new Commercial Mortgage
Bond of a like percentage interest and Class to the above named assignee and
deliver such Bond to the following address:
Dated:
Signature by or on behalf of Assignor
Signature Guaranteed
PAYMENT INSTRUCTIONS
The Assignee should include the following for purposes of payment:
Payments shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to
----------------------------------------------
for the account of .
-----------------------------------------------------------
Payments made by check (such check to be made payable to
) and all applicable statements and notices should be mailed
--------------------
to .
-------------------------------------------------------------------------
This information is provided by , the Assignee
---------------------------
named above, or , as its agent.
------------------------------------
EXHIBIT B-1
FORM OF PAYMENT DATE STATEMENT
EXHIBIT B-2
FORM OF DELINQUENCY REPORT
EXHIBIT B-3
FORM OF SPECIALLY SERVICED MORTGAGE LOAN REPORT
EXHIBIT B-4
FORM OF MODIFIED LOAN REPORT
EXHIBIT B-5
FORM OF REALIZED LOSS REPORT
EXHIBIT C-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE BONDS
[Date]
LaSalle National Bank, as Bond Registrar
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Asset-Backed Securities Trust Services
Group-CRIIMI MAE, Series 1998-C1
Re: CRIIMI MAE Commercial Mortgage Trust,
Commercial Mortgage Bonds, Series ▇▇▇▇-▇▇ (▇▇▇
"▇▇▇▇▇")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
(the "Transferor") to (the "Transferee") of
------------------ -----------------
Class Bonds having an initial Aggregate Principal Amount as of May 8,
------
1998 (the "Closing Date") of $ (the "Transferred Bonds"). The
-------------
Bonds, including the Transferred Bonds, were issued pursuant to a Terms
Indenture, dated as of May , 1998 (the "Terms Indenture"), between CRIIMI MAE
--
Commercial Mortgage Trust and LaSalle National Bank (the"Indenture Trustee")
which Terms Indenture incorporates by reference certain standard indenture
provisions applicable to collateralized mortgage obligations issuable (in
series) by owner trusts established by CRIIMI MAE CMBS Corp, dated May 8, 1998
(the "Standard Indenture Provisions"; and the Terms Indenture, as it so
incorporates by reference the Standard Indenture Provisions, the "Indenture").
All capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Indenture. The Transferee hereby certifies,
represents and warrants to you, as Bond Registrar, and for the benefit of the
Issuer, the Indenture Trustee and the Transferee, that:
1. The Transferor is the lawful owner of the
Transferred Bonds with the full right to transfer such Bonds free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its
behalf has (a) offered, transferred, pledged, sold or otherwise
disposed of any Bond, any interest in any Bond or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a transfer, pledge or other disposition of any Bond, any
interest in any Bond or any other similar security from any person in
any manner, (c) otherwise approached or negotiated with respect to any
Bond, any interest in any Bond or any other similar security with any
person in any manner, (d) made any general solicitation by means of
general advertising or in any other manner, or (e) taken any other
action, which (in the case of any of the acts described in clauses (a)
through (e) hereof) would constitute a distribution of any Bond under
the Securities Act of 1933, as amended (the "Securities Act"), or would
render the disposition of any Bond a violation of Section 5 of the
Securities Act or any state securities laws, or would require
registration or qualification of any Bond pursuant to the Securities
Act or any state securities laws.
3. The Transferor and any person acting on behalf of
the Transferor in this matter reasonably believe that the Transferee is
a "qualified institutional buyer" as that term is defined in Rule 144A
("Rule 144A") under the Securities Act (a "Qualified Institutional
Buyer") purchasing for its own account or for the account of a
Qualified Institutional Buyer. In determining whether the Transferee is
a Qualified Institutional Buyer, the Transferor and any person acting
on behalf of the Transferor in this matter have relied upon the
following method(s) of establishing the Transferee's ownership and
discretionary investments of securities (check one or more):
___ (a) The Transferee's most recent publicly
available financial statements, which statements
present the information as of a date within 16 months
preceding the date of sale of the Transferred Bond in
the case of a U.S. purchaser and within 18 months
preceding such date of sale for a foreign purchaser;
or
___ (b) The most recent publicly available
information appearing in documents filed by the
Transferee with the Securities and Exchange
Commission or another United States federal, state,
or local governmental agency or self-regulatory
organization, or with a foreign governmental agency
or self-regulatory organization, which information is
as of a date within 16 months preceding the date of
sale of the Transferred Bond in the case of a U.S.
purchaser and within 18 months preceding such date of
sale for a foreign purchaser; or
___ (c) The most recent publicly available information
appearing in a recognized securities manual, which
information is as of a date within 16 months
preceding the date of sale of the Transferred
Bond in the case of a U.S. purchaser and within 18
months preceding such date of sale for a foreign
purchaser; or
___ (d) A certification by the chief financial
officer, a person fulfilling an equivalent function,
or other executive officer of the Transferee,
specifying the amount of securities owned and
invested on a discretionary basis by the Transferee
as of a specific date on or since the close of the
Transferee's most recent fiscal year, or, in the case
of a Transferee that is a member of a "family of
investment companies", as that term is defined in
Rule 144A, a certification by an executive officer of
the investment adviser specifying the amount of
securities owned by the "family of investment
companies" as of a specific date on or since the
close of the Transferee's most recent fiscal year.
4. The Transferor and any person acting on behalf of
the Transferor understand that in determining the aggregate amount of
securities owned and invested on a discretionary basis by an entity for
purposes of establishing whether such entity is a Qualified
Institutional Buyer:
(a) the following instruments and interests
shall be excluded: securities of issuers that are
affiliated with the Transferee; securities that are
part of an unsold allotment to or subscription by the
Transferee, if the Transferee is a dealer; securities
of issuers that are part of the Transferee's "family
of investment companies", if the Transferee is a
registered investment company; bank deposit notes and
certificates of deposit; loan participations;
repurchase agreements; securities owned but subject
to a repurchase agreement; and currency, interest
rate and commodity swaps;
(b) the aggregate value of the securities
shall be the cost of such securities, except where
the entity reports its securities holdings in its
financial statements on the basis of their market
value, and no current information with respect to the
cost of those securities has been published, in which
case the securities may be valued at market;
(c) securities owned by subsidiaries of the
entity that are consolidated with the entity in its
financial statements prepared in accordance with
generally accepted accounting principles may be
included if the investments of such subsidiaries are
managed under the direction of the entity, except
that, unless the entity is a reporting company under
Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, securities owned by such
subsidiaries may not be included if the entity itself
is a majority-owned subsidiary that would be included
in the consolidated financial statements of another
enterprise.
5. The Transferor or a person acting on its behalf has
taken reasonable steps to ensure that the Transferee is aware that the
Transferor is relying on the exemption from the provisions of Section 5
of the Securities Act provided by Rule 144A.
6. The Transferor or a person acting on its behalf has
furnished, or caused to be furnished, to the Transferee all information
regarding (a) the Transferred Bonds and payments thereon, (b) the
nature and performance of the Pledged Securities, the CMM 96-C1 Pledged
Certificates, the Mortgage Loans and the Mortgage Participations, (c)
the Indenture and the Trust Estate, and (d) any credit enhancement
mechanism associated with the Transferred Bonds, that the Transferee
has requested.
Very truly yours,
(Transferor)
By:
-----------------------
Name:
Title:
EXHIBIT C-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE BONDS
[Date]
LaSalle National Bank, as Bond Registrar
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Asset-Backed Securities Trust Services
Group-CRIIMI MAE, Series 1998-C1
Re: CRIIMI MAE Commercial Mortgage Trust,
Commercial Mortgage Bonds, Series ▇▇▇▇-▇▇ (▇▇▇
"▇▇▇▇▇")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
(the "Transferor") to (the "Transferee") of
------------------ -----------------
Class Bonds having an initial Aggregate Principal Amount as of May 8,
-------
1998 (the "Closing Date") of $ (the "Transferred Bonds"). The
-------------
Bonds, including the Transferred Bonds, were issued pursuant to a Terms
Indenture, dated as of May 8, 1998 (the "Terms Indenture"), between CRIIMI MAE
Commercial Mortgage Trust (the "Issuer") and LaSalle National Bank
(the"Indenture Trustee") which Terms Indenture incorporates by reference certain
standard indenture provisions applicable to collateralized mortgage obligations
issuable (in series) by owner trusts established by CRIIMI MAE CMBS Corp, dated
May 8, 1998 (the "Standard Indenture Provisions"; and the Terms Indenture, as it
so incorporates by reference the Standard Indenture Provisions, the
"Indenture"). All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Indenture. The Transferee hereby
certifies, represents and warrants to you, as Bond Registrar, and for the
benefit of the Issuer, the Indenture Trustee and the Transferee, that:
1. The Transferor is the lawful owner of the
Transferred Bonds with the full right to transfer such Bonds free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its
behalf has (a) offered, transferred, pledged, sold or otherwise
disposed of any Bond, any interest in any Bond or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a transfer, pledge or other disposition of any Bond, any
interest in any Bond or any other similar security from any person in
any manner, (c) otherwise approached or negotiated with respect to any
Bond, any interest in any Bond or any other similar security with any
person in any manner, (d) made any general solicitation by means of
general advertising or in any other manner, or (e) taken any other
action, which (in the case of any of the acts described in clauses (a)
through (e) hereof) would constitute a distribution of any Bond under
the Securities Act of 1933, as amended (the "Securities Act"), or would
render the disposition of any Bond a violation of Section 5 of the
Securities Act or any state securities laws, or would require
registration or qualification of any Bond pursuant to the Securities
Act or any state securities laws.
Very truly yours,
(Transferor)
By:
------------------------
Name:
Title:
EXHIBIT C-2A
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE BONDS
[Date]
LaSalle National Bank, as Bond Registrar
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Asset-Backed Securities Trust Services
Group-CRIIMI MAE, Series 1998-C1
Re: CRIIMI MAE Commercial Mortgage Trust,
Commercial Mortgage Bonds, Series ▇▇▇▇-▇▇ (▇▇▇
"▇▇▇▇▇")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
(the "Transferor") to (the "Transferee") of
----------------- -----------------
Class Bonds having an initial Aggregate Principal Amount as of May 8, 1998
---
(the "Closing Date") of $ (the "Transferred Bonds"). The Bonds,
-----------
including the Transferred Bonds, were issued pursuant to a Terms Indenture,
dated as of May 8, 1998 (the "Terms Indenture"), between CRIIMI MAE Commercial
Mortgage Trust (the "Issuer") and LaSalle National Bank (the"Indenture Trustee")
which Terms Indenture incorporates by reference certain standard
indenture provisions applicable to collateralized mortgage obligations
issuable (in series) by owner trusts established by CRIIMI MAE CMBS Corp, dated
May 8, 1998 (the "Standard Indenture Provisions"; and the Terms Indenture, as it
so incorporates by reference the Standard Indenture Provisions, the
"Indenture"). All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Indenture. The Transferee hereby
certifies, represents and warrants to you, as Bond Registrar, and for the
benefit of the Issuer, the Indenture Trustee and the Transferor, that:
1. The Transferee is a "qualified institutional buyer"
(a "Qualified Institutional Buyer") as that term is defined in Rule 144A ("Rule
144A") under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it of the
Transferred Bonds is being made in reliance on Rule 144A. The Transferee is
acquiring the Transferred Bonds for its own account or for the account of a
Qualified Institutional Buyer, and understands that such Transferred Bonds may
be resold, pledged or transferred only (i) to a person reasonably believed to be
a Qualified Institutional Buyer that purchases for its own account or for the
account of a Qualified Institutional Buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii) as
evidenced by an opinion of counsel, pursuant to another exemption from
registration under the Securities Act.
2. The Transferee has been furnished with all
information regarding (a) the Transferred Bonds and payments thereon, (b) the
nature and performance of the Pledged Securities, the CMM 96-C1 Pledged
Certificates, the Mortgage Loans and the Mortgage Participations, (c) the
Indenture, and (d) any credit enhancement mechanism associated with the
Transferred Bonds, that it has requested.
Very truly yours,
(Transferee)
By:
Name:
Title:
ANNEX 1 TO EXHIBIT C-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Bond Registrar], as Bond Registrar, with respect to
the Commercial Mortgage Bonds being transferred (the "Transferred Bonds") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief
financial officer, a person fulfilling an equivalent function, or other
executive officer of the entity purchasing the Transferred Bonds (the
"Transferee").
2. The Transferee is a "qualified institutional buyer"
as that term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A"), because (i) the Transferee owned and/or invested on a
discretionary basis $ 1 in securities (other than the
----------------------
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with Rule 144A)
and (ii) the Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation
(other than a bank, savings and loan association or similar
institution), Massachusetts or similar business trust,
partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a
banking institution organized under the laws of any State,
U.S. territory or the District of Columbia, the business
of which is substantially confined to banking and is
supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date
not more than 16 months preceding the date of sale of the Bond
in the case of a U.S. bank, and not more than 18 months
preceding such date of sale for a foreign bank or equivalent
institution.
___ Savings and Loan. The Transferee (a) is a savings and
loan association, building and loan association, cooperative
bank, homestead association or similar institution,
which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is
a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date
not more than 16 months preceding the date of sale of the Bond
in the case of a U.S. savings and loan
--------
1 Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
association, and not more than 18 months preceding such date
of sale for a foreign savings and loan association or
equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of 1934,
as amended.
___ Insurance Company. The Transferee is an insurance
company whose primary and predominant business activity is the
writing of insurance or the reinsuring of risks underwritten
by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of
a State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established
and maintained by a State, its political subdivisions,
or any agency or instrumentality of the State or its
political subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan
within the meaning of Title I of the Employee Retirement
Income Security Act of 1974.
___ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act of
1940, as amended.
___ Other. (Please supply a brief description of the entity
and a cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
3. The term "securities" as used herein does not
include (i) securities of issuers that are affiliated with the Transferee, (ii)
securities that are part of an unsold allotment to or subscription by the
Transferee, if the Transferee is a dealer, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, the Transferee did not include any of the securities referred to in
this paragraph.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the cost
of those securities has been published, in which case the securities were valued
at market. Further, in determining such aggregate amount, the Transferee may
have included securities owned by subsidiaries of the Transferee, but only if
such subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted accounting principles
and if the investments of such subsidiaries are managed under the Transferee's
direction. However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar
with Rule 144A and understands that the Transferor and other parties related to
the Transferred Bonds are relying and will continue to rely on the statements
made herein because one or more sales to the Transferee may be in reliance on
Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Bonds
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no",
then in each case where the Transferee is purchasing for an account other than
its own, such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by the
Transferee through one or more of the appropriate methods contemplated by Rule
144A.
7. The Transferee will notify each of the parties to
which this certification is made of any changes in the information and
conclusions herein. Until such notice is given, the Transferee's purchase of the
Transferred Bonds will constitute a reaffirmation of this certification as of
the date of such purchase. In addition, if the Transferee is a bank or savings
and loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
Print Name of Transferee
By:
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT C-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Bond Registrar], as Bond Registrar, with respect to
the Commercial Mortgage Bonds being transferred (the "Transferred Bonds") as
described in the Transferee Certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief
financial ___ officer, a person fulfilling an equivalent function, or other
executive officer of the entity purchasing the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because the Transferee is part of a Family of Investment Companies (as
defined below), is an executive officer of the investment adviser (the
"Adviser").
2. The Transferee is a "qualified institutional buyer"
as defined in Rule 144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, as amended, and (ii) as
marked below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For purposes
of determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities was
used, unless the Transferee or any member of the Transferee's Family of
Investment Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been published, in
which case the securities of such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$ in securities (other than the excluded
-------------------
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment
Companies which owned in the aggregate $
---------------
in securities (other than the excluded securities referred
to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance
with Rule 144A).
3. The term "Family of Investment Companies" as used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not
include (i) securities of issuers that are affiliated with the Transferee or are
part of the Transferee's Family of Investment Companies, (ii) bank deposit notes
and certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v)
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and
understands that the parties to which this certification is being made are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the
Transferred Bonds only for the Transferee's
own account?
Yes No
6. If the answer to the foregoing question is "no",
then in each case where the Transferee is purchasing for an account other than
its own, such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by the
Transferee through one or more of the appropriate methods contemplated by Rule
144A.
7. The undersigned will notify the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's purchase of the Transferred Bonds
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
Print Name of Transferee or Adviser
By:
Name:
Title:
IF AN ADVISER:
Print Name of Transferee
Date:
EXHIBIT C-2B
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN BOOK-ENTRY BONDS
[Date]
[Name of Transferor]
Re: CRIIMI MAE Commercial Mortgage Trust,
Commercial Mortgage Bonds, Series ▇▇▇▇-▇▇ (▇▇▇
"▇▇▇▇▇")
Ladies and Gentlemen:
This letter is delivered to you (the "Transferor") in connection with your
transfer to (the "Transferee") through our respective
-----------------
Depository Participants of your beneficial ownership interest (currently
maintained on the books and records of The Depository Trust Company and the
Depository Participants) in Class Bonds having an initial Aggregate
----
Principal Amount as of May 8, 1998 (the "Closing Date") of $ (the
----------
"Transferred Bonds"). The Bonds, including the Transferred Bonds, were issued
pursuant to a Terms Indenture, dated as of May 8, 1998 (the "Terms Indenture"),
between CRIIMI MAE Commercial Mortgage Trust and LaSalle National Bank
(the"Indenture Trustee") which Terms Indenture incorporates by reference certain
standard indenture provisions applicable to collateralized mortgage obligations
issuable (in series) by owner trusts established by CRIIMI MAE CMBS Corp, dated
May 8, 1998 (the "Standard Indenture Provisions"; and the Terms Indenture, as it
so incorporates by reference the Standard Indenture Provisions, the
"Indenture"). All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Indenture. The Transferee hereby
certifies, represents and warrants to and agrees with you that:
1. The Transferee is a "qualified institutional buyer"
(a "Qualified Institutional Buyer") as that term is defined in Rule 144A ("Rule
144A") under the Securities Act of 1933, as amended (the "Securities Act") and
has completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it of the
Transferor's interest in the Transferred Bonds is being made in reliance on Rule
144A. The Transferee is acquiring such interest in the Transferred Bonds for its
own account or for the account of a Qualified Institutional Buyer.
2. The Transferee understands that (a) the Class of
Bonds to which the Transferred Bonds belong has not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Issuer, the Indenture Trustee
or the Bond Registrar is obligated so to register or qualify the Class of Bonds
to which the Transferred Bonds belong, and (c) no Transferred Bond or interest
therein may be resold or transferred unless (i) such Bond is registered pursuant
to the Securities Act and registered or qualified pursuant any applicable state
securities laws, or (ii) such Bond or interest therein is sold or transferred in
a transaction which is exempt from such registration and qualification and, for
so long as such Bond is held in book-entry form, the Bondholder desiring to
effect such transfer has received a certificate from its prospective transferee
substantially identical to this certificate.
3. The Transferee understands that it may not sell or
otherwise transfer any Transferred Bond or interest therein except in compliance
with the provisions of Section 14 of the Terms Indenture, which provisions it
has carefully reviewed, and that each Transferred Bond will bear the following
legends:
THIS BOND HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF
ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS BOND OR
ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE
MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION
14 OF THE TERMS INDENTURE REFERRED TO HEREIN.
NO TRANSFER OF THIS BOND OR ANY INTEREST HEREIN MAY BE MADE (A) TO AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO
ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS BOND OR SUCH
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 14 OF
THE TERMS INDENTURE REFERRED TO HEREIN.
4. The Transferee has been furnished with all
information regarding (a) the Company and the Issuer, (b) the
Transferred Bonds and payments thereon, (c) the Indenture and the Trust
Estate, (d) the nature and performance of the Pledged Securities, the
CMM 96-C1 Pledged Certificates, the Mortgage Loans and the Mortgage
Participations, and (e) all related matters, that it has requested.
Very truly yours,
(Transferee)
By:
Name:
Title:
ANNEX 1 TO EXHIBIT C-2B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") with respect to the Commercial Mortgage Bonds being transferred in
book-entry form (the "Transferred Bonds") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief
financial officer, a person fulfilling an equivalent function, or other
executive officer of the entity purchasing the Transferred Bonds (the
"Transferee").
2. The Transferee is a "qualified institutional buyer"
as that term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A"), because (i) the Transferee owned and/or invested on a
discretionary basis $ 2 in securities (other than the
----------------------
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with Rule 144A)
and (ii) the Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation
(other than a bank, savings and loan association or similar
institution), Massachusetts or similar business trust,
partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a
banking institution organized under the laws of any State,
U.S. territory or the District of Columbia, the business
of which is substantially confined to banking and is
supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date
not more than 16 months preceding the date of sale of the
Transferred Bonds in the case of a U.S. bank, and not more
than 18 months preceding such date of sale for a foreign bank
or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and
loan association, building and loan association, cooperative
bank, homestead association or similar institution,
which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is
a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual
---------------------
2 Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
financial statements, a copy of which is attached hereto, as
of a date not more than 16 months preceding the date of sale
of the Transferred Bonds in the case of a U.S. savings and
loan association, and not more than 18 months preceding such
date of sale for a foreign savings and loan association or
equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities
Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance
company whose primary and predominant business activity is the
writing of insurance or the reinsuring of risks underwritten
by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of
a State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established
and maintained by a State, its political subdivisions,
or any agency or instrumentality of the State or its
political subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan
within the meaning of Title I of the Employee Retirement
Income Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ Other. (Please supply a brief description of the entity
and a cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
3. The term "securities" as used herein does not
include (i) securities of issuers that are affiliated with the Transferee, (ii)
securities that are part of an unsold allotment to or subscription by the
Transferee, if the Transferee is a dealer, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, the Transferee did not include any of the securities referred to in
this paragraph.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the cost
of those securities has been published, in which case the securities were valued
at market. Further, in determining such aggregate amount, the Transferee may
have included securities owned by subsidiaries of the Transferee, but only if
such subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted accounting principles
and if the investments of such subsidiaries are managed under the Transferee's
direction. However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar
with Rule 144A and understands that the Transferor and other parties related to
the Transferred Bonds are relying and will continue to rely on the statements
made herein because one or more sales to the Transferee may be in reliance on
Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Bonds
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no",
then in each case where the Transferee is purchasing for an account other than
its own, such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by the
Transferee through one or more of the appropriate methods contemplated by Rule
144A.
7. The Transferee will notify each of the parties to
which this certification is made of any changes in the information and
conclusions herein. Until such notice is given, the Transferee's purchase of the
Transferred Bonds will constitute a reaffirmation of this certification as of
the date of such purchase. In addition, if the Transferee is a bank or savings
and loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
Print Name of Transferee
By:
Name:
Title:
ANNEX 2 TO EXHIBIT C-2B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") with respect to the Commercial Mortgage Bonds being transferred in
book-entry form (the "Transferred Bonds") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief
financial officer, a person fulfilling an equivalent function, or other
executive officer of the entity purchasing the Transferred Bonds (the
"Transferee") or, if the Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because the Transferee is part of a Family of Investment Companies (as
defined below), is an executive officer of the investment adviser (the
"Adviser").
2. The Transferee is a "qualified institutional buyer"
as defined in Rule 144A because (i) the Transferee is an investment company
registered under the Investment Company Act of 1940, as amended, and (ii) as
marked below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For purposes
of determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities was
used, unless the Transferee or any member of the Transferee's Family of
Investment Companies, as the case may be, reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been published, in
which case the securities of such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$ in securities (other
-------------------
than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment
Companies which owned in the aggregate $
--------------
in securities (other than the excluded securities referred
to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance
with Rule 144A).
3. The term "Family of Investment Companies" as used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not
include (i) securities of issuers that are affiliated with the Transferee or are
part of the Transferee's Family of Investment Companies, (ii) bank deposit notes
and certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v)
securities owned but subject to a repurchase agreement and (vi)
currency, interest rate and commodity swaps. For purposes of determining the
aggregate amount of securities owned and/or invested on a discretionary basis by
the Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and
understands that the parties to which this certification is being made are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the
Transferred Bonds only for the Transferee's
own account?
Yes No
6. If the answer to the foregoing question is "no",
then in each case where the Transferee is purchasing for an account other than
its own, such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by the
Transferee through one or more of the appropriate methods contemplated by Rule
144A.
7. The undersigned will notify the parties to which
this certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's purchase of the Transferred Bonds
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
Print Name of Transferee or Adviser
By:
Name:
Title:
IF AN ADVISER:
Print Name of Transferee
Date:
-------------------------------------------