EXHIBIT 10.1
DEPOSIT TRUST AGREEMENT
dated as of December 20, 1996
between
CRIIMI MAE QRS 1, INC.,
as Depositor and Initial Holder of the Owner Trust Certificates,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
CRIIMI MAE TRUST I
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT
ARTICLE I
DEFINITIONS
Accrual Date................................................... 2
Accrued Bond Interest.......................................... 2
Accrued Certificate Interest................................... 2
Administrative Expenses........................................ 2
Affiliate...................................................... 2
Agent.......................................................... 2
Aggregate Certificate Principal Balance........................ 2
Aggregate Collateral Principal Amount.......................... 3
Available Funds................................................ 3
Bank........................................................... 3
Bankruptcy Code................................................ 3
Bond Account................................................... 3
Bond Register.................................................. 3
Bondholder..................................................... 3
Bonds.......................................................... 3
Business Day................................................... 3
Business Trust Statute......................................... 3
Certificate Account............................................ 3
Certificate of Trust........................................... 3
Certificate Register........................................... 3
Certificate Registrar.......................................... 3
Certificateholder" or "Holder.................................. 3
Certificateholder Funds........................................ 4
Class.......................................................... 4
Class A-1 Bonds................................................ 4
Class A-2 Bonds................................................ 4
Class B Bonds.................................................. 4
Class C Bonds.................................................. 4
Class D Bonds.................................................. 4
Class E Bonds.................................................. 4
Class F Bonds.................................................. 4
Class P Certificate............................................ 4
Class R Certificate............................................ 4
Class XS Certificate........................................... 4
Closing Date................................................... 4
Code........................................................... 5
Collection Period.............................................. 5
Contribution Agreement......................................... 5
Corporate Trust Office......................................... 5
Depositor...................................................... 5
Deposit Trust Agreement........................................ 5
Depository..................................................... 5
Depository Participant......................................... 5
Depository Representation Letter............................... 5
Eligible Trustee............................................... 5
ERISA.......................................................... 5
Governmental Authority......................................... 6
Indenture...................................................... 6
Indenture Default.............................................. 6
Indenture Trustee.............................................. 6
Indenture Trustee Fee.......................................... 6
Independent.................................................... 6
IRS............................................................ 6
Lien........................................................... 6
Manager........................................................ 6
Management Agreement........................................... 6
Management Fee................................................. 7
1933 Act....................................................... 7
1934 Act....................................................... 7
1940 Act....................................................... 7
Officers' Certificate.......................................... 7
Operative Agreements........................................... 7
Opinion of Counsel............................................. 7
Overcollateralization Amount................................... 7
Owner Trust Certificates....................................... 7
Owner Trustee.................................................. 7
Owner Trustee Fee.............................................. 7
Payment Date................................................... 7
Percentage Interest............................................ 8
Person......................................................... 8
Pledged Certificate............................................ 8
Pledged Certificate Agreement.................................. 8
Purchase Agreement............................................. 8
Purchaser...................................................... 8
QRS............................................................ 8
Rating Agency.................................................. 8
Record Date.................................................... 8
REIT........................................................... 8
Responsible Officer............................................ 8
Treasury Regulations........................................... 9
Transfer....................................................... 9
Trust.......................................................... 9
Trust Estate................................................... 9
UCC Financing Statement........................................ 9
Uniform Commercial Code........................................ 9
Voting Rights.................................................. 9
ARTICLE II
AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS;
DECLARATION OF BUSINESS TRUST BY THE BANK
SECTION 2.1 Declaration of Business Trust by the Bank 10
SECTION 2.2 Transfer of Trust Estate to Owner Trustee 10
SECTION 2.3 Authority to Execute and Perform Various
Documents 12
SECTION 2.4 Execution and Delivery of Owner Trust
Certificates 12
SECTION 2.5 Activities of the Trust 13
ARTICLE III
ESTABLISHMENT OF CERTIFICATE ACCOUNT
SECTION 3.1 Establishment of Certificate Account;
Deposits in Certificate Account 15
SECTION 3.2 Permitted Withdrawals From the Certificate
Account 15
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE TRUST ESTATE
SECTION 4.1 Distribution of Payments 16
SECTION 4.2 Payments 16
SECTION 4.3 Statements to Certificateholders 18
SECTION 4.4 Access to Certain Documentation and
Information 19
SECTION 4.5 Compliance with Withholding Requirements 19
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
SECTION 5.1 Notice of Certain Events; Action by the
Owner Trustee 20
SECTION 5.2 Distribution of Reports 20
SECTION 5.3 Action Required Only if Owner Trustee is
Indemnified 20
SECTION 5.4 No Duties Except as Specified in Deposit
Trust Agreement or Instructions 20
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Acceptance of Trust and Duties 22
SECTION 6.2 Limited Representations or Warranties of the
Owner Trustee 22
SECTION 6.3 Trust Accounts 23
SECTION 6.4 Reliance; Advice of Counsel 23
SECTION 6.5 Not Acting in Individual Capacity 24
SECTION 6.6 Books and Records; Tax Election 24
ARTICLE VII
COMPENSATION, REIMBURSEMENT AND INDEMNIFICATION
OF THE OWNER TRUSTEE
SECTION 7.1 Compensation of the Owner Trustee 25
SECTION 7.2 Reimbursement and Indemnification of the
Owner Trustee 25
SECTION 7.3 Not Obligations of the Trust 26
ARTICLE VIII
TERMINATION OF DEPOSIT TRUST AGREEMENT
SECTION 8.1 Termination 26
SECTION 8.2 Further Assurances by the Owner Trustee
upon Termination 26
SECTION 8.3 Insolvency of a Certificateholder 27
ARTICLE IX
SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES
AND SEPARATE OWNER TRUSTEES
SECTION 9.1 Resignation of the Owner Trustee;
Appointment of Successor 28
SECTION 9.2 Co-Trustees and Separate Trustees 29
SECTION 9.3 Notice 29
ARTICLE X
SUPPLEMENTS AND AMENDMENTS
SECTION 10.1 Supplements and Amendments 30
SECTION 10.2 Limitation on Amendments 30
SECTION 10.3 Additional Amendment Provisions 30
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE DEPOSITOR
SECTION 11.1 Representations and Warranties of the
Depositor 32
SECTION 11.3 Accrued Interest, Etc. 33
SECTION 11.4 Additional Covenants of the Depositor 33
ARTICLE XII
TRANSFER OF INTEREST OF THE DEPOSITOR
SECTION 12.1 Registration of Transfer and Exchange of
Owner Trust Certificates 35
SECTION 12.2 Mutilated, Destroyed, Lost or Stolen Owner
Trust Certificates 37
SECTION 12.3 Persons Deemed Owners 37
SECTION 12.4 Access to Names and Addresses 37
SECTION 12.5 Actions of Certificateholders 38
SECTION 12.6 Transferee's Agreement 38
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 No Legal Title to Trust Estate in the
Certificateholder 39
SECTION 13.2 Action by the Owner Trustee is Binding 39
SECTION 13.3 Limitation on Rights of Others 39
SECTION 13.4 Notices 39
SECTION 13.5 Severability 40
SECTION 13.6 Limitation on the Depositor's and the
Certificateholder's Respective Liability 40
SECTION 13.7 Separate Counterparts 40
SECTION 13.8 Successors and Assigns 40
SECTION 13.9 Headings 41
SECTION 13.10 Governing Law 41
SECTION 13.11 Administration of Trust 41
SECTION 13.12 Performance by the Depositor or the Manager 41
SECTION 13.13 Conflict with Indenture and Pledged
Certificate Agreement 41
SECTION 13.14 No Implied Waiver 41
SECTION 13.15 Third Party Beneficiary 41
SECTION 13.16 References 41
SECTION 13.17 ▇▇▇▇▇▇ Act 42
Schedule I - Pledged Certificate Schedule
Exhibit A-1 - Form of Class P Certificate
Exhibit A-2 - Form of Class XS Certificate
Exhibit A-3 - Form of Class R Certificate
DEPOSIT TRUST AGREEMENT
DEPOSIT TRUST AGREEMENT, dated as of December 20, 1996, between CRIIMI MAE
QRS 1, INC., a Delaware corporation, as Depositor and initial holder of the
Owner Trust Certificates, and WILMINGTON TRUST COMPANY, a Delaware bank and
trust company, as Owner Trustee.
PRELIMINARY STATEMENT
The Depositor (as defined herein) desires to form the trust to be created
hereby (the "Trust") for the purpose of (i) accepting from the Depositor, and
holding for the benefit of the Holders (as defined herein) of the Owner Trust
Certificates (as defined herein), the Trust Estate (as defined herein), (ii)
issuing pursuant to the Indenture nonrecourse Commercial Mortgage Bonds, Series
▇▇▇▇-▇▇ (▇▇▇ "▇▇▇▇▇"), in seven classes designated as the "Class A-1 Bonds", the
"Class A-2 Bonds", the "Class B Bonds", the "Class C Bonds", the "Class D
Bonds", the "Class E Bonds" and the "Class F Bonds", respectively, and secured
by, among other things, a lien on the Pledged Certificates (as defined herein),
and distributing the Bonds or the proceeds therefrom to the Depositor, (iii)
issuing Owner Trust Certificates in three classes designated as the "Class P
Certificates", the "Class XS Certificates" and the "Class R Certificates",
respectively, evidencing the entire beneficial ownership interest in the Trust,
(iv) consummating certain transactions contemplated by, and performing under,
the Operative Agreements, and (v) engaging in certain activities incidental to
the foregoing.
Wilmington Trust Company, a Delaware bank and trust company, is willing to
act as trustee hereunder (in its individual capacity, the "Bank", and solely in
its capacity as owner trustee hereunder, with its successors in interest in such
capacity and its permitted assigns, the "Owner Trustee") and to accept the Trust
created hereby.
In consideration of the premises and of the mutual agreements herein
contained and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used herein and not otherwise defined, unless the
context otherwise requires, shall have the meanings set forth below or in the
Indenture. In the event that a capitalized term used herein is defined both in
this Deposit Trust Agreement and in the Indenture, the definition appearing
herein shall control.
"Accrual Date" shall mean December 1, 1996.
"Accrued Bond Interest" shall mean interest accrued and payable on the
Bonds from time to time in accordance with the terms of the Indenture.
"Accrued Certificate Interest" shall mean: with respect to the Class P
Certificates for any Payment Date, one month's interest (calculated on the basis
of a 360-day year consisting of twelve 30-day months) at 8.00% per annum on the
Aggregate Certificate Principal Balance of the Class P Certificates immediately
prior to the related Payment Date; and with respect to the Class XS Certificates
for any Payment Date, the excess, if any, of (a) the aggregate of all payments
received on the Pledged Certificates during the related Collection Period that
are allocable to interest thereon, over (b) the aggregate of (i) all Accrued
Bond Interest payable on the Bonds and all Accrued Certificate Interest payable
on the Class P Certificates on such Payment Date and (ii) any unpaid
Administrative Expenses due as of such Payment Date.
"Administrative Expenses" shall mean the Indenture Trustee Fee, the Owner
Trustee Fee and the Management Fee and the ongoing fees of the Rating Agencies
payable under the Indenture.
"Affiliate" shall mean, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the meaning of "control".
"Agent" shall mean any agent or attorney of the Owner Trustee appointed by
the Owner Trustee to execute one or more of the trusts or powers hereunder.
"Aggregate Certificate Principal Balance" shall mean, with respect to the
Class P Certificates, as of any date of determination, the then aggregate
principal balance of all Class P Certificates. The initial Aggregate Certificate
Principal Balance of the Class P Certificates shall be $100,069,949. The
Aggregate Certificate Principal Balance of the Class P Certificates shall be
reduced on each Payment Date by the amount of any payments of principal made
thereon on such date pursuant to Section 4.2, and shall be further reduced on
each Payment Date by the amount, if any, that the Aggregate Certificate
Principal Balance of the Class P Certificates immediately following the payments
of principal to be made on such Owner Trust Certificates on such Payment
Date, exceeds the Overcollateralization Amount that will be outstanding
immediately following such Payment Date.
"Aggregate Collateral Principal Amount" shall mean, as of any date of
determination, the then aggregate principal balance of the Pledged Certificates,
together with all distributions allocable to principal of the Pledged
Certificates held on deposit in the Bond Account for future payment on the Bonds
or in the Certificate Account for future payment on the Certificates.
"Available Funds" shall have the meaning assigned to such term in the
Indenture.
"Bank" shall have the meaning assigned to that term in the preliminary
statement above.
"Bankruptcy Code" shall mean the Bankruptcy Code of 1978, Title 11 of the
United States Code, as amended from time to time.
"Bond Account" shall mean the segregated trust account established in the
name of the Indenture Trustee pursuant to Section 2.09 of the Indenture.
"Bond Register" shall mean the register of Bonds maintained pursuant to the
Indenture.
"Bondholder" shall mean those persons or entities holding the Bonds from
time to time as shown on the Bond Register maintained under the Indenture.
"Bonds" shall have the meaning assigned to that term in the preliminary
statement above.
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which banking institutions in New York, New York, Wilmington, Delaware or any
other city specified in the definition of Business Day in the Indenture, are
authorized or obligated by law or executive order to be closed.
"Business Trust Statute" shall have the meaning assigned to that term in
Section 2.1.
"Certificate Account" shall mean the segregated trust account established
in the name of the Owner Trustee pursuant to Section 3.1 of this Deposit Trust
Agreement.
"Certificate of Trust" shall have the meaning assigned to that term in
Section 2.1.
"Certificate Register" and "Certificate Registrar" shall mean the register
of Owner Trust Certificates maintained, and the registrar appointed,
respectively, pursuant to Section 12.1.
"Certificateholder" or "Holder" shall mean, with respect to any Owner Trust
Certificate, the Person in whose name such Owner Trust Certificate is registered
on the Certificate Register. Initially, the Depositor shall be the sole Holder
of all the Owner Trust Certificates.
"Certificateholder Funds" shall mean, with respect to any Payment Date, an
amount equal to all amounts on deposit in the Certificate Account as of the
commencement of business on such Payment Date, net of (i) any amounts payable or
reimbursable to the Owner Trustee from the Certificate Account pursuant to
Section 7.2 hereunder and (ii) any amounts deposited in the Certificate Account
in error.
"Class" shall mean all of the Owner Trust Certificates or Bonds, as the
case may be, having the same alphabetical and/or numerical class designation.
"Class A-1 Bonds" shall mean the Bonds so designated under the Indenture
and issued pursuant thereto.
"Class A-2 Bonds" shall mean the Bonds so designated under the Indenture
and issued pursuant thereto.
"Class B Bonds" shall mean the Bonds so designated under the Indenture and
issued pursuant thereto.
"Class C Bonds" shall mean the Bonds so designated under the Indenture and
issued pursuant thereto.
"Class D Bonds" shall mean the Bonds so designated under the Indenture and
issued pursuant thereto.
"Class E Bonds" shall mean the Bonds so designated under the Indenture and
issued pursuant thereto.
"Class F Bonds" shall mean the Bonds so designated under the Indenture and
issued pursuant thereto.
"Class P Certificate" shall mean any of the Owner Trust Certificates with a
"Class P" designation on the face thereof, executed by the Owner Trustee and
authenticated by the Certificate Registrar, substantially in the form of Exhibit
A-1 attached hereto.
"Class R Certificate" shall mean any of the Owner Trust Certificates with a
"Class R" designation on the face thereof, executed by the Owner Trustee and
authenticated by the Certificate Registrar, substantially in the form of Exhibit
A-3 attached hereto.
"Class XS Certificate" shall mean any of the Owner Trust Certificates with
a "Class XS" designation on the face thereof, executed by the Owner Trustee and
authenticated by the Certificate Registrar, substantially in the form of Exhibit
A-2 attached hereto.
"Closing Date" shall mean December 20, 1996.
"Code" shall mean the Internal Revenue Code of 1986.
"Collection Period" shall mean, with respect to any Payment Date, the
period commencing on and including the prior Payment Date (or, in the case of
the initial Payment Date, commencing on and including December 30, 1996) and
ending on the day prior to the related Payment Date.
"Contribution Agreement" shall mean the contribution agreement, dated as of
December 20, 1996, between CRIIMI MAE Inc. and the Depositor, pursuant to which
CRIIMI MAE Inc. contributed the Pledged Certificates, together with certain
other assets, to the Depositor.
"Corporate Trust Office" shall mean the principal corporate trust office of
the Owner Trustee at which, at any particular time, its corporate trust business
is administered, which office at the date hereof is located at the address of
the Owner Trustee set forth in Section 13.4.
"Depositor" shall mean CRIIMI MAE QRS 1, Inc., a Delaware corporation, and
its successors in interest.
"Deposit Trust Agreement" shall mean this Deposit Trust Agreement, as the
same may be amended or supplemented from time to time.
"Depository" shall have the meaning assigned thereto in the Indenture.
"Depository Participant" shall have the meaning assigned thereto in the
Indenture.
"Depository Representation Letter" shall mean the Letter of Representations
dated December 20, 1996 among the Trust, the Indenture Trustee and initial
Depository in connection with the issuance of the Class A-1, Class A-2 and Class
B Bonds.
"Eligible Trustee" shall mean a bank (within the meaning of Section 2(a)(5)
of the ▇▇▇▇ ▇▇▇) that meets the requirements of Section 26(a)(1) of the 1940
Act, that is not an Affiliate of the Depositor or an Affiliate of any Person
involved in the organization or operation of the Depositor, that is organized
and doing business under the laws of any state or the United States of America,
that is authorized under such laws to exercise corporate trust powers and to
accept the trust conferred under this Deposit Trust Agreement, that has a
combined capital and surplus and undivided profits of at least $100,000,000 and
that is subject to supervision or examination by federal or state authority. If
such bank publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this definition the combined capital, surplus and undivided
profits of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time. "Governmental Authority" shall mean any
government, or any commission, authority, board, agency, division, subdivision
or any court or tribunal of the government, of the United States of America or
of any state, territory, city, municipality, county or town thereof or of the
District of Columbia, or of any foreign jurisdiction, including the employees or
agents thereof.
"Indenture" shall mean that certain indenture, dated as of December 20,
1996, by and between the Issuer and the Indenture Trustee, pursuant to which the
Bonds are being issued, as the same may be from time to time supplemented or
amended.
"Indenture Default" shall have the meaning assigned to the term "Event of
Default" in Section 4.01 of the Indenture.
"Indenture Trustee" shall mean The Chase Manhattan Bank, a national banking
association, in its capacity as trustee under the Indenture, or its successor in
interest, or any successor trustee appointed as provided in the Indenture.
"Indenture Trustee Fee" shall mean the monthly fee payable to the Indenture
Trustee as provided in the Indenture.
"Independent" shall mean when used with respect to any specified Person,
any such Person who (i) is in fact independent of the Depositor, the Manager and
any and all Affiliates thereof, (ii) does not have any direct financial interest
in or any material indirect financial interest in any of the Depositor, the
Manager or any Affiliate thereof, and (iii) is not connected with the Depositor,
the Manager or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Depositor, the Manager or any Affiliate thereof merely because such Person is
the beneficial owner of 1% or less of any class of securities issued by the
Depositor or the Manager or any Affiliate thereof, as the case may be. The
Issuer may rely, in the performance of any duty hereunder, upon the statement of
any Person contained in any certificate or opinion that such Person is
Independent according to this definition.
"IRS" shall mean the Internal Revenue Service.
"Lien" shall mean any lien, pledge, encumbrance or security interest on or
in any particular asset or property.
"Manager" shall mean the Person acting as the "Manager" from time to time
under the Management Agreement, which initially shall be CRIIMI MAE Services
Limited Partnership.
"Management Agreement" shall mean the management agreement, dated as of
December 20, 1996, among the Owner Trustee (on behalf of the Trust) and the
Manager, pursuant to which the Manager shall perform various obligations of the
Trust under the Indenture.
"Management Fee" shall mean the monthly fee payable to the Manager under
the Management Agreement.
"1933 Act" shall mean the Securities Act of 1933, as amended.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended.
"1940 Act" shall mean the Investment Company Act of 1940, as amended.
"Officers' Certificate" shall mean a certificate signed on behalf of the
applicable entity by two officers, one of whom shall be the Chairman of the
Board, the Vice Chairman of the Board, the President, any Vice President or
Managing Director, an Assistant Vice President or any other authorized officer
(however denominated) and the other of which shall be by the Treasurer, the
Secretary, one of the Assistant Treasurers or Assistant Secretaries, or, in
either case, another officer customarily performing functions similar to those
performed by any of the above designated officers or, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
"Operative Agreements" shall mean, collectively, this Deposit Trust
Agreement, the Owner Trust Certificates, the Indenture, the Bonds, the
Management Agreement, the Contribution Agreement, the Pledged Certificate
Agreements, the Pledged Certificates, the Depository Representation Letter and
the Purchase Agreement, as each of them may, from time to time, be amended or
supplemented.
"Opinion of Counsel" shall mean a written opinion of counsel, who may,
without limitation, but subject to the requirements of the Indenture, be
employees or other counsel for the Depositor which are reasonably acceptable to
the Owner Trustee. The cost of such opinion shall be born by the Depositor.
"Overcollateralization Amount" shall mean, as of any date of determination,
the amount, if any, by which the then Aggregate Collateral Principal Amount
exceeds the then aggregate principal amount of all the Bonds.
"Owner Trust Certificates" shall mean the Class P, Class XS and Class R
Certificates issued hereunder.
"Owner Trustee" shall have the meaning assigned to that term in the
preliminary statement above.
"Owner Trustee Fee" shall be an amount set forth in the Fee Agreement,
dated as of December 19, 1996, between Wilmington Trust Company and the
Depositor.
"Payment Date" shall mean the 30th day (or, in the case of February, the
28th day) of each month or, if any such day is not a Business Day, then the next
succeeding Business Day, commencing in January 1997.
"Percentage Interest" shall mean, with respect to any Owner Trust
Certificate, the percentage interest in the related Class evidenced by such
Owner Trust Certificate as specified on the face thereof.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledged Certificate" shall mean any one of the pass-through certificates
conveyed to the Owner Trustee by the Depositor pursuant to the Section 2.2(b),
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 Certificate Agreement" shall mean with respect to any Pledged
Certificate, the pooling and servicing agreement, trust agreement or other
governing agreement, together with all exhibits thereto, pursuant to which such
Pledged Certificate was issued.
"Purchase Agreement" shall mean the purchase agreement, dated December __,
1996, between the Purchasers, as purchasers of the Class A-1, Class A-2 and
Class B Bonds, and the Depositor.
"Purchaser" shall mean each of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation and Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
"QIB": A qualified institutional buyer within the meaning of Rule 144A
under the 1933 Act.
"QRS" shall mean a qualified REIT subsidiary within the meaning of Section
856(i) of the Code.
"Rating Agency" shall have the meaning assigned to such term in the
Indenture.
"Record Date" shall mean, with respect to any Class of Owner Trust
Certificates for any Payment Date, the fifth Business Day preceding such Record
Date.
"REIT" shall mean a real estate investment trust within the meaning of
Section 856(a) of the Code.
"Responsible Officer" shall mean any officer of the Owner Trustee assigned
to the Corporate Trust Office with direct responsibility for the administration
of this Deposit Trust Agreement and also, with respect to a particular matter,
any officer of the Owner Trustee employed within the Corporate Trust Office, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject, and, in the case of
any certification required to be signed by a Responsible Officer, such an
officer whose name appears on a list of corporate trust officers furnished to
the Depositor and the Indenture Trustee by the Owner Trustee, as such list may
from time to time be amended.
"Treasury Regulations" shall mean temporary, proposed or final regulations
of the United States Department of the Treasury.
"Transfer" shall mean any direct or indirect transfer or other form of
assignment of any Owner Trust Certificate.
"Trust" shall mean the trust established under this Deposit Trust
Agreement.
"Trust Estate" shall mean the corpus of the trust created as of the Closing
Date and to be administered hereunder, consisting of: all the estate, right,
title and interest of the Depositor in, to and under (a) the Pledged
Certificates and all payments thereon from and after the commencement of the
initial Collection Period, (b) the Operative Agreements (i) to which the
Depositor is a party or (ii) of which the Depositor is a third party
beneficiary, including the right to receive all income on the Pledged
Certificates, (iii) all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing and (iv) all proceeds of every
kind and nature whatsoever in respect thereof, including all proceeds of the
conversion, voluntary or involuntary, into cash or other liquid property, all
cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of obligations
and receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of the foregoing.
"UCC Financing Statement" shall mean a financing statement executed and
filed pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
"Uniform Commercial Code" shall mean the Uniform Code as in effect in any
applicable jurisdiction.
"Voting Rights" shall mean that portion of the voting rights of all the
Owner Trust Certificates which is allocated to any particular Owner Trust
Certificate. At all times during the term of this Deposit Trust Agreement, 97%
of the Voting Rights shall be allocated to the Holders of the Class P
Certificates, 2% of the Voting Rights shall be allocated to the Holders of the
Class XS Certificates and 1% of the Voting Rights shall be allocated to the
Holders of the Class R Certificates. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective Owner Trust
Certificates.
ARTICLE II
AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS;
DECLARATION OF BUSINESS TRUST BY THE BANK
SECTION 2.1 Declaration of Business Trust by the Bank. The Trust will be
known as "CRIIMI MAE Trust I," in which name the Owner Trustee may conduct the
affairs of the Trust. Wilmington Trust Company is hereby appointed to hold and
agrees to hold the Trust Estate as Owner Trustee in trust upon the terms and
conditions and for the use and benefit of the Certificateholders as herein set
forth.
It is the intention of the parties hereto that the trust created by this
Agreement constitute a business trust under the Business Trust Statute and that
this Agreement constitute the governing instrument of such business trust. This
Declaration of Business Trust is not intended to create a partnership or a
joint-stock association. As soon as practicable after the date hereof, the Owner
Trustee shall file the Certificate of Trust required by Section 3910(a) of the
Business Trust Statute, in the office of the Secretary of State of the State of
Delaware (the "Certificate of Trust"). Effective as of the date hereof, the
Owner Trustee shall have all the rights, powers and duties set forth herein and
in the Business Trust Statute with respect to accomplishing the purposes of the
Trust. For purposes of this Declaration of Business Trust, "Business Trust
Statute" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801
et seq. as the same may be amended from time to time.
SECTION 2.2 Transfer of Trust Estate to Owner Trustee.
(a) Effective as of the date hereof, the Depositor does hereby sell, grant,
assign, transfer, and otherwise convey to, and deposit with, the Owner Trustee,
and its successors, until this Deposit Trust Agreement terminates pursuant to
Section 8.1, the entire Trust Estate, such conveyance to be made in exchange for
the Bonds and the Owner Trust Certificates. Such assignment includes, without
limitation, all amounts payable to and all rights of the holders of the Pledged
Certificates pursuant to the related Pledged Certificates Agreements.
In connection with such transfer and assignment, the Depositor does hereby
deliver or cause to be delivered to, and deposit or cause to be deposited with,
the Owner Trustee (or, at the direction of the Owner Trustee, to and with the
Indenture Trustee on behalf of the Trust pursuant to the Indenture) each of the
following documents or instruments relating to each Pledged Certificate:
(i) either (A) if such Pledged Certificate is held in fully
registered, certificated form, a duly issued and authenticated physical
certificate evidencing such Pledged Certificate endorsed to "The Chase
Manhattan Bank, as Indenture Trustee under the Indenture, dated as of
December 20, 1996, relating to CRIIMI MAE Trust I, Commercial Mortgage
Bonds, Series 1996-C1" or its nominee, together with such Opinions of
Counsel and other documents as shall be necessary to cause registration
of transfer of such Pledged Certificate to the Indenture Trustee to be
made and to obtain a duly issued and authenticated physical certificate
evidencing such Pledged Certificate registered in the
name of the Indenture Trustee or its nominee; or (B) if such Pledged
Certificate is held in book-entry form, such instruments of transfer,
directions, certificates or other documents as are necessary to cause
registration of transfer of such Pledged Certificate 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) a Uniform Commercial Code Financing Statement covering
the Trust Estate, executed by the Depositor as debtor in favor of the
Trust as secured party and the Indenture Trustee as its assignee;
(iii) a copy (which may be on electronic media) of the related
Pledged Certificate Agreement; and
(iv) all other items relating to the foregoing as reasonably
requested by the Owner Trustee or the Indenture Trustee.
(b) The conveyance of the Pledged Certificates and all other assets
constituting the Trust Estate by the Depositor as contemplated hereby is
absolute and is intended by the parties to constitute a contribution of the
Pledged Certificates and all other assets constituting the Trust Estate by the
Depositor to the Trust. It is, further, not intended that such conveyance be
deemed a pledge of security for a loan. If such conveyance is deemed to be a
pledge of security for a loan, however, the Depositor intends that the rights
and obligations of the parties to such loan shall be established pursuant to the
terms of this Deposit Trust Agreement. The Depositor also intends and agrees
that, in such event, (i) this Deposit Trust Agreement shall constitute a
security agreement under applicable law, (ii) the Depositor shall be deemed to
have granted to the Owner Trustee on behalf of the Trust a first priority
security interest in the Depositor's entire right, title and interest in and to
the assets constituting the Trust Estate, including, without limitation, the
Pledged Certificates and all payments thereon from and after December 30, 1996,
(iii) the possession by the Owner Trustee on behalf of the Trust (or any
subsequent assignee, including, without limitation, the Indenture Trustee) or
its agent of the Pledged Certificates and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" or possession by a purchaser or
person designated by such secured party for the purpose of perfecting such
security interest under applicable law, and (iv) notifications to, and
acknowledgments, receipts or confirmations from, Persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Owner Trustee on behalf of the Trust (or any subsequent assignee,
including, without limitation, the Indenture Trustee) for the purpose of
perfecting such security interest under applicable law. The Depositor shall, to
the extent consistent with this Deposit Trust Agreement, take such reasonable
actions as may be necessary to ensure that, if this Deposit Trust Agreement were
deemed to create a security interest in the Pledged Certificates and the other
assets of the Trust Estate, such security interest would be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the life of this Deposit Trust Agreement.
(c) The Owner Trustee hereby acknowledges the receipt by it of the Trust
Estate and such other documents and instruments referenced above, and declares
that it holds and will hold the Trust Estate and such documents and instruments
and that it holds and will hold all other assets and documents to be included in
the Trust Estate, in trust for the exclusive use and benefit of all present and
future Certificateholders.
(d) Except as expressly provided in Section 8.1, neither the Depositor nor
any Certificateholder shall be able to revoke the Trust established hereunder.
Except as provided in Sections 4.2 and 8.1 hereof, the Owner Trustee shall not
assign, sell, dispose of or transfer any interest in, nor may the Deposior or
any Certificateholder withdraw from the Trust, any Pledged Certificate or other
asset constituting the Trust Estate. Except as contemplated by the Indenture,
the Owner Trustee shall not permit the Pledged Certificates or any other asset
constituting the Trust Estate to be subjected to any lien, claim or encumbrance
arising by, through or under the Owner Trustee or any person claiming by,
through or under the Owner Trustee.
SECTION 2.3 Authority to Execute and Perform Various Documents. The
Depositor hereby authorizes and directs the Owner Trustee or (in the case of tax
administration matters, its agent) (i) to execute and deliver, as trustee for
and on behalf of the Certificateholders, the Operative Agreements to which the
Trust is a party and all other agreements, documents, instruments and
certificates contemplated to be executed and delivered by the Trust pursuant to
the Operative Agreements and, pursuant to the terms of the Indenture, to
execute, issue and deliver to the Indenture Trustee and the Bonds (each such
Operative Agreement and the Bonds to be in the form approved by the Depositor);
(ii) to execute and deliver the Owner Trust Certificates to the Depositor; (iii)
as and to the extent provided in the Indenture, to pledge the Trust Estate as
security for repayment of the Bonds and, in connection therewith, to deliver (or
cause to be delivered) to the Indenture Trustee each of the documents and
instruments contemplated by the Granting Clause of the Indenture; (iv) to take
whatever action shall be required to be taken by the Owner Trustee by the terms
of, and exercise its rights and perform its duties under, each of the documents,
agreements, instruments and certificates referred to in clauses (i) through
(iii) above as set forth in such documents, agreements, instruments and
certificates; and (v) subject to the terms of this Deposit Trust Agreement, to
take such other action in connection with the foregoing as the
Certificateholders may from time to time direct.
SECTION 2.4 Execution and Delivery of Owner Trust Certificates.
(a) The Owner Trustee shall, on the date hereof, execute and cause to be
authenticated and delivered to and upon the order of the Depositor, the Owner
Trust Certificates in authorized denominations evidencing the entire beneficial
ownership of the Trust. The Owner Trust Certificates will consist of three
Classes designated as the "Class P Certificates", the "Class XS Certificates"
and the "Class R Certificates". The rights of the respective Classes of
Certificateholders to receive distributions from the proceeds of the Trust in
respect of their Owner Trust Certificates, and all ownership interests of the
respective Classes of Certificateholders in such distributions, shall be as set
forth in this Deposit Trust Agreement.
(b) The Owner Trust Certificates will be substantially in the respective
forms attached hereto as Exhibits A-1 through A-3; provided that any of the
Owner Trust Certificates
may be issued with appropriate insertions, omissions, substitutions and
variations, and may have imprinted or otherwise reproduced thereon such legend
or legends, not inconsistent with the provisions of this Deposit Trust
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Owner Trust Certificates are admitted to trading, or to conform to
general usage. The Owner Trust Certificates will be issuable in registered form
only, representing not less than a 25% Percentage Interest in the relevant
Class.
(c) Each Owner Trust Certificate may be printed or in typewritten or
similar form, and each Owner Trust Certificate shall, upon original issue, be
executed by the Owner Trustee and authenticated by the Certificate Registrar and
delivered to or upon the order of the Depositor. All Owner Trust Certificates
shall be executed by manual or facsimile signature on behalf of the Trust by an
authorized officer of the Owner Trustee, not individually, but solely as Owner
Trustee hereunder. Owner Trust Certificates bearing the signatures of
individuals who were at any time the proper officers of the Owner Trustee shall
bind the Owner Trustee, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the delivery of such Owner Trust
Certificates or did not hold such offices at the date of such Owner Trust
Certificates. No Owner Trust Certificates shall be entitled to any benefit under
this Deposit Trust Agreement, or be valid for any purpose, unless there appears
on such Owner Trust Certificate a certificate of authentication in the form set
forth on the signature page of the form of Owner Trust Certificates attached as
Exhibit A-1 through Exhibit A-3, executed by the Certificate Registrar by manual
signature, and such certificate of authentication upon any Owner Trust
Certificate shall be conclusive evidence, and the only evidence, that such Owner
Trust Certificate has been duly authenticated and delivered hereunder. All Owner
Trust Certificates shall be dated the date of their authentication.
SECTION 2.5 Activities of the Trust. It is the intention of the parties
hereto that the Trust shall not engage in any business or activities other than
in connection with, or relating to, the purposes specified in Section 2.3. The
operations of the Trust will be conducted in accordance with the following
standards (and the Owner Trustee and the Depositor hereby agree to use their
best efforts to cause the operations of the Trust to be conducted in accordance
herewith):
(i) The Trust will observe all procedures required by
this Deposit Trust Agreement.
(ii) Except as otherwise provided in Sections 5.1 and
5.4, the business and affairs of the Trust will be managed by or under
the direction of the Owner Trustee. Except as otherwise expressly
provided in this Deposit Trust Agreement, the Depositor will have no
authority to act for, or to assume any obligation or responsibility on
behalf of, the Trust.
(iii)The Trust will keep correct and complete books
and records of accounts and minutes of the meetings and other
proceedings of its trustees, separate from those of the Depositor or
any subsidiary, affiliate or separate account of the Depositor. Any
such resolutions, agreements and other instruments will be continuously
maintained as official records by the Trust.
(iv) Each of the Depositor and the Trust will provide
for its own operating expenses and liabilities from its own funds.
General overhead and administrative expenses of the Trust will not be
charged or otherwise allocated to the Depositor (except indirectly,
insofar as the Depositor owns the Owner Trust Certificates) and such
expenses of the Depositor will not be charged or otherwise allocated to
the Trust.
(v) The Trust will conduct its business under names
or tradenames so as not to mislead others as to the identity of the
Trust. Without limiting the generality of the foregoing, all oral and
written communications, including letters, invoices, contracts,
statements, and applications will be made solely in the name of the
Trust if related to the Trust. The Depositor and the Trust each will
have separate stationery and other business forms.
(vi) There will be no guarantees made by the Trust
with respect to obligations of the Depositor. There will not be any
indebtedness relating to borrowings or loans between the Trust and the
Depositor.
(vii)The Trust will act solely in its name and
through its or the Owner Trustee's duly authorized officers or agents
in the conduct of its business. The Trust will not: (a) operate or
purport to operate as an integrated, single economic unit with respect
to the Depositor or any other affiliated or unaffiliated entity; (b)
seek or obtain credit or incur any obligation to any third party based
upon the assets of the Depositor; or (c) induce any such third party to
reasonably rely on the creditworthiness of the Depositor or any other
affiliated or unaffiliated entity.
(viii) The Trust will maintain its principal place of
business in the State of Delaware.
(ix) The Trust and the Depositor shall keep separate
their respective funds and other assets and shall not commingle such
funds and other assets with those of any other Affiliates thereof.
(x) If and to the extent applicable, the Trust shall
cause the preparation of financial statements that are separate from
those of the Depositor and any other Affiliates (although it may be
presented as part of the consolidated financial statements of an
Affiliate).
(xi) The Trust will not engage in any transaction
with an Affiliate on any terms other than would be obtained in an
arm's-length transaction with a non-Affiliate.
ARTICLE III
ESTABLISHMENT OF CERTIFICATE ACCOUNT
SECTION 3.1 Establishment of Certificate Account;
Deposits in Certificate Account.
The Owner Trustee, for the benefit of the Certificateholders, shall
establish and maintain one or more non-interest bearing trust accounts
(collectively, the "Certificate Account"), entitled "Wilmington Trust Company,
in trust for the registered holders of CRIIMI MAE Trust I Owner Trust
Certificates" and held in trust by the Owner Trustee for the benefit of the
Certificateholders. The Owner Trustee shall cause the following payments and
collections to be deposited directly into the Certificate Account: (1) all
distributions to the Trust as issuer of the Bonds received from the Indenture
Trustee from time to time pursuant to Section 2.10 of the Indenture; (2) any
payments (if any) received on the Pledged Certificates from time to time after
the commencement of the initial Collection Period pursuant to the respective
Pledged Certificate Agreements; and (3) any other amounts specifically required
to be deposited in the Certificate Account hereunder. The foregoing requirements
for deposit in the Certificate Account shall be exclusive.
SECTION 3.2 Permitted Withdrawals From the Certificate Account.
The Owner Trustee may from time to time withdraw funds from the Certificate
Account for the following purposes:
(i) to make payments on the Owner Trust Certificates in
the amounts and in the manner provided for in Section
4.2 hereunder;
(ii) to pay itself any unpaid Owner Trustee Fees, but only
to the extent of amounts in the Certificate Account
representing amounts received in respect of the
Pledged Certificates;
(iii) to reimburse or indemnify the Owner Trustee for
expenses and other liabilities incurred by and
reimbursable to the Owner Trustee, pursuant to Section
7.2 hereunder, except as otherwise provided in such
section; and
(iv) to clear and terminate the Certificate Account upon
the termination of this Agreement.
On each Payment Date, the Owner Trustee shall withdraw all funds from the
Certificate Account and shall use such funds withdrawn from the Certificate
Account only for the purposes described in this Section 3.2 and Section 4.2
hereunder.
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION
OF INCOME FROM THE TRUST ESTATE
SECTION 4.1 Distribution of Payments.
(a) In the event that, following the commencement of the initial Collection
Period and prior to the Lien on the Trust Estate under the Indenture having been
discharged and released, any payments on account of the Pledged Certificates are
received directly (rather than through the Indenture Trustee) by the Owner
Trustee, the Depositor or a Certificateholder, the Person so receiving such
payment shall, promptly upon receipt, deliver such payment over to the Indenture
Trustee without deduction, set-off or adjustment of any kind.
(b) Pursuant to the terms of the Indenture, after payment by the Indenture
Trustee of all required payments on the Bonds on each Payment Date, the
remaining Available Funds in the Bond Account will be remitted by the Indenture
Trustee to the Owner Trustee for application as provided in Section 3.2
(including, without limitation, payment to the Certificateholders in accordance
with Section 4.2 hereunder). The Owner Trustee may direct the Indenture Trustee
to distribute such remaining Available Funds on any such Payment Date in a
manner consistent with Sections 3.2 and 4.2 (as if such remaining Available
Funds were on deposit in the Certificate Account); and, in connection therewith,
such remaining Available Funds shall be deemed to have been deposited in the
Certificate Account and subsequently withdrawn to make such distributions.
SECTION 4.2 Payments.
(a) On each Payment Date (or, if the payments from the Indenture Trustee on
such Payment Date contemplated by Section 4.1(c) shall have been received after
2:00 p.m., New York City time on such Payment Date, as soon as practically
possible, but in no event more than one Business Day, following receipt), the
Owner Trustee (or its Agent) shall withdraw from the Certificate Account all
Certificateholder Funds then on deposit therein, and the Owner Trustee (or its
Agent) shall pay such Certificateholder Funds to the respective Classes of
Certificateholders for the following purposes and in the following order, in
each case to the extent of remaining available funds:
(i) to the Holders of the Class P Certificates and the
Holders of the Class XS Certificates in respect of
interest, pro rata based on entitlement, up to an
amount equal to all Accrued Certificate Interest in
respect of each such Class of Owner Trust
Certificates for the related Payment Date and, to the
extent not previously paid, for all prior Payment
Dates;
(ii) if all the Bonds have been retired, to the Holders of
the Class P Certificates in respect of principal, up
to an amount equal to the Aggregate Certificate
Principal Amount of the Class P Certificates
immediately prior to such Payment Date; and
(iii) to the Holders of the Class R Certificates, in an
amount equal to the remaining portion, if any, of the
Certificateholder Funds for such Payment Date.
Payments made after the Payment Date on which they were scheduled to be
made as permitted by the parenthetical in the first sentence of this Section
4.2(a), shall be deemed to have been made on such Payment Date.
(b) All payments made with respect to any Class of Owner Trust Certificates
on any Payment Date shall be allocated pro rata among the Certificates based
upon their respective Percentage Interests. Payments to the Certificateholders
on each Payment Date will be made to the Certificateholders of record on the
related Record Date. Payments to any Certificateholder on any Payment Date shall
be made by wire transfer of immediately available funds to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have so notified the Owner Trustee in
writing at least five Business Days prior to the related Record Date and if such
Certificateholder is the registered owner of Owner Trust Certificates
representing at least a 33% Percentage Interest in any Class thereof, or
otherwise by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. Final payment on each
Owner Trust Certificate will be made in like manner, but only upon presentment
and surrender of such Owner Trust Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such final
payment.
(c) Whenever the Owner Trustee expects that the final payment with respect
to the Certificates will be made on the next Payment Date, whether in connection
with the final distribution on the last class of Pledged Certificates remaining
outstanding or upon a termination of the Trust at the direction of the
Certificateholders in accordance with Section 8.1, the Owner Trustee (or its
Agent) shall mail to each Holder on such date of the Owner Trust Certificates a
notice to the effect that:
(i) the Owner Trustee expects that the final payment with
respect to the Owner Trust Certificates will be made
on such Payment Date but only upon presentation and
surrender of the Owner Trust Certificates at the
office of the Owner Trustee therein specified, and
(ii) no interest shall accrue on the Owner Trust
Certificates from and after such Payment Date.
Upon presentation and surrender of the Owner Trust Certificates by the
Certificateholders on the Final Payment Date in respect of the Owner Trust
Certificates, the Owner Trustee shall distribute to the Certificateholders the
amounts otherwise distributable on such Payment Date pursuant to Section 4.2(a).
Any funds not distributed on such Payment Date because of the failure of any
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the appropriate non-tendering Certificateholders. If
any Owner Trust Certificate, as to which notice has been given pursuant to this
Section 4.2(c) shall not have been surrendered for can-
cellation within six months after the time specified in such notice, the
Owner Trustee shall mail a second notice to the remaining Certificateholders, at
their last addresses shown in the Certificate Register, to surrender their Owner
Trust Certificates for cancellation in order to receive, from such funds held,
the final payment with respect thereto. If within one year after the second
notice any Owner Trust Certificate shall not have been surrendered for
cancellation, the Owner Trustee shall directly or through an agent, take
reasonable steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Owner Trust
Certificates shall not have been surrendered for cancellation, the Owner Trustee
shall segregate all amounts distributable to the Holders thereof and shall
thereafter hold such amounts uninvested for the benefit of such Holders. No
interest shall accrue or be payable to any Certificateholder on any amount held
as a result of such Certificateholder's failure to surrender its Owner Trust
Certificates for final payment thereof in accordance with this Section 4.2(c).
SECTION 4.3 Statements to Certificateholders.
On each Payment Date, the Owner Trustee (or its Agent) shall prepare, and
shall forward by mail, a statement to each Certificateholder, to the Depositor
and to the Rating Agencies stating:
(i) the Certificateholder Funds for such Payment Date;
(ii) the aggregate amounts of interest and principal paid to the
Holders of the Class P Certificates and to the Holders of
the Class XS Certificates on such Payment Date;
(iii) the aggregate amount of any distributions to the Holders of
the Class R Certificates on such Payment Date;
(iv) the Aggregate Certificate Principal Balance of the Class P
Certificates after giving effect to payments of principal
and other reductions in respect of the Aggregate Certificate
Principal Balance of such Owner Trust Certificates (all in
accordance with the definition of "Aggregate Certificate
Principal Balance") on such Payment Date; and
(v) the amount of the Owner Trustee Fees received by the Owner
Trustee since the preceding Payment Date and any unpaid
Owner Trustee Fees then due and owing to the Owner Trustee.
In addition, the Owner Trustee promptly (and, in any event, within five
Business Days of receipt) will furnish to Certificateholders and the Depositor
copies of any notices, statements, reports or other communications received by
the Owner Trustee on behalf of the Trust as issuer of the Bonds or as owner of
the Pledged Certificates, including, without limitation, any such notices,
statements, reports or other communications relating to the Bonds, the
Indenture, the Pledged Certificates, the Pledged Certificate Agreements or the
other assets of the Trust Estate.
On or before March 31st of each calendar year, beginning with calendar year
1997, the Owner Trustee (or its Agent) shall prepare, or cause to be prepared,
and deliver, or cause to be delivered, by first class mail to each Person who at
any time during the previous calendar year was a Certificateholder of record a
statement containing the information required to be contained in the regular
monthly report to Certificateholders, as set forth in clause (ii) or clause
(iii), as applicable, above aggregated for such calendar year or the applicable
portion thereof during which such Person was a Certificateholder. Such
obligation of the Owner Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the Owner
Trustee pursuant to any requirements of the Code and regulations thereunder as
from time to time are in force.
SECTION 4.4 Access to Certain Documentation and Information.
The Owner Trustee shall provide to the Certificateholders access to the all
reports, documents and records maintained by the Owner Trustee in respect of its
duties hereunder, such access being afforded without charge but only upon
reasonable written request and during normal business hours at offices
designated by the Owner Trustee.
SECTION 4.5 Compliance with Withholding Requirements. In the event that the
Owner Trustee is required (whether on liquidation of the Trust or otherwise) to
make payments to the Depositor or the Certificateholders, notwithstanding any
other provisions of this Deposit Trust Agreement, the Owner Trustee (or its
Agent) shall comply with all federal withholding requirements with respect to
payments to the Depositor or the Certificateholders that the Owner Trustee
reasonably believes are applicable under the Code. The consent of the Depositor
or the Certificateholders, as the case may be, shall not be required for any
such withholding. The parties hereto understand and agree that the Owner Trustee
shall not be required to gross up any such payments for the amount of such
withholding (or any other amounts).
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
SECTION 5.1 Notice of Certain Events; Action by the Owner Trustee.
(a) Whenever the Owner Trustee, on behalf of the Trust as issuer of the
Bonds or as owner of the Pledged Certificates, is requested or, as to any
particular matter, notified of its authority, by any Person, to take any action
or to give any consent, approval or waiver that it is entitled to take or give
on behalf of the Trust in such capacity, the Owner Trustee shall promptly notify
all the Certificateholders of such request or notice in such detail as is
available to it.
(b) Subject to the Owner Trustee's rights in this Deposit Trust Agreement
to be indemnified for its acts and omissions with respect to matters concerning
this Deposit Trust Agreement, the Operative Agreements, the Trust Estate or the
Pledged Certificates, the Owner Trustee shall take or refrain from taking such
action as Certificateholders entitled to a majority of the Voting Rights shall
so direct. The Owner Trustee may, from time to time, request in writing
instructions from the Certificateholders and shall request in writing
instructions from the Certificateholders if the Owner Trustee receives notice
that a default shall have occurred and is continuing under the Management
Agreement or the Indenture.
(c) Notwithstanding any direction of the Certificateholders to the contrary
or any provision hereof to the contrary, the Owner Trustee shall not, without
the written consent of the Indenture Trustee, execute any direction of the
Certificateholders that might result in the Trust being terminated prior to the
satisfaction and discharge of the Lien of the Indenture on the Trust Estate or
prior to the payment in full of the principal of and accrued interest on the
Bonds.
SECTION 5.2 Distribution of Reports. The Owner Trustee shall promptly (but
no later than five Business Days following receipt thereof) distribute to the
Depositor and the Certificateholders such reports, notices, statements and
written materials which it actually receives as Owner Trustee or otherwise on
behalf of the Trust hereunder or under any of the other Operative Agreements.
SECTION 5.3 Action Required Only if Owner Trustee is Indemnified. The Owner
Trustee shall not be required to take any action under Section 5.1(b) if the
Owner Trustee shall reasonably determine, or shall have been advised in writing
by counsel, that such action is likely to result in personal liability for which
the Owner Trustee has not been and will not be adequately indemnified or is
contrary to the terms hereof or of any Operative Agreement or is otherwise
contrary to law.
SECTION 5.4 No Duties Except as Specified in Deposit Trust Agreement or
Instructions.
(a) The Owner Trustee shall not have any duty or obligation to manage,
control, use, make any payment in respect of, register, record, insure, inspect,
sell, dispose of or otherwise deal with the Pledged Certificates or any other
part of the Trust Estate, or to otherwise take or
refrain from taking any action under or in connection with any Operative
Agreement to which the Owner Trustee is a party, except as expressly provided by
the terms of this Deposit Trust Agreement or any such other Operative Agreement
or in written instructions from the Certificateholders received pursuant to
Section 5.1(b); and no implied duties or obligations shall be read into this
Deposit Trust Agreement against the Owner Trustee, other than the obligation of
the Owner Trustee to exercise such of the rights and powers vested in it by this
Deposit Trust Agreement in good faith and in a manner which is not grossly
negligent and which does not constitute willful misconduct. The Bank (and any
successor trustee or co-trustee) in its individual capacity nevertheless agrees
that it will, at its own cost and expense, promptly take all action as may be
necessary to discharge any Liens on the Trust Estate arising by, through or
under the Owner Trustee (or such successor trustee or co-trustee, as the case
may be) either (i) when acting in its individual capacity or (ii) when acting
improperly in its capacity as Owner Trustee.
(b) Without limiting the generality of the foregoing subsection (a), except
as otherwise explicitly provided in this Deposit Trust Agreement or in any other
Operative Agreement to which it is a party, neither the Owner Trustee nor the
Bank shall have any duty to (i) file or record any Operative Agreement or any
other document, or to maintain or continue any such filing or recording or to
refile or rerecord any such document, (ii) pay or discharge any tax or any Lien
owing with respect to or assessed or levied against any part of the Trust
Estate, other than to forward notice of such tax or Lien received by the Owner
Trustee to the Certificateholders and the Indenture Trustee, (iii) confirm,
verify, investigate or inquire into the failure of any party to receive any
reports or financial statements in connection with the Pledged Certificates,
(iv) ascertain or inquire as to the performance or observance of any person or
entity under or of any of the Operative Agreements, or (v) manage, control,
sell, dispose of or otherwise deal with the Pledged Certificates or any part
hereof or any other part of the Trust Estate.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Acceptance of Trust and Duties. The Bank accepts the trust
hereby created and agrees to perform the same, but only upon the terms of this
Deposit Trust Agreement in accordance with the standard of care set forth in
Section 5.4(a). The Bank agrees to receive, manage and disburse all moneys
constituting part of the Trust Estate actually received by it as Owner Trustee
in accordance with the terms of this Deposit Trust Agreement. Neither the Bank
nor the Owner Trustee shall be answerable or accountable under any
circumstances, except for (i) its own willful misconduct or gross negligence,
(ii) the inaccuracy of any of its representations or warranties contained in
Section 6.2 of this Deposit Trust Agreement, (iii) its failure to perform
obligations expressly undertaken by it in this Deposit Trust Agreement in
accordance with the standard of care set forth in Section 5.4(a), (iv) taxes
based on or measured by any fees, commissions or compensation received by it for
acting as Owner Trustee in connection with any of the transactions contemplated
by this Deposit Trust Agreement or any other Operative Agreements, (v) its
failure to use due care to receive, manage and disburse moneys actually received
by it in accordance with the terms hereof, and (vi) any other claims, amounts or
taxes otherwise excluded from the Depositor's indemnity obligations pursuant to
Article VII.
SECTION 6.2 Limited Representations or Warranties of the Owner Trustee.
Neither the Bank nor the Owner Trustee makes (i) any representation or
warranty, either express or implied, as to the title to or value of the Pledged
Certificates, and (ii) any representation or warranty as to the validity or
enforceability of any Operative Agreement except as set forth below or as to the
correctness of any statement made by a person or entity other than the Bank or
the Owner Trustee contained in any Operative Agreement. The Bank represents,
warrants and covenants to and for the benefit of the Depositor, the Indenture
Trustee for the benefit of the Bondholders and the Certificateholders that:
(a) The Bank is a banking corporation, duly organized, validly existing and
in good standing under the laws of the state of Delaware;
(b) The execution and delivery by the Bank, and the performance and
compliance by the Bank with the terms of, this Deposit Trust Agreement and any
and all documents to be executed or delivered by the Bank in its individual
capacity in connection with this Deposit Trust Agreement and to fulfill its
obligations under, and to consummate the transactions contemplated by, this
Deposit Trust Agreement and such other documents executed in connection herewith
to which the Bank is a party, will not violate any provisions of the Bank's
charter or bylaws, and no consent, approval, authorization or order of or filing
with or notice to any court or governmental agency or body is required for the
execution, delivery or performance by the Bank of this Deposit Trust Agreement;
(c) The Bank, in its individual capacity, has full power and authority and
has taken all action necessary to execute and deliver this Deposit Trust
Agreement and any and all documents to be executed or delivered by it in its
individual capacity in connection with
this Deposit Trust Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Deposit Trust Agreement and
such other documents executed in connection herewith to which it is a party, and
this Deposit Trust Agreement and such other documents executed in connection
herewith to which it is a party are the legal, valid and binding obligations of
the Bank, in its individual capacity, enforceable against the Bank in accordance
with their respective terms, except as such terms may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
rights of creditors generally and by general principles of equity;
(d) The consummation of the transactions hereby contemplated do not
conflict with, violate or contravene any law, rule, regulation or judicial,
governmental or administrative order applicable to the Bank or the Owner Trustee
or conflict with, result in a breach of or constitute a default under any of the
terms, conditions or provisions of any agreement or instrument to which the Bank
is a party or by which it is bound, or any order or decree applicable to the
Bank, or result in the creation or imposition of any Lien on any of the Bank's
assets or property, which would materially and adversely affect the ability of
the Bank or Owner Trustee to carry out the transactions contemplated by this
Deposit Trust Agreement; and
(e) There is no action, suit or proceeding pending against the Bank, in its
individual capacity or as Owner Trustee, in any court or by or before any other
governmental agency or instrumentality which would materially and adversely
affect the ability of the Bank, in its individual capacity or as Owner Trustee,
to carry out the transactions contemplated by this Deposit Trust Agreement.
SECTION 6.3 Trust Accounts. Moneys received by the Owner Trustee hereunder
shall be segregated in a trust account maintained with a federal or state
chartered depository institution or trust company having corporate trust powers
acting in its fiduciary capacity.
SECTION 6.4 Reliance; Advice of Counsel. Neither the Bank nor the Owner
Trustee shall incur any liability to any person or entity in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper believed by it to be genuine
and believed by it in good faith to be signed by the proper party or parties.
The Owner Trustee may accept and rely upon a certified copy of a resolution of
the board of directors or other governing body of any corporate party as
conclusive evidence that such resolution has been duly adopted by such body and
that the same is in full force and effect. As to any fact or matter the manner
of ascertainment of which is not specifically prescribed herein, the Owner
Trustee may for all purposes hereof rely on an Officers' Certificate of the
relevant party, as to such fact or matter, and such Officers' Certificate shall
constitute full protection to the Owner Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon. In the administration of
the Trust hereunder, the Owner Trustee may execute any of the trusts or powers
hereof and perform its powers and duties hereunder directly or through Agents
and may consult with counsel, accountants and other skilled persons or entities
to be selected and employed by it, and the Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
written advice or opinion of counsel, accountant or other skilled Persons,
so long as the Owner Trustee had no actual knowledge that it could not
reasonably rely on such advice or opinion or by any such Persons appointed with
due care.
SECTION 6.5 Not Acting in Individual Capacity. All persons or entities
having any claim against the Bank or the Owner Trustee by reason of the
transactions contemplated by the Operative Agreements shall look only to the
Trust Estate (or a part thereof, as the case may be) for payment or satisfaction
thereof, except as specifically provided in this Deposit Trust Agreement and
except to the extent that the Bank or the Owner Trustee shall otherwise
expressly agree in any Operative Agreement to which it is a party.
SECTION 6.6 Books and Records; Tax Election. The Owner Trustee shall be
responsible for the keeping of all appropriate books and records relating to the
receipt and disbursement of all moneys that it may receive or be entitled to
hereunder or under any other Operative Agreement. The Owner Trustee (or its
Agent) shall file an application with the IRS for a taxpayer identification
number with respect to the Trust (and, upon receipt of such number, notify the
Indenture Trustee thereof) and prepare or cause to be prepared and sign and/or
file a tax return in connection with the transactions contemplated hereby or by
any other Operative Agreement (the "Tax Return"); provided, however, that the
Owner Trustee shall send or cause to be sent a copy of the completed Tax Return
to the Depositor, the Certificateholders and the Indenture Trustee not more than
60 nor less than 30 days prior to the due date of the Tax Return. The Depositor
and the Certificateholders shall each, upon request by the Owner Trustee (or the
Agent of the Owner Trustee), furnish the Owner Trustee (or the Agent of the
Owner Trustee) with all such information as may be reasonably required from the
Depositor or the Certificateholders in connection with the preparation of such
Tax Return. The Owner Trustee shall keep copies of the Tax Returns delivered to
or filed by it (or the Agent of the Owner Trustee).
ARTICLE VII
COMPENSATION, REIMBURSEMENT AND INDEMNIFICATION
OF THE OWNER TRUSTEE
SECTION 7.1 Compensation of the Owner Trustee. The Owner Trustee shall be
entitled to receive as compensation for its services the amount of $4,000 per
annum, such amount to be payable: first, as provided in the Indenture; second,
out of amounts on deposit in the Certificate Account that represent payments
received in respect of the Pledged Certificates; and, third, to the extent not
paid pursuant to either clause first or second within 60 days of first becoming
due, by the Certificateholders, on a joint and several basis.
SECTION 7.2 Reimbursement and Indemnification of the Owner Trustee.
(a) The Owner Trustee shall be entitled to be reimbursed for its reasonable
expenses (including reasonable attorneys' fees) incurred in the performance of
its duties as Owner Trustee hereunder, and to be compensated reasonably for any
extraordinary services rendered under Section 5.1(b), except to the extent that
such expenses arise out of or result from (i) the Owner Trustee's own willful
misconduct or gross negligence, (ii) the inaccuracy of any of the Owner
Trustee's representations or warranties contained in Section 6.2 of this Deposit
Trust Agreement, (iii) the Owner Trustee's failure to perform obligations
expressly undertaken by it in this Deposit Trust Agreement in accordance with
the standard of care set forth in Section 5.4(a), (iv) taxes based on or
measured by any fees, commissions or compensation received by the Owner Trustee
for acting as such in connection with any of the transactions contemplated by
this Deposit Trust Agreement or any other Operative Agreements, and (v) the
Owner Trustee's failure to use due care to receive, manage and disburse moneys
actually received by it in accordance with the terms hereof.
(b) The Owner Trustee shall be entitled to be indemnified and held harmless
from and against any and all liabilities, obligations, indemnity obligations,
losses (excluding loss of anticipated profits), damages, claims, actions, suits,
judgments, out-of-pocket costs, expenses and disbursements (including legal and
consultants' fees and expenses) of any kind and nature whatsoever (collectively,
the "Liabilities") which may be imposed on, incurred by or asserted at any time
against the Owner Trustee in any way relating to or arising out of the Trust
Estate, any of the properties included therein, the administration of the Trust
Estate or any action or inaction of the Owner Trustee hereunder or under the
Operative Agreements, except to the extent that such Liabilities arise out of or
result from (i) the Owner Trustee's own willful misconduct or gross negligence,
(ii) the inaccuracy of any of the Owner Trustee's representations or warranties
contained in Section 6.2 of this Deposit Trust Agreement, (iii) the Owner
Trustee's failure to perform obligations expressly undertaken by it in this
Deposit Trust Agreement in accordance with the standard of care set forth in
Section 5.4(a), (iv) taxes based on or measured by any fees, commissions or
compensation received by the Owner Trustee for acting as such in connection with
any of the transactions contemplated by this Deposit Trust Agreement or any
other Operative Agreements, and (v) the Owner Trustee's failure to use due care
to receive, manage and disburse moneys actually received by it in accordance
with the terms hereof. The indemnities contained in
this Section 7.2(b) shall survive the termination of this Deposit Trust
Agreement and the removal or resignation of the Owner Trustee hereunder.
(c) Any reimbursements and indemnities to the Owner Trustee pursuant to
this Section 7.2 shall be payable: first, out of amounts on deposit in the
Certificate Account; and, second, to the extent not paid pursuant to clause
first within 60 days of first being incurred, by the Certificateholders, on a
joint and several basis.
SECTION 7.3 Not Obligations of the Trust. None of the fees, expenses and
other liabilities referred to in Sections 7.1 and 7.2 shall be obligations of
the Trust or otherwise chargeable to the Trust Estate. The Owner Trustee hereby
agrees not to cause or participate in the filing of a petition in bankruptcy
against the Trust for the non-payment to the Owner Trustee of any amounts
provided by this Deposit Trust Agreement until 91 days after the payment in full
of all the Bonds issued under the Indenture.
ARTICLE VIII
TERMINATION OF DEPOSIT TRUST AGREEMENT
SECTION 8.1 Termination. The Trust shall not be terminated under this
Section 8.1 until the Bonds have been paid in full and the Lien on the Trust
Estate created by the Indenture has been released; provided, however, that in no
event shall the trust created hereby continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the
late ambassador of the United States to the Court of St. ▇▇▇▇▇, living on the
date hereof.
This Deposit Trust Agreement may be terminated by all of the
Certificateholders at any time prior to the issuance of the Bonds and the pledge
of the Trust Estate pursuant to the Indenture, and at any time after the
Indenture is discharged in accordance with Article III thereof, and this Deposit
Trust Agreement shall terminate in connection with the final distribution on the
last remaining Pledged Certificate. With respect to any such event, this Deposit
Trust Agreement and the estate and rights thereby granted by the Depositor to
the Owner Trustee in the Trust Estate shall cease, terminate and be void as of
the date of the final distribution by the Owner Trustee of all the assets in the
Trust Estate pursuant to this Section 8.1 and Section 4.2. After payment of all
amounts then due and payable to Wilmington Trust Company pursuant to Sections
7.1 and 7.2 hereof, all right, title and interest in the Trust Estate still held
by the Owner Trustee at the time of such termination shall be transferred,
assigned and paid over to the Certificateholders or their designee.
The Certificateholders hereby irrevocably appoint the Owner Trustee as its
attorney-in-fact for the purposes of the terminating the Trust.
SECTION 8.2 Further Assurances by the Owner Trustee upon Termination.
Upon termination of this Trust, the Owner Trustee shall take such action as
may be requested by the Certificateholders to transfer the remaining assets of
the Trust to the
Certificateholders or the Certificateholders' designee, including the
execution of instruments of transfer or assignment with respect to the Pledged
Certificates and any of the Operative Agreements to which the Owner Trustee is a
party.
SECTION 8.3 Insolvency of a Certificateholder. The insolvency or other
similar incapacity of a Certificateholder shall not (i) operate to terminate
this Deposit Trust Agreement, (ii) entitle the Certificateholder's legal
representatives to claim an accounting or to take any action in any court for a
partition or winding up of the Trust Estate or (iii) otherwise affect the
rights, obligations and liabilities of the parties hereto.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES
AND SEPARATE OWNER TRUSTEES
SECTION 9.1 Resignation of the Owner Trustee; Appointment of Successor.
(a) The Owner Trustee may resign at any time (and shall immediately resign
if it ceases to be an Eligible Trustee) by giving at least 60 days written
notice to the Certificateholders, the Depositor, the Indenture Trustee and the
Manager, such resignation to be effective on the acceptance of appointment by a
successor Owner Trustee under Section 9.1(b) hereof. The Depositor shall remove
the Owner Trustee by written notice, a copy of which shall be concurrently
delivered by the Depositor to the Certificateholders, the Indenture Trustee and
the Manager, if the Owner Trustee ceases to be an Eligible Trustee and fails to
resign immediately. The Owner Trustee otherwise may be removed with or without
cause at any time by the Certificateholders with 60 days' prior written notice,
a copy of which shall be concurrently delivered by the Certificateholders to the
Depositor, the Indenture Trustee and the Manager. Any such removal shall be
effective upon the acceptance of appointment by a successor Owner Trustee under
Section 9.1(b) hereof. In case of the resignation or removal of the Owner
Trustee, the Certificateholders may appoint a successor Owner Trustee by an
instrument signed by the Certificateholders. If a successor Owner Trustee shall
not have been appointed within 60 days after the giving of written notice of
such resignation or the delivery of the written instrument with respect to such
removal, the Owner Trustee, the Depositor, the Indenture Trustee, the Manager or
the Certificateholders may apply to any court of competent jurisdiction to
appoint a successor Owner Trustee to act until such time, if any, as a successor
shall have been appointed and shall have accepted its appointment as above
provided. Any successor Owner Trustee so appointed by such court shall
immediately and without further act be superseded by any successor Owner Trustee
appointed as above provided within one year from the date of the appointment by
such court.
(b) Any successor Owner Trustee, however appointed, shall execute and
deliver to the predecessor Owner Trustee and the Indenture Trustee an instrument
accepting such appointment and shall furnish a photocopy of such instrument to
the Certificateholders, and thereupon such successor Owner Trustee, without
further act, shall become vested with all the estates, properties, rights,
powers, duties and trusts of the predecessor Owner Trustee herein; but
nevertheless, upon the written request of such successor Owner Trustee such
predecessor Owner Trustee shall execute and deliver an instrument transferring
to such successor Owner Trustee, upon the trusts herein expressed, all the
estates, properties, rights, powers, duties and trusts of such predecessor Owner
Trustee and such predecessor Owner Trustee shall duly assign, transfer, deliver
and pay over to such successor Owner Trustee all moneys or other property then
held by such predecessor Owner Trustee upon the trusts herein expressed.
(c) Any successor Owner Trustee shall be an Eligible Trustee, willing, able
and legally qualified to perform the duties of the Owner Trustee hereunder.
(d) Any corporation into which the Owner Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any
corporation to which substantially all the corporate trust business of the Owner
Trustee may be transferred, shall, subject to the terms of Section 9.1(c)
hereof, be the Owner Trustee under this Deposit Trust Agreement without any
further act.
SECTION 9.2 Co-Trustees and Separate Trustees. Whenever the Owner Trustee
or the Indenture Trustee shall deem it necessary or prudent in order to conform
to any law of any jurisdiction in which all or any part of the Trust Estate
shall be situated or to make any claim or be a party to any suit with respect to
the Trust Estate, the Owner Trust Certificates, the Bonds or any Operative
Agreement, or the Owner Trustee or the Indenture Trustee shall be advised in
writing by counsel reasonably satisfactory to each of them that it is so
necessary or prudent, the Owner Trustee and the Certificateholders shall execute
and deliver an agreement supplemental hereto and all other instruments and
agreements, and shall take all other action, necessary or proper to constitute
one or more persons or entities, who need not meet the requirements of Section
9.1(c) hereof (and the Owner Trustee may appoint one or more of its officers),
either as co-trustees or co-trustees jointly with the Owner Trustee of all or
any part of the Trust Estate, or as separate trustee or separate trustees of all
or any part of the Trust Estate, and to vest in such persons or entities, in
such capacity, such title to the Trust Estate or any part thereof and such
rights or duties as may be necessary or desirable, all for such period and under
such terms and conditions as are reasonably satisfactory to the Owner Trustee
and the Certificateholders. In case any co-trustee or separate trustee shall
die, become incapable of acting, resign or be removed, the title to the Trust
Estate and all rights and duties of such co-trustee or separate trustee shall,
so far as permitted by law, vest in and be exercised by the Owner Trustee,
without the appointment of a successor to such co-trustee or separate trustee.
SECTION 9.3 Notice. At all times that a successor Owner Trustee is
appointed under Section 9.1 hereof, an Owner Trustee resigns pursuant to such
Section 9.1 or a co-trustee or separate trustee is appointed pursuant to Section
9.2 hereof, the Certificateholders promptly shall give notice of such fact to
the Rating Agencies, if the Indenture has not been discharged.
ARTICLE X
SUPPLEMENTS AND AMENDMENTS
SECTION 10.1 Supplements and Amendments. Subject to Sections 10.2 and 10.3
of this Deposit Trust Agreement, at the written request of the
Certificateholders, this Deposit Trust Agreement shall be amended by a written
instrument signed by the Owner Trustee and the Certificateholders (and, if its
rights hereunder are adversely affected, the Depositor), but if in the opinion
of the Owner Trustee any instrument required to be so executed materially and
adversely affects any right, duty or liability of, or immunity or indemnity in
favor of the Bank or the Owner Trustee under this Deposit Trust Agreement or any
of the other Operative Agreements to which the Owner Trustee is a party, or
would cause or result in any conflict with or breach of any terms, conditions or
provisions of, or default under, the Bank's charter documents or by-laws or any
document contemplated hereby to which the Owner Trustee is a party, the Owner
Trustee may in its sole discretion decline to execute such instrument, unless it
shall have been provided an indemnity satisfactory to it by the
Certificateholders.
In the event that there is more than one Holder of Owner Trust Certificates
(as shown on the Certificate Register), the consent to an amendment by
Certificateholders entitled to a majority of the Voting Rights shall be
sufficient to bind all of such Holders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments received on any Owner Trust Certificate without the consent of the
affected Holder; or (ii) amend this Section 10.1, without the consent of the
Holders of all Owner Trust Certificates then outstanding.
SECTION 10.2 Limitation on Amendments. Notwithstanding Section 10.1 or
Section 10.3 hereof, the Owner Trustee shall not, without the consent of the
Indenture Trustee, amend Section 8.1 of this Deposit Trust Agreement, or execute
any amendment that might result in the Trust being terminated prior to the
satisfaction and discharge of the Lien of the Indenture on the Trust Estate or
otherwise have a material adverse effect on the Bondholders prior to the payment
in full of the principal of and interest on the Bonds. Furthermore,
notwithstanding Section 10.1 or Section 10.3 hereof, the Owner Trustee shall not
execute any amendment without obtaining written confirmation from each Rating
Agency that such amendment will not result in the qualification, downgrade or
withdrawal of any then-current rating on the Bonds.
SECTION 10.3 Additional Amendment Provisions. (a) It shall not be necessary
for the consent of the Certificateholders under this Article X to approve the
particular form of any proposed amendment, but it shall be sufficient if such
consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof shall be
subject to such reasonable regulations as the Owner Trustee may prescribe.
(b) The Owner Trustee, at any time from time to time, without the consent
of the Certificateholders, may amend this Deposit Trust Agreement to modify,
eliminate or add to any of its provisions, to such extent as shall be necessary
to prevent or reduce the imposition on the Trust of any material federal, state
or local taxes, at all time prior to the liquidation of the
Trust; provided, however, that such action, as evidenced by an Opinion of
Counsel acceptable to the Owner Trustee is necessary or helpful to prevent the
imposition on the Trust of any such taxes.
(c) Prior to the execution of any amendment to this Deposit Trust
Agreement, the Owner Trustee shall be entitled to receive and rely upon an
Opinion of Counsel, at the expense of the party requesting such amendment (or,
if such amendment is requested by the Owner Trustee, then at the expense of the
Trust) stating that the execution of such amendment is authorized or permitted
by this Deposit Trust Agreement.
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE DEPOSITOR
SECTION 11.1 Representations and Warranties of the Depositor.
(a) The Depositor represents and warrants as follows for the benefit of the
Indenture Trustee, the Bondholders and the Certificateholders:
(i) the Depositor is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, has full power and
authority, and has taken all action necessary, to execute and deliver this
Deposit Trust Agreement, and any and all other documents to be executed or
delivered by it in connection with this Deposit Trust Agreement, and to fulfill
its obligations under, and to consummate the transactions contemplated by, this
Deposit Trust Agreement, and this Deposit Trust Agreement and such other
documents executed in connection herewith are the legal, valid and binding
obligations of the Depositor, enforceable against it in accordance with their
respective terms, except as such terms may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally and by general principles of equity;
(ii) the execution and delivery of this Deposit Trust Agreement and each
other document to be executed or delivered by it in connection with this Deposit
Trust Agreement, and the performance of its obligations hereunder and thereunder
by the Depositor will not violate the provisions of its certificate of
incorporation or bylaws, conflict with any provision of any law or regulation to
which it is subject, or conflict with, result in a breach of, or constitute a
default under any of the terms, conditions or provisions of, any agreement or
instrument to which the Depositor is a party or by which it is bound, or any
order or decree applicable to the Depositor, or result in the creation or
imposition of any Lien on any of the Depositor's assets or property, which would
materially and adversely affect the ability of the Depositor to carry out the
transactions contemplated by this Deposit Trust Agreement or such other
documents executed in connection herewith; no consent, approval, authorization
or order of or filing with or notice to any court or governmental agency or body
is required for the execution, delivery and performance by the Depositor of this
Deposit Trust Agreement or such other documents; and
(iii) there is no action, suit or proceeding pending against the Depositor
in any court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of the Pledged
Certificates or the ability of the Depositor or the Certificateholder to carry
out the transactions contemplated by this Deposit Trust Agreement.
(iv) The Depositor hereby represents and warrants to and for the benefit of
the Owner Trustee and the benefit of the Certificateholders and the Bondholders,
as of the
Closing Date, that immediately prior to the conveyance of the Pledged
Certificates to the Owner Trustee on behalf of the Trust, the Depositor had good
title to, and was the sole owner of, each Pledged Certificate, free and clear of
any pledge, lien, encumbrance or security interest and such assignment validly
transfers all right, title and interest of the Pledged Certificates to the Owner
Trustee, free and clear of any pledge, lien, encumbrance or security interest.
(b) It is understood and agreed that each of the foregoing representations
and warranties of the Depositor shall survive delivery of the Pledged
Certificates to the Owner Trustee on behalf of the Trust. Upon discovery or
receipt of notice by the Depositor or a Responsible Officer of the Owner Trustee
of a breach of any of the foregoing representations and warranties that
materially and adversely affects the interests of the Indenture Trustee for the
benefit of the Bondholders or the Owner Trustee for the benefit of the
Certificateholders in any Pledged Certificate, the party discovering such breach
shall give prompt written notice to the other party hereto and to the Indenture
Trustee.
SECTION 11.3 Accrued Interest, Etc. The Depositor agrees that any income,
interest, fees and other payments that it may receive in respect of the Pledged
Certificates applicable to a period on or after December 30, 1996 shall inure to
the benefit of the Trust, and the Depositor shall pay such amounts to the Owner
Trustee to be remitted in accordance with Section 4.1 promptly upon receipt.
SECTION 11.4 Additional Covenants of the Depositor. The Depositor hereby
covenants and agrees that:
(a) The business and affairs of the Depositor will be managed by or under
the direction of its board of trustees in accordance with its certificate of
incorporation and by-laws. The Depositor will keep correct and complete books
and records of accounts and minutes of the meetings and other proceedings of the
board of trustees. Any such resolutions, agreements and other instruments will
be continuously maintained as official records by the Depositor.
(b) The Depositor will at all times ensure that its capitalization is
adequate in light of its business and purposes. The Depositor will pay from its
own funds and assets (and not the Trust's) all obligations and indebtedness
incurred by it.
(c) The Depositor will not conduct its business in the name of the Trust.
(d) The Depositor will not guarantee any obligations of the Trust
(including the Bonds or the Owner Trust Certificates). The Depositor will not
operate or purport to operate as an integrated, single economic unit with
respect to the Trust or seek or obtain credit or incur any obligation to any
third party based on the assets of the Trust or induce any such third party to
reasonably rely on the creditworthiness of the Trust in connection therewith.
(e) The accounting records of the Depositor will disclose the effect of the
transactions in accordance with statutory accounting practices and relevant
pronouncements.
(f) The Depositor hereby acknowledges, and agrees for the benefit of the
Indenture Trustee, the Bondholders and the Certificateholders to perform, each
obligation imposed upon it under the Indenture.
(g) The Depositor shall not act or fail to act in a manner that would
endanger its status as a QRS.
ARTICLE XII
TRANSFER OF INTEREST OF THE DEPOSITOR
SECTION 12.1 Registration of Transfer and Exchange of Owner Trust
Certificates.
(a) At all times during the term of this Deposit Trust Agreement, there
shall be maintained at the office of a registrar appointed by the Depositor (the
"Certificate Registrar") a register (the "Certificate Register") in which,
subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of Owner
Trust Certificates and of transfers and exchanges of Owner Trust Certificates as
herein provided. The Owner Trustee is hereby initially appointed (and hereby
agrees to act in accordance with the terms hereof) as Certificate Registrar for
the purpose of registering Owner Trust Certificates and transfers and exchanges
of Owner Trust Certificates as herein provided. The Owner Trustee may appoint,
by a written instrument delivered to the Depositor, any other bank or trust
company to act as Certificate Registrar under such conditions as the Owner
Trustee may prescribe, provided that the Owner Trustee shall not be relieved of
any of its duties or responsibilities hereunder as Certificate Registrar by
reason of such appointment. If the Owner Trustee resigns or is removed in
accordance with the terms hereof, the successor trustee shall immediately
succeed to its predecessor's duties as Certificate Registrar. The Depositor, the
Manager, and the Owner Trustee shall have the right to inspect the Certificate
Register or to obtain a copy thereof at all reasonable times, and to rely
conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register.
(b) No sale, transfer or other disposition of any Owner Trust Certificate
may be made, and the Certificate Registrar shall refuse to register any such
transfer, unless the Depositor (or, if the Depositor no longer exists, 100% of
the other Certificateholders) shall consent in writing to such sale, transfer or
other disposition. The Depositor (or any such other Certificateholder) shall be
entitled to request from the parties interested in effecting such sale, transfer
or other disposition, and to rely upon, a certification of facts and/or an
opinion of counsel which establishes to the satisfaction of the Depositor (or
such other Certificateholder) that such sale, transfer or other disposition is
permissible under applicable law and the Operative Agreements.
(c) No transfer, sale, pledge or other disposition of any Owner Trust
Certificate or interest therein shall be made unless that transfer, sale, pledge
or the disposition is exempt from the registration and/or qualification
requirements of the 1933 Act and any applicable state securities laws, or is
otherwise made in accordance with the 1933 Act and such state securities laws.
Neither the Issuer nor any trust fund in which a Pledged Certificate evidences a
beneficial ownership interest has been registered as an investment company under
the 1940 Act, and no transfer of an Owner Trust Certificate may be made (i) to
any Person other than a QIB or an Affiliate of the Trust or (ii) to any Person
that would require the Issuer or any such trust fund to be registered as an
investment company under the 1940 Act. No transfer of any Owner Trust
Certificate or any interest therein shall be made (A) to any employee benefit
plan or other retirement arrangement, including individual retirement accounts
and annuities, ▇▇▇▇▇ plans and
collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including, without limitation, insurance
company general accounts, that is subject to ERISA or the Code (each, a "Plan"),
or (B) to any Person who is directly or indirectly purchasing such Owner Trust
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan.
(d) No sale, transfer or other disposition of any Owner Trust Certificate
may be made, and the Certificate Registrar shall refuse to register any such
transfer, if such sale, transfer or other disposition would result in the Trust
ceasing to be a QRS.
(e) For so long as the Bonds are outstanding and the Lien of the Indenture
has not been satisfied and discharged, no sale, transfer or other disposition of
any Owner Trust Certificate may be made, and the Certificate Registrar shall
refuse to register any such transfer, unless the Owner Trustee shall have
received written confirmation from each Rating Agency to the effect that such
sale, transfer or other disposition will not result in the qualification,
downgrade or withdrawal of any then current rating on the Bonds.
(f) Each Owner Trust Certificate shall bear a legend describing or
referencing the restrictions on transferability set forth in Sections 12.1(b),
(c), (d) and (e).
(g) Subject to compliance with Sections 12.1(b), (c), (d) and (e), upon
surrender for registration of transfer of any Owner Trust Certificate at the
office of the Certificate Registrar or at the office of its Agent in the City of
New York, the Owner Trustee shall execute, and the Certificate Registrar shall
deliver and authenticate, in the name of the designated transferee or
transferees, one or more new Owner Trust Certificates of the same Class, in
authorized denominations, evidencing in the aggregate a like aggregate
Percentage Interest and dated the date of authentication by the Certificate
Registrar.
(h) At the option of any Certificateholder, Owner Trust Certificates may be
exchanged for other Owner Trust Certificates of the same Class, in authorized
denominations, evidencing in the aggregate a like aggregate Percentage Interest
upon surrender of the Owner Trust Certificates to be exchanged at the office of
the Certificate Registrar, or the office of its Agent in the City of New York.
Whenever any Owner Trust Certificates are so surrendered for exchange, the Owner
Trustee shall execute and the Certificate Registrar shall authenticate and
deliver, the Owner Trust Certificates which the Certificateholder is entitled to
receive.
(i) If the Owner Trustee or the Certificate Registrar so requires, every
Owner Trust Certificate presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate Registrar
duly executed by, the Certificateholder thereof or such person's attorney duly
authorized in writing.
(j) No service charge shall be made to the requesting Certificateholder for
any registration of transfer or exchange of Owner Trust Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
of transfer or exchange of Owner Trust Certificates.
(k) The Certificate Registrar shall cancel and retain or destroy, in
accordance with the Owner Trustee's retention policy then in effect, all Owner
Trust Certificates surrendered for registration of transfer or exchange.
SECTION 12.2 Mutilated, Destroyed, Lost or Stolen Owner Trust Certificates.
If (i) any mutilated Owner Trust Certificate is surrendered to the Owner
Trustee or the Certificate Registrar, or the Owner Trustee and the Certificate
Registrar receive evidence to their satisfaction of the destruction, loss or
theft of any Owner Trust Certificate, and (ii) there is delivered to the Owner
Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
knowledge by a Responsible Officer of the Owner Trustee or the Certificate
Registrar that such Owner Trust Certificate has been acquired by a bona fide
purchaser, the Owner Trustee shall execute and the Certificate Registrar shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Owner Trust Certificate, a new Owner Trust Certificate
of like Class and tenor. Upon the issuance of any new Owner Trust Certificate
under this Section 12.2, the Owner Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Certificate Registrar) connected therewith. Any replacement Owner Trust
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership of the corresponding interest in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed Owner
Trust Certificate shall be found at any time and such original Owner Trust
Certificate shall thereby be deemed cancelled.
SECTION 12.3 Persons Deemed Owners. Prior to due presentation of an Owner
Trust Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar, the Indenture Trustee and any agent of any of them may
treat the person or entity in whose name any Owner Trust Certificate is
registered as the owner of such Owner Trust Certificate for the purpose of
receiving distributions pursuant to Section 4.2 hereof and for all other
purposes whatsoever, and neither the Owner Trustee, the Certificate Registrar,
the Indenture Trustee nor any agent of any of them shall be affected by notice
to the contrary.
SECTION 12.4 Access to Names and Addresses.
(a) If any Certificateholder (an "Applicant") applies in writing to the
Owner Trustee, and such application states that the Applicant desires to
communicate with other Certificateholders with respect to their rights under
this Deposit Trust Agreement or the Owner Trust Certificates and is accompanied
by a copy of the communication which such Applicant proposes to transmit, then
the Owner Trustee shall, at the expense of such Applicant, within ten Business
Days after the receipt of such application, furnish or cause to be furnished to
such Applicant a list of the names and addresses of the Certificateholders as
set forth in the Certificate Register.
(b) Every Certificateholder consents to the disclosure to any Applicant of
its identity and status as a Certificateholder and agrees with the Owner Trustee
that the Owner Trustee and the Certificate Registrar shall not be held
accountable in any way by reason of the disclosure of any information as to the
names and addresses of the Certificateholders hereunder, regardless of the
source from which such information was derived.
SECTION 12.5 Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Deposit Trust Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Owner Trustee. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Deposit Trust Agreement and conclusive in favor of the Owner Trustee, if
made in the manner provided in this Section 12.5.
(b) The fact and date of the execution by any Certificateholder of any such
instrument or writing may be proved in any reasonable manner which the Owner
Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other action by a Certificateholder shall bind every transferee of every
Owner Trust Certificate issued upon the registration of transfer of such
Certificateholder's Owner Trust Certificate or in exchange therefor or in lieu
thereof, in respect of anything done, or omitted to be done, by the Owner
Trustee, in reliance thereon, whether or not notation of such action is made
upon such Owner Trust Certificate.
(d) The Owner Trustee may require such additional proof of any matter
referred to in this Section 12.5 as it shall deem necessary.
SECTION 12.6 Transferee's Agreement. No assignment, conveyance or other
transfer pursuant to this Article XII shall be effective unless the transferee
shall have executed and delivered to the Owner Trustee an instrument containing
the transferee's agreement to be bound by the terms of this Deposit Trust
Agreement.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 No Legal Title to Trust Estate in the Certificateholder. The
Certificateholders shall not have legal title to any part of the Trust Estate;
provided, however, that the Certificateholder has a beneficial interest in the
Trust Estate (and initially shall have all right, title and interest in and to
the Owner Trust Certificates). No transfer by operation of law or otherwise of
any right, title or interest of the Certificateholders in and to the Trust
Estate or hereunder shall operate to terminate this Deposit Trust Agreement or
the Trust or the trusts hereunder or entitle any successor or transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Estate.
SECTION 13.2 Action by the Owner Trustee is Binding. Any actions,
directions, approvals or consents by the Owner Trustee so long as such actions,
directions, consents or approvals are made pursuant to the terms of this Deposit
Trust Agreement shall bind the Certificateholders and shall be effective to
consent to action taken by the parties. No such party shall be required to
inquire as to the authorization, necessity, expediency or regularity of such
consent by the Owner Trustee.
SECTION 13.3 Limitation on Rights of Others. Nothing in this Deposit Trust
Agreement, whether express or implied, shall be construed to give to any person
or entity, other than the Bank, the Owner Trustee, the Depositor, the
Certificateholder and the Indenture Trustee on behalf of the Bondholders, and
the Certificateholders, any legal or equitable right, remedy or claim under or
in respect of this Deposit Trust Agreement.
SECTION 13.4 Notices. All demands, notices and communications hereunder
shall be in writing, may be given by telecopy transmission, shall be deemed to
have been given upon receipt (except that notices being sent by first class
mail, postage prepaid, shall be deemed to be received five business days
following the mailing thereof) as follows:
If to the Owner Trustee, to:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
If to the Depositor, to:
CRIIMI MAE QRS 1, Inc.
c/o CRIIMI MAE Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with copies to:
CRIIMI MAE Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
If to the Indenture Trustee, as set forth in the Indenture,
If to a Certificateholder, to that person or entity's name and address as
set forth from time to time in the Certificate Register,
or to such other address as any of them shall specify by written notice to the
other parties.
SECTION 13.5 Severability. To the extent permitted by law, any provision of
this Deposit Trust Agreement that may be determined by competent authority to be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 13.6 Limitation on the Depositor's and the Certificateholder's
Respective Liability. Neither the Depositor nor any Certificateholder shall have
any liability for the performance of this Deposit Trust Agreement except as
expressly set forth herein.
SECTION 13.7 Separate Counterparts. This Deposit Trust Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 13.8 Successors and Assigns. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, the Bank, the Owner
Trustee and its successors and assigns, the Certificateholders and the Depositor
and its or their respective successors and assigns, all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action by the
Depositor shall bind the successors and assigns of the Depositor and any
request, notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder. It is the intention of the parties hereto that the Trust
constitute a trust formed pursuant to the laws of the State of Delaware with the
purpose of facilitating the transactions contemplated by the Operative
Agreements.
SECTION 13.9 Headings. The headings of the various articles and sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provision hereof.
SECTION 13.10 Governing Law. THIS DEPOSIT TRUST AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF DELAWARE.
SECTION 13.11 Administration of Trust. The principal place of
administration of the Trust shall be in Delaware.
SECTION 13.12 Performance by the Depositor or the Manager. Any obligation
of the Owner Trustee hereunder or under any Operative Agreement or other
document contemplated herein may be performed by the Depositor or the Manager
and any such performance shall not be construed as a revocation of the trusts
created hereby.
SECTION 13.13 Conflict with Indenture and Pledged Certificate Agreement. If
this Deposit Trust Agreement (or any instructions given by the Depositor or the
Certificateholders pursuant hereto) shall require that any action be taken with
respect to any matter and the Indenture or any Pledged Certificate Agreement (or
any instructions duly given in accordance with the terms thereof) shall require
that a different action be taken with respect to such matter, and such actions
shall be mutually exclusive, the provisions of the Indenture or such Pledged
Certificate Agreement, in respect thereof, shall control.
SECTION 13.14 No Implied Waiver. No term or provision of this Deposit Trust
Agreement may be changed, waived, discharged or terminated orally, but only by
an instrument in writing entered into as provided in Section 10.1 hereof; and
any such waiver of the terms hereof shall be effective only in the specific
instance and for the specific purpose given.
SECTION 13.15 Third Party Beneficiary. The Indenture Trustee for the
benefit of the Bondholders is an intended third-party beneficiary of this
Deposit Trust Agreement from and including the date hereof to the date on which
the Lien on the Trust Estate created pursuant to the Indenture is satisfied,
discharged and released pursuant to Article III of the Indenture.
SECTION 13.16 References. The definitions in Article I shall apply equally
to both the singular and plural forms of the terms defined. "Include",
"included", "includes" and "including" shall be deemed to be followed by
"without limitation". "Writing", "written" and comparable terms refer to
printing, typing, lithography or other means of reproducing words in a visible
form. Any agreement or instrument or any law, rule or regulation of any
Governmental Authority defined or referred to in Article I means such agreement
or instrument or such law, rule or regulation as from time to time amended,
modified or supplemented in accordance with the terms thereof, including (in the
case of agreements or instruments) by waiver or consent and (in the case of such
law, rule or regulation) by succession of any comparable successor law, rule or
regulation and includes (in the case of agreements or instruments) references to
all attachments thereto and instruments incorporated therein. References to a
Person are also to its successors and
permitted assigns. Any term defined above by reference to any agreement or
instrument or any law, rule or regulation of any Governmental Authority has such
meaning whether or not such agreement, instrument or law, rule or regulation is
in effect. "Deposit Trust Agreement", "hereof", "herein", "hereto", "hereunder"
and comparable terms refer to this Deposit Trust Agreement (including all
exhibits and schedules hereto) and not to any particular article, section,
clause or other subdivision hereof or attachment hereto. References to any
gender include, unless the context otherwise requires, references to all
genders, and references to the singular include, unless the context other
requires, references to the plural and vice versa. References in this Deposit
Trust Agreement to "Article", "Section", "Clause" or another subdivision or to
an attachment are, unless the context otherwise requires, to an article, clause
or subdivision of or attachment to this Deposit Trust Agreement.
SECTION 13.17 ▇▇▇▇▇▇ Act.
Any provisions required to be contained in this Deposit Trust Agreement by
Section 126 of Article 4-A of the New York Real Property Law and any provisions
permitted to be contained in this Deposit Trust Agreement by Section 130-K of
such Article 4-A that are necessary in order to permit the Owner Trustee to act
in the manner contemplated by this Deposit Trust Agreement are hereby
incorporated, and such provisions shall be in addition to those conferred or
imposed by this Deposit Trust Agreement; provided, however, that to the extent
that such Section 126 and/or Section 130-K shall not apply to this Deposit Trust
Agreement, said Section 126 and/or Section 130-K shall not have any effect, and
if said Section 126 and/or Section 130-K should at any time be repealed or cease
to apply to this Deposit Trust Agreement, or be construed by judicial decision
to be inapplicable, said Section 126 shall cease to have any further effect upon
the provisions of this Deposit Trust Agreement. In case of a conflict between
the provisions of this Deposit Trust Agreement and any mandatory provisions of
Article 4-A of the New York Real Property Law applicable to this Deposit Trust
Agreement, such mandatory provisions of said Article 4-A shall prevail, provided
that if said Article 4-A shall not apply to this Deposit Trust Agreement, should
at any time be repealed, or cease to apply to this Deposit Trust Agreement, or
be construed by judicial decision to be inapplicable, such mandatory provisions
of such Article 4-A shall cease to have any further effect upon the provisions
of this Deposit Trust Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Deposit Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the date hereof.
CRIIMI MAE QRS 1, INC., as Depositor
and initial Certificateholder,
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President/General Counsel
WILMINGTON TRUST COMPANY,
not individually, but solely in its
capacity as Owner Trustee
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SCHEDULE I
SCHEDULE OF PLEDGED CERTIFICATES
Pledged
Pledged Certificate
Securitization Certificates Principal Balance*
-------------- ------------ ------------------
1. Mortgage Capital Funding, Inc., Mortgage Pass-Through Class D $10,596,316
Certificates, Series 1993-C1 Class E 9,082,557
2. Mortgage Capital Funding, Inc., Multifamily/Commercial Mortgage Class B-1 $12,041,520
Pass-Through Certificates, Series 1994-MC1 Class B-2 10,321,303
Class B-3 12,041,520
3. Mortgage Capital Funding, Inc., Multifamily/Commercial Mortgage Class B-1 $17,158,000
Pass-Through Certificates, Series 1995-MC1 Class B-2 10,295,000
Class B-3 5,721,998
4. Structured Mortgage Securities Corporation, Mortgage Class B-1 $2,842,000
Pass-Through Certificates, Series 1995-M1 Class B-2 5,562,000
Class B-3 6,800,614
5. Nomura Asset Securities Corporation, Commercial Mortgage Class B-2 9,774,569
Pass-Through Certificates, Series 1994-C3 Class B-3 8,145,474
Class B-4A 3,257,193
6. Nomura Asset Securities Corporation, Grantor Trust Pass-Through Class A $4,000,000
Certificates, Series 1995-A
7. Asset Securitization Corporation, Commercial Mortgage Class B-1 $17,924,437
Pass-Through Certificates, Series 1995-D1 Class B-2 9,489,408
Class B-3A 3,162,138
8. Asset Securitization Corporation, Commercial Mortgage Class B-1B(A) $28,495,894
Pass-Through Certificates, Series 1996-D2 Class B-2 29,197,811
Class B-3 10,948,180
9. ▇▇▇▇▇▇ Pass-Through Securities Inc., Trust Certificates, Series Class 2 $4,871,496
1994-A Class 3 5,412,775
10. LB Commercial Conduit Mortgage Trust, Multiclass Pass-Through Class E $24,687,759
Certificates, Series 1995-C2 Class F 9,095,490
Class G 9,095,490
11. DLJ Mortgage Acceptance Corp., Commercial Mortgage Pass-Through Class B-3 $33,000,000
Certificates, Series 1995-CF2 Class B-4 22,900,000
Class C(B) 5,100,000
Pledged
Pledged Certificate
Securitization Certificates Principal Balance*
-------------- ------------ ------------------
12. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., Mortgage Pass-Through Class E $45,052,000
Certificates, Series 1995-C3 Class F 28,963,000
Class G 16,090,863
13. Federal National Mortgage Association, Multifamily REMIC Trust Class B $4,485,786
1996-M1, REMIC Pass-Through Certificates Class C 6,728,679
Class D 6,728,679
* The aggregate Certificate Principal Balances of the respective
Pledged Certificates were, in each case, calculated
immediately following the Distribution Date with respect
thereto in November 1996.
(A) Constitutes only approximately 61.3% of the aggregate
principal balance of all the Series 1996-D2 Class B-1B
Commercial Mortgage Pass-Through Certificates of Asset
Securities Corporation.
(B) Constitutes only approximately 25.1% of the aggregate
principal balance of all the Series 1995-CF2 Class C
Commercial Mortgage Pass-Through Certificates of DLJ Mortgage
Acceptance Corp.
EXHIBIT A-1
FORM OF CLASS P OWNER TRUST CERTIFICATE
CRIIMI MAE TRUST I
CLASS P OWNER TRUST CERTIFICATE
evidencing a non-assessable, fully paid ___% interest in the Class P Owner
Trust Certificates, which, collectively with the Class XS and Class R Owner
Trust Certificates, evidence the entire beneficial ownership interest in
CRIIMI MAE Trust I, a Delaware business trust whose assets include various
subordinated pass-through certificates (the "Pledged Certificates") deposited
by CRIIMI MAE QRS 1, Inc. (the "Depositor")
Certificate Interest Rate: 8.00% per annum Aggregate Certificate Principal
Balance of the Class P Owner
Trust Certificates as of the
Closing Date: $100,069,949
Date of Deposit Trust Percentage Interest in Related
Class Evidenced by this Class
P Owner
Agreement: December 20, 1996 Trust Certificate: ___%
First Payment Date: January 30, 1997 Closing Date: December 20, 1996
Depositor and Initial Holder of Owner Trustee: Wilmington Trust
the Owner Trust Certificates: Company
CRIIMI MAE QRS 1, Inc.
Owner Trust Certificate No. P-___
THIS OWNER TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN, OR
OBLIGATION OF, THE DEPOSITOR, THE OWNER TRUSTEE, ANY OF THEIR RESPECTIVE
AFFILIATES, OR ANY OTHER PERSON. NEITHER THIS OWNER TRUST CERTIFICATE NOR THE
PLEDGED CERTIFICATES ARE INSURED OR GUARANTEED, IN WHOLE OR IN PART, BY ANY
GOVERNMENTAL ENTITY OR INSTRUMENTALITY OR ANY PRIVATE INSURER OR GUARANTOR.
THIS OWNER TRUST CERTIFICATE IS SUBJECT TO VARIOUS TRANSFER RESTRICTIONS
DESCRIBED HEREIN.
This Owner Trust Certificate is issued pursuant to, and in accordance with,
the terms of a Deposit Trust Agreement, dated as of December 20, 1996 (the
"Deposit Trust Agreement"; terms not otherwise defined herein shall have the
meanings assigned to those terms in the Deposit Trust Agreement), between CRIIMI
MAE QRS 1, Inc. as depositor (in such capacity, the "Depositor") and initial
Certificateholder and Wilmington Trust Company as Owner Trustee (the "Owner
Trustee"), a summary of certain of the pertinent provisions of which are set
forth herein. This Owner Trust Certificate is issued under and is subject to the
terms, provisions and conditions of the Deposit Trust Agreement, to which
Deposit Trust Agreement the holder of this Owner Trust Certificate by virtue of
the acceptance hereof assents and by which such Certificateholder is bound. In
the event of a conflict between the provisions of this Owner Trust Certificate
and those of the Deposit Trust Agreement, the provisions of the Deposit Trust
Agreement shall control.
This certifies that [CRIIMI MAE QRS 1, Inc.] is the registered owner of the
beneficial interest evidenced by this Owner Trust Certificate in the trust
established pursuant to the Deposit Trust Agreement and designated as CRIIMI MAE
Trust I (the "Trust"). The assets of the Trust include various subordinated
pass-through certificates (the "Pledged Certificates").
Except to the extent of their execution and authentication, respectively,
of the Owner Trust Certificates, the Owner Trustee and the Certificate Registrar
make no representation or warranty as to any of the statements contained herein
or the validity or sufficiency of this Owner Trust Certificate, the Pledged
Certificates or the assets in which the Pledged Certificates evidence interests.
The Owner Trustee has executed this Owner Trust Certificate in its limited
capacity as Owner Trustee under the Deposit Trust Agreement, and the Certificate
Registrar has authenticated this Owner Trust Certificate in its limited capacity
as Certificate Registrar under the Deposit Trust Agreement.
Distributions on the Certificates will be made, to the extent of available
funds, on the 30th day (or, in the case of February, the 28th day) of each month
or, if any such day is not a Business Day, then the next succeeding Business Day
(each, a "Payment Date"), commencing in January 1997. As more fully described in
the Deposit Trust Agreement, distributions allocable to interest on the Class P
Certificates will be made on each Payment Date up to the Accrued Certificate
Interest in respect of the Class P Certificates for the related Payment Date
and, to the extent not previously paid, for all prior Payment Dates. As and to
the extent described in the Deposit Trust Agreement,
distributions of interest on the Class P Certificates will be limited to
the amount available for such purpose in the Certificate Account. Such available
funds will be distributed on each Payment Date on a pro rata basis among the
Holders of the Class P Certificates and the Holders of the Class XS Certificates
in respect of Accrued Certificate Interest.
Upon the retirement of all of the Bonds, the holders of the Class P
Certificates will receive payments in respect of principal on each Payment Date,
subsequent to the payments in respect of interest on the Class P and Class XS
Certificates as described in the previous paragraph, up to (subject to available
funds) an amount equal to the Aggregate Certificate Principal Amount of the
Class P Certificates immediately prior to such Payment Date.
Pursuant to the Deposit Trust Agreement, all payments made with respect to
any Class of Owner Trust Certificates on any Payment Date shall be allocated pro
rata among such Owner Trust Certificates based upon their respective Percentage
Interests. Payments to the Certificateholders on each Payment Date will be made
to the Certificateholders of record on the related Record Date. Payments to any
Certificateholder on any Payment Date shall be made by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Owner Trustee in writing at least
five Business Days prior to the related Record Date and if such
Certificateholder is the registered owner of Owner Trust Certificates
representing at least a 33-1/3% Percentage Interest in any Class thereof, or
otherwise by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. Final payment on each
Owner Trust Certificate will be made in like manner, but only upon presentment
and surrender of such Owner Trust Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such final
payment.
This Owner Trust Certificate is one of a duly authorized issue of Owner
Trust Certificates designated as CRIIMI MAE Trust I, Owner Trust Certificates,
representing a fractional undivided beneficial interest in a Trust Estate
consisting of (a) the Pledged Certificates and all payments thereon from and
after the commencement of the initial Collection Period, (b) the Operative
Agreements (i) to which the Depositor is a party or (ii) of which the Depositor
is a third party beneficiary, including the right to receive all income on the
Pledged Certificates, (iii) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing and (iv) all proceeds
of every kind and nature whatsoever in respect thereof, including all proceeds
of the conversion, voluntary or involuntary, into cash or other liquid property,
all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of obligations
and receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of the foregoing, subject, to the
Lien in favor of the Indenture Trustee.
This Owner Trust Certificate does not purport to summarize the Deposit
Trust Agreement and reference is made to the Deposit Trust Agreement for the
interests, rights
and limitations of rights, benefits, obligations and duties evidenced
hereby and the rights, duties and immunities of the Owner Trustee.
No sale, transfer or other disposition of any Owner Trust Certificate may
be made, and the Certificate Registrar shall refuse to register any such
transfer, unless the Depositor (or, if the Depositor no longer exists, 100% of
the other Certificateholders) shall consent in writing to such sale, transfer or
other disposition. The Depositor (or any such other Certificateholder) shall be
entitled to request from the parties interested in effecting such sale, transfer
or other disposition, and to rely upon, a certification of facts and/or an
opinion of counsel which establishes to the satisfaction of the Depositor (or
such other Certificateholders) that such sale, transfer or other disposition is
permissible under applicable law and the Operative Agreements.
No transfer, sale, pledge or other disposition of this Owner Trust
Certificate or any interest herein shall be made unless that transfer, sale,
pledge or other disposition is exempt from the registration and/or qualification
requirements of the 1933 Act and any applicable state securities laws, or is
otherwise made in accordance with the 1933 Act and such state securities laws.
Neither the Trust nor any trust fund in which a Pledged Certificate evidences a
beneficial ownership interest has been registered as an investment company under
the 1940 Act, and no transfer of an Owner Trust Certificate may be made (i) to
any Person other than a QIB or an Affiliate of the Trust or (ii) to any Person
that would require the Trust or any such trust fund to be registered as an
investment company under the 1940 Act. No transfer of this Owner Trust
Certificate or any interest herein shall be made (A) to any employee benefit
plan or other retirement arrangement, including individual retirement accounts
and annuities, ▇▇▇▇▇ plans and collective investment funds and separate accounts
in which such plans, accounts or arrangements are invested, including, without
limitation, insurance company general accounts, that is subject to ERISA or the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing this Owner Trust Certificate or interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan.
No sale, transfer or other disposition of any Owner Trust Certificate may
be made, and the Certificate Registrar shall refuse to register any such
transfer, if such sale, transfer or other disposition would result in the Trust
ceasing to be a qualified REIT subsidiary within the meaning of Section 856(i)
of the Code.
For so long as the Bonds are outstanding and the Lien of the Indenture has
not been satisfied and discharged, no sale, transfer or other disposition of any
Owner Trust Certificate may be made, and the Certificate Registrar shall refuse
to register any such transfer, unless the Owner Trustee shall have received
written confirmation from each Rating Agency to the effect that such sale,
transfer or other disposition will not result in the qualification, downgrade or
withdrawal of any then current rating on the Bonds.
No assignment, conveyance or other transfer of this Owner Trust Certificate
shall be effective unless the transferee shall have executed and delivered to
the Owner
Trustee an instrument containing the transferee's agreement to be bound by
the terms of the Deposit Trust Agreement.
Prior to transfer of this Owner Trust Certificate in accordance with the
foregoing and the Deposit Trust Agreement, the Owner Trustee, the Indenture
Trustee and the Certificate Registrar and any agent of any of them may treat the
person or entity in whose name this Owner Trust Certificate is registered as the
owner hereof for the purpose of receiving distributions pursuant to the Deposit
Trust Agreement, pursuant to the Indenture and for all other purposes
whatsoever, and neither the Owner Trustee, the Indenture Trustee, the
Certificate Registrar nor any agent of any of them shall be affected by notice
to the contrary.
As provided in the Deposit Trust Agreement and subject to certain
limitations herein and therein set forth, this Owner Trust Certificate is
exchangeable for other Owner Trust Certificates of the same Class in authorized
denominations representing a like aggregate Percentage Interest, as requested by
the Certificateholder surrendering the same.
No service charge will be made to a Certificateholder for any such
registration of transfer or exchange, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Deposit Trust Agreement permits, with certain exceptions therein
provided, the amendment of the Deposit Trust Agreement and the modification of
the rights of the Certificateholders at any time by the Owner Trustee with the
consent of Certificateholders entitled to a majority of the Voting Rights
(except as provided in the Deposit Trust Agreement). Any consent by the
Certificateholder of this Owner Trust Certificate shall be conclusive and
binding on such Certificateholder and upon all future Certificateholders issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Owner Trust Certificate.
The obligations created by the Deposit Trust Agreement shall not terminate
until the Bonds have been paid in full and the Lien on the Trust Estate created
by the Indenture has been released; provided, however, that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the
United States to the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the Certificate of Authentication on this Owner Trust Certificate
has been executed by or on behalf of the Certificate Registrar, by manual
signature, this Owner Trust Certificate shall not be entitled to any benefit
under the Deposit Trust Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Owner Trustee has caused this Owner Trust
Certificate to be duly executed.
WILMINGTON TRUST COMPANY,
not individually, but solely in its capacity
as Owner Trustee
-------------------------------------
Authorized Officer
This is one of the Owner Trust Certificates referred to in the within-referenced
Deposit Trust Agreement.
Date:
WILMINGTON TRUST COMPANY
not individually, but solely in its capacity as
Certificate Registrar
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
[(Please print or typewrite name(s) and address(es), including postal zip code
of assignee(s)] ("Assignee(s)") that portion of the interest in the Trust
represented by the within Owner Trust Certificate set forth below and hereby
authorize(s) the transfer and registration of transfer of such interest to
Assignee(s) on the Certificate Register of the Trust.
I (we) further direct the Certificate Registrar to issue a new Owner Trust
Certificate of the same Class for that portion of the interest in the Trust
represented by the within Owner Trust Certificate set forth below to the
above-named Assignee(s) and deliver such Owner Trust Certificate to the
following address: ; to issue a new Owner Trust Certificate of the same Class
for the remainder of the interest in the Trust represented by the within Owner
Trust Certificate to the Assignor(s) and deliver such Owner Trust Certificate to
the following address: ; and to cancel the within Owner Trust Certificate.
Date:
------------------------------- ----------------------------------
Signature by or on behalf of
Assignor(s)
Percentage Interest
Transferred:
------------------ ----------------------------------
Taxpayer Identification Number
EXHIBIT A-2
FORM OF CLASS XS OWNER TRUST CERTIFICATE
CRIIMI MAE TRUST I
CLASS XS OWNER TRUST CERTIFICATE
evidencing a non-assessable, fully paid ___% interest in the Class XS
Owner Trust Certificates, which, collectively with the Class P and
Class R Owner Trust Certificates, evidence the entire beneficial
ownership interest in CRIIMI MAE Trust I, a Delaware business trust
whose assets include various subordinated pass-through certificates
(the "Pledged Certificates") deposited by CRIIMI MAE QRS 1, Inc. (the
"Depositor")
Date of Deposit Trust Percentage Interest in Related Class
Evidenced
Agreement: December 20, 1996 by this Class XS Owner Trust
Certificate:_______%
First Payment Date: January 30, 1997
Closing Date: December 20, 1996
Depositor and Initial Holder of
the Owner Trust Certificates: Owner Trustee: Wilmington Trust
CRIIMI MAE QRS 1, INC. Company
Owner Trust Certificate No. XS-___
THIS OWNER TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN, OR
OBLIGATION OF, THE DEPOSITOR, THE OWNER TRUSTEE, ANY OF THEIR RESPECTIVE
AFFILIATES, OR ANY OTHER PERSON. NEITHER THIS OWNER TRUST CERTIFICATE NOR THE
PLEDGED CERTIFICATES ARE INSURED OR GUARANTEED, IN WHOLE OR IN PART, BY ANY
GOVERNMENTAL ENTITY OR INSTRUMENTALITY OR ANY PRIVATE INSURER OR GUARANTOR.
THIS OWNER TRUST CERTIFICATE IS SUBJECT TO VARIOUS TRANSFER RESTRICTIONS
DESCRIBED HEREIN.
This Owner Trust Certificate is issued pursuant to, and in accordance with,
the terms of a Deposit Trust Agreement, dated as of December 20, 1996 (the
"Deposit Trust Agreement"; terms not otherwise defined herein shall have the
meanings assigned to those terms in the Deposit Trust Agreement), between CRIIMI
MAE QRS 1, Inc. as depositor (in such capacity, the "Depositor") and initial
Certificateholder and Wilmington Trust Company as Owner Trustee (the "Owner
Trustee"), a summary of certain of the pertinent provisions of which are set
forth herein. This Owner Trust Certificate is issued under and is subject to the
terms, provisions and conditions of the Deposit Trust Agreement, to which
Deposit Trust Agreement the holder of this Owner Trust Certificate by virtue of
the acceptance hereof assents and by which such Certificateholder is bound. In
the event of a conflict between the provisions of this Owner Trust Certificate
and those of the Deposit Trust Agreement, the provisions of the Deposit Trust
Agreement shall control.
This certifies that [CRIIMI MAE QRS 1, Inc.] is the registered owner of the
beneficial interest evidenced by this Owner Trust Certificate in the trust
established pursuant to the Deposit Trust Agreement and designated as CRIIMI MAE
Trust I (the "Trust"). The assets of the Trust include various subordinated
pass-through certificates (the "Pledged Certificates").
Except to the extent of their execution and authentication, respectively,
of the Owner Trust Certificates, the Owner Trustee and the Certificate Registrar
make no representation or warranty as to any of the statements contained herein
or the validity or sufficiency of this Owner Trust Certificate, the Pledged
Certificates or the assets in which the Pledged Certificates evidence interests.
The Owner Trustee has executed this Owner Trust Certificate in its limited
capacity as Owner Trustee under the Deposit Trust Agreement, and the Certificate
Registrar has authenticated this Owner Trust Certificate in its limited capacity
as Certificate Registrar under the Deposit Trust Agreement.
Distributions on the Certificates will be made, to the extent of available
funds, on the 30th day (or, in the case of February, the 28th day) of each month
or, if any such day is not a Business Day, then the next succeeding Business Day
(each, a "Payment Date"), commencing in January 1997. As more fully described in
the Deposit Trust Agreement, distributions allocable to interest accrued on the
Class XS Certificates will be made on each Payment Date up to the Accrued
Certificate Interest in respect of the Class XS Certificates for the related
Payment Date and, to the extent not previously paid, for all prior Payment
Dates. As and to the extent described in the Deposit Trust Agreement,
distributions of interest on the Class XS Certificates will be limited to the
amount available for such purposes in the Certificate Account. Such available
funds will be distributed on each Payment Date on a pro rata basis among the
Holders of the Class P Certificates and the Holders of the Class XS
Certificates.
Pursuant to the Deposit Trust Agreement, all payments made with respect to
any Class of Owner Trust Certificates on any Payment Date shall be allocated pro
rata among such Owner Trust Certificates based upon their respective Percentage
Interests. Payments to the Certificateholders on each Payment Date will be made
to the Certificateholders of record on the related Record Date. Payments to any
Certificateholder on any Payment Date shall be made by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Owner Trustee in writing at least
five Business Days prior to the related Record Date and if such
Certificateholder is the registered owner of Owner Trust Certificates
representing at least a 33-1/3% Percentage Interest in any Class thereof, or
otherwise by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. Final payment on each
Owner Trust Certificate will be made in like manner, but only upon presentment
and surrender of such Owner Trust Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such final
payment.
This Owner Trust Certificate is one of a duly authorized issue of Owner
Trust Certificates designated as CRIIMI MAE Trust I, Owner Trust Certificates,
representing a fractional undivided beneficial interest in a Trust Estate
consisting of (a) the Pledged Certificates and all payments thereon from and
after the commencement of the initial Collection Period, (b) the Operative
Agreements (i) to which the Depositor is a party or (ii) of which the Depositor
is a third party beneficiary, including the right to receive all income on the
Pledged Certificates, (iii) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing and (iv) all proceeds
of every kind and nature whatsoever in respect thereof, including all proceeds
of the conversion, voluntary or involuntary, into cash or other liquid property,
all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of obligations
and receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of the foregoing, subject, to the
Lien in favor of the Indenture Trustee.
This Owner Trust Certificate does not purport to summarize the Deposit
Trust Agreement and reference is made to the Deposit Trust Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced hereby and the rights, duties and immunities of the Owner Trustee.
No sale, transfer or other disposition of any Owner Trust Certificate may
be made, and the Certificate Registrar shall refuse to register any such
transfer, unless the Depositor (or, if the Depositor no longer exists, 100% of
the other Certificateholders) shall consent in writing to such sale, transfer or
other disposition. The Depositor (or any such
other Certificateholder) shall be entitled to request from the parties
interested in effecting such sale, transfer or other disposition, and to rely
upon, a certification of facts and/or an opinion of counsel which establishes to
the satisfaction of the Depositor (or such other Certificateholders) that such
sale, transfer or other disposition is permissible under applicable law and the
Operative Agreements.
No transfer, sale, pledge or other disposition of this Owner Trust
Certificate or any interest herein shall be made unless that transfer, sale,
pledge or other disposition is exempt from the registration and/or qualification
requirements of the 1933 Act and any applicable state securities laws, or is
otherwise made in accordance with the 1933 Act and such state securities laws.
Neither the Trust nor any trust fund in which a Pledged Certificate evidences a
beneficial ownership interest has been registered as an investment company under
the 1940 Act, and no transfer of an Owner Trust Certificate may be made (i) to
any Person other than a QIB or an Affiliate of the Trust or (ii) to any Person
that would require the Trust or any such trust fund to be registered as an
investment company under the 1940 Act. No transfer of this Owner Trust
Certificate or any interest herein shall be made (A) to any employee benefit
plan or other retirement arrangement, including individual retirement accounts
and annuities, ▇▇▇▇▇ plans and collective investment funds and separate accounts
in which such plans, accounts or arrangements are invested, including, without
limitation, insurance company general accounts, that is subject to ERISA or the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing this Owner Trust Certificate or interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan.
No sale, transfer or other disposition of any Owner Trust Certificate may
be made, and the Certificate Registrar shall refuse to register any such
transfer, if such sale, transfer or other disposition would result in the Trust
ceasing to be a qualified REIT subsidiary within the meaning of Section 856(i)
of the Code.
For so long as the Bonds are outstanding and the Lien of the Indenture has
not been satisfied and discharged, no sale, transfer or other disposition of any
Owner Trust Certificate may be made, and the Certificate Registrar shall refuse
to register any such transfer, unless the Owner Trustee shall have received
written confirmation from each Rating Agency to the effect that such sale,
transfer or other disposition will not result in the qualification, downgrade or
withdrawal of any then current rating on the Bonds.
No assignment, conveyance or other transfer of this Owner Trust Certificate
shall be effective unless the transferee shall have executed and delivered to
the Owner Trustee an instrument containing the transferee's agreement to be
bound by the terms of the Deposit Trust Agreement.
Prior to transfer of this Owner Trust Certificate in accordance with the
foregoing and the Deposit Trust Agreement, the Owner Trustee, the Indenture
Trustee and the Certificate Registrar and any agent of any of them may treat the
person or entity in whose name this Owner Trust Certificate is registered as the
owner hereof for the purpose of receiving distributions pursuant to the Deposit
Trust Agreement, pursuant to the
Indenture and for all other purposes whatsoever, and neither the Owner
Trustee, the Indenture Trustee, the Certificate Registrar nor any agent of any
of them shall be affected by notice to the contrary.
As provided in the Deposit Trust Agreement and subject to certain
limitations herein and therein set forth, this Owner Trust Certificate is
exchangeable for other Owner Trust Certificates of the same Class in authorized
denominations representing a like aggregate Percentage Interest, as requested by
the Certificateholder surrendering the same.
No service charge will be made to a Certificateholder for any such
registration of transfer or exchange, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Deposit Trust Agreement permits, with certain exceptions therein
provided, the amendment of the Deposit Trust Agreement and the modification of
the rights of the Certificateholders at any time by the Owner Trustee with the
consent of Certificateholders entitled to a majority of the Voting Rights
(except as provided in the Deposit Trust Agreement). Any consent by the
Certificateholder of this Owner Trust Certificate shall be conclusive and
binding on such Certificateholder and upon all future Certificateholders issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Owner Trust Certificate.
The obligations created by the Deposit Trust Agreement shall not terminate
until the Bonds have been paid in full and the Lien on the Trust Estate created
by the Indenture has been released; provided, however, that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the
United States to the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the Certificate of Authentication on this Owner Trust Certificate
has been executed by or on behalf of the Certificate Registrar, by manual
signature, this Owner Trust Certificate shall not be entitled to any benefit
under the Deposit Trust Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Owner Trustee has caused this Owner Trust
Certificate to be duly executed.
WILMINGTON TRUST COMPANY,
not individually, but solely in its capacity
as Owner Trustee
--------------------------------------
Authorized Officer
This is one of the Owner Trust Certificates referred to in the within-referenced
Deposit Trust Agreement.
Date:
WILMINGTON TRUST COMPANY
not individually, but solely in its capacity as
Certificate Registrar
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
[(Please print or typewrite name(s) and address(es), including postal zip code
of assignee(s)] ("Assignee(s)") that portion of the interest in the Trust
represented by the within Owner Trust Certificate set forth below and hereby
authorize(s) the transfer and registration of transfer of such interest to
Assignee(s) on the Certificate Register of the Trust.
I (we) further direct the Certificate Registrar to issue a new Owner Trust
Certificate of the same Class for that portion of the interest in the Trust
represented by the within Owner Trust Certificate set forth below to the
above-named Assignee(s) and deliver such Owner Trust Certificate to the
following address:
-------------------------------------------------------------------------------
; to issue a new Owner Trust Certificate
-------------------------------------
of the same Class for the remainder of the interest in the Trust represented by
the within Owner Trust Certificate to the above-named Assignor(s) and deliver
such Owner Trust Certificate to the following address:
-------------------------------------------------------------------------------
; and to cancel the within Owner Trust Certificate.
Date:
------------------------------- -----------------------------------
Signature by or on behalf of
Assignor(s)
Percentage Interest
Transferred:
------------------ -----------------------------------
Taxpayer Identification Number
EXHIBIT A-3
FORM OF CLASS R OWNER TRUST CERTIFICATE
CRIIMI MAE TRUST I
CLASS R OWNER TRUST CERTIFICATE
evidencing a non-assessable, fully paid ___% interest in the Class R
Owner Trust Certificates, which, collectively with the Class P and
Class XS Owner Trust Certificates, evidence the entire beneficial
ownership interest in CRIIMI MAE Trust I, a Delaware business trust
whose assets include various subordinated pass-through certificates
(the "Pledged Certificates") deposited by CRIIMI MAE QRS 1, Inc. (the
"Depositor")
Date of Deposit Trust Percentage Interest in Related Class
Evidenced
Agreement: December 20, 1996 by this Class R Owner Trust
Certificate:_______%
First Payment Date: January 30, 1997
Closing Date: December 20, 1996
Depositor and Initial Holder of
the Owner Trust Certificates: Owner Trustee: Wilmington Trust
CRIIMI MAE QRS 1, INC. Company
Owner Trust Certificate No. R-___
THIS OWNER TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN, OR
OBLIGATION OF, THE DEPOSITOR, THE OWNER TRUSTEE, ANY OF THEIR RESPECTIVE
AFFILIATES, OR ANY OTHER PERSON. NEITHER THIS OWNER TRUST CERTIFICATE NOR THE
PLEDGED CERTIFICATES ARE INSURED OR GUARANTEED, IN WHOLE OR IN PART, BY ANY
GOVERNMENTAL ENTITY OR INSTRUMENTALITY OR ANY PRIVATE INSURER OR GUARANTOR.
THIS OWNER TRUST CERTIFICATE IS SUBJECT TO VARIOUS TRANSFER RESTRICTIONS
DESCRIBED HEREIN.
This Owner Trust Certificate is issued pursuant to, and in accordance with,
the terms of a Deposit Trust Agreement, dated as of December 20, 1996 (the
"Deposit Trust Agreement"; terms not otherwise defined herein shall have the
meanings assigned to those terms in the Deposit Trust Agreement), between CRIIMI
MAE QRS 1, Inc. as depositor (in such capacity, the "Depositor") and initial
Certificateholder and Wilmington Trust Company as Owner Trustee (the "Owner
Trustee"), a summary of certain of the pertinent provisions of which are set
forth herein. This Owner Trust Certificate is issued under and is subject to the
terms, provisions and conditions of the Deposit Trust Agreement, to which
Deposit Trust Agreement the holder of this Owner Trust Certificate by virtue of
the acceptance hereof assents and by which such Certificateholder is bound. In
the event of a conflict between the provisions of this Owner Trust Certificate
and those of the Deposit Trust Agreement, the provisions of the Deposit Trust
Agreement shall control.
This certifies that [CRIIMI MAE QRS 1, Inc.] is the registered owner of the
beneficial interest evidenced by this Owner Trust Certificate in the trust
established pursuant to the Deposit Trust Agreement and designated as CRIIMI MAE
Trust I (the "Trust"). The assets of the Trust include various subordinated
pass-through certificates (the "Pledged Certificates").
Except to the extent of their execution and authentication, respectively,
of the Owner Trust Certificates, the Owner Trustee and the Certificate Registrar
make no representation or warranty as to any of the statements contained herein
or the validity or sufficiency of this Owner Trust Certificate, the Pledged
Certificates or the assets in which the Pledged Certificates evidence interests.
The Owner Trustee has executed this Owner Trust Certificate in its limited
capacity as Owner Trustee under the Deposit Trust Agreement, and the Certificate
Registrar has authenticated this Owner Trust Certificate in its limited capacity
as Certificate Registrar under the Deposit Trust Agreement.
Distributions on the Certificates will be made, to the extent of available
funds, on the 30th day (or, in the case of February, the 28th day) of each month
or, if any such day is not a Business Day, then the next succeeding Business Day
(each, a "Payment Date"), commencing in January 1997. As more fully described in
the Deposit Trust Agreement, distributions on the Class R Certificates will be
in an amount equal to the remaining portion, if any, of the Certificateholder
Funds for each Payment Date after making all payments on the Class XS and Class
P Certificates.
Pursuant to the Deposit Trust Agreement, all payments made with respect to
any Class of Owner Trust Certificates on any Payment Date shall be allocated pro
rata among such Owner Trust Certificates based upon their respective Percentage
Interests. Payments to the Certificateholders on each Payment Date will be made
to the Certificateholders of record on the related Record Date. Payments to any
Certificateholder on any Payment Date shall be made by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Owner Trustee in writing at least
five Business Days prior to the related Record Date and if such
Certificateholder is the registered owner of Owner Trust Certificates
representing at least a 33-1/3% Percentage Interest in any Class thereof, or
otherwise by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. Final payment on each
Owner Trust Certificate will be made in like manner, but only upon presentment
and surrender of such Owner Trust Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such final
payment.
This Owner Trust Certificate is one of a duly authorized issue of Owner
Trust Certificates designated as CRIIMI MAE Trust I, Owner Trust Certificates,
representing a fractional undivided beneficial interest in a Trust Estate
consisting of (a) the Pledged Certificates and all payments thereon from and
after the commencement of the initial Collection Period, (b) the Operative
Agreements (i) to which the Depositor is a party or (ii) of which the Depositor
is a third party beneficiary, including the right to receive all income on the
Pledged Certificates, (iii) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing and (iv) all proceeds
of every kind and nature whatsoever in respect thereof, including all proceeds
of the conversion, voluntary or involuntary, into cash or other liquid property,
all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of obligations
and receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of the foregoing, subject, to the
Lien in favor of the Indenture Trustee.
This Owner Trust Certificate does not purport to summarize the Deposit
Trust Agreement and reference is made to the Deposit Trust Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced hereby and the rights, duties and immunities of the Owner Trustee.
No sale, transfer or other disposition of any Owner Trust Certificate may
be made, and the Certificate Registrar shall refuse to register any such
transfer, unless the Depositor (or, if the Depositor no longer exists, 100% of
the other Certificateholders) shall consent in writing to such sale, transfer or
other disposition. The Depositor (or any such other Certificateholder) shall be
entitled to request from the parties interested in effecting such sale, transfer
or other disposition, and to rely upon, a certification of facts and/or an
opinion of counsel which establishes to the satisfaction of the Depositor (or
such other Certificateholders) that such sale, transfer or other disposition is
permissible under applicable law and the Operative Agreements.
No transfer, sale, pledge or other disposition of this Owner Trust
Certificate or any interest herein shall be made unless that transfer, sale,
pledge or other disposition is exempt from the registration and/or qualification
requirements of the 1933 Act and any applicable state securities laws, or is
otherwise made in accordance with the 1933 Act and such state securities laws.
Neither the Trust nor any trust fund in which a Pledged Certificate evidences a
beneficial ownership interest has been registered as an investment company under
the 1940 Act, and no transfer of an Owner Trust Certificate may be made (i) to
any Person other than a QIB or an Affiliate of the Trust or (ii) to any Person
that would require the Trust or any such trust fund to be registered as an
investment company under the 1940 Act. No transfer of this Owner Trust
Certificate or any interest herein shall be made (A) to any employee benefit
plan or other retirement arrangement, including individual retirement accounts
and annuities, ▇▇▇▇▇ plans and collective investment funds and separate accounts
in which such plans, accounts or arrangements are invested, including, without
limitation, insurance company general accounts, that is subject to ERISA or the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing this Owner Trust Certificate or interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan.
No sale, transfer or other disposition of any Owner Trust Certificate may
be made, and the Certificate Registrar shall refuse to register any such
transfer, if such sale, transfer or other disposition would result in the Trust
ceasing to be a qualified REIT subsidiary within the meaning of Section 856(i)
of the Code.
For so long as the Bonds are outstanding and the Lien of the Indenture has
not been satisfied and discharged, no sale, transfer or other disposition of any
Owner Trust Certificate may be made, and the Certificate Registrar shall refuse
to register any such transfer, unless the Owner Trustee shall have received
written confirmation from each Rating Agency to the effect that such sale,
transfer or other disposition will not result in the qualification, downgrade or
withdrawal of any then current rating on the Bonds.
No assignment, conveyance or other transfer of this Owner Trust Certificate
shall be effective unless the transferee shall have executed and delivered to
the Owner Trustee an instrument containing the transferee's agreement to be
bound by the terms of the Deposit Trust Agreement.
Prior to transfer of this Owner Trust Certificate in accordance with the
foregoing and the Deposit Trust Agreement, the Owner Trustee, the Indenture
Trustee and the Certificate Registrar and any agent of any of them may treat the
person or entity in whose name this Owner Trust Certificate is registered as the
owner hereof for the purpose of receiving distributions pursuant to the Deposit
Trust Agreement, pursuant to the Indenture and for all other purposes
whatsoever, and neither the Owner Trustee, the Indenture Trustee, the
Certificate Registrar nor any agent of any of them shall be affected by notice
to the contrary.
As provided in the Deposit Trust Agreement and subject to certain
limitations herein and therein set forth, this Owner Trust Certificate is
exchangeable for other Owner Trust Certificates of the same Class in authorized
denominations representing a like aggregate Percentage Interest, as requested by
the Certificateholder surrendering the same.
No service charge will be made to a Certificateholder for any such
registration of transfer or exchange, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Deposit Trust Agreement permits, with certain exceptions therein
provided, the amendment of the Deposit Trust Agreement and the modification of
the rights of the Certificateholders at any time by the Owner Trustee with the
consent of the Certificateholders entitled to a majority of the Voting Rights
(except as provided in the Deposit Trust Agreement). Any consent by the
Certificateholder of this Owner Trust Certificate shall be conclusive and
binding on such Certificateholder and upon all future Certificateholders issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Owner Trust Certificate.
The obligations created by the Deposit Trust Agreement shall not terminate
until the Bonds have been paid in full and the Lien on the Trust Estate created
by the Indenture has been released; provided, however, that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the
United States to the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the Certificate of Authentication on this Owner Trust Certificate
has been executed by or on behalf of the Certificate Registrar, by manual
signature, this Owner Trust Certificate shall not be entitled to any benefit
under the Deposit Trust Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Owner Trustee has caused this Owner Trust
Certificate to be duly executed.
WILMINGTON TRUST COMPANY,
not individually, but solely in its capacity as
Owner Trustee
-----------------------------------
Authorized Officer
This is one of the Owner Trust Certificates referred to in the within-referenced
Deposit Trust Agreement.
Date:
WILMINGTON TRUST COMPANY
not individually, but solely in its capacity as
Certificate Registrar
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
[(Please print or typewrite name(s) and address(es), including postal zip code
of assignee(s)] ("Assignee(s)") that portion of the interest in the Trust
represented by the within Owner Trust Certificate set forth below and hereby
authorize(s) the transfer and registration of transfer of such interest to
Assignee(s) on the Certificate Register of the Trust.
I (we) further direct the Certificate Registrar to issue a new Owner Trust
Certificate of the same Class for that portion of the interest in the Trust
represented by the within Owner Trust Certificate set forth below to the
above-named Assignee(s) and deliver such Owner Trust Certificate to the
following address: ; to issue a new Owner Trust Certificate of the same Class
for the remainder of the interest in the Trust represented by the within Owner
Trust Certificate to the Assignor(s) and deliver such Owner Trust Certificate to
the following address: ; and to cancel the within Owner Trust Certificate.
Date:
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Signature by or on behalf of
Assignor(s)
Percentage Interest
Transferred:
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Taxpayer Identification Number