EXHIBIT 10.2
DEPOSIT TRUST AGREEMENT
dated as of May 8, 1998
between
CRIIMI MAE CMBS Corp.,
as Depositor and Initial Holder of the Owner Trust Certificates,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
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CRIIMI MAE COMMERCIAL MORTGAGE TRUST
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT 6
"Accrual Date" shall mean May 1, 1998. 7
"Closing Date" shall mean May 8, 1998. 10
SECTION 2.2 Transfer of Trust to Owner Trustee. 15
SECTION 2.4 Execution and Delivery of Owner Trust Certificates. 18
SECTION 3.1 Establishment of Certificate Account: Deposits 22
SECTION 3.2 Permitted Withdrawals From the Certificate Account. 22
SECTION 4.1 Distribution of Payments. 23
SECTION 4.2 Payments. 23
SECTION 4.3 Statements to Certificateholders. 25
SECTION 4.4 Access to Certain Documentation and Information. 26
SECTION 5.1 Notice of Certain Events; Action by the Owner Trustee. 27
SECTION 6.2 Limited Representations or Warranties of the Owner Trustee. 29
SECTION 7.2 Reimbursement and Indemnification of the Owner Trustee. 32
SECTION 8.2 Further Assurances by the Owner Trustee upon Termination. 34
SECTION 9.1 Resignation of the Owner Trustee; Appointment of Successor. 35
SECTION 11.1 Representations and Warranties of the Depositor. 39
SECTION 12.4 Access to Names and Addresses. 48
SECTION 12.5 Actions of Certificateholders. 48
DEPOSIT TRUST AGREEMENT
DEPOSIT TRUST AGREEMENT, dated as of May 8, 1998, between CRIIMI MAE CMBS Corp.,
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 (as defined herein) its Commercial Mortgage
Bonds, Series ▇▇▇▇-▇▇ (▇▇▇ "▇▇▇▇▇"), in 12 classes designated as the "Class A-1
Bonds", the "Class A-2 Bonds", the "Class B Bonds", the "Class C Bonds", the
"Class D-1 Bonds", the "Class D-2 Bonds", the "Class E Bonds", the "Class F
Bonds", the "Class G Bonds", the "Class H-1 Bonds", the "Class ▇-▇ ▇▇▇▇▇" and
the "Class J Bonds", respectively, and secured by, among other things, a lien on
the Pledged Securities (as defined herein), and distributing the Bonds or the
proceeds therefrom to the Depositor, (iii) issuing Owner Trust Certificates in
two classes designated as the "Class A 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 (as defined herein) , 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 May 1, 1998.
"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 A
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 7.00% per annum on the
Aggregate Certificate Principal Balance of the Class A Certificates immediately
prior to 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 Agency
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 A Certificates, as of any date of determination, the then aggregate
principal balance of all Class A Certificates. The initial Aggregate Certificate
Principal Balance of the Class A Certificates shall be $70,889,000.00. The
Aggregate Certificate Principal Balance of the Class A 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 A 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 have the meaning assigned to
such term in the Indenture.
"Agreement" shall mean this Deposit Trust Agreement, as the same may be
amended or supplemented from time to time.
"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 15 of the Terms 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 Rockville, Maryland, New York, New York, or any
other city in which the Corporate Trust Office is then located, 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 and maintained with the corporate trust department of a federal
depository or state chartered depository institution or trust company having
corporate trust powers acting in its fiduciary capacity and, in the case of a
state chartered depository institution or trust company, subject to regulations
regarding fiduciary funds on deposit therein substantially similar to Title 12
of the Code of Federal Regulations Section 9.10(b).
"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-1 Bonds" shall mean the Bonds so designated under the Indenture
and issued pursuant thereto.
"Class D-2 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 G Bonds" shall mean the Bonds so designated under the Indenture and
issued pursuant thereto.
"Class ▇-▇ ▇▇▇▇▇" shall mean the Bonds so designated under the Indenture
and issued pursuant thereto.
"Class ▇-▇ ▇▇▇▇▇" shall mean the Bonds so designated under the Indenture
and issued pursuant thereto.
"Class J Bonds" shall mean the Bonds so designated under the Indenture and
issued pursuant thereto.
"Class A Certificate" shall mean any of the Owner Trust Certificates with a
"Class A" 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-2 attached hereto.
"Closing Date" shall mean May 8, 1998.
"CMBS" shall mean CRIIMI MAE CMBS Corp., a Delaware corporation, and its
successors in interest.
"CMM 96-C1 Payment Date" shall have the meaning assigned to such term in
the Indenture.
"Code" shall mean the Internal Revenue Code of 1986.
"Collection Period" shall have the meaning assigned to such term in the
Indenture.
"Contribution Agreement" shall mean the contribution agreement, dated as of
May 8, 1998, between CRIIMI MAE Inc. and the Depositor, pursuant to which CRIIMI
MAE Inc. contributed the Pledged Securities, 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 CMBS.
"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 May 8, 1998 among the Trust, the Indenture Trustee and initial Depository
in connection with the issuance of the Class A-1, Class A-2, Class B and Class C
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, 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 Terms Indenture, dated as of May 8,
1998 (the "Terms Indenture"), between the Owner Trustee, on behalf of the Trust,
and the Indenture Trustee, on behalf of the Bondholders, as it incorporates by
reference certain standard indenture provisions applicable to collateralized
mortgage obligations issuable (in series) by owner trusts established by CMBS,
dated as of May 8, 1998 (the "Standard Indenture Provisions").
"Indenture Default" shall mean an "Issuer Event of Default" under the
Indenture.
"Indenture Trustee" shall mean LaSalle National Bank, 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 May
8, 1998, between 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 Security
Agreements, the Pledged Securities, 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 borne by the Depositor.
"Overcollateralization Amount" shall have the meaning assigned to such term
in the Indenture.
"Owner Trust Certificates" shall mean the Class A 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 May 8, 1998, between Wilmington Trust Company and the Depositor.
"Payment Date" shall mean the second business day following the end of each
Collection Period. The first Payment Date is July 2, 1998.
"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 Security" shall mean any one of the pass-through certificates or
bonds 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 Security Agreement" shall mean with respect to any Pledged
Security, the pooling and servicing agreement, trust agreement, indenture or
other governing agreement, together with all exhibits thereto, pursuant to which
such Pledged Security was issued.
"Purchase Agreement" shall mean the purchase agreement, dated May 6, 1998,
between the Purchasers, as purchasers of all of the Class A-1 and Class A-2
Bonds and $60,000,000 of the Class B Bonds, and CRIIMI MAE Inc..
"QIB": A qualified institutional buyer within the meaning of Rule 144A
under the 1993 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 Payment
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 Securities
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 beneficiary, including the right to
receive all income on the Pledged Securities, (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 any particular time during the term of this Deposit Trust
Agreement, the Holders of the Class A Certificates shall be entitled to that
percentage of the Voting Rights, not greater than 100% or less than 0%, equal to
the then Aggregate Certificate Principal Balance of the Class A Certificates,
divided by the then Overcollateralization Amount, and the remaining 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 Commercial Mortgage Trust," 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 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 it 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
Securities pursuant to the related Pledged Securities 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 Security:
(i) either (A) if such Pledged Security is held in fully registered,
certificated form, a duly issued and authenticated physical certificate
evidencing such Pledged Security endorsed to "LaSalle National Bank, as
Indenture Trustee under the Indenture, dated as of May 8, 1998, relating to
CRIIMI MAE Commercial Mortgage Trust, Commercial Mortgage Bonds, Series 1998-C1"
or its nominee, together with such Opinions of Counsel and other documents as
shall be necessary to cause registration of transfer of such Pledged Security to
the Indenture Trustee to be made and to obtain a duly issued and authenticated
physical certificate evidencing such Pledged Security registered in the name of
the Indenture Trustee or its nominee: or (B) if such Pledged Security is held in
book-entry form, such instruments of transfer, directions, certificates or other
documents as are necessary to cause registration of transfer of such Pledged
Security 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). If any
Pledged Security is not accepted for transfer by the applicable registrar, the
Indenture Trustee, with such assistance of the Company and the Issuer as it may
reasonably request, shall resubmit such Pledged Security for registration of
transfer; provided, however, that the Company shall bear the sole responsibility
for correcting any mistakes or completing any deficiencies that caused the
rejection of a request for transfer;
(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
Security Agreement; and
(iv) all other items relating to the foregoing as reasonably required by
the Owner Trustee or the Indenture Trustee.
(b) The conveyance of the Pledged Securities 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 sale of the Pledged
Securities and all other assets constituting the Trust Estate by the Depositor
to the Trust, such conveyance to be made in exchange for the Bonds and the Owner
Trust Certificates. 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 Securities and all payments thereon from and after June 1, 1998, (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 Securities 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 Securities 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 Depositor or
any Certificateholder withdraw from the Trust, any Pledged Security or other
asset constituting the Trust Estate. Except as contemplated by the Indenture,
the Owner Trustee shall not permit the Pledged Securities or any other asset
constituting the Trust Estate to be subjected to any lien, claim or encumbrance
arising by, through or under the 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 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 two Classes designated
as the "Class A 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 and A-2; 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 and Exhibit A-2, 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 and the Depositor. 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 and the Depositor 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 shall 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 shall 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 Owner Trustee.
(iii) The Trust shall 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, any subsidiary, affiliate or separate
account of the Depositor or any other owner of an Owner Trust Certificate. Any
such resolutions, agreements and other instruments will be continuously
maintained as official records by the Trust.
(iv) The Trust will pay its own operating expenses, if any, and liabilities
from its own separate assets, although CRIIMI MAE has paid and may pay certain
expenses related to the formation of the Trust and the offering and issuance of
the Bonds.
(v) The Depositor will pay its own operating expenses, if any, and
liabilities from its own separate assets, although CRIIMI MAE has paid certain
expenses related to the formation of the Depositor and may pay certain expenses
related to the offering and issuance from time to time of securities by trusts
established by the Depositor (including the Trust).
(vi) The Trust shall conduct is 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, purchase orders, 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.
(vii) The Depositor will not hold itself out, or permit itself to be held
out, as having agreed to pay or as being liable for the debts of the Trust. The
Trust will not hold itself out, or permit itself to be held out, as having
agreed to pay or as being liable for the debts of any of its Affiliates. Except
as otherwise contemplated in the Operative Agreements, the Trust will not permit
any of its Affiliates to guarantee any obligations or debts of the Trust, or
indemnify any person or entity for losses resulting therefrom, and the Trust
will not guarantee any of the obligations or debts of any of its Affiliates, or
indemnify any person for losses resulting therefrom. The Trust will continue to
maintain an arm's-length relationship in any future dealings it may have with
any of its Affiliates.
(viii) The Trust shall 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.
(ix) The Trust shall maintain its principal place of business in the state
of Delaware.
(x) 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.
(xi) 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).
(xii) The Trust shall not engage in any transaction with an Affiliate on
any terms other than would be obtained in arm's-length transaction with a
non-Affiliate.
(xiii) The Trust shall not acquire obligations or securities of its
partners, members or shareholders.
(xiv) The Trust shall incur no indebtedness other than the Bonds and
indebtedness in the ordinary course of business relating to its business
purpose.
(xv) The Trust will (A) maintain separate trust records and books of
account from those of its affiliates and (B) maintain its office separate and
distinct from the offices of, or any space occupied by, its Affiliates.
(xvi) None of the assets of the Trust will be commingled with those of its
Affiliates nor shall any of such Affiliates' assets be commingled with those of
the Trust.
(xvii) The Trust will not hold itself out, or permit itself to be held out,
as having agreed to pay or as being liable for the debts of the Depositor. The
Depositor has not held itself out, will not hold itself out, or permit itself to
be held out, as having agreed to pay or as being liable for the debts of any of
its Affiliates. Except as otherwise contemplated in the Agreements, the
Depositor will not permit any of its Affiliates to guarantee any obligations or
debts of the Depositor, or indemnify any person or entity for losses resulting
therefrom, and the Depositor will not guarantee any of the obligations or debts
of any of its Affiliates, or indemnify any person for losses resulting
therefrom. The Depositor will continue to maintain an arm's-length relationship
in any future dealings it may have with any of its Affiliates.
(xviii) All arrangements and agreements between the Trust and its
Affiliates will be evidenced by a written agreement. Accordingly, no Affiliate
of the Trust will provide the Trust with any service, or make any equipment,
property or other assets available to the Trust, or vice versa, and the Trust
will not use any assets or funds owned by its Affiliates or vice versa, unless
there is a written agreement evidencing the arm's length nature of the specific
transaction.
(xix) The Trust will observe all procedures required of a business trust
under Delaware law and maintain its existence in good standing under the laws of
Delaware.
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 Commercial Mortgage Trust
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 the Indenture; (2) any payments (if any)
received on the Pledged Securities from time to time after the commencement of
the initial Collection Period pursuant to the respective Pledged Security
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 Securities;
(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 Securities 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(b) shall have been received after
2:00 p.m., New York City time on such Payment Date, as soon as practically
possible, but in no event more than one Business Day, following receipt), the
Owner Trustee (or its Agent) shall withdraw from the Certificate Account all
Certificateholder Funds then on deposit therein, and the Owner Trustee (or its
Agent) shall pay such Certificateholder Funds to the respective Classes of
Certificateholders for the following purposes and in the following order, in
each case to the extent of remaining available funds:
(i) to the Holders of the Class A Certificates in respect of interest, 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 A
Certificates in respect of principal, up to an amount equal to the lesser of (A)
the Aggregate Certificate Principal Amount of the Class A Certificates
immediately prior to such Payment Date and (B) the portion of such
Certificateholder Funds that represents distributions of principal on the
Pledged Securities; 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 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 presentation
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 Securities 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 cancellation 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 Agency stating:
(i) the Certificateholder Funds for such Payment Date;
(ii) the aggregate amounts of interest and principal paid to the Holders of
the Class A 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 A
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) shall 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 Securities, including, without limitation, any such notices,
statements, reports or other communications relating to the Bonds, the
Indenture, the Pledged Securities, the Pledged Security Agreements or the other
assets of the Trust Estate.
On or before March 31st of each calendar year, beginning with calendar year
1999, 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 or 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 Securities, 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 other Operative Agreements, the Trust Estate
or the Pledged Securities, 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 Securities 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 Securities, (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 Securities 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
Securities, 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 the Owner Trustee Fee, 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 Securities; 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, as provided in a separate letter
agreement dated the date hereof between the Owner Trustee and CRIIMI MAE Inc.
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 IV thereof, and this Deposit
Trust Agreement shall terminate in connection with the final distribution on the
last remaining Pledged Security. 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 Securities 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 Agency, 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 distributable 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 the 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 times prior to the liquidation of the
Trust; provided, however, that such action, as evidenced by an Opinion of
Counsel acceptable to the Owner Trustee is necessary or helpful to prevent the
imposition on the Trust of any such taxes.
(c) Prior to the execution of any amendment to this Deposit Trust
Agreement, the Owner Trustee shall be entitled to receive and rely upon an
Opinion of Counsel, at the expense of the party requesting such amendment (or,
if such amendment is requested by the Owner Trustee, then at the expense of the
Trust) stating that the execution of such amendment is authorized or permitted
by this Deposit Trust Agreement.
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, in the case of Operative
Agreements, 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
Securities or the ability of the Depositor or the Certificateholders to carry
out the transactions contemplated by this Deposit Trust Agreement.
(b) The Depositor hereby represents and warrants to and for the benefit of
the Owner Trustee and the benefit of the Certificateholders and Bondholders, as
of the Closing Date,
that immediately prior to the conveyance of the Pledged Securities to the
Owner Trustee on behalf of the Trust, the Depositor had good title to, and was
the sole owner of, each Pledged Security, free and clear of any pledge, lien,
encumbrance or security interest, and such assignment validly transfers all
right, title and interest of the Pledged Securities to the Owner Trustee, free
and clear of any pledge, lien, encumbrance or security interest.
(c) 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 the Depositor is a Delaware corporation which is a
wholly-owned subsidiary of CRIIMI MAE Inc. and that the purpose of the Depositor
is to engage in the following activities:
(i) to acquire, own, hold, sell, deliver, receive, transfer, assign,
pledge, finance, refinance, reinvest any distributions or payments on, and
otherwise deal with, and to form and comparably deal with pools of:
(A) "fully modified pass-through" certificates ("GNMA Certificates") issued
and guaranteed as to timely payment of principal and interest by the Government
National Mortgage Association ("GNMA"), a wholly-owned corporate instrumentality
of the United States within the Department of Housing and Urban Development
organized and existing under Title III of the National Housing Act of 1934;
(B) Guaranteed Mortgage Pass-Through Certificates ("FNMA Certificates")
issued and guaranteed as to timely payment of principal and interest by the
Federal National Mortgage Association ("FNMA"), a federally chartered, privately
owned corporate instrumentality of the United States organized and existing
under the Federal National Mortgage Association Charter Act;
(C) Mortgage Participation Certificates ("FHLMC Certificates") issued and
guaranteed as to timely payment of interest and ultimate or full payment of
principal by the Federal Home Loan Mortgage Corporation ("FHLMC"), a federally
chartered instrumentality of the United States organized and existing under
Title III of the Emergency Home Finance Act of 1970;
(D) Guaranteed Agricultural Mortgage-Backed Securities ("FAMC
Certificates") guaranteed as to timely payment of principal and interest by the
Federal Agricultural Mortgage Corporation ("FAMC"), a federally chartered
instrumentality of the United States organized and existing under Title VIII of
the Farm Credit Act of 1971;
(E) any other participation certificates, pass-through certificates or
other obligations or interests backed directly or indirectly by mortgage loans
and issued or guaranteed by GNMA, FNMA, FHLMC Certificates or FAMC (collectively
with the GNMA Certificates, FNMA Certificates , FHLMC Certificates and FAMC
Certificates, the "Agency Securities");
(F) mortgage-backed securities, which securities need not be issued or
guaranteed, in whole or in part, by any governmental entity, issued by one or
more private entities (hereinafter referred to as "Private Securities");
(G) mortgage loans secured by first, second or more junior liens on (1)
one- to four-family residential properties, (2) multifamily properties that are
either rental or cooperative apartment buildings or projects containing multiple
residential units or that are manufactured housing communities, (3) commercial
properties, (4) mixed commercial and residential properties or (5) leasehold
interests in any of the foregoing, regardless of whether insured or guaranteed
in whole or in part by any governmental entity, or participation interests or
stripped interests in such mortgage loans ("Mortgage Loans");
(H) conditional sales contracts and installment sales or loan agreements or
participation interests therein secured by manufactured housing ("Contracts");
and
(I) receivables of third-parties or other financial assets of
third-parties, either fixed or revolving, that by their terms convert into cash
within a finite time period ("Other Assets" and, together with Agency
Securities, Private Securities, Mortgage Loans and Contracts, "Financial
Assets");
(ii) to loan the funds of the Depositor to any person under loan agreements
and other arrangements which are secured by Agency Securities, Private
Securities, Mortgage Loans, Contracts and/or Other Assets;
(iii) to issue, acquire, own, hold, sell, deliver, receive, transfer,
assign, lend, borrow, pledge, finance, refinance, reinvest any distributions or
payments on and otherwise deal with, and to form and comparably deal with pools
of, (A) bonds, notes or other evidence of indebtedness ("Debt Interests") that
are directly or indirectly secured or collateralized by one or more Financial
Assets; (B) shares, pass-through certificates, participation certificates, trust
securities or like instruments or interests ("Equity Interests") that directly
or indirectly evidence interests in one or more Financial Assets; (C) Debt
Interests secured or collateralized directly or indirectly by one or more Debt
Interests
described in the preceding clause (iii)(A) or by one or more Equity
Interests described in the preceding clause (iii)(B); and (D) Equity Interests
representing interests in one or more Debt Interests described in the preceding
clause (iii)(A) or in one or more Equity Interests described in the preceding
clause (iii)(B);
(iv) to act as settlor or depositor of one or more trusts formed to issue
any interests described in clauses (A), (B), (C) or (D) of the preceding clause
(iii); and
(v) to engage in any lawful act or activity, to enter into any agreement or
other undertaking and to exercise any powers permitted to corporations organized
under the laws of the State of Delaware that, in any such case, are incidental
to and necessary or convenient for the accomplishment of the above mentioned
purposes.
The Depositor is not authorized to and will not engage in any activity
other than in connection with the foregoing or other than as required or
authorized by the terms of the Operative Agreements. In particular, after the
Closing Date, the Depositor will not modify (or agree to any modification of)
its rights under the Agreements.
(d) It is understood and agreed that each of the foregoing representations
and warranties of the Depositor shall survive delivery of the Pledged Securities
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 its own benefit or for the benefit of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the other party hereto and to the Indenture Trustee and the Rating
Agency.
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
Securities applicable to a period on or after June 1, 1998 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
acknowledges, 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 (i) maintain separate corporate records and books of
account from those of its Affiliates and (ii) maintain its office space separate
and distinct from the office space of its Affiliates.
(c) The Depositor will conduct its business solely in its own name and
through its duly authorized officers or agents. Furthermore, all oral and
written communications made by the Depositor (including, without limitation,
letters, invoices, purchase orders, contracts, statements and applications) will
be made solely in its own name.
(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 or
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, or contemplated to be performed by, it under the
Indenture.
(g) So long as any Owner Trust Certificates are owned by it, the Depositor
shall not act or fail to act in a manner that would endanger its status as a
QRS.
(h) The Depositor will observe all procedures required of a corporation
under Delaware law and maintain its existence in good standing under the laws of
Delaware.
(i) None of the assets of the Depositor will be commingled with those of
its affiliates nor shall any of such affiliates' assets be commingled with those
of the Depositor.
(j) All arrangements and agreements between the Depositor and its
Affiliates will be evidenced by a written agreement. Accordingly, no Affiliate
of the Depositor will provide the Depositor with any service, or make any
equipment, property or other assets available to the Depositor, or vice versa,
and the Depositor will not use any assets or funds owned by its Affiliates or
vice versa, unless there is a written agreement evidencing the arm's length
nature of the specific transaction.
(k) The Indenture Trustee, the Owner Trustee and the Bondholders have
entered into the transactions contemplated by the Agreements based on the
assumption that each of the Trust and the Depositor will be maintained as a
separate entity having the characteristics referred to in these assumptions.
Accordingly, such parties have relied on the separateness of each of the Trust
and the Depositor and would be prejudiced by any consolidation of the Trust with
either of the Depositor or CRIIMI MAE or of the Depositor with CRIIMI MAE.
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 Security 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 of any Pledged Security or any trust fund
underlying a Pledged Security 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" as defined in Section 3(3) of
ERISA that is
subject to Title I of ERISA, any "plan" as defined in Section 4975 of the
Code that is subject to Section 4975 of the Code or any entity deemed for any
purpose of ERISA or Section 4975 of the Code to hold assets of any such employee
benefit plan or plan (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. No transfer
of any Owner Trust Certificates or any interest therein shall be made by CRIIMI
MAE Inc. or any subsidiary thereof unless the Indenture Trustee shall have
received an Opinion of Counsel to the effect that such transfer will not cause
the Issuer to be subject to an entity-level federal income tax to which REITs
and QRSs are not otherwise subject provided that (i) such Owner Trust
Certificates may be pledged by CRIIMI MAE Inc. or any such subsidiary to secure
indebtedness of CRIIMI MAE Inc. or a subsidiary thereof and may be the subject
of repurchase or other financing agreements treated as secured indebtedness of
CRIIMI MAE Inc. or a subsidiary thereof for federal income tax purposes and (ii)
no such Opinion of Counsel shall be required in connection with the sale of any
such Owner Trust Certificates by the related lender upon a default under any
such indebtedness.
(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 the 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 canceled.
SECTION 12.3 Persons Deemed Owners. Prior to due presentation of an Owner
Trust Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar, the Indenture Trustee and any agent of any of them may
treat the person 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 Registrar.
(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 Certificateholders. The
Certificateholders shall not have legal title to any part of the Trust Estate;
provided, however, that each Certificateholder has a beneficial interest in the
Trust (and initially the Depositor, as initial Holder of the Owner Trust
Certificates, 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
Certificateholders and the Indenture Trustee on behalf of the Bondholders, any
legal or equitable right, remedy or claim under or in respect of this Deposit
Trust Agreement.
SECTION 13.4 Notices. All demands, notices and communications hereunder
shall be in writing, may be given by telecopy transmission, shall be deemed to
have been given upon receipt (except that notices being sent by first class
mail, postage prepaid, shall be deemed to be received five business days
following the mailing thereof) as follows:
If to the Owner Trustee, to:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
If to the Depositor, to:
CRIIMI MAE CMBS Corp.
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 other 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 Security 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 Security 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
Security Agreement, in respect thereof, shall control.
SECTION 13.14 No Implied Waiver. No term or provision of this Deposit Trust
Agreement may be changed, waived, discharged or terminated orally, but only by
an instrument in writing entered into as provided in Section 10.1 hereof; and
any such waiver of the terms hereof shall be effective only in the specific
instance and for the specific purpose given.
SECTION 13.15 Third Party Beneficiary. The Indenture Trustee for the
benefit of the Bondholders is an intended third-party beneficiary of this
Deposit Trust Agreement from and including the date hereof to the date on which
the Lien on the Trust Estate created pursuant to the Indenture is satisfied,
discharged and released pursuant to Article IV of the Standard Indenture
Provisions.
SECTION 13.16 References. The definitions in Article I shall apply equally
to both the singular and plural forms of the terms defined. "Include",
"included", "includes" and "including" shall be deemed to be followed by
"without limitation". "Writing", "written" and comparable terms refer to
printing, typing, lithography or other means of reproducing words in a visible
form. Any agreement or instrument or any law, rule or regulation of any
Governmental Authority defined or referred to in Article I means such agreement
or instrument or such law, rule 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 of 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 and/or Section 130-K
shall cease to have any further effect upon the provisions of this Deposit Trust
Agreement. In case of a conflict between the provisions of this Deposit Trust
Agreement and any mandatory provisions of Article 4-A of the New York Real
Property Law applicable to this Deposit Trust Agreement, such mandatory
provisions of said Article 4-A shall prevail, provided that if said Article 4-A
shall not apply to this Deposit Trust Agreement, should at any time be repealed,
or cease to apply to this Deposit Trust Agreement, or be construed by judicial
decision to be inapplicable, such mandatory provisions of such Article 4-A shall
cease to have any further effect upon the provisions of this Deposit Trust
Agreement.
SECTION 13.18 Optional Redemption. The parties hereto hereby agree that the
Trust shall exercise its optional redemption rights under Section 17 of the
Terms Indenture only upon receipt of instructions to such effect from 100% of
the Certificateholders.
IN WITNESS WHEREOF, the parties hereto have caused this Deposit Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the date hereof.
CRIIMI MAE CMBS CORP., as Depositor
and initial Certificateholder,
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
WILMINGTON TRUST COMPANY,
not individually, but solely in its
capacity as Owner Trustee,
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SCHEDULE 1
SCHEDULE OF PLEDGED SECURITIES
Pledged
Securitization Pledged Security
Securities Principal
Balance*
1. Nomura Asset Securities Corporation, Class B-1(A) $70,000,0000
Commercial Mortgage Pass-Through Class B-2 37,226,863
Certificates, Series 1998-D6 Class B-3 37,226,863
Class B-4 65,147,000
Class B-5 18,613,431
Class B-6 27,920,147
2. CRIIMI Mae Trust I, Commercial Class C $22,000,000
Mortgage Bonds, Series 1996-C1 Class D 73,000,000
Class E 100,000,000
3. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Class F $62,607,000
Inc., Mortgage Pass-Through Class G 39,841,000
Certificates, Series 1996-C2 Class H 34,147,859
4. First Union-▇▇▇▇▇▇ Brothers Class H $16,527,208
Commercial Mortgage Trust, Class J 44,070,046
Commercial Mortgage Pass-Through Class K 22,035,023
Certificates, Series 1997-C2 Class L 27,543,779
Class M 16,526,269
5. Asset Securitization Corporation, Class A-CS2(IO)(B) N/A
Commercial Mortgage Pass-Through Class B-1 $38,687,431
Certificates, Series 1995-MD IV Class B-2 67,703,006
Class A-CS3(IO) N/A
6. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Class E $48,541,000
Inc., Mortgage Pass-Through Class F 32,361,000
Certificates, Series 1996-C1 Class G 19,417,459
7. Asset Securitization Corporation, Class B-1 $43,042,284
Commercial Mortgage Pass-Through Class B-2 27,390,544
Certificates, Series 1996-D3 Class B-3 7,825,869
Class B-4 15,650,746
8. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., Class G $38,286,000
Commercial Mortgage Pass-Through Class H(C) 7,830,750
Certificates, Series 1998-WF1 Class J(D) 20,833,750
Class K(E) 7,830,000
Class L(F) 18,273,257
9. Commercial Mortgage Acceptance Class F2 $40,909,000
Corp., Commercial Mortgage Class G 50,909,929
Pass-Through Certificates,
Series 1997-ML1
Pledged
Securitization Pledged Security
Securities Principal
Balance*
10. First Union-▇▇▇▇▇▇ Brothers Class F(G) $10,800,000
Commercial Mortgage Trust, Class G 13,054,813
Commercial Mortgage Pass-Through Class H 26,108,964
Certificates, Series 1997-C1 Class J 13,054,483
Class K 26,108,964
11. ▇.▇. ▇▇▇▇▇▇ Commercial Mortgage Class F $39,820,000
Finance Corp., Mortgage Pass-Through Class G 19,910,000
Certificates, Series 1998-C6 Class H 5,973,000
Class NR(H) 12,400,000
12. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Class F(I) $25,727,970
Inc., Mortgage Pass-Through Class G 8,408,000
Certificates, Series 1997-C1 Class H 16,816,000
Class J 21,019,856
13. DLJ Mortgage Acceptance Corp., Class B-3 $30,600,000
Commercial Mortgage Pass-Through Class B-4 17,800,000
Certificates, Series 1996-CF2 Class C(J) 16,890,000
14. Mortgage Capital Funding, Inc., Class G $8,705,772
Multifamily/Commercial Mortgage Class H 19,587,989
Pass-Through Certificates, Class J 10,882,216
Series 1997-MC2 Class K 17,411,549
15. LB Commercial Conduit Mortgage Class F $21,846,137
Trust II, Multiclass Pass-Through Class G 13,902,087
Certificates, Series 1996-C2 Class H 5,958,037
Class J 9,930,062
16. Mortgage Capital Funding, Inc., Class F(K) $10,000,000
Multifamily/Commercial Mortgage Class G 6,585,416
Pass-Through Certificates, Series Class H 13,170,833
1997-MC1 Class J 9,878,125
Class K 6,585,420
17. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Class F(L) $3,437,250
Inc., Mortgage Pass-Through Class G 6,863,000
Certificates, Series 1997-C2 Class H 12,011,000
Class J 6,864,000
Class K 13,726,931
18. DLJ Mortgage Acceptance Corp., Class B-4 $19,900,000
Commercial Mortgage Pass-Through Class B-5 3,300,000
Certificates, Series 1997-CF2 Class C(M) 15,941,168
Pledged
Securitization Pledged Security
Securities Principal
Balance*
19. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., Class F(N) $8,450,000
Commercial Mortgage Pass-Through Class G(O) 3,916,000
Certificates, Series 1997-WF1 Class H(P) 5,872,000
Class J(Q) 5,871,000
Class K(R) 3,916,971
20. ▇▇▇▇▇▇ Pass-Through Securities Class 1 $3,247,664
Inc., Trust Certificates,
Series 1994-A
* The aggregate Security Principal Balances of the respective Pledged
Securities were, in each case, calculated immediately following the
Distribution Date with respect thereto in March 1998.
(A) The NASC-98-D6 Class B-1 Pledged Certificate constitutes only
approximately 44.2% of the aggregate Certificate Principal Balance of
all the NASC-98-D6 Class B-1 Certificates.
(B) The ASC 95-MDIV Class A-CS2(IO) Pledged Security constitutes only
approximately 7.08% of the aggregate Certificate Notional Amount of all
the ASC 95-MDIV Class A-CS2(IO) Certificates.
(C) The MSCI 98-WF1 Class H Pledged Security constitutes approximately 75%
of the aggregate Certificate Principal Balance of all the MSCI 98-WF1
Class H Certificates.
(D) The MSCI 98-WF1 Class J Pledged Security constitutes approximately 75%
of the aggregate Certificate Principal Balance of all the MSCI 98-WF1
Class J Certificates.
(E) The MSCI 98-WF1 Class K Pledged Security constitutes approximately 75%
of the aggregate Certificate Principal Balance of all the MSCI 98-WF1
Class K Certificates.
(F) The MSCI 98-WF1 Class L Pledged Security constitutes approximately 75%
of the aggregate Certificate Principal Balance of all the MSCI 98-WF1
Class L Certificates.
(G) The FULBCMT 97-C1 Class F Pledged Security constitutes only
approximately 15% of the aggregate Certificate Principal Balance of all
the FULBCMT 97-C1 Class F Certificates.
(H) The JPMCMFC 98-C6 Class NR Pledged Security constitutes approximately
88.9% of the aggregate Certificate Principal Balance of all the JPMCMFC
98-C6 Class NR Certificates.
(I) The MLMI 97-C1 Class F Pledged Security constitutes approximately 51%
of the aggregate Certificate Principal Balance of all the MLMI 97-C1
Class F Certificates.
(J) The DLJMAC 96-CF2 Class C Pledged Security constitutes approximately
95% of the aggregate Certificate Principal Balance of all the DLJMAC
97-CF2 Class C Certificates.
(K) The MCFI 97-MC1 Class F Pledged Security constitutes only approximately
23.5% of the aggregate Certificate Principal Balance of all the MCFI
97-MC1 Class F Certificates.
(L) The MLMI 97-C2 Class F Pledged Security constitutes only approximately
9.11% of the aggregate Certificate Principal Balance of all the MLMI
97-C2 Class F Certificates.
(M) The DLJMAC 97-CF2 Class C Pledged Security constitutes approximately
96.7% of the aggregate Certificate Principal Balance of all the DLJMAC
97-CF2 Class C Certificates.
(N) The MSCI 97-WF1 Class F Pledged Security constitutes only approximately
25.2% of the aggregate Certificate Principal Balance of all the MSCI
97-WF1 Class F Certificates.
(O) The MSCI 97-WF1 Class G Pledged Security constitutes approximately 70%
of the aggregate Certificate Principal Balance of all the MSCI 97-WF1
Class G Certificates.
(P) The MSCI 97-WF1 Class H Pledged Security constitutes approximately 70%
of the aggregate Certificate Principal Balance of all the MSCI 97-WF1
Class H Certificates.
(Q) The MSCI 97-WF1 Class J Pledged Security constitutes approximately 70%
of the aggregate Certificate Principal Balance of all the MSCI 97-WF1
Class J Certificates.
(R) The MSCI 97-WF1 Class K Pledged Security constitutes approximately 70%
of the aggregate Certificate Principal Balance of all the MSCI 97-WF1
Class K Certificates.
EXHIBIT A-1
FORM OF CLASS A OWNER TRUST CERTIFICATE
CRIIMI MAE COMMERCIAL MORTGAGE TRUST
CLASS A OWNER TRUST CERTIFICATE
evidencing a non-assessable, fully paid ___% interest in the Class A Owner Trust
Certificates, which, collectively with the Class B and Class R Owner Trust
Certificates, evidence the entire benefit ownership interest in CRIIMI MAE
Commercial Mortgage Trust, a Delaware business trust whose assets include
various subordinated certificates and bonds (the "Pledged Securities") deposited
by CRIIMI MAE CMBS Corp. (the "Depositor")
Certificate Interest Rate: 7.00% per annum Aggregate Certificate Principal
Balance of the Class A Owner
Trust Certificates as of the
Closing Date: $
-------------
Date of Deposit Trust Percentage Interest in Related
Class Evidenced by this Class A
Owner
Agreement: May 8, 1998 Trust Certificate: _____%
First Payment Date: July 2, 1998 Closing Date: May 8, 1998
Depositor and Initial Holder of the Owner Owner Trustee: Wilmington Trust
Trust Certificates: CRIIMI MAE CMBS Corp. Company
Owner Trust Certificate No. A-___
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 SECURITIES 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 May 8, 1998 (the "Deposit
Trust Agreement"; terms not otherwise defined herein shall have the meanings
assigned to those terms in the Deposit Trust Agreement), between CRIIMI MAE CMBS
Corp., as depositor (in such capacity, the "Depositor") and initial
Certificateholder and 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 _____________________, is the registered owner of the
beneficial interest evidenced by this Owner Trust Certificate in the trust
established pursuant to the Deposit Trust Agreement and designated as CRIIMI MAE
Commercial Mortgage Trust (the "Trust"). The assets of the Trust include various
subordinated pass-through certificates and subordinated bonds (the "Pledged
Securities").
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
Securities or the assets in which the Pledged Securities 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 second business day following the end of each "Collection Period",
which shall be the period commencing immediately following the end of the prior
such period (or, in the case of the initial Collection Period, commencing on and
including June 1, 1998) and ending on and including the next succeeding CMM
96-C1 Payment Date that follows the commencement of such period. The CMM 96-C1
Payment Date means, 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 on the next
succeeding Business Day (each, a "Payment Date"), commencing July 2, 1998. As
more fully described in the
Deposit Trust Agreement, distributions allocable to interest on the Class A
Certificates will be made on each Payment Date up to the Accrued Certificate
Interest in respect of the Class A 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 A Certificates will be limited to the amount available for such
purpose in the Certificate Account.
Upon the retirement of all of the Bonds, the holders of the Class A
Certificate will receive payments in respect of principal on each Payment Date,
up to (subject to available funds) an amount equal to the Aggregate Certificate
Principal Amount of the Class A 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 Commercial Mortgage Trust, Owner
Trust Certificates, representing a fractional undivided beneficial interest in a
Trust Estate consisting of (a) the Pledged Securities 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 Securities, (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 Security 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" as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or
a "plan" as defined in Section 4975 of the Code that is subject to Section 4975
of the Code or any entity deemed for any purpose of ERISA or Section 4975 of the
Code to hold assets of any such employee benefit plan or plan or any entity
deemed for any purpose of ERISA or Section 4975 of the Code to hold assets of
any such employee benefit plan or plan (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
documents 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 type name(s) and address(es), including
postal zip code of assignees(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 other 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 b 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 R OWNER TRUST CERTIFICATE
CRIIMI MAE COMMERCIAL MORTGAGE TRUST
CLASS R OWNER TRUST CERTIFICATE
evidencing a non-assessable, fully paid ___% interest in the Class B
Owner Trust Certificates, which, collectively with the Class A and
Class R Owner Trust Certificates, evidence the entire beneficial
ownership interest in CRIIMI MAE Commercial Mortgage Trust , a Delaware
business trust whose assets include various subordinated certificates
and bonds (the "Pledged Securities") deposited by CRIIMI MAE CMBS
Corp., Inc. (the "Depositor")
Date of Deposit Trust Percentage Interest in Related Class
Evidenced
Agreement: May 8, 1998 by this Class R Owner Trust
Certificate: ____%
First Payment Date: July 2, 1998
Closing Date: May 8, 1998
Depositor and Initial Holder of
the Owner Trust Certificates: Owner Trustee: Wilmington Trust
CRIIMI MAE CMBS Corp., 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 SECURITIES 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 May 8, 1998 (the "Deposit
Trust Agreement"; terms not otherwise defined herein shall have the meanings
assigned to those terms in the Deposit Trust Agreement), between CRIIMI MAE CMBS
Corp., 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 ___________________________ is the registered owner of
the beneficial interest evidenced by this Owner Trust Certificate in the trust
established pursuant to the Deposit Trust Agreement and designated as CRIIMI MAE
Commercial Mortgage Trust (the "Trust"). The assets of the Trust include various
subordinated pass-through certificates and subordinated bonds (the "Pledged
Securities").
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
Securities or the assets in which the Pledged Securities 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 second business day following the end of each "Collection Period",
which shall be the period commencing immediately following the end of the prior
such period (or, in the case of the initial Collection Period, commencing on and
including June 1, 1998) and ending on and including the next succeeding CMM
96-C1 Payment Date that follows the commencement of such period. The CMM 96-C1
Payment Date means, 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 on the next
succeeding Business Day (each, a "Payment Date"), commencing July 1, 1998. 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 B and Class A
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 Commercial Mortgage Trust, Owner
Trust Certificates, representing a fractional undivided beneficial interest in a
Trust Estate consisting of (a) the Pledged Securities 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 Securities, (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 Security 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" as defined in Section 3(3) of ERISA that is subject to Title I of ERISA or
a "plan" as defined in Section 4975 of the Code that is subject to Section 4975
of the Code or any entity deemed for any purpose of ERISA or Section 4975 of the
Code to hold assets of any such employee benefit plan or plan (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 of 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 of 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 type 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 to
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