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DEPOSIT TRUST AGREEMENT
dated as of ___________, 199_
between
IMPERIAL CREDIT COMMERCIAL
MORTGAGE ACCEPTANCE CORP.
as Depositor and Initial Holder of the Owner Trust Certificates,
and
________________________________
as Owner Trustee
ICCMAC COMMERCIAL TRUST [______]
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT
ARTICLE I
DEFINITIONS
Accrued Bond Interest..........................................................
Accrued Certificate Interest...................................................
Administration Agreement.......................................................
Administration Fee.............................................................
Administrative Expenses........................................................
Administrator..................................................................
Affiliate......................................................................
Agent..........................................................................
Aggregate Certificate Principal Balance........................................
Aggregate Stated Principal Balance.............................................
Assignment of Leases...........................................................
Available Funds................................................................
[Bank].........................................................................
Bond Account...................................................................
Bond Register..................................................................
Bondholder.....................................................................
Bonds..........................................................................
Business Day...................................................................
Business Trust Statute.........................................................
Certificate Account............................................................
Certificate of Trust...........................................................
Certificate Register...........................................................
Certificate Registrar..........................................................
Certificateholder or Holder....................................................
Certificateholder Funds........................................................
Class..........................................................................
Class A-1 Bonds................................................................
Class A-2 Bonds................................................................
Class B Bonds..................................................................
Class C Bonds..................................................................
Class D Bonds..................................................................
Class E Bonds..................................................................
Class F Bonds..................................................................
Class [P] Certificate..........................................................
Class [R] Certificate..........................................................
Class [XS] Certificate.........................................................
Closing Date...................................................................
Code...........................................................................
Collection Account.............................................................
Collection Period..............................................................
Corporate Trust Office.........................................................
Cut-off Date...................................................................
Depositor......................................................................
Deposit Trust Agreement........................................................
Depository.....................................................................
Depository Representation Letter...............................................
Eligible Trustee...............................................................
ERISA..........................................................................
Governmental Authority.........................................................
Indenture......................................................................
Indenture Trustee..............................................................
Indenture Trustee Fee..........................................................
IRS............................................................................
Lien...........................................................................
Mortgage.......................................................................
Mortgage Loan..................................................................
Mortgage Loan Documents........................................................
Mortgage Loan Purchase Agreement...............................................
Mortgage Note..................................................................
Mortgage Loan Seller...........................................................
Mortgaged Property.............................................................
Mortgagor......................................................................
1933 Act.......................................................................
1940 Act.......................................................................
Officers' Certificate..........................................................
Operative Agreements...........................................................
Opinion of Counsel.............................................................
Overcollateralization Amount...................................................
Owner Trust Certificates.......................................................
Owner Trustee..................................................................
Owner Trustee Fee..............................................................
Payment Date...................................................................
Percentage Interest............................................................
Person.........................................................................
QIB............................................................................
QRS............................................................................
Rating Agency..................................................................
Record Date....................................................................
REIT...........................................................................
REO Loan.......................................................................
REO Property...................................................................
Responsible Officer............................................................
Trust..........................................................................
Trust Estate...................................................................
UCC Financing Statement........................................................
Underwriting Agreement.........................................................
Underwriter(s).................................................................
Uniform Commercial Code........................................................
Voting Rights..................................................................
ARTICLE II
AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS;
DECLARATION OF BUSINESS TRUST
SECTION 2.1 Declaration of Business Trust...................................
SECTION 2.2 Transfer of Trust Estate to Owner Trustee.......................
SECTION 2.3 Authority to Execute and Perform Various Documents..............
SECTION 2.4 Execution and Delivery of Owner Trust Certificates..............
SECTION 2.5 Activities of the Trust.........................................
ARTICLE III
ESTABLISHMENT OF CERTIFICATE ACCOUNT
SECTION 3.1 Establishment of Certificate Account;
Deposits in Certificate Account..................... .........
SECTION 3.2 Permitted Withdrawals From the Certificate Account..............
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME FROM THE TRUST ESTATE
SECTION 4.1 Distribution of Payments........................................
SECTION 4.2 Payments........................................................
SECTION 4.3 Statements to Certificateholders................................
SECTION 4.4 Access to Certain Documentation and Information.................
SECTION 4.5 Compliance with Withholding Requirements........................
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
SECTION 5.1 Notice of Certain Events; Action by the Owner Trustee...........
SECTION 5.2 Distribution of Reports.........................................
SECTION 5.3 Action Required Only if Owner Trustee is Indemnified............
SECTION 5.4 No Duties Except as Specified in Deposit Trust Agreement
or Instructions.................................................
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Acceptance of Trust and Duties..................................
SECTION 6.2 Limited Representations or Warranties of the Owner Trustee......
SECTION 6.3 Trust Accounts..................................................
SECTION 6.4 Reliance; Advice of Counsel.....................................
SECTION 6.5 Not Acting in Individual Capacity...............................
SECTION 6.6 Books and Records; Tax Election.................................
ARTICLE VII
COMPENSATION, REIMBURSEMENT AND INDEMNIFICATION OF THE OWNER TRUSTEE
SECTION 7.1 Compensation of the Owner Trustee...............................
SECTION 7.2 Reimbursement and Indemnification of the Owner Trustee..........
SECTION 7.3 Not Obligations of the Trust....................................
ARTICLE VIII
TERMINATION OF DEPOSIT TRUST AGREEMENT
SECTION 8.1 Termination.....................................................
SECTION 8.2 Further Assurances by the Owner Trustee upon Termination........
SECTION 8.3 Insolvency of a Certificateholder...............................
ARTICLE IX
SUCCESSOR OWNER TRUSTEES, CO-OWNER TRUSTEES AND SEPARATE OWNER TRUSTEES
SECTION 9.1 Resignation of the Owner Trustee; Appointment of Successor......
SECTION 9.2 Co-Trustees and Separate Trustees...............................
SECTION 9.3 Notice 34
ARTICLE X
SUPPLEMENTS AND AMENDMENTS
SECTION 10.1 Supplements and Amendments.....................................
SECTION 10.2 Limitation on Amendments.......................................
SECTION 10.3 Additional Amendment Provisions................................
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEPOSITOR
SECTION 11.1 Representations and Warranties of the Depositor................
SECTION 11.2 Accrued Interest, Etc..........................................
SECTION 11.3 Additional Covenants of the Depositor..........................
ARTICLE XII
TRANSFER OF INTEREST OF THE DEPOSITOR
SECTION 12.1 Registration of Transfer and Exchange of Owner Trust
Certificates...................................................
SECTION 12.2 Mutilated, Destroyed, Lost or Stolen Owner Trust
Certificates...................................................
SECTION 12.3 Persons Deemed Owners..........................................
SECTION 12.4 Access to Names and Addresses..................................
SECTION 12.5 Actions of Certificateholders..................................
SECTION 12.6 Transferee's Agreement.........................................
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 No Legal Title to Trust Estate in the Certificateholder........
SECTION 13.2 Action by the Owner Trustee is Binding.........................
SECTION 13.3 Limitation on Rights of Others.................................
SECTION 13.4 Notices........................................................
SECTION 13.5 Severability...................................................
SECTION 13.6 Limitation on the Depositor's and the Certificateholders'
Respective Liability...........................................
SECTION 13.7 Separate Counterparts..........................................
SECTION 13.8 Successors and Assigns.........................................
SECTION 13.9 Headings.......................................................
SECTION 13.10 Governing Law.................................................
SECTION 13.11 Administration of Trust.......................................
SECTION 13.12 Performance by the Depositor or the Administrator.............
SECTION 13.13 Conflict with Indenture and Servicing and
Administration Agreement......................................
SECTION 13.14 No Implied Waiver.............................................
SECTION 13.15 Third Party Beneficiary.......................................
SECTION 13.16 References....................................................
SECTION 13.17 Streit Act....................................................
Schedule I - Mortgage Loan Schedule
Exhibit A-1 - Form of Class [P] Certificate
Exhibit A-2 - Form of Class [XS] Certificate
Exhibit A-3 - Form of Class [R] Certificate
DEPOSIT TRUST AGREEMENT
DEPOSIT TRUST AGREEMENT, dated as of ________________, 199_, between
IMPERIAL CREDIT COMMERCIAL MORTGAGE ACCEPTANCE CORP., a California corporation,
as Depositor and initial holder of the Owner Trust Certificates, and
_________________________________________, a ____________________, as Owner
Trustee.
PRELIMINARY STATEMENT
The Depositor (as defined herein) desires to form the trust to be created
hereby (the "Trust") for the purpose of (i) accepting from the Depositor, and
holding for the benefit of the Holders (as defined herein) of the Owner Trust
Certificates (as defined herein), the Trust Estate (as defined herein), (ii)
issuing pursuant to the Indenture nonrecourse Collateralized Mortgage Bonds,
Series 199_-__ (the "Bonds"), in [seven] classes designated as the "Class A-1
Bonds", the "Class A-2 Bonds", the "Class B Bonds", the "Class C Bonds", the
"Class D Bonds", the "Class E Bonds" and the "Class F Bonds", respectively, and
secured by, among other things, a lien on the Mortgage Loans (as defined
herein), and distributing to the Depositor the Bonds or the proceeds from the
sale thereof, (iii) issuing Owner Trust Certificates in three classes designated
as the "Class [P] Certificates", the "Class [XS] Certificates" and the "Class
[R] Certificates", respectively, collectively evidencing the entire beneficial
ownership interest in the Trust, (iv) consummating certain transactions
contemplated by, and performing its obligations under, the Operative Agreements,
and (v) engaging in certain activities incidental to the foregoing.
_________________________, a ________________________________, is willing
to act as trustee hereunder (in its individual capacity, the "[Bank]", and
solely in its capacity as owner trustee hereunder, with its successors in
interest in such capacity and its permitted assigns, the "Owner Trustee") and to
accept the trust created hereby.
In consideration of the premises and of the mutual agreements herein
contained and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used herein and not otherwise defined, unless the
context otherwise requires, shall have the meanings set forth below or, if not
defined below, in the Indenture. (In the event that a capitalized term used
herein is defined both in this Deposit Trust Agreement and in the Indenture, the
definition appearing herein shall control.)
"Accrued Bond Interest" shall mean interest accrued and payable on the
Bonds from time to time in accordance with the terms of the Indenture.
"Accrued Certificate Interest" shall mean: with respect to the Class [P]
Certificates for any Payment Date, one month's interest (calculated on the basis
of a 360-day year consisting of twelve 30-day months) at _____% per annum on the
Aggregate Certificate Principal Balance of the Class [P] Certificates
immediately prior to the related Payment Date; and with respect to the Class
[XS] Certificates for any Payment Date, the excess, if any, of (a) the aggregate
of all payments received on the Mortgage Loans during the related Collection
Period that are allocable to interest thereon, over (b) the aggregate of (i) all
Accrued Bond Interest payable on the Bonds and all Accrued Certificate Interest
payable on the Class [P] Certificates on such Payment Date and (ii) any unpaid
Administrative Expenses due as of such Payment Date.
"Administration Agreement" shall mean the administration agreement, dated
as of _________________, 199_, between the Owner Trustee (on behalf of the
Trust) and the Administrator, pursuant to which the Administrator is required to
perform various obligations of the Trust under the Indenture.
"Administration Fee" shall mean the monthly fee payable to the
Administrator as provided in the Administration Agreement.
"Administrative Expenses" shall mean the Indenture Trustee Fee, the Owner
Trustee Fee and the Administration Fee and the ongoing fees of the Rating
Agencies payable under the Indenture.
"Administrator" shall mean the Person acting as the "Administrator" from
time to time under the Administration Agreement, which initially shall be
___________________.
"Affiliate" shall mean, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the meaning of "control".
"Agent" shall mean any agent or attorney of the Owner Trustee appointed by
the Owner Trustee to execute one or more of the trusts or powers hereunder.
"Aggregate Certificate Principal Balance" shall mean, with respect to the
Class [P] Certificates, as of any date of determination, the then aggregate
principal balance of all Class [P] Certificates. The initial Aggregate
Certificate Principal Balance of the Class [P] Certificates shall be
$_______________. The Aggregate Certificate Principal Balance of the Class [P]
Certificates shall be reduced on each Payment Date by the amount of any payments
of principal made thereon on such date pursuant to Section 4.2, and shall be
further reduced on each Payment Date by the amount, if any, that the Aggregate
Certificate Principal Balance of the Class [P] Certificates immediately
following the payments of principal to be made on such Owner Trust Certificates
on such Payment Date, exceeds the Overcollateralization Amount that will be
outstanding immediately following such Payment Date.
"Aggregate Stated Principal Balance" shall mean as of any date of
determination, the then aggregate scheduled unpaid principal balance of all the
Mortgage Loans (and any successor REO Loans), calculated as set forth in the
Servicing Agreement.
"Assignment of Leases" shall mean with respect to any Mortgaged Property,
any assignment of leases, rents and profits or similar document executed by the
Mortgagor in connection with the origination of the related Mortgage Loan.
"Available Funds" shall have the meaning assigned to such term in the
Indenture.
"[Bank]" shall have the meaning assigned to that term in the preliminary
statement above.
"Bond Account" shall mean the segregated trust account established in the
name of the Indenture Trustee pursuant to Section 8.02 of the Indenture.
"Bond Register" shall mean the register of Bonds maintained pursuant to the
Indenture.
"Bondholder" shall mean those Persons holding the Bonds from time to time
as shown on the Bond Register maintained under the Indenture.
"Bonds" shall have the meaning assigned to that term in the preliminary
statement above.
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which banking institutions in New York, New York, _____________,
_______________ or any other city specified in the definition of Business Day in
the Indenture, are authorized or obligated by law or executive order to be
closed.
"Business Trust Statute" shall have the meaning assigned to that term in
Section 2.1.
"Certificate Account" shall mean the segregated trust account established
in the name of the Owner Trustee pursuant to Section 3.1 of this Deposit Trust
Agreement.
"Certificate of Trust" shall have the meaning assigned to that term in
Section 2.1.
"Certificate Register" and "Certificate Registrar" shall mean the register
of Owner Trust Certificates maintained, and the registrar appointed,
respectively, pursuant to Section 12.1.
"Certificateholder" or "Holder" shall mean, with respect to any Owner Trust
Certificate, the Person in whose name such Owner Trust Certificate is registered
on the Certificate Register. Initially, the Depositor shall be the sole Holder
of all the Owner Trust Certificates.
"Certificateholder Funds" shall mean, with respect to any Payment Date, an
amount equal to all amounts on deposit in the Certificate Account as of the
commencement of business on such Payment Date, net of (i) any amounts payable or
reimbursable to the Owner Trustee from the Certificate Account pursuant to
Sections 7.2 hereunder and (ii) any amounts deposited in the Certificate Account
in error.
"Class" shall mean all of the Owner Trust Certificates or Bonds, as the
case may be, having the same alphabetical and/or numerical class designation.
"Class A-1 Bonds" shall mean the Bonds so designated under the Indenture
and issued pursuant thereto.
"Class A-2 Bonds" shall mean the Bonds so designated under the Indenture
and issued pursuant thereto.
"Class B Bonds" shall mean the Bonds so designated under the Indenture and
issued pursuant thereto.
"Class C Bonds" shall mean the Bonds so designated under the Indenture and
issued pursuant thereto.
"Class D Bonds" shall mean the Bonds so designated under the Indenture and
issued pursuant thereto.
"Class E Bonds" shall mean the Bonds so designated under the Indenture and
issued pursuant thereto.
"Class F Bonds" shall mean the Bonds so designated under the Indenture and
issued pursuant thereto.
"Class [P] Certificate" shall mean any of the Owner Trust Certificates with
a "Class [P]" designation on the face thereof, executed by the Owner Trustee and
authenticated by the Certificate Registrar, substantially in the form of Exhibit
A-1 attached hereto.
"Class [R] Certificate" shall mean any of the Owner Trust Certificates with
a "Class [R]" designation on the face thereof, executed by the Owner Trustee and
authenticated by the Certificate Registrar, substantially in the form of Exhibit
A-3 attached hereto.
"Class [XS] Certificate" shall mean any of the Owner Trust Certificates
with a "Class [XS]" designation on the face thereof, executed by the Owner
Trustee and authenticated by the Certificate Registrar, substantially in the
form of Exhibit A-2 attached hereto.
"Closing Date" shall mean ___________________, 199_.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Collection Account" shall have the meaning assigned to such term in the
Servicing Agreement.
"Collection Period" shall mean, with respect to any Payment Date, the
period commencing on and including the prior Payment Date (or, in the case of
the initial Payment Date, commencing on and including _________________, 199_)
and ending on the day prior to the related Payment Date.
"Corporate Trust Office" shall mean the principal corporate trust office of
the Owner Trustee at which, at any particular time, its corporate trust business
is administered, which office at the date hereof is located at the address of
the Owner Trustee set forth in Section 13.4.
"Cut-off Date" shall mean ______________, 199_.
"Depositor" shall mean Imperial Credit Commercial Mortgage Acceptance
Corp., a California corporation, and its successors in interest.
"Deposit Trust Agreement" shall mean this Deposit Trust Agreement, as the
same may be amended or supplemented from time to time.
"Depository" shall have the meaning assigned thereto in the Indenture.
"Depository Representation Letter" shall mean the Letter of Representations
dated ______________, 199_ among the Trust, the Indenture Trustee and initial
Depository in connection with the issuance of the [Class A-1, Class A-2, Class
B, Class C and Class D Bonds].
"Eligible Trustee" shall mean a bank (within the meaning of Section 2(a)(5)
of the 1940 Act) that meets the requirements of Section 26(a)(1) of the 1940
Act, that is not an Affiliate of the Depositor or an Affiliate of any Person
involved in the organization or operation of the Depositor, that is organized
and doing business under the laws of any state or the United States of America,
that is authorized under such laws to exercise corporate trust powers and to
accept the trust conferred under this Deposit Trust Agreement, that has a
combined capital and surplus and undivided profits of at least [$100,000,000]
and that is subject to supervision or examination by federal or state authority.
If such bank publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this definition the combined capital, surplus and undivided
profits of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
"Governmental Authority" shall mean any government, or any commission,
authority, board, agency, division, subdivision or any court or tribunal of the
government, of the United States of America or of any state, territory, city,
municipality, county or town thereof or of the District of Columbia, or of any
foreign jurisdiction, including the employees or agents thereof.
"Indenture" shall mean the Indenture, dated as of ___________, 199__,
between the Owner Trustee (on behalf of the Trust and the Indenture Trustee.
"Indenture Trustee" shall mean _________________________________, in its
capacity as trustee under the Indenture, or its successor in interest, or any
successor trustee appointed as provided in the Indenture.
"Indenture Trustee Fee" shall mean the monthly fee payable to the Indenture
Trustee as provided in the Indenture.
"IRS" shall mean the Internal Revenue Service.
"Lien" shall mean any lien, pledge, encumbrance or security interest on or
in any particular asset or property.
"Mortgage" shall mean a mortgage, deed of trust, deed to secure debt or
similar document that secures a Mortgage Note and creates a Lien on a Mortgaged
Property.
"Mortgage Loan" shall mean each of the mortgage loans listed on the
Mortgage Loan Schedule attached hereto as Schedule I and from time to time held
in the Trust Estate. The term "Mortgage Loan" shall include the related Mortgage
Loan Documents.
"Mortgage Loan Documents" shall mean with respect to any Mortgage Loan, the
following documents:
(i) the original executed Mortgage Note, endorsed "Pay to the order of
______________, as trustee under the Indenture, dated as of _____,
199_, for the registered holders of ICCMAC Commercial Trust [______],
Collateralized Mortgage Bonds, Series 199__-___, without recourse";
(ii) an original or copy of the Mortgage and of any intervening assignments
thereof that precede the assignment referred to in clause (iv) of this
definition, in each case (unless such document has not yet been
returned from the applicable recording office) with evidence of
recording indicated thereon;
(iii) an original or copy of any related Assignment of Leases (if such item
is a document separate from the Mortgage) and of any intervening
assignments thereof that precede the assignment referred to in clause
(v) of this definition, in each case (unless such document has not yet
been returned from the applicable recording office) with evidence of
recording indicated thereon;
(iv) an original executed assignment of the Mortgage, in favor of ________,
as trustee under the Indenture, dated as of _____, 199_, for the
registered holders of ICCMAC Commercial Trust [______], Collateralized
Mortgage Bonds, Series 199__-___, in recordable form;
(v) an original assignment of any related Assignment of Leases (if such
item is a document separate from the Mortgage), in favor of
_____________, as trustee under the Indenture, dated as of ____, 199_,
for the registered holders of ICCMAC Commercial Trust [______],
Collateralized Mortgage Bonds, Series 199__-___, in recordable form;
(vi) originals or copies of any written modification agreements in those
instances where the terms or provisions of the Mortgage or Mortgage
Note have been modified;
(vii) the original or a copy of the policy or certificate of lender's title
insurance issued on the date of the origination of such Mortgage Loan,
or, if such policy has not been issued, an irrevocable, binding
commitment to issue such title insurance policy; and
(viii) filed copies of any prior UCC Financing Statements in favor of the
originator of such Mortgage Loan or in favor of any assignee prior to
the Trustee (but only to the extent the Mortgage Loan Seller had
possession of such UCC Financing Statements prior to the Closing Date)
and, if there is an effective UCC Financing Statement in favor of the
Mortgage Loan Seller on record with the applicable public office for
UCC Financing Statements, an original UCC-2 or UCC-3, as appropriate,
in favor of _______________, as trustee under the Indenture, dated as
of ____, 199_, for the registered holders of ICCMAC Commercial Trust
[______], Collateralized Mortgage Bonds, Series 199__-___;
"Mortgage Loan Purchase Agreement" shall mean that certain Mortgage Loan
Purchase and Sale Agreement, dated as of _____, 199_, between the Depositor and
the Mortgage Loan Seller, pursuant to which the Depositor acquired the Mortgage
Loans.
"Mortgage Note" shall mean the original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Loan Seller" shall mean ________________________ or its successor
in interest.
"Mortgaged Property" shall mean a property subject to the Lien of a
Mortgage.
"Mortgagor" shall mean the obligor or obligors on a Mortgage Note,
including without limitation, any Person that has acquired the related Mortgaged
Property and assumed the obligations of the original obligor under the Mortgage
Note.
"1933 Act" shall mean the Securities Act of 1933, as amended.
"1940 Act" shall mean the Investment Company Act of 1940, as amended.
"Officers' Certificate" shall mean a certificate signed on behalf of the
applicable entity by two officers, one of whom shall be any of the Chairman of
the Board, the Vice Chairman of the Board, the President, any Vice President or
Managing Director, an Assistant Vice President or any other authorized officer
(however denominated) and the other of whom shall be any of the Treasurer, the
Secretary, one of the Assistant Treasurers or Assistant Secretaries, or, in
either case, another officer customarily performing functions similar to those
performed by any of the above designated officers or, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
"Operative Agreements" shall mean, collectively, this Deposit Trust
Agreement, the Owner Trust Certificates, the Indenture, the Bonds, the
Administration Agreement, the Servicing Agreement, the Mortgage Loan Purchase
Agreement, the Mortgage Loans and the Depository Representation Letter, as each
of them may, from time to time, be amended or supplemented.
"Opinion of Counsel" shall mean a written opinion of counsel, who may,
without limitation, but subject to the requirements of the Indenture, be
employees or other counsel for the Depositor which are reasonably acceptable to
the Owner Trustee. The cost of such opinion shall be born by the Depositor.
"Overcollateralization Amount" shall mean, as of any date of determination,
the amount, if any, by which the then Aggregate Stated Principal Balance exceeds
the then aggregate principal amount of all the Bonds.
"Owner Trust Certificates" shall mean the Class [P], Class [XS] and Class
[R] Certificates issued hereunder.
"Owner Trustee" shall have the meaning assigned to that term in the
preliminary statement above.
"Owner Trustee Fee" shall be an amount set forth in the Fee Agreement,
dated as of _______________, 199_, between the Bank and the Depositor.
"Payment Date" shall mean the ____ day of each calendar month or, if any
such day is not a Business Day, then the next succeeding Business Day,
commencing in ____________, 199_.
"Percentage Interest" shall mean, with respect to any Owner Trust
Certificate, the percentage interest in the related Class evidenced by such
Owner Trust Certificate as specified on the face thereof.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"QIB" shall mean a qualified institutional buyer within the meaning of Rule
144A under the 1933 Act.
"QRS" shall mean a qualified REIT subsidiary within the meaning of Section
856(i) of the Code.
"Rating Agency" shall have the meaning assigned to such term in the
Indenture.
"Record Date" shall mean, with respect to any Class of Owner Trust
Certificates for any Payment Date, the _____ Business Day preceding such Payment
Date.
"REIT" shall mean a real estate investment trust within the meaning of
Section 856(a) of the Code.
"REO Loan" shall mean the mortgage loan deemed to be outstanding with
respect to each REO Property as set forth in the Servicing Agreement.
"REO Property" shall mean a Mortgaged Property acquired pursuant to the
Servicing Agreement on behalf of the Indenture Trustee for the benefit of the
Bondholders and, subject to the Lien of the Indenture, the Trust, through
foreclosure or acceptance of a deed in lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of Mortgage Loan.
"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.
"Trust" shall mean the trust established under this Deposit Trust
Agreement.
"Trust Estate" shall mean the corpus of the trust created as of the Closing
Date and to be administered hereunder, consisting of: all the estate, right,
title and interest of the Depositor in, to and under (a)(i) the Mortgage Loans
as from time to time are subject to this Deposit Trust Agreement and all
payments thereon and proceeds thereof received or receivable after the Cut-off
Date (other than payments of principal and interest due and payable on the
Mortgage Loans on or prior to the Cut-off Date and any principal prepayment
received on or prior to the Cut-off Date), together with all documents, escrow
payments and reserve funds delivered or caused to be delivered hereunder with
respect to such Mortgage Loan, including, without limitation, the Mortgage Loan
Documents and the Servicing File related to each Mortgage Loan, (ii) any REO
Property acquired in respect of a Mortgage Loan, (iii) such funds or assets as
from time to time deposited in the Collection Account and any other accounts
maintained pursuant to the Servicing Agreement and all reinvestment earnings on
such amounts, and all the Depositor's right, title and interest in and to the
proceeds of any title, hazard or other insurance policies related to the
Mortgage Loans and maintained pursuant to the Mortgage Loan Documents and the
Servicing Agreement, and (iv) the rights of the Depositor under Sections _____
of the Mortgage Loan Purchase Agreement, (b) the Operative Agreements (i) to
which the Depositor is a party or (ii) of which the Depositor is a third party
beneficiary, including the right to receive all income on the Mortgage Loans,
(c) all present and future claims, demands, causes and choses in action in
respect of any or all of the foregoing and (d) all proceeds of every kind and
nature whatsoever in respect thereof, including all proceeds of the conversion,
voluntary or involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, insurance proceeds, condemnation awards, rights to
payment of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of the foregoing.
"UCC Financing Statement" shall mean a financing statement executed and
filed pursuant to the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
"Underwriting Agreement" shall mean the underwriting agreement, dated
_________________, 199_, between the Underwriter(s), as purchaser(s) of the
[Class A-1, Class A- 2, Class B, Class C and Class D Bonds], and the Depositor.
"Underwriter(s)" shall mean [each of _____________________________ and]
___________________________________
"Uniform Commercial Code" shall mean the Uniform Commercial Code as in
effect in any applicable jurisdiction.
"Voting Rights" shall mean that portion of the voting rights of all the
Owner Trust Certificates which is allocated to any particular Owner Trust
Certificate. At all times during the term of this Deposit Trust Agreement, __%
of the Voting Rights shall be allocated to the Holders of the Class [P]
Certificates, _% of the Voting Rights shall be allocated to the Holders of the
Class [XS] Certificates and _% of the Voting Rights shall be allocated to the
Holders of the Class [R] Certificates. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective Owner Trust
Certificates.
ARTICLE II
AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS;
DECLARATION OF BUSINESS TRUST
SECTION 2.1 Declaration of Business Trust. The Trust will be known as
"ICCMAC Commercial Trust [______]," in which name the Owner Trustee may conduct
the affairs of the Trust. The [Bank] is hereby appointed to hold and agrees to
hold the Trust Estate as Owner Trustee in trust upon the terms and conditions
and for the use and benefit of the Certificateholders as herein set forth.
It is the intention of the parties hereto that the trust created by this
Deposit Trust Agreement constitute a business trust under the Business Trust
Statute and that this Deposit Trust Agreement constitute the governing
instrument of such business trust. This Declaration of Business Trust is not
intended to create a partnership or a joint-stock association. As soon as
practicable after the date hereof, the Owner Trustee shall file the Certificate
of Trust required by Section _____ of the Business Trust Statute, in the office
of [applicable office] of the State of ___________ (the "Certificate of Trust").
Effective as of the date hereof, the Owner Trustee shall have all the rights,
powers and duties set forth herein and in the Business Trust Statute with
respect to accomplishing the purposes of the Trust. For purposes of this
Declaration of Business Trust, "Business Trust Statute" means [applicable law]
as the same may be amended from time to time.
SECTION 2.2 Transfer of Trust Estate to Owner Trustee.
(a) Effective as of the date hereof, the Depositor does hereby contribute,
sell, grant, assign, transfer, set-over and otherwise convey to, and deposit
with, the Owner Trustee, and its successors, for the benefit of the Trust, until
this Deposit Trust Agreement terminates pursuant to Section 8.1, the entire
Trust Estate (including, without limitation, each and every item thereof as set
forth in the definition of "Trust Estate"), such conveyance to be made in
exchange for [the Bonds and] the Owner Trust Certificates.
In connection with such transfer and assignment, the Depositor does hereby
deliver or cause to be delivered to, and deposit or cause to be deposited with,
the Owner Trustee (or, at the direction of the Owner Trustee on behalf of the
Trust, to and with the Indenture Trustee on behalf of the Trust pursuant to the
Indenture) each of the following documents or instruments relating to each
Mortgage Loan:
(i) the Mortgage Loan Documents;
(ii) a UCC Financing Statement covering the Trust Estate, executed by the
Depositor as debtor in favor of the Trust as secured party and the
Indenture Trustee as its assignee; and
(iii) all other items relating to the foregoing as may be reasonably
requested by or on behalf of the Owner Trustee or the Indenture
Trustee.
(b) The conveyance of the Mortgage Loans, the related rights and property
and all other assets constituting the Trust Estate by the Depositor as
contemplated hereby is absolute and is intended by the parties to constitute an
absolute contribution and transfer of the Mortgage Loans, such other related
rights and all other assets constituting the Trust Estate by the Depositor to
the Trust. It is, further, not intended that such conveyance be deemed to
constitute a pledge of security for a loan. If, however, such conveyance is
deemed to constitute a pledge of security for a loan, the Depositor intends that
the rights and obligations of the parties to such loan shall be established
pursuant to, and be governed by, the terms of this Deposit Trust Agreement. The
Depositor also intends and agrees that, in such event, (i) this Deposit Trust
Agreement shall constitute a security agreement under applicable law, (ii) the
Depositor shall be deemed to have granted to the Owner Trustee on behalf of the
Trust a first priority security interest in the Depositor's entire right, title
and interest in and to the assets constituting the Trust Estate, (iii) the
possession by the Owner Trustee on behalf of the Trust (or any subsequent
assignee, including, without limitation, the Indenture Trustee) or its agent of
the Mortgage Notes with respect to the Mortgage Loans and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" or possession by a
purchaser or Person designated by such secured party for the purpose of
perfecting such security interest under applicable law, and (iv) notifications
to, and acknowledgments, receipts or confirmations from, Persons holding such
property, shall be deemed to be notifications to, or acknowledgments, receipts
or confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Owner Trustee on behalf of the Trust (or any subsequent
assignee, including, without limitation, the Indenture Trustee) for the purpose
of perfecting such security interest under applicable law. The Depositor shall,
to the extent consistent with this Deposit Trust Agreement, take or cause to be
taken such reasonable actions, including the filing, as a precautionary filing,
UCC Financing Statements on Form UCC-1 in all appropriate locations in the State
of _____________ promptly following the issuance of the Bonds, such that, if
this Deposit Trust Agreement were deemed to create a security interest in the
Mortgage Loans and the other assets of the Trust Estate, such security interest
would be a perfected security interest of first priority under applicable law
and will be maintained as such throughout the term of this Deposit Trust
Agreement.
(c) The Owner Trustee, by its execution and delivery of this Deposit Trust
Agreement, acknowledges the receipt by it of all assets delivered to it and
included in the Trust Estate, in good faith and without notice of any adverse
claim (except to the extent of the Lien thereon contemplated by the Indenture),
and declares that it holds and will hold such assets, and all other assets
hereafter delivered to it that constitute portions of the Trust Estate, in trust
for the exclusive use and benefit of all present and future Certificateholders.
(d) Except as expressly provided in Section 8.1, neither the Depositor nor
any Certificateholder shall have any right to revoke or otherwise terminate the
Trust established hereunder. Except as contemplated by the Indenture and as
provided in Sections 4.2 and 8.1 hereof, the Owner Trustee shall not assign,
sell, dispose of or transfer any interest in (or permit or cause the assignment,
sale, disposition or transfer of any interest in), nor may the Depositor or any
Certificateholder withdraw from the Trust, any Mortgage Loan or other asset
constituting the Trust Estate. Except as contemplated by the Indenture, the
Owner Trustee shall not permit the Mortgage Loans or any other asset
constituting the Trust Estate to be subjected to any lien, claim or encumbrance
arising by, through or under the Owner Trustee or any Person claiming by,
through or under the Owner Trustee.
SECTION 2.3 Authority to Execute and Perform Various Documents. The
Depositor hereby authorizes and directs the Owner Trustee or (in the case of tax
administration matters, its agent) (i) to execute and deliver, as trustee for
and on behalf of the Certificateholders, the Operative Agreements to which the
Trust is a party and all other agreements, documents, instruments and
certificates contemplated to be executed and delivered by the Trust pursuant to
the Operative Agreements and, pursuant to the terms of the Indenture, to
execute, issue and deliver the Bonds to the Indenture Trustee (each such
Operative Agreement and the Bonds to be in the form approved by the Depositor);
(ii) to execute and deliver the Owner Trust Certificates to the Depositor; (iii)
as and to the extent provided in the Indenture, to pledge the Trust Estate as
security for repayment of the Bonds and, in connection therewith, to deliver (or
cause to be delivered) to the Indenture Trustee each of the documents and
instruments contemplated by the Granting Clause of the Indenture; (iv) to take
whatever action shall be required to be taken by the Owner Trustee by the terms
of, and exercise its rights and perform its duties under, each of the documents,
agreements, instruments and certificates referred to in clauses (i) through
(iii) above as set forth in such documents, agreements, instruments and
certificates; and (v) subject to the terms of this Deposit Trust Agreement, to
take such other action in connection with the foregoing as the
Certificateholders may from time to time direct.
SECTION 2.4 Execution and Delivery of Owner Trust Certificates.
(a) The Owner Trustee shall, on the date hereof, execute and cause to be
authenticated and delivered to and upon the order of the Depositor, the Owner
Trust Certificates in authorized denominations evidencing the entire beneficial
ownership of the Trust. The Owner Trust Certificates will consist of [three]
Classes designated as the "Class [P] Certificates", the "Class [XS]
Certificates" and the "Class [R] Certificates". The rights of the respective
Classes of Certificateholders to receive distributions from the proceeds of the
Trust in respect of their Owner Trust Certificates, and all ownership interests
of the respective Classes of Certificateholders in such distributions, shall be
as set forth in this Deposit Trust Agreement.
(b) The Owner Trust Certificates will be substantially in the respective
forms attached hereto as Exhibits A-1 through A-3; provided that any of the
Owner Trust Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Deposit Trust Agreement, as may be required to comply with any law or with rules
or regulations pursuant thereto, or with the rules of any securities market in
which the Owner Trust Certificates are admitted to trading, or to conform to
general usage. The Owner Trust Certificates will be issuable in registered form
only, in minimum denominations representing not less than a ____% Percentage
Interest in the relevant Class.
(c) Each Owner Trust Certificate may be printed or in typewritten or
similar form, and each Owner Trust Certificate shall, upon original issue, be
executed by the Owner Trustee and authenticated by the Certificate Registrar and
delivered to or upon the order of the Depositor. All Owner Trust Certificates
shall be executed by manual or facsimile signature on behalf of the Trust by an
authorized officer of the Owner Trustee, not individually, but solely as Owner
Trustee hereunder. Owner Trust Certificates bearing the signatures of
individuals who were at any time the proper officers of the Owner Trustee shall
bind the Owner Trustee, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the delivery of such Owner Trust
Certificates or did not hold such offices at the date of such Owner Trust
Certificates. No Owner Trust Certificates shall be entitled to any benefit under
this Deposit Trust Agreement, or be valid for any purpose, unless there appears
on such Owner Trust Certificate a certificate of authentication in the form set
forth on the signature page of the form of Owner Trust Certificates attached as
Exhibit A-1 through Exhibit A-3, executed by the Certificate Registrar by manual
signature, and such certificate of authentication upon any Owner Trust
Certificate shall be conclusive evidence, and the only evidence, that such Owner
Trust Certificate has been duly authenticated and delivered hereunder. All Owner
Trust Certificates shall be dated the date of their authentication.
SECTION 2.5 Activities of the Trust. It is the intention of the parties
hereto that the Trust shall not engage in any business or activities other than
in connection with, or relating to, the purposes specified in Section 2.3. The
operations of the Trust will be conducted in accordance with the following
standards (and the Owner Trustee and the Depositor hereby agree to use their
best reasonable efforts to cause the operations of the Trust to be conducted in
accordance herewith):
(i) The Trust will observe all procedures required by this Deposit Trust
Agreement.
(ii) Subject to Sections 5.1 and 5.4, the business and affairs of the Trust
will be managed by or under the direction of the Owner Trustee. Except
as otherwise expressly provided in this Deposit Trust Agreement, the
Depositor will have no authority to act for, or to assume any
obligation or responsibility on behalf of, the Trust.
(iii) The Trust will keep correct and complete books and records of accounts
and minutes of the meetings and other proceedings of its trustees,
separate from those of the Depositor or any subsidiary, affiliate or
separate account of the Depositor. Any such resolutions, agreements
and other instruments will be continuously maintained as official
records by the Trust.
(iv) Each of the Depositor and the Trust will provide for its own operating
expenses and liabilities from its own funds. General overhead and
administrative expenses of the Trust will not be charged or otherwise
allocated to the Depositor (except indirectly, insofar as the
Depositor owns the Owner Trust Certificates) and such expenses of the
Depositor will not be charged or otherwise allocated to the Trust.
(v) The Trust will conduct its business under names or trade names so as
not to mislead others as to the identity of the Trust. Without
limiting the generality of the foregoing, all oral and written
communications, including letters, invoices, contracts, statements,
and applications will be made solely in the name of the Trust if
related to the Trust. The Depositor and the Trust each will have
separate stationery and other business forms.
(vi) There will be no guarantees made by the Trust with respect to
obligations of the Depositor. There will not be any indebtedness
relating to borrowings or loans between the Trust and the Depositor.
(vii) The Trust will act solely in its name and through its or the Owner
Trustee's duly authorized officers or agents in the conduct of its
business. The Trust will not: (a) operate or purport to operate as an
integrated, single economic unit with respect to the Depositor or any
other affiliated or unaffiliated entity; (b) seek or obtain credit or
incur any obligation to any third party based upon the assets of the
Depositor; or (c) induce any such third party to reasonably rely on
the creditworthiness of the Depositor or any other affiliated or
unaffiliated entity.
(viii) The Trust will maintain its principal place of business in the State
of ____________________.
(ix) The Trust and the Depositor shall keep separate their respective funds
and other assets and shall not commingle such funds and other assets
with those of any other Affiliates thereof.
(x) If and to the extent applicable, the Trust shall cause the preparation
of financial statements that are separate from those of the Depositor
and any other Affiliates (although the Trust's financial statements
may be presented as part of the consolidated financial statements of
an Affiliate).
(xi) The Trust will not engage in any transaction with an Affiliate on any
terms other than would be obtained in an arm's-length transaction with
a non-Affiliate.
ARTICLE III
ESTABLISHMENT OF CERTIFICATE ACCOUNT
SECTION 3.1 Establishment of Certificate Account; Deposits in Certificate
Account. The Owner Trustee, for the benefit of the Certificateholders, shall
establish and maintain one or more non-interest bearing trust accounts
(collectively, the "Certificate Account"), entitled "______________________, in
trust for the registered holders of ICCMAC Commercial 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 Section 10.01 of the Indenture; (2) any
payments (if any) received on the Mortgage Loans from time to time after the
Cutoff Date and remitted by the Master Servicer or the Special Servicer to the
Owner Trustee on behalf of the Trust pursuant to Section ___ of the Servicing
Agreement; and (3) any other amounts specifically required to be deposited in
the Certificate Account hereunder. The foregoing requirements for deposit in the
Certificate Account shall be exclusive.
SECTION 3.2 Permitted Withdrawals From the Certificate Account. The Owner
Trustee may from time to time withdraw funds from the Certificate Account for
the following purposes:
(i) to make payments on the Owner Trust Certificates in the amounts and in
the manner provided for in Section 4.2 hereunder;
(ii) to pay itself any unpaid Owner Trustee Fees, but only to the extent of
amounts on deposit in the Certificate Account representing amounts
received in respect of the Mortgage Loans;
(iii) to reimburse or indemnify the Owner Trustee for expenses and other
liabilities incurred by and reimbursable to the Owner Trustee,
pursuant to Section 7.2 hereunder, except as otherwise provided in
such section; and
(iv) to clear and terminate the Certificate Account upon the termination of
this Deposit Trust Agreement.
On each Payment Date, the Owner Trustee shall withdraw all funds from the
Certificate Account and shall use such funds withdrawn from the Certificate
Account only for the purposes described in this Section 3.2 and Section 4.2
hereunder.
ARTICLE IV
RECEIPT, DISTRIBUTION AND APPLICATION OF INCOME
FROM THE TRUST ESTATE
SECTION 4.1 Distribution of Payments.
(a) In the event that, following the [Cut-off Date] and prior to the Lien
on the Trust Estate under the Indenture having been discharged and released, any
payments on account of the Mortgage Loans are received directly (rather than
through the Indenture Trustee) by the Owner Trustee, the Depositor or a
Certificateholder (other than payments described in clause (2) of Section 3.1),
the Person so receiving such payment shall, promptly upon receipt, deliver such
payment over to the Indenture Trustee without deduction, set-off or adjustment
of any kind.
(b) The parties hereto acknowledge that pursuant to the terms of the
Indenture, after payment by the Indenture Trustee of all required payments on
the Bonds on each Payment Date, the remaining Available Funds in the Bond
Account are required to be remitted by the Indenture Trustee to the Trust. The
Owner Trustee may direct the Indenture Trustee to distribute such remaining
Available Funds on any such Payment Date in a manner consistent with Sections
3.2 and 4.2 (as if such remaining Available Funds were on deposit in the
Certificate Account); and, in connection therewith, such remaining Available
Funds shall be deemed to have been deposited in the Certificate Account and
subsequently withdrawn to make such distributions.
SECTION 4.2 Payments.
(a) On each Payment Date (or, if the payments from the Indenture Trustee on
such Payment Date contemplated by Section 4.1(b) shall have been received after
__________ _.m., New York City time on such Payment Date, as soon as practically
possible, but in no event more than one Business Day, following receipt), the
Owner Trustee (or its Agent) shall withdraw from the Certificate Account all
Certificateholder Funds then on deposit therein, and the Owner Trustee (or its
Agent) shall pay such Certificateholder Funds to the respective Classes of
Certificateholders for the following purposes and in the following order, in
each case to the extent of remaining available funds:
(i) to the Holders of the Class [P] Certificates and the Holders of the
Class [XS] Certificates in respect of interest, pro rata based on
entitlement, up to an amount equal to all Accrued Certificate Interest
in respect of each such Class of Owner Trust Certificates for the
related Payment Date and, to the extent not previously paid, for all
prior Payment Dates;
(ii) if all the Bonds have been retired, to the Holders of the Class [P]
Certificates in respect of principal, up to an amount equal to the
Aggregate Certificate Principal Amount of the Class [P] Certificates
immediately prior to such Payment Date; and
(iii) to the Holders of the Class [R] Certificates, in an amount equal to
the remaining portion, if any, of the Certificateholder Funds for such
Payment Date.
Payments made after the Payment Date on which they were scheduled to be made as
permitted by the parenthetical in the first sentence of this Section 4.2(a),
shall be deemed to have been made on such Payment Date.
(b) All payments made with respect to any Class of Owner Trust Certificates
on any Payment Date shall be allocated pro rata among the Certificates of such
Class based upon their respective Percentage Interests. Payments to the
Certificateholders on each Payment Date will be made to the Certificateholders
of record on the related Record Date. Payments to any Certificateholder on any
Payment Date shall be made by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Owner Trustee in writing at least five (5) Business Days prior to
the related Record Date and if such Certificateholder is the registered owner of
Owner Trust Certificates representing at least a ____% Percentage Interest in
any Class thereof, or otherwise by check mailed by first class mail to the
address of such Certificateholder appearing in the Certificate Register. Final
payment on each Owner Trust Certificate will be made in like manner, but only
upon presentment and surrender of such Owner Trust Certificate at the Corporate
Trust Office or such other location specified in the notice to
Certificateholders of such final payment.
(c) Whenever the Owner Trustee expects that the final payment with respect
to the Certificates will be made on the next Payment Date, whether in connection
with the final payment or other liquidation of the last remaining Mortgage Loan
or REO Property or upon a termination of the Trust at the direction of the
Certificateholders in accordance with Section 8.1, the Owner Trustee (or its
Agent) shall mail to each Holder on such date of the Owner Trust Certificates a
notice to the effect that:
(i) the Owner Trustee expects that the final payment with respect to the
Owner Trust Certificates will be made on such Payment Date but only
upon presentation and surrender of the Owner Trust Certificates at the
office of the Owner Trustee therein specified, and
(ii) no interest shall accrue on the Owner Trust Certificates from and
after such Payment Date.
Upon presentation and surrender of the Owner Trust Certificates by the
Certificateholders on the final Payment Date in respect of the Owner Trust
Certificates, the Owner Trustee shall distribute to the Certificateholders the
amounts otherwise distributable on such Payment Date pursuant to Section 4.2(a).
Any funds not distributed on such Payment Date because of the failure of any
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the appropriate non-tendering Certificateholders. If
any Owner Trust Certificate, as to which notice has been given pursuant to this
Section 4.2(c) shall not have been surrendered for cancellation within six (6)
months after the time specified in such notice, the Owner Trustee shall mail a
second notice to the remaining Certificateholders, at their last addresses shown
in the Certificate Register, to surrender their Owner Trust Certificates for
cancellation in order to receive, from such funds held, the final payment with
respect thereto. If within one year after the second notice any Owner Trust
Certificate shall not have been surrendered for cancellation, the Owner Trustee
shall directly or through an agent, take reasonable steps to contact the
remaining Certificateholders concerning surrender of their Certificates. The
costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If within
two years after the second notice any Owner Trust Certificates shall not have
been surrendered for cancellation, the Owner Trustee shall segregate all amounts
distributable to the Holders thereof and shall thereafter hold such amounts
uninvested for the benefit of such Holders. No interest shall accrue or be
payable to any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Owner Trust Certificates for final
payment thereof in accordance with this Section 4.2(c).
SECTION 4.3 Statements to Certificateholders. On each Payment Date, the
Owner Trustee (or its Agent) shall prepare, and shall forward by mail, a
statement to each Certificateholder, to the Depositor and to the Rating Agencies
setting forth:
(i) the amount of the Certificateholder Funds for such Payment Date;
(ii) the aggregate amounts of interest and principal paid to the Holders of
the Class [P] Certificates and to the Holders of the Class [XS]
Certificates on such Payment Date;
(iii) the aggregate amount of any distributions to the Holders of the Class
[R] Certificates on such Payment Date;
(iv) the Aggregate Certificate Principal Balance of the Class [P]
Certificates after giving effect to payments of principal and other
reductions in respect of the Aggregate Certificate Principal Balance
of such Owner Trust Certificates (all in accordance with the
definition of "Aggregate Certificate Principal Balance") on such
Payment Date; and
(v) the amount of the Owner Trustee Fees received by the Owner Trustee
following the preceding Payment Date and any unpaid Owner Trustee Fees
then due and owing to the Owner Trustee.
In addition, the Owner Trustee promptly (and, in any event, within five (5)
Business Days of receipt) will furnish to Certificateholders and the Depositor
copies of any notices, statements, reports or other communications received by
the Owner Trustee on behalf of the Trust as issuer of the Bonds or as owner of
the Mortgage Loans, including, without limitation, any such notices, statements,
reports or other communications relating to the Bonds, the Indenture, the
Mortgage Loans, the Servicing Agreement or the other assets of the Trust Estate.
On or before March 31st of each calendar year, beginning with calendar year
199_, the Owner Trustee (or its Agent) shall prepare, or cause to be prepared,
and deliver, or cause to be delivered, by first class mail to each Person who at
any time during the previous calendar year was a Certificateholder of record a
statement containing the information required to be contained in the regular
monthly report to Certificateholders, as set forth in clause (ii) or clause
(iii), as applicable, above aggregated for such calendar year or the applicable
portion thereof during which such Person was a Certificateholder. Such
obligation of the Owner Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the Owner
Trustee pursuant to any requirements of the Code and regulations thereunder as
from time to time are in force.
SECTION 4.4 Access to Certain Documentation and Information. The Owner
Trustee shall provide to the Certificateholders access to [all] reports,
documents and records maintained by the Owner Trustee in respect of its duties
hereunder, such access being afforded without charge but only upon reasonable
written request and during normal business hours at offices designated by the
Owner Trustee.
SECTION 4.5 Compliance with Withholding Requirements. In the event that the
Owner Trustee is required (whether on liquidation of the Trust or otherwise) to
make payments to the Depositor or the Certificateholders, notwithstanding any
other provisions of this Deposit Trust Agreement, the Owner Trustee (or its
Agent) shall comply with all federal withholding requirements with respect to
payments to the Depositor or the Certificateholders that the Owner Trustee
reasonably believes are applicable under the Code. The consent of the Depositor
or the Certificateholders, as the case may be, shall not be required for any
such withholding. The parties hereto understand and agree that the Owner Trustee
shall not be required to increase the amount of any such payments to adjust or
compensate for the amount of such withholding (or any other amounts).
ARTICLE V
DUTIES OF THE OWNER TRUSTEE
SECTION 5.1 Notice of Certain Events; Action by the Owner Trustee.
(a) Whenever the Owner Trustee, on behalf of the Trust as issuer of the
Bonds or as owner of the Mortgage Loans, is requested or, as to any particular
matter, notified of its authority, by any Person, to take any action or to give
any consent, approval or waiver that it is entitled to take or give on behalf of
the Trust in such capacity, the Owner Trustee shall promptly notify all the
Certificateholders of such request or notice in such detail as is available to
it.
(b) Subject to the Owner Trustee's rights in this Deposit Trust Agreement
to be indemnified for its acts and omissions with respect to matters concerning
this Deposit Trust Agreement, the Operative Agreements, the Trust Estate or the
Mortgage Loans, the Owner Trustee shall take or refrain from taking such action
as Certificateholders entitled to a majority of the Voting Rights shall so
direct. The Owner Trustee may, from time to time, request in writing
instructions from the Certificateholders and shall request in writing
instructions from the Certificateholders if the Owner Trustee receives notice
that a default shall have occurred and is continuing under the Administration
Agreement or the Indenture.
(c) Notwithstanding any direction of the Certificateholders to the contrary
or any provision hereof to the contrary, the Owner Trustee shall not, without
the written consent of the Indenture Trustee, execute any direction of the
Certificateholders that might result in the Trust being terminated prior to the
satisfaction and discharge of the Lien of the Indenture on the Trust Estate or
prior to the payment in full of the principal of and accrued interest on the
Bonds.
SECTION 5.2 Distribution of Reports. The Owner Trustee shall promptly (but
not later than five (5) Business Days following receipt thereof) distribute to
the Depositor and the Certificateholders such reports, notices, statements and
written materials which it actually receives as Owner Trustee or otherwise on
behalf of the Trust hereunder or under any of the other Operative Agreements.
SECTION 5.3 Action Required Only if Owner Trustee is Indemnified. The Owner
Trustee shall not be required to take any action under Section 5.1(b) if the
Owner Trustee shall reasonably determine, or shall have been advised in writing
by counsel, that such action is likely to result in personal liability for which
the Owner Trustee has not been and will not be adequately indemnified or is
contrary to the terms hereof or of any Operative Agreement or is otherwise
contrary to applicable law.
SECTION 5.4 No Duties Except as Specified in Deposit Trust Agreement or
Instructions.
(a) The Owner Trustee shall not have any duty or obligation to manage,
control, use, make any payment in respect of, register, record, insure, inspect,
sell, dispose of or otherwise deal with the Mortgage Loans or any other part of
the Trust Estate, or to otherwise take or refrain from taking any action under
or in connection with any Operative Agreement to which the Owner Trustee is a
party, except as expressly provided by the terms of this Deposit Trust Agreement
or any such other Operative Agreement or in written instructions from the
Certificateholders received pursuant to Section 5.1(b); and no implied duties or
obligations shall be read into this Deposit Trust Agreement against the Owner
Trustee, other than the obligation of the Owner Trustee to exercise such of the
rights and powers vested in it by this Deposit Trust Agreement in good faith and
in a manner which is not grossly negligent and which does not constitute willful
misconduct. The [Bank] (and any successor trustee or co-trustee) in its
individual capacity nevertheless agrees that it will, at its own cost and
expense, promptly take all action as may be necessary to discharge any Liens on
the Trust Estate arising by, through or under the Owner Trustee (or such
successor trustee or co-trustee, as the case may be) either (i) when acting in
its individual capacity or (ii) when acting improperly in its capacity as Owner
Trustee.
(b) Without limiting the generality of the foregoing subsection (a), except
as otherwise explicitly provided in this Deposit Trust Agreement or in any other
Operative Agreement to which it is a party, neither the Owner Trustee nor the
[Bank] shall have any duty to (i) file or record any Operative Agreement or any
other document, or to maintain or continue any such filing or recording or to
refile or rerecord any such document, (ii) pay or discharge any tax or any Lien
owing with respect to or assessed or levied against any part of the Trust
Estate, other than to forward notice of such tax or Lien received by the Owner
Trustee to the Certificateholders and the Indenture Trustee, (iii) confirm,
verify, investigate or inquire into the failure of any party to receive any
reports or financial statements in connection with the Mortgage Loans, (iv)
ascertain or inquire as to the performance or observance of any Person under or
of any of the Operative Agreements, or (v) manage, control, sell, dispose of or
otherwise deal with the Mortgage Loans or any part hereof or any other part of
the Trust Estate.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Acceptance of Trust and Duties. The [Bank] accepts the trust
hereby created and agrees to perform the same, but only upon the terms of this
Deposit Trust Agreement in accordance with the standard of care set forth in
Section 5.4(a). The [Bank] agrees to receive, manage and disburse all moneys
constituting part of the Trust Estate actually received by it as Owner Trustee
in accordance with the terms of this Deposit Trust Agreement. Neither the [Bank]
nor the Owner Trustee shall be answerable or accountable under any
circumstances, except for (i) its own willful misconduct or [gross] negligence,
(ii) the inaccuracy of any of its representations or warranties contained in
Section 6.2 of this Deposit Trust Agreement, (iii) its failure to perform
obligations expressly undertaken by it in this Deposit Trust Agreement in
accordance with the standard of care set forth in Section 5.4(a), (iv) taxes
based on or measured by any fees, commissions or compensation received by it for
acting as Owner Trustee in connection with any of the transactions contemplated
by this Deposit Trust Agreement or any other Operative Agreements, (v) its
failure to use due care to receive, manage and disburse moneys actually received
by it in accordance with the terms hereof, and (vi) any other claims, amounts or
taxes otherwise excluded from the Depositor's indemnity obligations pursuant to
Article VII.
SECTION 6.2 Limited Representations or Warranties of the Owner Trustee.
Neither the [Bank] nor the Owner Trustee makes (i) any representation or
warranty, either express or implied, as to the title to or value of the Mortgage
Loans, and (ii) any representation or warranty as to the validity or
enforceability of any Operative Agreement except as set forth below or as to the
accuracy of any statement made by a Person other than the [Bank] or the Owner
Trustee contained in any Operative Agreement. The [Bank] represents, warrants
and covenants to and for the benefit of the Depositor, the Indenture Trustee
(for the benefit of the Bondholders) and the Certificateholders that:
(a) The [Bank] is a banking corporation, duly organized, validly existing
and in good standing under the laws of the state of __________________;
(b) The execution and delivery by the [Bank], and the performance and
compliance by the [Bank] with the terms of, this Deposit Trust Agreement and any
and all documents to be executed or delivered by the [Bank] in its individual
capacity in connection with this Deposit Trust Agreement and to fulfill its
obligations under, and to consummate the transactions contemplated by, this
Deposit Trust Agreement and such other documents executed in connection herewith
to which the [Bank] is a party, will not violate any provisions of the [Bank's]
charter or bylaws, and no consent, approval, authorization or order of or filing
with or notice to any court or governmental agency or body is required for the
execution, delivery or performance by the [Bank] of this Deposit Trust
Agreement;
(c) The [Bank], in its individual capacity, has full power and authority
and has taken all action necessary to execute and deliver this Deposit Trust
Agreement and any and all documents to be executed or delivered by it in its
individual capacity in connection with this Deposit Trust Agreement and to
fulfill its obligations under, and to consummate the transactions contemplated
by, this Deposit Trust Agreement and such other documents executed in connection
herewith to which it is a party, and this Deposit Trust Agreement and such other
documents executed in connection herewith to which it is a party are the legal,
valid and binding obligations of the [Bank], in its individual capacity,
enforceable against the [Bank] in accordance with their respective terms, except
as such terms may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally and by general principles of equity;
(d) The consummation of the transactions hereby contemplated do not
conflict with, violate or contravene any law, rule, regulation or judicial,
governmental or administrative order applicable to the [Bank] or the Owner
Trustee or conflict with, result in a breach of or constitute a default under
any of the terms, conditions or provisions of any agreement or instrument to
which the [Bank] is a party or by which it is bound, or any order or decree
applicable to the [Bank], or result in the creation or imposition of any Lien on
any of the [Bank's] assets or property, which would materially and adversely
affect the ability of the [Bank] or Owner Trustee to carry out the transactions
contemplated by this Deposit Trust Agreement; and
(e) There is no action, suit or proceeding pending against the [Bank], in
its individual capacity or as Owner Trustee, in any court or by or before any
other governmental agency or instrumentality which would materially and
adversely affect the ability of the [Bank], in its individual capacity or as
Owner Trustee, to carry out the transactions contemplated by this Deposit Trust
Agreement.
SECTION 6.3 Trust Accounts. Moneys received by the Owner Trustee hereunder
shall be segregated in a trust account maintained with a federal or state
chartered depository institution or trust company having corporate trust powers
acting in its fiduciary capacity.
SECTION 6.4 Reliance; Advice of Counsel. Neither the [Bank] nor the Owner
Trustee shall incur any liability to any Person in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be genuine and
believed by it in good faith to be signed by the proper party or parties. The
Owner Trustee may accept and rely upon a certified copy of a resolution of the
board of directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the manner of
ascertainment of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on an Officers' Certificate of the relevant
party, as to such fact or matter, and such Officers' Certificate shall
constitute full protection to the Owner Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon. In the administration of
the Trust hereunder, the Owner Trustee may execute any of the trusts or powers
hereof and perform its powers and duties hereunder directly or through Agents
and may consult with counsel, accountants and other skilled Persons to be
selected and employed by it, and the Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
written advice or opinion of counsel, accountant or other skilled Persons, so
long as the Owner Trustee had no actual knowledge that it could not reasonably
rely on such advice or opinion or by any such Persons appointed with due care.
SECTION 6.5 Not Acting in Individual Capacity. All Persons having any claim
against the [Bank] or the Owner Trustee by reason of the transactions
contemplated by the Operative Agreements shall look only to the Trust Estate (or
a part thereof, as the case may be) for payment or satisfaction thereof, except
as specifically provided in this Deposit Trust Agreement and except to the
extent that the [Bank] or the Owner Trustee shall otherwise expressly agree in
any Operative Agreement to which it is a party.
SECTION 6.6 Books and Records; Tax Election. The Owner Trustee shall be
responsible for the keeping of all appropriate books and records relating to the
receipt and disbursement of all moneys that it may receive or be entitled to
hereunder or under any other Operative Agreement. The Owner Trustee (or its
Agent) shall file an application with the IRS for a taxpayer identification
number with respect to the Trust (and, upon receipt of such number, notify the
Indenture Trustee thereof) and prepare or cause to be prepared and sign and/or
file a tax return in connection with the transactions contemplated hereby or by
any other Operative Agreement (the "Tax Return"); provided, however, that the
Owner Trustee shall send or cause to be sent a copy of the completed Tax Return
to the Depositor, the Certificateholders and the Indenture Trustee not more than
60 nor less than 30 days prior to the due date of the Tax Return. The Depositor
and the Certificateholders shall each, upon request by the Owner Trustee (or the
Agent of the Owner Trustee), furnish the Owner Trustee (or the Agent of the
Owner Trustee) with all such information as may be reasonably required from the
Depositor or the Certificateholders in connection with the preparation of such
Tax Return. The Owner Trustee shall keep copies of the Tax Returns delivered to
or filed by it (or the Agent of the Owner Trustee).
ARTICLE VII
COMPENSATION, REIMBURSEMENT AND INDEMNIFICATION
OF THE OWNER TRUSTEE
SECTION 7.1 Compensation of the Owner Trustee. The Owner Trustee shall be
entitled to receive as compensation for its services the amount of $_______ per
annum, such amount to be payable: first, as provided in the Indenture; second,
out of amounts on deposit in the Certificate Account that represent payments
received in respect of the Mortgage Loans; and, third, to the extent not paid
pursuant to either clause first or second of this sentence within 60 days of
first becoming due, by the Certificateholders, on a joint and several basis.
SECTION 7.2 Reimbursement and Indemnification of the Owner Trustee.
(a) The Owner Trustee shall be entitled to be reimbursed for its reasonable
expenses (including reasonable attorneys' fees) incurred in the performance of
its duties as Owner Trustee hereunder, and to be compensated reasonably for any
extraordinary services rendered under Section 5.1(b), except to the extent that
such expenses arise out of or result from (i) the Owner Trustee's own willful
misconduct or [gross] negligence, (ii) the inaccuracy of any of the Owner
Trustee's representations or warranties contained in Section 6.2 of this Deposit
Trust Agreement, (iii) the Owner Trustee's failure to perform obligations
expressly undertaken by it in this Deposit Trust Agreement in accordance with
the standard of care set forth in Section 5.4(a), (iv) taxes based on or
measured by any fees, commissions or compensation received by the Owner Trustee
for acting as such in connection with any of the transactions contemplated by
this Deposit Trust Agreement or any other Operative Agreements, and (v) the
Owner Trustee's failure to use due care to receive, manage and disburse moneys
actually received by it in accordance with the terms hereof.
(b) The Owner Trustee shall be entitled to be indemnified and held harmless
from and against any and all liabilities, obligations, indemnity obligations,
losses (excluding loss of anticipated profits), damages, claims, actions, suits,
judgments, out-of-pocket costs, expenses and disbursements (including legal and
consultants' fees and expenses) of any kind and nature whatsoever (collectively,
the "Liabilities") which may be imposed on, incurred by or asserted at any time
against the Owner Trustee in any way relating to or arising out of the Trust
Estate, any of the properties included therein, the administration of the Trust
Estate or any action or inaction of the Owner Trustee hereunder or under the
Operative Agreements, except to the extent that such Liabilities arise out of or
result from (i) the Owner Trustee's own willful misconduct or [gross
negligence], (ii) the inaccuracy of any of the Owner Trustee's representations
or warranties contained in Section 6.2 of this Deposit Trust Agreement, (iii)
the Owner Trustee's failure to perform obligations expressly undertaken by it in
this Deposit Trust Agreement in accordance with the standard of care set forth
in Section 5.4(a), (iv) taxes based on or measured by any fees, commissions or
compensation received by the Owner Trustee for acting as such in connection with
any of the transactions contemplated by this Deposit Trust Agreement or any
other Operative Agreements, and (v) the Owner Trustee's failure to use due care
to receive, manage and disburse moneys actually received by it in accordance
with the terms hereof. The indemnities contained in this Section 7.2(b) shall
survive the termination of this Deposit Trust Agreement and the removal or
resignation of the Owner Trustee hereunder.
(c) Any reimbursements and indemnities to the Owner Trustee pursuant to
this Section 7.2 shall be payable: first, out of amounts on deposit in the
Certificate Account; and, second, to the extent not paid pursuant to clause
first within 60 days of first being incurred, by the Certificateholders, on a
joint and several basis.
SECTION 7.3 Not Obligations of the Trust. None of the fees, expenses and
other liabilities referred to in Sections 7.1 and 7.2 shall be obligations of
the Trust or otherwise chargeable to the Trust Estate. The Owner Trustee hereby
agrees not to cause or participate in the filing of a petition in bankruptcy
against the Trust for the non-payment to the Owner Trustee of any amounts
provided by this Deposit Trust Agreement until a date that is not less than 91
days after the payment in full of all the Bonds issued under the Indenture.
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 Joseph P. Kennedy, the
late ambassador of the United States to the Court of St. James, living on the
date hereof.
This Deposit Trust Agreement may be terminated by all of the
Certificateholders at any time prior to the issuance of the Bonds and the pledge
of the Trust Estate pursuant to the Indenture, and at any time after the
Indenture is discharged in accordance with Article III thereof, and this Deposit
Trust Agreement shall terminate in connection with the final payment or other
liquidation of the last remaining Mortgage Loan or REO Property. With respect to
any such event, this Deposit Trust Agreement and the estate and rights thereby
granted by the Depositor to the Owner Trustee in the Trust Estate shall cease,
terminate and be void as of the date of the final distribution by the Owner
Trustee of all the assets in the Trust Estate pursuant to this Section 8.1 and
Section 4.2. After payment of all amounts then due and payable to the [Bank]
pursuant to Sections 7.1 and 7.2 hereof, all right, title and interest in the
Trust Estate still held by the Owner Trustee at the time of such termination
shall be transferred, assigned and paid over to the Certificateholders or their
designee.
The Certificateholders hereby irrevocably appoint the Owner Trustee as
their attorney-in-fact for the purposes of the terminating the Trust.
SECTION 8.2 Further Assurances by the Owner Trustee upon Termination. Upon
termination of this Trust, the Owner Trustee shall take such action as may be
requested by the Certificateholders to transfer the remaining assets of the
Trust to the Certificateholders or the Certificateholders' designee, including
the execution of instruments of transfer or assignment with respect to the
Mortgage Loans and any of the Operative Agreements to which the Owner Trustee is
a party.
SECTION 8.3 Insolvency of a Certificateholder. The insolvency or other
similar incapacity of a Certificateholder shall not (i) operate to terminate
this Deposit Trust Agreement, (ii) entitle the Certificateholder's legal
representatives to claim an accounting or to take any action in any court for a
partition or winding up of the Trust Estate or (iii) otherwise affect the
rights, obligations and liabilities of the parties hereto.
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
Administrator, such resignation to be effective on the acceptance of appointment
by a successor Owner Trustee under Section 9.1(b) hereof. The Depositor shall
remove the Owner Trustee by written notice, a copy of which shall be
concurrently delivered by the Depositor to the Certificateholders, the Indenture
Trustee and the Administrator, if the Owner Trustee ceases to be an Eligible
Trustee and fails to resign immediately. The Owner Trustee otherwise may be
removed with or without cause at any time by the Certificateholders with 60
days' prior written notice, a copy of which shall be concurrently delivered by
the Certificateholders to the Depositor, the Indenture Trustee and the
Administrator. Any such removal shall be effective upon the acceptance of
appointment by a successor Owner Trustee under Section 9.1(b) hereof. In the
event of the resignation or removal of the Owner Trustee, the Certificateholders
may appoint a successor Owner Trustee by an instrument signed by the
Certificateholders. If a successor Owner Trustee shall not have been appointed
within 60 days after the giving of written notice of such resignation or the
delivery of the written instrument with respect to such removal, the Owner
Trustee, the Depositor, the Indenture Trustee, the Administrator or the
Certificateholders may apply to any court of competent jurisdiction to appoint a
successor Owner Trustee to act until such time, if any, as a successor shall
have been appointed and shall have accepted its appointment as above provided.
Any successor Owner Trustee so appointed by such court shall immediately and
without further act be superseded by any successor Owner Trustee appointed as
above provided within one year from the date of the appointment by such court.
(b) Any successor Owner Trustee, however appointed, shall execute and
deliver to the predecessor Owner Trustee and the Indenture Trustee an instrument
accepting such appointment and shall furnish a photocopy of such instrument to
the Certificateholders, and thereupon such successor Owner Trustee, without
further act, shall become vested with all the estates, properties, rights,
powers, duties and trusts of the predecessor Owner Trustee herein; but
nevertheless, upon the written request of such successor Owner Trustee such
predecessor Owner Trustee shall execute and deliver an instrument transferring
to such successor Owner Trustee, upon the trusts herein expressed, all the
estates, properties, rights, powers, duties and trusts of such predecessor Owner
Trustee and such predecessor Owner Trustee shall duly assign, transfer, deliver
and pay over to such successor Owner Trustee all moneys or other property then
held by such predecessor Owner Trustee upon the trusts herein expressed.
(c) Any successor Owner Trustee shall be an Eligible Trustee, willing, able
and legally qualified to perform the duties of the Owner Trustee hereunder.
(d) Any corporation into which the Owner Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Owner Trustee shall be a party,
or any corporation to which substantially all the corporate trust business of
the Owner Trustee may be transferred, shall, subject to the terms of Section
9.1(c) hereof, be the Owner Trustee under this Deposit Trust Agreement without
any further act.
SECTION 9.2 Co-Trustees and Separate Trustees. Whenever the Owner Trustee
or the Indenture Trustee shall deem it necessary or prudent in order to conform
to any law of any jurisdiction in which all or any part of the Trust Estate
shall be situated or to make any claim or be a party to any suit with respect to
the Trust Estate, the Owner Trust Certificates, the Bonds or any Operative
Agreement, or the Owner Trustee or the Indenture Trustee shall be advised in
writing by counsel reasonably satisfactory to each of them that it is so
necessary or prudent, the Owner Trustee and the Certificateholders shall execute
and deliver an agreement supplemental hereto and all other instruments and
agreements, and shall take all other action, necessary or proper to constitute
one or more Persons, who need not meet the requirements of Section 9.1(c)
hereof (and the Owner Trustee may appoint one or more of its officers), either
as co-trustees or co-trustees jointly with the Owner Trustee of all or any part
of the Trust Estate, or as separate trustee or separate trustees of all or any
part of the Trust Estate, and to vest in such Persons, in such capacity, such
title to the Trust Estate or any part thereof and such rights or duties as may
be necessary or desirable, all for such period and under such terms and
conditions as are reasonably satisfactory to the Owner Trustee and the
Certificateholders. In case any co-trustee or separate trustee shall die, become
incapable of acting, resign or be removed, the title to the Trust Estate and all
rights and duties of such co-trustee or separate trustee shall, so far as
permitted by law, vest in and be exercised by the Owner Trustee, without the
appointment of a successor to such co-trustee or separate trustee.
SECTION 9.3 Notice. At all times that a successor Owner Trustee is
appointed under Section 9.1 hereof, an Owner Trustee resigns pursuant to such
Section 9.1 or a co-trustee or separate trustee is appointed pursuant to Section
9.2 hereof, the Certificateholders promptly shall give notice of such fact to
the Rating Agencies, if the Indenture has not been discharged.
ARTICLE X
SUPPLEMENTS AND AMENDMENTS
SECTION 10.1 Supplements and Amendments. Subject to Sections 10.2 and 10.3
of this Deposit Trust Agreement, at the written request of the
Certificateholders, this Deposit Trust Agreement shall be amended by a written
instrument signed by the Owner Trustee and the Certificateholders (and, if its
rights hereunder are adversely affected, the Depositor), but if in the opinion
of the Owner Trustee any instrument required to be so executed materially and
adversely affects any right, duty or liability of, or immunity or indemnity in
favor of the [Bank] or the Owner Trustee under this Deposit Trust Agreement or
any of the other Operative Agreements to which the Owner Trustee is a party, or
would cause or result in any conflict with or breach of any terms, conditions or
provisions of, or default under, the [Bank's] charter documents or bylaws or any
document contemplated hereby to which the Owner Trustee is a party, the Owner
Trustee may in its sole discretion decline to execute such instrument, unless it
shall have been provided an indemnity satisfactory to it by the
Certificateholders.
In the event that there is more than one Holder of Owner Trust Certificates
(as set forth in the Certificate Register), the consent to an amendment by
Certificateholders entitled to a majority of the Voting Rights shall be
sufficient to bind all of such Holders; provided, however, that no such
amendment shall: (i) reduce in any manner the amount of, or delay the timing of,
payments required to be made on any Owner Trust Certificate without the consent
of the affected Holder; or (ii) amend this Section 10.1, without the consent of
the Holders of all Owner Trust Certificates then outstanding.
SECTION 10.2 Limitation on Amendments. Notwithstanding Section 10.1 or
Section 10.3 hereof, the Owner Trustee shall not, without the consent of the
Indenture Trustee, amend Section 8.1 of this Deposit Trust Agreement, or execute
any amendment that might result in the Trust being terminated prior to the
satisfaction and discharge of the Lien of the Indenture on the Trust Estate or
otherwise have a material adverse effect on the Bondholders prior to the payment
in full of the principal of and interest on the Bonds. Furthermore,
notwithstanding Section 10.1 or Section 10.3 hereof, the Owner Trustee shall not
execute any amendment without obtaining written confirmation from each Rating
Agency that such amendment will not result in the qualification, downgrade or
withdrawal of any then-current rating on the Bonds.
SECTION 10.3 Additional Amendment Provisions.
(a) It shall not be necessary for the consent of the Certificateholders
under this Article X to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance thereof.
The manner of obtaining such consents and of evidencing the authorization of the
execution thereof shall be subject to such reasonable regulations as the Owner
Trustee may prescribe.
(b) The Owner Trustee, at any time from time to time, without the consent
of the Certificateholders, may amend this Deposit Trust Agreement to modify,
eliminate or add to any of 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 the legal, valid and binding
obligations of the Depositor, enforceable against it in accordance
with their respective terms, except as such terms may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the rights of creditors generally and by general
principles of equity;
(ii) the execution and delivery of this Deposit Trust Agreement and each
other document to be executed or delivered by it in connection with
this Deposit Trust Agreement, and the performance of its obligations
hereunder and thereunder by the Depositor will not violate the
provisions of its certificate of incorporation or bylaws, conflict
with any provision of any law or regulation to which it is subject, or
conflict with, result in a breach of, or constitute a default under
any of the terms, conditions or provisions of, any agreement or
instrument to which the Depositor is a party or by which it is bound,
or any order or decree applicable to the Depositor, or result in the
creation or imposition of any Lien on any of the Depositor's assets or
property, which would materially and adversely affect the ability of
the Depositor to carry out the transactions contemplated by this
Deposit Trust Agreement or such other documents executed in connection
herewith; no consent, approval, authorization or order of or filing
with or notice to any court or governmental agency or body is required
for the execution, delivery and performance by the Depositor of this
Deposit Trust Agreement or such other documents; and
(iii) there is no action, suit or proceeding pending against the Depositor
in any court or by or before any other governmental agency or
instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Depositor or the
Certificateholder to carry out the transactions contemplated by this
Deposit Trust Agreement.
(iv) The Depositor hereby represents and warrants to and for the benefit of
the Owner Trustee and the benefit of the Certificateholders and the
Bondholders, as of the Closing Date, that immediately prior to the
conveyance of the Mortgage Loans to the Owner Trustee on behalf of the
Trust, the Depositor had good and marketable title to, and was the
sole owner and holder of, with full right and authority to sell,
assign and transfer, each Mortgage Loan, free and clear of any pledge,
lien, encumbrance or security interest and such assignment validly
transfers all right, title and interest in the Mortgage Loans to the
Owner Trustee, free and clear of any pledge, lien, encumbrance or
security interest.
(v) The transfer of the Mortgage Loans to the Owner Trustee as
contemplated herein requires no regulatory or governmental approval,
other than any such approvals as have been obtained, and is not
subject to any bulk transfer or similar law in effect in any
applicable jurisdiction.
(b) It is understood and agreed that each of the foregoing representations
and warranties of the Depositor shall survive delivery of the Mortgage Loans to
the Owner Trustee on behalf of the Trust. Upon discovery or receipt of notice by
the Depositor or a Responsible Officer of the Owner Trustee of a breach of any
of the foregoing representations and warranties that materially and adversely
affects the interests of the Indenture Trustee for the benefit of the
Bondholders or the Owner Trustee for the benefit of the Certificateholders in
any Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other party hereto and to the Indenture Trustee.
SECTION 11.2 Accrued Interest, Etc. The Depositor agrees that any income,
interest, fees and other payments that it may receive in respect of the Mortgage
Loans applicable to a period on or after the Cut-off Date shall inure to the
benefit of the Trust, and the Depositor shall pay such amounts to the Owner
Trustee (to be remitted in accordance with Section 4.1) promptly upon receipt.
SECTION 11.3 Additional Covenants of the Depositor. The Depositor hereby
covenants and agrees that:
(a) The business and affairs of the Depositor will be managed by or under
the direction of its board of directors in accordance with its certificate of
incorporation and bylaws. The Depositor will keep correct and complete books and
records of accounts and minutes of the meetings and other proceedings of the
board of trustees. Any such resolutions, agreements and other instruments will
be continuously maintained as official records by the Depositor.
(b) The Depositor will at all times ensure that its capitalization is
adequate in light of its business and purposes. The Depositor will pay from its
own funds and assets (and not the Trust's) all obligations and indebtedness
incurred by it.
(c) The Depositor will not conduct its business in the name of the Trust.
(d) The Depositor will not guarantee any obligations of the Trust
(including the Bonds or the Owner Trust Certificates). The Depositor will not
operate or purport to operate as an integrated, single economic unit with
respect to the Trust or seek or obtain credit or incur any obligation to any
third party based on the assets of the Trust or induce any such third party to
reasonably rely on the creditworthiness of the Trust in connection therewith.
(e) The accounting records of the Depositor will disclose the effect of the
transactions in accordance with statutory accounting practices and relevant
pronouncements.
(f) The Depositor hereby acknowledges, and agrees for the benefit of the
Indenture Trustee, the Bondholders and the Certificateholders to perform, each
obligation imposed upon it under the Indenture.
(g) The Depositor shall not act or fail to act in a manner that would
endanger its status as a QRS.
ARTICLE XII
TRANSFER OF INTEREST OF THE DEPOSITOR
SECTION 12.1 Registration of Transfer and Exchange of Owner Trust
Certificates.
(a) At all times during the term of this Deposit Trust Agreement, there
shall be maintained at the office of a registrar appointed by the Depositor (the
"Certificate Registrar") a register (the "Certificate Register") in which,
subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of Owner
Trust Certificates and of transfers and exchanges of Owner Trust Certificates as
herein provided. The Owner Trustee is hereby initially appointed (and hereby
agrees to act in accordance with the terms hereof) as Certificate Registrar for
the purpose of registering Owner Trust Certificates and transfers and exchanges
of Owner Trust Certificates as herein provided. The Owner Trustee may appoint,
by a written instrument delivered to the Depositor, any other bank or trust
company to act as Certificate Registrar under such conditions as the Owner
Trustee may prescribe, provided that the Owner Trustee shall not be relieved of
any of its duties or responsibilities hereunder as Certificate Registrar by
reason of such appointment. If the Owner Trustee resigns or is removed in
accordance with the terms hereof, the successor trustee shall immediately
succeed to its predecessor's duties as Certificate Registrar. The Depositor, the
Administrator, and the Owner Trustee shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and to
rely conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register.
(b) No sale, transfer or other disposition of any Owner Trust Certificate
may be made, and the Certificate Registrar shall refuse to register any such
transfer, unless the Depositor (or, if the Depositor no longer exists, 100% of
the other Certificateholders) shall consent in writing to such sale, transfer or
other disposition. The Depositor (or any such other Certificateholder(s)) shall
be entitled to request from the parties interested in effecting such sale,
transfer or other disposition, and to rely upon, a certification of facts and/or
an opinion of counsel which establishes to the satisfaction of the Depositor (or
such other Certificateholder(s)) that such sale, transfer or other disposition
is permissible under applicable law and the Operative Agreements.
(c) No transfer, sale, pledge or other disposition of any Owner Trust
Certificate or interest therein shall be made unless that transfer, sale, pledge
or the disposition is exempt from the registration and/or qualification
requirements of the 1933 Act and any applicable state securities laws, or is
otherwise made in accordance with the 1933 Act and such state securities laws.
The Trust has not been registered as an investment company under the 1940 Act,
and no transfer of an Owner Trust Certificate may be made (i) to any Person
other than a QIB or an Affiliate of the Trust or (ii) to any Person that would
require the Trust to be registered as an investment company under the 1940 Act.
No transfer of any Owner Trust Certificate or any interest therein shall be made
(A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Keogh plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Owner Trust
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan.
(d) No sale, transfer or other disposition of any Owner Trust Certificate
may be made, and the Certificate Registrar shall refuse to register any such
transfer, if such sale, transfer or other disposition would result in the Trust
ceasing to be a QRS.
(e) For so long as the Bonds are outstanding and the Lien of the Indenture
has not been satisfied and discharged, no sale, transfer or other disposition of
any Owner Trust Certificate may be made, and the Certificate Registrar shall
refuse to register any such transfer, unless the Owner Trustee shall have
received written confirmation from each Rating Agency to the effect that such
sale, transfer or other disposition will not result in the qualification,
downgrade or withdrawal of any then current rating on the Bonds.
(f) Each Owner Trust Certificate shall bear a legend describing or
referencing the restrictions on transferability set forth in Sections 12.1(b),
(c), (d) and (e).
(g) Subject to compliance with Sections 12.1(b), (c), (d) and (e), upon
surrender for registration of transfer of any Owner Trust Certificate at the
office of the Certificate Registrar or at the office of its Agent in
______________, the 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 ___________. 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 in whose name any Owner Trust Certificate is registered as the
owner of such Owner Trust Certificate for the purpose of receiving distributions
pursuant to Section 4.2 hereof and for all other purposes whatsoever, and
neither the Owner Trustee, the Certificate Registrar, the Indenture Trustee nor
any agent of any of them shall be affected by notice to the contrary.
SECTION 12.4 Access to Names and Addresses.
(a) If any Certificateholder (an "Applicant") applies in writing to the
Owner Trustee, and such application states that the Applicant desires to
communicate with other Certificateholders with respect to their rights under
this Deposit Trust Agreement or the Owner Trust Certificates and is accompanied
by a copy of the communication which such Applicant proposes to transmit, then
the Owner Trustee shall, at the expense of such Applicant, within ten (10)
Business Days after the receipt of such application, furnish or cause to be
furnished to such Applicant a list of the names and addresses of the
Certificateholders as set forth in the Certificate Register.
(b) Every Certificateholder consents to the disclosure to any Applicant of
its identity and status as a Certificateholder and agrees with the Owner Trustee
that the Owner Trustee and the Certificate Registrar shall not be held
accountable in any way by reason of the disclosure of any information as to the
names and addresses of the Certificateholders hereunder, regardless of the
source from which such information was derived.
SECTION 12.5 Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Deposit Trust Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Owner Trustee. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Deposit Trust Agreement and conclusive in favor of the Owner Trustee, if
made in the manner provided in this Section 12.5.
(b) The fact and date of the execution by any Certificateholder of any such
instrument or writing may be proved in any reasonable manner which the Owner
Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other action by a Certificateholder shall bind every transferee of every
Owner Trust Certificate issued upon the registration of transfer of such
Certificateholder's Owner Trust Certificate or in exchange therefor or in lieu
thereof, in respect of anything done, or omitted to be done, by the Owner
Trustee, in reliance thereon, whether or not notation of such action is made
upon such Owner Trust Certificate.
(d) The Owner Trustee may require such additional proof of any matter
referred to in this Section 12.5 as it shall deem necessary.
SECTION 12.6 Transferee's Agreement. No assignment, conveyance or other
transfer pursuant to this Article XII shall be effective unless the transferee
shall have executed and delivered to the Owner Trustee an instrument containing
the transferee's agreement to be bound by the terms of this Deposit Trust
Agreement.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 No Legal Title to Trust Estate in the Certificateholder. The
Certificateholders shall not have legal title to any part of the Trust Estate;
provided, however, that the Certificateholder has a beneficial interest in the
Trust Estate (and initially shall have all right, title and interest in and to
the Owner Trust Certificates). No transfer by operation of law or otherwise of
any right, title or interest of the Certificateholders in and to the Trust
Estate or hereunder shall operate to terminate this Deposit Trust Agreement or
the Trust or the trusts hereunder or entitle any successor or transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Estate.
SECTION 13.2 Action by the Owner Trustee is Binding. Any actions,
directions, approvals or consents by the Owner Trustee so long as such actions,
directions, consents or approvals are made pursuant to the terms of this Deposit
Trust Agreement shall bind the Certificateholders and shall be effective to
consent to action taken by the parties. No such party shall be required to
inquire as to the authorization, necessity, expediency or regularity of such
consent by the Owner Trustee.
SECTION 13.3 Limitation on Rights of Others. Nothing in this Deposit Trust
Agreement, whether express or implied, shall be construed to give to any Person,
other than the [Bank], the Owner Trustee, the Depositor, the Certificateholders
and the Indenture Trustee on behalf of the Bondholders, any legal or equitable
right, remedy or claim under or in respect of this Deposit Trust Agreement.
SECTION 13.4 Notices. All demands, notices and communications hereunder
shall be in writing, may be given by telecopy transmission, shall be deemed to
have been given upon receipt (except that notices being sent by first class
mail, postage prepaid, shall be deemed to be received five business days
following the mailing thereof) as follows:
If to the Owner Trustee, to:
____________________________
____________________________
Attention: _________________
If to the Depositor, to:
IMPERIAL CREDIT COMMERCIAL MORTGAGE
ACCEPTANCE CORP.
____________________________
____________________________
Attention: _________________
with copies to:
____________________________
____________________________
Attention: _________________
If to the Indenture Trustee, as set forth in the Indenture,
If to a Certificateholder, to that Person's name and address as set
forth from time to time in the Certificate Register,
or to such other address as any of them shall specify by written notice to the
other parties.
SECTION 13.5 Severability. To the extent permitted by law, any provision of
this Deposit Trust Agreement that may be determined by competent authority to be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 13.6 Limitation on the Depositor's and the Certificateholders'
Respective Liability. Neither the Depositor nor any Certificateholder shall have
any liability for the performance of this Deposit Trust Agreement except as
expressly set forth herein.
SECTION 13.7 Separate Counterparts. This Deposit Trust Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 13.8 Successors and Assigns. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, the [Bank], the Owner
Trustee and its successors and assigns, the Certificateholders and the Depositor
and its or their respective successors and assigns, all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action by the
Depositor shall bind the successors and assigns of the Depositor and any
request, notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder. It is the intention of the parties hereto that the Trust
constitute a trust formed pursuant to the laws of the State of _______________
with the purpose of facilitating the transactions contemplated by the Operative
Agreements.
SECTION 13.9 Headings. The headings of the various articles and sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 13.10 Governing Law. THIS DEPOSIT TRUST AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF ___________________.
SECTION 13.11 Administration of Trust. The principal place of
administration of the Trust shall be in _____________.
SECTION 13.12 Performance by the Depositor or the Administrator. Any
obligation of the Owner Trustee hereunder or under any Operative Agreement or
other document contemplated herein may be performed by the Depositor or the
Administrator and any such performance shall not be construed as a revocation of
the trusts created hereby.
SECTION 13.13 Conflict with Indenture and Servicing Agreement. If this
Deposit Trust Agreement (or any instructions given by the Depositor or the
Certificateholders pursuant hereto) shall require that any action be taken with
respect to any matter and the Indenture or the Servicing Agreement (or any
instructions duly given in accordance with the terms thereof) shall require that
a different action be taken with respect to such matter, and such actions shall
be mutually exclusive, the provisions of the Indenture or the Servicing
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 Indenture.
SECTION 13.16 References. The definitions in Article I shall apply equally
to both the singular and plural forms of the terms defined. "Include",
"included", "includes" and "including" shall be deemed to be followed by
"without limitation". "Writing", "written" and comparable terms refer to
printing, typing, lithography or other means of reproducing words in a visible
form. Any agreement or instrument or any law, rule or regulation of any
Governmental Authority defined or referred to in Article I means such agreement
or instrument or such law, rule or regulation as from time to time amended,
modified or supplemented in accordance with the terms thereof, including (in the
case of agreements or instruments) by waiver or consent and (in the case of such
law, rule or regulation) by succession of any comparable successor law, rule or
regulation and includes (in the case of agreements or instruments) references to
all attachments thereto and instruments incorporated therein. References to a
Person are also to its successors and permitted assigns. Any term defined above
by reference to any agreement or instrument or any law, rule or regulation of
any Governmental Authority has such meaning whether or not such agreement,
instrument or law, rule or regulation is in effect. "Deposit Trust Agreement",
"hereof", "herein", "hereto", "hereunder" and comparable terms refer to this
Deposit Trust Agreement (including all exhibits and schedules hereto) and not to
any particular article, section, clause or other subdivision hereof or
attachment hereto. References to any gender include, unless the context
otherwise requires, references to all genders, and references to the singular
include, unless the context other requires, references to the plural and vice
versa. References in this Deposit Trust Agreement to "Article", "Section",
"Clause" or another subdivision or to an attachment are, unless the context
otherwise requires, to an article, clause or subdivision of or attachment to
this Deposit Trust Agreement.
[SECTION 13.17 Streit 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.]
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.
CREDIT COMMERCIAL MORTGAGE ACCEPTANCE CORP., as
Depositor and initial Certificateholder,
By: ___________________________________
Name:
Title:
________________________________________
not individually, but solely in its
capacity as Owner Trustee
By: ___________________________________
Name:
Title:
SCHEDULE I
MORTGAGE LOAN SCHEDULE
EXHIBIT A-1
FORM OF CLASS [P] OWNER TRUST CERTIFICATE
ICCMAC COMMERCIAL TRUST [______]
CLASS [P] OWNER TRUST CERTIFICATE
evidencing a non-assessable, fully paid ___% interest in the Class [P]
Owner Trust Certificates, which, collectively with the Class [XS] and
Class [R] Owner Trust Certificates, evidence the entire beneficial
ownership interest in ICCMAC Commercial Trust [______], a _________
business trust whose assets include various commercial mortgage loans
(the "Mortgage Loans") deposited by Imperial Credit Commercial Mortgage
Acceptance Corp. (the "Depositor")
Certificate Interest Rate: ___% per of Aggregate Certificate Principal Balance
the Class P Owner Trust Certificates annum as of the Closing Date:
$____________
Date of Deposit Trust Agreement: Percentage Interest in Related Class
__________, 199__ Evidenced by this Class [P] Owner Trust
Certificate: ___%
First Payment Date: _______, 199__ Closing Date: _________, 199__
Depositor and Initial Holder of the Owner Trustee:
Owner Trust Certificates:
Imperial Credit Commercial Mortgage
Acceptance Corp.
Owner Trust Certificate No. P-___
THIS OWNER TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN, OR
OBLIGATION OF, THE DEPOSITOR, THE OWNER TRUSTEE, ANY OF THEIR RESPECTIVE
AFFILIATES, OR ANY OTHER PERSON. NEITHER THIS OWNER TRUST CERTIFICATE NOR THE
MORTGAGE LOANS ARE INSURED OR GUARANTEED, IN WHOLE OR IN PART, BY ANY
GOVERNMENTAL ENTITY OR INSTRUMENTALITY OR ANY PRIVATE INSURER OR GUARANTOR.
THIS OWNER TRUST CERTIFICATE IS SUBJECT TO VARIOUS TRANSFER RESTRICTIONS
DESCRIBED HEREIN.
This Owner Trust Certificate is issued pursuant to, and in accordance with,
the terms of a Deposit Trust Agreement, dated as of ___________, 199__ (the
"Deposit Trust Agreement"; terms not otherwise defined herein shall have the
meanings assigned to those terms in the Deposit Trust Agreement), between
IMPERIAL CREDIT COMMERCIAL MORTGAGE ACCEPTANCE CORP. as depositor (in such
capacity, the "Depositor") and initial Certificateholder and _______________ as
Owner Trustee (the "Owner Trustee"), a summary of certain of the pertinent
provisions of which are set forth herein. This Owner Trust Certificate is issued
under and is subject to the terms, provisions and conditions of the Deposit
Trust Agreement, to which Deposit Trust Agreement the holder of this Owner Trust
Certificate by virtue of the acceptance hereof assents and by which such
Certificateholder is bound. In the event of a conflict between the provisions of
this Owner Trust Certificate and those of the Deposit Trust Agreement, the
provisions of the Deposit Trust Agreement shall control.
This certifies that ______________________________ is the registered owner
of the beneficial interest evidenced by this Owner Trust Certificate in the
trust established pursuant to the Deposit Trust Agreement and designated as
ICCMAC Commercial Trust [______] (the "Trust"). The assets of the Trust include
various commercial mortgage loans (the "Mortgage Loans").
Except to the extent of their execution and authentication, respectively,
of the Owner Trust Certificates, the Owner Trustee and the Certificate Registrar
make no representation or warranty as to any of the statements contained herein
or the validity or sufficiency of this Owner Trust Certificate or the Mortgage
Loans. The Owner Trustee has executed this Owner Trust Certificate in its
limited capacity as Owner Trustee under the Deposit Trust Agreement, and the
Certificate Registrar has authenticated this Owner Trust Certificate in its
limited capacity as Certificate Registrar under the Deposit Trust Agreement.
Distributions on the Certificates will be made, to the extent of available
funds, on the __ day of each calendar month or, if any such day is not a
Business Day, then the next succeeding Business Day (each, a "Payment Date"),
commencing in __________, 199__. As more fully described in the Deposit Trust
Agreement, distributions allocable to interest accrued on the Class [P]
Certificates will be made on each Payment Date up to the Accrued Certificate
Interest in respect of the Class [P] Certificates for the related Payment Date
and, to the extent not previously paid, for all prior Payment Dates. As and to
the extent described in the Deposit Trust Agreement, distributions of interest
on the Class [P] Certificates will be limited to the amount available for such
purposes in the Certificate Account. Such available funds will be distributed on
each Payment Date on a pro rata basis among the Holders of the Class [P]
Certificates and the Holders of the Class [XS] Certificates in respect of
Accrued Certificate Interest.
Upon the retirement of all of the Bonds, the holders of the Class [P]
Certificates will receive payments in respect of principal on each Payment Date,
subsequent to the payments in respect of interest on the Class [P] and Class
[XS] Certificates as described in the previous paragraph, up to (subject to
available funds) an amount equal to the Aggregate Certificate Principal Amount
of the Class [P] Certificates immediately prior to such Payment Date.
Pursuant to the Deposit Trust Agreement, all payments made with respect to
any Class of Owner Trust Certificates on any Payment Date shall be allocated pro
rata among such Owner Trust Certificates based upon their respective Percentage
Interests. Payments to the Certificateholders on each Payment Date will be made
to the Certificateholders of record on the related Record Date. Payments to any
Certificateholder on any Payment Date shall be made by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Owner Trustee in writing at least
five (5) Business Days prior to the related Record Date and if such
Certificateholder is the registered owner of Owner Trust Certificates
representing at least a ____% 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 ICCMAC Commercial Trust [______], Owner Trust
Certificates, representing a fractional undivided beneficial interest in a Trust
Estate consisting of (a) the Mortgage Loans and all payments thereon and
proceeds thereof from and after the Cut-off Date, (b) the Operative Agreements
(i) to which the Depositor is a party or (ii) of which the Depositor is a third
party beneficiary, including the right to receive all income on the Mortgage
Loans, (iii) all present and future claims, demands, causes and choses in action
in respect of any or all of the foregoing and (iv) all proceeds of every kind
and nature whatsoever in respect thereof, including all proceeds of the
conversion, voluntary or involuntary, into cash or other liquid property, all
cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of obligations
and receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of the foregoing, subject, to the
Lien in favor of the Indenture Trustee.
This Owner Trust Certificate does not purport to summarize the Deposit
Trust Agreement and reference is made to the Deposit Trust Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced hereby and the rights, duties and immunities of the Owner Trustee.
No sale, transfer or other disposition of any Owner Trust Certificate may
be made, and the Certificate Registrar shall refuse to register any such
transfer, unless the Depositor (or, if the Depositor no longer exists, 100% of
the other Certificateholders) shall consent in writing to such sale, transfer or
other disposition. The Depositor (or any such other Certificateholder) shall be
entitled to request from the parties interested in effecting such sale, transfer
or other disposition, and to rely upon, a certification of facts and/or an
opinion of counsel which establishes to the satisfaction of the Depositor (or
such other Certificateholders) that such sale, transfer or other disposition is
permissible under applicable law and the Operative Agreements.
No transfer, sale, pledge or other disposition of this Owner Trust
Certificate or any interest herein shall be made unless that transfer, sale,
pledge or other disposition is exempt from the registration and/or qualification
requirements of the 1933 Act and any applicable state securities laws, or is
otherwise made in accordance with the 1933 Act and such state securities laws.
The Trust has not been registered as an investment company under the 1940 Act,
and no transfer of an Owner Trust Certificate may be made (i) to any Person
other than a QIB or an Affiliate of the Trust or (ii) to any Person that would
require the Trust or any such trust fund to be registered as an investment
company under the 1940 Act. No transfer of this Owner Trust Certificate or any
interest herein shall be made (A) to any employee benefit plan or other
retirement arrangement, including individual retirement accounts and annuities,
Keogh plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, including, without limitation,
insurance company general accounts, that is subject to ERISA or the Code (each,
a "Plan"), or (B) to any Person who is directly or indirectly purchasing this
Owner Trust Certificate or interest herein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan.
No sale, transfer or other disposition of any Owner Trust Certificate may
be made, and the Certificate Registrar shall refuse to register any such
transfer, if such sale, transfer or other disposition would result in the Trust
ceasing to be a qualified REIT subsidiary within the meaning of Section 856(i)
of the Code.
For so long as the Bonds are outstanding and the Lien of the Indenture has
not been satisfied and discharged, no sale, transfer or other disposition of any
Owner Trust Certificate may be made, and the Certificate Registrar shall refuse
to register any such transfer, unless the Owner Trustee shall have received
written confirmation from each Rating Agency to the effect that such sale,
transfer or other disposition will not result in the qualification, downgrade or
withdrawal of any then current rating on the Bonds.
No assignment, conveyance or other transfer of this Owner Trust Certificate
shall be effective unless the transferee shall have executed and delivered to
the Owner Trustee an instrument containing the transferee's agreement to be
bound by the terms of the Deposit Trust Agreement.
Prior to transfer of this Owner Trust Certificate in accordance with the
foregoing and the Deposit Trust Agreement, the Owner Trustee, the Indenture
Trustee and the Certificate Registrar and any agent of any of them may treat the
person or entity in whose name this Owner Trust Certificate is registered as the
owner hereof for the purpose of receiving distributions pursuant to the Deposit
Trust Agreement, pursuant to the Indenture and for all other purposes
whatsoever, and neither the Owner Trustee, the Indenture Trustee, the
Certificate Registrar nor any agent of any of them shall be affected by notice
to the contrary.
As provided in the Deposit Trust Agreement and subject to certain
limitations herein and therein set forth, this Owner Trust Certificate is
exchangeable for other Owner Trust Certificates of the same Class in authorized
denominations representing a like aggregate Percentage Interest, as requested by
the Certificateholder surrendering the same.
No service charge will be made to a Certificateholder for any such
registration of transfer or exchange, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Deposit Trust Agreement permits, with certain exceptions therein
provided, the amendment of the Deposit Trust Agreement and the modification of
the rights of the Certificateholders at any time by the Owner Trustee with the
consent of Certificateholders entitled to a majority of the Voting Rights
(except as provided in the Deposit Trust Agreement). Any consent by the
Certificateholder of this Owner Trust Certificate shall be conclusive and
binding on such Certificateholder and upon all future Certificateholders issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Owner Trust Certificate.
The obligations created by the Deposit Trust Agreement shall not terminate
until the Bonds have been paid in full and the Lien on the Trust Estate created
by the Indenture has been released; provided, however, that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late ambassador of the
United States to the Court of St. James, 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.
______________________________________________,
not individually, but solely in its capacity as
Owner Trustee
_______________________________________________
Authorized Officer
This is one of the Owner Trust Certificates referred to in the within-referenced
Deposit Trust Agreement.
Date:
______________________________________________,
not individually, but solely in its capacity as
Certificate Registrar
_______________________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
____________________________________________________________ [(Please print or
typewrite name(s) and address(es), including postal zip code of assignee(s)]
("Assignee(s)") that portion of the interest in the Trust represented by the
within Owner Trust Certificate set forth below and hereby authorize(s) the
transfer and registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust.
I (we) further direct the Certificate Registrar to issue a new Owner Trust
Certificate of the same Class for that portion of the interest in the Trust
represented by the within Owner Trust Certificate set forth below to the
above-named Assignee(s) and deliver such Owner Trust Certificate to the
following address: ____________________________________________________________;
to issue a new Owner Trust Certificate of the same Class for the remainder of
the interest in the Trust represented by the within Owner Trust Certificate to
the above-named Assignor(s) and deliver such Owner Trust Certificate to
the following address: ______________________ _________________________; and to
cancel the within Owner Trust Certificate.
Date:_______________________ ________________________________________
Signature by or on behalf of Assignor(s)
Percentage Interest
Transferred:___________ ___________________________________
Taxpayer Identification Number
EXHIBIT A-2
FORM OF CLASS [XS] OWNER TRUST CERTIFICATE
ICCMAC COMMERCIAL TRUST [I]
CLASS [XS] OWNER TRUST CERTIFICATE
evidencing a non-assessable, fully paid ___% interest in the Class [XS]
Owner Trust Certificates, which, collectively with the Class [P] and
Class [R] Owner Trust Certificates, evidence the entire beneficial
ownership interest in ICCMAC Commercial Trust [______], a __________
business trust whose assets include various commercial mortgage loans
(the "Mortgage Loans") deposited by Imperial Credit Commercial Mortgage
Acceptance Corp. (the "Depositor")
Date of Deposit Trust Agreement: Percentage Interest in Related Class
____________, 199_ Evidenced by this Class [XS] Owner Trust
Certificate: ___%
First Payment Date: _______, 199__ Closing Date: _________, 199__
Depositor and Initial Holder of the Owner Trustee: __________
Owner Trust Certificates:
Imperial Credit Commercial Mortgage
Acceptance Corp.
Owner Trust Certificate No. XS-___
THIS OWNER TRUST CERTIFICATE DOES NOT REPRESENT AN INTEREST IN, OR
OBLIGATION OF, THE DEPOSITOR, THE OWNER TRUSTEE, ANY OF THEIR RESPECTIVE
AFFILIATES, OR ANY OTHER PERSON. NEITHER THIS OWNER TRUST CERTIFICATE NOR THE
MORTGAGE LOANS ARE INSURED OR GUARANTEED, IN WHOLE OR IN PART, BY ANY
GOVERNMENTAL ENTITY OR INSTRUMENTALITY OR ANY PRIVATE INSURER OR GUARANTOR.
THIS OWNER TRUST CERTIFICATE IS SUBJECT TO VARIOUS TRANSFER RESTRICTIONS
DESCRIBED HEREIN.
This Owner Trust Certificate is issued pursuant to, and in accordance with,
the terms of a Deposit Trust Agreement, dated as of ___________, 199__ (the
"Deposit Trust Agreement"; terms not otherwise defined herein shall have the
meanings assigned to those terms in the Deposit Trust Agreement), between
Imperial Credit Commercial Mortgage Acceptance Corp. as depositor (in such
capacity, the "Depositor") and initial Certificateholder and _______________ as
Owner Trustee (the "Owner Trustee"), a summary of certain of the pertinent
provisions of which are set forth herein. This Owner Trust Certificate is issued
under and is subject to the terms, provisions and conditions of the Deposit
Trust Agreement, to which Deposit Trust Agreement the holder of this Owner Trust
Certificate by virtue of the acceptance hereof assents and by which such
Certificateholder is bound. In the event of a conflict between the provisions of
this Owner Trust Certificate and those of the Deposit Trust Agreement, the
provisions of the Deposit Trust Agreement shall control.
This certifies that _________________________ is the registered owner of
the beneficial interest evidenced by this Owner Trust Certificate in the trust
established pursuant to the Deposit Trust Agreement and designated as ICCMAC
Commercial Trust [______] (the "Trust"). The assets of the Trust include various
commercial mortgage loans (the "Mortgage Loans").
Except to the extent of their execution and authentication, respectively,
of the Owner Trust Certificates, the Owner Trustee and the Certificate Registrar
make no representation or warranty as to any of the statements contained herein
or the validity or sufficiency of this Owner Trust Certificate or the Mortgage
Loans. The Owner Trustee has executed this Owner Trust Certificate in its
limited capacity as Owner Trustee under the Deposit Trust Agreement, and the
Certificate Registrar has authenticated this Owner Trust Certificate in its
limited capacity as Certificate Registrar under the Deposit Trust Agreement.
Distributions on the Certificates will be made, to the extent of available
funds, on the __ day of each calendar month or, if any such day is not a
Business Day, then the next succeeding Business Day (each, a "Payment Date"),
commencing in __________, 199__. As more fully described in the Deposit Trust
Agreement, distributions allocable to interest accrued on the Class [XS]
Certificates will be made on each Payment Date up to the Accrued Certificate
Interest in respect of the Class [XS] Certificates for the related Payment Date
and, to the extent not previously paid, for all prior Payment Dates. As and to
the extent described in the Deposit Trust Agreement, distributions of interest
on the Class [XS] Certificates will be limited to the amount available for such
purposes in the Certificate Account. Such available funds will be distributed on
each Payment Date on a pro rata basis among the Holders of the Class [P]
Certificates and the Holders of the Class [XS] Certificates in respect of
Accrued Certificate Interest.
Pursuant to the Deposit Trust Agreement, all payments made with respect to
any Class of Owner Trust Certificates on any Payment Date shall be allocated pro
rata among such Owner Trust Certificates based upon their respective Percentage
Interests. Payments to the Certificateholders on each Payment Date will be made
to the Certificateholders of record on the related Record Date. Payments to any
Certificateholder on any Payment Date shall be made by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Owner Trustee in writing at least
five (5) Business Days prior to the related Record Date and if such
Certificateholder is the registered owner of Owner Trust Certificates
representing at least a _____ % 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 ICCMAC Commercial Trust [______], Owner Trust
Certificates, representing a fractional undivided beneficial interest in a Trust
Estate consisting of (a) the Mortgage Loans and all payments thereon and
proceeds thereof from and after the Cut-off Date, (b) the Operative Agreements
(i) to which the Depositor is a party or (ii) of which the Depositor is a third
party beneficiary, including the right to receive all income on the Mortgage
Loans, (iii) all present and future claims, demands, causes and choses in action
in respect of any or all of the foregoing and (iv) all proceeds of every kind
and nature whatsoever in respect thereof, including all proceeds of the
conversion, voluntary or involuntary, into cash or other liquid property, all
cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of obligations
and receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of the foregoing, subject, to the
Lien in favor of the Indenture Trustee.
This Owner Trust Certificate does not purport to summarize the Deposit
Trust Agreement and reference is made to the Deposit Trust Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced hereby and the rights, duties and immunities of the Owner Trustee.
No sale, transfer or other disposition of any Owner Trust Certificate may
be made, and the Certificate Registrar shall refuse to register any such
transfer, unless the Depositor (or, if the Depositor no longer exists, 100% of
the other Certificateholders) shall consent in writing to such sale, transfer or
other disposition. The Depositor (or any such other Certificateholder) shall be
entitled to request from the parties interested in effecting such sale, transfer
or other disposition, and to rely upon, a certification of facts and/or an
opinion of counsel which establishes to the satisfaction of the Depositor (or
such other Certificateholders) that such sale, transfer or other disposition is
permissible under applicable law and the Operative Agreements.
No transfer, sale, pledge or other disposition of this Owner Trust
Certificate or any interest herein shall be made unless that transfer, sale,
pledge or other disposition is exempt from the registration and/or qualification
requirements of the 1933 Act and any applicable state securities laws, or is
otherwise made in accordance with the 1933 Act and such state securities laws.
The Trust has not been registered as an investment company under the 1940 Act,
and no transfer of an Owner Trust Certificate may be made (i) to any Person
other than a QIB or an Affiliate of the Trust or (ii) to any Person that would
require the Trust or any such trust fund to be registered as an investment
company under the 1940 Act. No transfer of this Owner Trust Certificate or any
interest herein shall be made (A) to any employee benefit plan or other
retirement arrangement, including individual retirement accounts and annuities,
Keogh plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, including, without limitation,
insurance company general accounts, that is subject to ERISA or the Code (each,
a "Plan"), or (B) to any Person who is directly or indirectly purchasing this
Owner Trust Certificate or interest herein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan.
No sale, transfer or other disposition of any Owner Trust Certificate may
be made, and the Certificate Registrar shall refuse to register any such
transfer, if such sale, transfer or other disposition would result in the Trust
ceasing to be a qualified REIT subsidiary within the meaning of Section 856(i)
of the Code.
For so long as the Bonds are outstanding and the Lien of the Indenture has
not been satisfied and discharged, no sale, transfer or other disposition of any
Owner Trust Certificate may be made, and the Certificate Registrar shall refuse
to register any such transfer, unless the Owner Trustee shall have received
written confirmation from each Rating Agency to the effect that such sale,
transfer or other disposition will not result in the qualification, downgrade or
withdrawal of any then current rating on the Bonds.
No assignment, conveyance or other transfer of this Owner Trust Certificate
shall be effective unless the transferee shall have executed and delivered to
the Owner Trustee an instrument containing the transferee's agreement to be
bound by the terms of the Deposit Trust Agreement.
Prior to transfer of this Owner Trust Certificate in accordance with the
foregoing and the Deposit Trust Agreement, the Owner Trustee, the Indenture
Trustee and the Certificate Registrar and any agent of any of them may treat the
person or entity in whose name this Owner Trust Certificate is registered as the
owner hereof for the purpose of receiving distributions pursuant to the Deposit
Trust Agreement, pursuant to the Indenture and for all other purposes
whatsoever, and neither the Owner Trustee, the Indenture Trustee, the
Certificate Registrar nor any agent of any of them shall be affected by notice
to the contrary.
As provided in the Deposit Trust Agreement and subject to certain
limitations herein and therein set forth, this Owner Trust Certificate is
exchangeable for other Owner Trust Certificates of the same Class in authorized
denominations representing a like aggregate Percentage Interest, as requested by
the Certificateholder surrendering the same.
No service charge will be made to a Certificateholder for any such
registration of transfer or exchange, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Deposit Trust Agreement permits, with certain exceptions therein
provided, the amendment of the Deposit Trust Agreement and the modification of
the rights of the Certificateholders at any time by the Owner Trustee with the
consent of Certificateholders entitled to a majority of the Voting Rights
(except as provided in the Deposit Trust Agreement). Any consent by the
Certificateholder of this Owner Trust Certificate shall be conclusive and
binding on such Certificateholder and upon all future Certificateholders issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Owner Trust Certificate.
The obligations created by the Deposit Trust Agreement shall not terminate
until the Bonds have been paid in full and the Lien on the Trust Estate created
by the Indenture has been released; provided, however, that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late ambassador of the
United States to the Court of St. James, 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.
______________________________________________,
not individually, but solely in its capacity as
Owner Trustee
_______________________________________________
Authorized Officer
This is one of the Owner Trust Certificates referred to in the within-referenced
Deposit Trust Agreement.
Date:
______________________________________________,
not individually, but solely in its capacity as
Certificate Registrar
_______________________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
____________________________________________________________ [(Please print or
typewrite name(s) and address(es), including postal zip code of assignee(s)]
("Assignee(s)") that portion of the interest in the Trust represented by the
within Owner Trust Certificate set forth below and hereby authorize(s) the
transfer and registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust.
I (we) further direct the Certificate Registrar to issue a new Owner Trust
Certificate of the same Class for that portion of the interest in the Trust
represented by the within Owner Trust Certificate set forth below to the
above-named Assignee(s) and deliver such Owner Trust Certificate to the
following address: ____________________________________________________________;
to issue a new Owner Trust Certificate of the same Class for the remainder of
the interest in the Trust represented by the within Owner Trust Certificate to
the above-named Assignor(s) and deliver such Owner Trust Certificate to
the following address: ______________________ _________________________; and to
cancel the within Owner Trust Certificate.
Date:_______________________ ________________________________________
Signature by or on behalf of Assignor(s)
Percentage Interest
Transferred:___________ ___________________________________
Taxpayer Identification Number
EXHIBIT A-3
FORM OF CLASS [R] OWNER TRUST CERTIFICATE
ICCMAC COMMERCIAL TRUST [I]
CLASS [R] OWNER TRUST CERTIFICATE
evidencing a non-assessable, fully paid ___% interest in the Class [R]
Owner Trust Certificates, which, collectively with the Class [P] and
Class [XS] Owner Trust Certificates, evidence the entire beneficial
ownership interest in ICCMAC Commercial Trust [______], a ___________
business trust whose assets include various commercial mortgage loans
(the "Mortgage Loans") deposited by Imperial Credit Commercial Mortgage
Acceptance Corp. (the "Depositor")
Date of Deposit Trust Agreement: Percentage Interest in Related Class
____________, 199_ Evidenced by this Class [XS] Owner Trust
Certificate: ___%
First Payment Date: _______, 199__ Closing Date: _________, 199__
Depositor and Initial Holder of the Owner Trustee: __________
Owner Trust Certificates:
Imperial Credit Commercial Mortgage
Acceptance Corp.
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
MORTGAGE LOANS ARE INSURED OR GUARANTEED, IN WHOLE OR IN PART, BY ANY
GOVERNMENTAL ENTITY OR INSTRUMENTALITY OR ANY PRIVATE INSURER OR GUARANTOR.
THIS OWNER TRUST CERTIFICATE IS SUBJECT TO VARIOUS TRANSFER RESTRICTIONS
DESCRIBED HEREIN.
This Owner Trust Certificate is issued pursuant to, and in accordance with,
the terms of a Deposit Trust Agreement, dated as of ___________, 199__ (the
"Deposit Trust Agreement"; terms not otherwise defined herein shall have the
meanings assigned to those terms in the Deposit Trust Agreement), between
Imperial Credit Commercial Mortgage Acceptance Corp. as depositor (in such
capacity, the "Depositor") and initial Certificateholder and _________________
as Owner Trustee (the "Owner Trustee"), a summary of certain of the pertinent
provisions of which are set forth herein. This Owner Trust Certificate is issued
under and is subject to the terms, provisions and conditions of the Deposit
Trust Agreement, to which Deposit Trust Agreement the holder of this Owner Trust
Certificate by virtue of the acceptance hereof assents and by which such
Certificateholder is bound. In the event of a conflict between the provisions of
this Owner Trust Certificate and those of the Deposit Trust Agreement, the
provisions of the Deposit Trust Agreement shall control.
This certifies that ___________________ is the registered owner of the
beneficial interest evidenced by this Owner Trust Certificate in the trust
established pursuant to the Deposit Trust Agreement and designated as ICCMAC
Commercial Trust [______], (the "Trust"). The assets of the Trust include
various commercial Mortgage Loans (the "Mortgage Loans").
Except to the extent of their execution and authentication, respectively,
of the Owner Trust Certificates, the Owner Trustee and the Certificate Registrar
make no representation or warranty as to any of the statements contained herein
or the validity or sufficiency of this Owner Trust Certificate or the Mortgage
Loans. The Owner Trustee has executed this Owner Trust Certificate in its
limited capacity as Owner Trustee under the Deposit Trust Agreement, and the
Certificate Registrar has authenticated this Owner Trust Certificate in its
limited capacity as Certificate Registrar under the Deposit Trust Agreement.
Distributions on the Certificates will be made, to the extent of available
funds, on the __ day of each calendar month or, if any such day is not a
Business Day, then the next succeeding Business Day (each, a "Payment Date"),
commencing in __________ 199__. As more fully described in the Deposit Trust
Agreement, distributions on the Class [R] Certificates will be in an amount
equal to the remaining portion, if any, of the Certificateholder Funds for each
Payment Date after making all payments on the Class [XS] and Class [P]
Certificates.
Pursuant to the Deposit Trust Agreement, all payments made with respect to
any Class of Owner Trust Certificates on any Payment Date shall be allocated pro
rata among such Owner Trust Certificates based upon their respective Percentage
Interests. Payments to the Certificateholders on each Payment Date will be made
to the Certificateholders of record on the related Record Date. Payments to any
Certificateholder on any Payment Date shall be made by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Owner Trustee in writing at least
five (5) Business Days prior to the related Record Date and if such
Certificateholder is the registered owner of Owner Trust Certificates
representing at least a ____ % 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 ICCMAC Commercial Trust [______], Owner Trust
Certificates, representing a fractional undivided beneficial interest in a Trust
Estate consisting of (a) the Mortgage Loans and all payments thereon and
proceeds thereof from and after the Cut-off Date, (b) the Operative Agreements
(i) to which the Depositor is a party or (ii) of which the Depositor is a third
party beneficiary, including the right to receive all income on the Mortgage
Loans, (iii) all present and future claims, demands, causes and choses in action
in respect of any or all of the foregoing and (iv) all proceeds of every kind
and nature whatsoever in respect thereof, including all proceeds of the
conversion, voluntary or involuntary, into cash or other liquid property, all
cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of obligations
and receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of the foregoing, subject, to the
Lien in favor of the Indenture Trustee.
This Owner Trust Certificate does not purport to summarize the Deposit
Trust Agreement and reference is made to the Deposit Trust Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced hereby and the rights, duties and immunities of the Owner Trustee.
No sale, transfer or other disposition of any Owner Trust Certificate may
be made, and the Certificate Registrar shall refuse to register any such
transfer, unless the Depositor (or, if the Depositor no longer exists, 100% of
the other Certificateholders) shall consent in writing to such sale, transfer or
other disposition. The Depositor (or any such other Certificateholder) shall be
entitled to request from the parties interested in effecting such sale, transfer
or other disposition, and to rely upon, a certification of facts and/or an
opinion of counsel which establishes to the satisfaction of the Depositor (or
such other Certificateholders) that such sale, transfer or other disposition is
permissible under applicable law and the Operative Agreements.
No transfer, sale, pledge or other disposition of this Owner Trust
Certificate or any interest herein shall be made unless that transfer, sale,
pledge or other disposition is exempt from the registration and/or qualification
requirements of the 1933 Act and any applicable state securities laws, or is
otherwise made in accordance with the 1933 Act and such state securities laws.
The Trust has not been registered as an investment company under the 1940 Act,
and no transfer of an Owner Trust Certificate may be made (i) to any Person
other than a QIB or an Affiliate of the Trust or (ii) to any Person that would
require the Trust or any such trust fund to be registered as an investment
company under the 1940 Act. No transfer of this Owner Trust Certificate or any
interest herein shall be made (A) to any employee benefit plan or other
retirement arrangement, including individual retirement accounts and annuities,
Keogh plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, including, without limitation,
insurance company general accounts, that is subject to ERISA or the Code (each,
a "Plan"), or (B) to any Person who is directly or indirectly purchasing this
Owner Trust Certificate or interest herein on behalf of, as named fiduciary of,
as trustee of, or with assets of a Plan.
No sale, transfer or other disposition of any Owner Trust Certificate may
be made, and the Certificate Registrar shall refuse to register any such
transfer, if such sale, transfer or other disposition would result in the Trust
ceasing to be a qualified REIT subsidiary within the meaning of Section 856(i)
of the Code.
For so long as the Bonds are outstanding and the Lien of the Indenture has
not been satisfied and discharged, no sale, transfer or other disposition of any
Owner Trust Certificate may be made, and the Certificate Registrar shall refuse
to register any such transfer, unless the Owner Trustee shall have received
written confirmation from each Rating Agency to the effect that such sale,
transfer or other disposition will not result in the qualification, downgrade or
withdrawal of any then current rating on the Bonds.
No assignment, conveyance or other transfer of this Owner Trust Certificate
shall be effective unless the transferee shall have executed and delivered to
the Owner Trustee an instrument containing the transferee's agreement to be
bound by the terms of the Deposit Trust Agreement.
Prior to transfer of this Owner Trust Certificate in accordance with the
foregoing and the Deposit Trust Agreement, the Owner Trustee, the Indenture
Trustee and the Certificate Registrar and any agent of any of them may treat the
person or entity in whose name this Owner Trust Certificate is registered as the
owner hereof for the purpose of receiving distributions pursuant to the Deposit
Trust Agreement, pursuant to the Indenture and for all other purposes
whatsoever, and neither the Owner Trustee, the Indenture Trustee, the
Certificate Registrar nor any agent of any of them shall be affected by notice
to the contrary.
As provided in the Deposit Trust Agreement and subject to certain
limitations herein and therein set forth, this Owner Trust Certificate is
exchangeable for other Owner Trust Certificates of the same Class in authorized
denominations representing a like aggregate Percentage Interest, as requested by
the Certificateholder surrendering the same.
No service charge will be made to a Certificateholder for any such
registration of transfer or exchange, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Deposit Trust Agreement permits, with certain exceptions therein
provided, the amendment of the Deposit Trust Agreement and the modification of
the rights of the Certificateholders at any time by the Owner Trustee with the
consent of Certificateholders entitled to a majority of the Voting Rights
(except as provided in the Deposit Trust Agreement). Any consent by the
Certificateholder of this Owner Trust Certificate shall be conclusive and
binding on such Certificateholder and upon all future Certificateholders issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Owner Trust Certificate.
The obligations created by the Deposit Trust Agreement shall not terminate
until the Bonds have been paid in full and the Lien on the Trust Estate created
by the Indenture has been released; provided, however, that in no event shall
the Trust continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late ambassador of the
United States to the Court of St. James, 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.
_____________________________________________,
not individually, but solely in its capacity as
Owner Trustee
______________________________________________
Authorized Officer
This is one of the Owner Trust Certificates referred to in the within-referenced
Deposit Trust Agreement.
Date:
______________________________________________,
not individually, but solely in its capacity as
Certificate Registrar
_______________________________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
________________________________________________________________________________
____________________________________________________________ [(Please print or
typewrite name(s) and address(es), including postal zip code of assignee(s)]
("Assignee(s)") that portion of the interest in the Trust represented by the
within Owner Trust Certificate set forth below and hereby authorize(s) the
transfer and registration of transfer of such interest to Assignee(s) on the
Certificate Register of the Trust.
I (we) further direct the Certificate Registrar to issue a new Owner Trust
Certificate of the same Class for that portion of the interest in the Trust
represented by the within Owner Trust Certificate set forth below to the
above-named Assignee(s) and deliver such Owner Trust Certificate to the
following address: ____________________________________________________________;
to issue a new Owner Trust Certificate of the same Class for the remainder of
the interest in the Trust represented by the within Owner Trust Certificate to
the above-named Assignor(s) and deliver such Owner Trust Certificate to
the following address: ______________________ _________________________; and to
cancel the within Owner Trust Certificate.
Date:_______________________ ____________________________________
Signature by or on behalf of Assignor(s)
Percentage Interest
Transferred:___________ ___________________________________
Taxpayer Identification Number