SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported)
September 30, 1996
Bear Stearns Mortgage Securities Inc. (as Seller under a Pooling
and Servicing Agreement dated as of September 1, 1996 providing
for the issuance of the Mortgage Pass-Through Certificates,
Series 1996-4)
BEAR STEARNS MORTGAGE SECURITIES INC.
(Exact name of registrant as specified in charter)
Delaware 33-44658 13-3633241
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification
incorporation) No.)
245 Park Avenue, New York, New York 10167
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 272-2000
Not Applicable
(Former name or former address, if changed since last report.)
<PAGE>
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(c) Exhibits
Exhibit No.
1.1 Terms Agreement dated as of September 24, 1996 among the
Registrant, Bear, Stearns & Co. Inc. and Morgan Stanley &
Co. Incorporated
4.1 Pooling and Servicing Agreement dated as of September 1,
1996 among the Registrant, Headlands Mortgage Company, and
The Bank of New York.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
BEAR STEARNS MORTGAGE SECURITIES INC.
(Registrant)
Date: October 11, 1996 By: /s/ Joseph T. Jurkowski, Jr.
Name: Joseph T. Jurkowski, Jr.
Title: Vice President
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
1.1 Terms Agreement dated as of September 24, 1996 between the
Registrant, Bear, Stearns & Co. Inc. and Morgan Stanley & Co.
Incorporated.
4.1 Pooling and Servicing Agreement dated as of September 1, 1996
among the Registrant, Headlands Mortgage Company and The Bank of
New York.
EXHIBIT 1.1
BEAR STEARNS MORTGAGE SECURITIES INC.
Mortgage Pass-Through Certificates
TERMS AGREEMENT
Dated: as of September 24, 1996
To: BEAR STEARNS MORTGAGE SECURITIES INC.
Re: Underwriting Agreement dated June 25, 1996
Underwriters: Bear, Stearns & Co. Inc. and Morgan Stanley & Co.
Incorporated
Series Designation: Series 1996-5
Class Designation Schedule of the Certificates: Class A-1, A-2, A-3, A-4,
A-5, A-6, A-7, A-8, A-9, A-10, A-11, X, PO, B-1, B-2, B-3, B-4, B-5, B-6
and R
<TABLE>
<CAPTION>
Terms of the Certificates to be Purchased by the Underwriters:
Original Amount Amount
Principal Interest purchased by purchased by
Class Amount Rate Bear Stearns Morgan Stanley
- ----- ----------- -------- ------------ --------------
<S> <C> <C> <C> <C>
A-1 $20,014,113 6.900% $10,007,057 $10,007,055
A-2 $30,130,628 10.000% $15,065,314 $15,065,314
A-3 $17,198,182 7.250% $ 8,599,091 $ 8,599,091
A-4 $13,428,000 7.500% $ 6,714,000 $ 6,714,000
A-5 $15,658,333 7.750% $ 7,829,167 $ 7,829,165
A-6 $15,227,744 7.950% $ 7,613,872 $ 7,613,872
A-7 $14,390,000 8.125% $ 7,195,000 $ 7,195,000
A-8 $ 8,380,000 8.125% $ 4,190,000 $ 4,190,000
A-9 $ 6,490,000 8.125% $ 3,245,000 $ 3,245,000
A-10 $18,800,467 8.125% $ 9,400,234 $ 9,400,232
A-11 $ 2,000,000 8.125% $ 1,000,000 $ 1,000,000
B-1 $ 5,267,208 8.125% $ 5,267,208 $ -
B-2 $ 3,511,472 8.125% $ 3,511,472 $ -
B-3 $ 2,370,244 8.125% $ 2,370,244 $ -
R $ 100 8.125% $ 100 $ -
</TABLE>
The Certificates purchased by each Underwriter will be offered from time to time
by such Underwriter is negotiated transactions at varying prices to be
determined at the time of sale.
Form of Certificates Being Purchased by the Underwriters: Book Entry except for
the Class R Certificates which will be in certificated, fully registered form.
Distribution Dates: The 25th day of each month or, if such 25th
day is not a business day, the next succeeding business day
commencing in October, 1996.
Certificate Rating for the Certificates Being Purchased by the
Underwriters:
Class Rating
Moody's Fitch
A-1................................... Aaa AAA
A-2................................... Aaa AAA
A-3................................... Aaa AAA
A-4................................... Aaa AAA
A-5................................... Aaa AAA
A-6................................... Aaa AAA
A-7................................... Aaa AAA
A-8................................... Aaa AAA
A-9................................... Aaa AAA
A-10.................................. Aaa AAA
A-11.................................. Aaa AAA
B-1................................... N/A AA
B-2................................... N/A A
B-3................................... N/A BBB
R..................................... Aaa AAA
Mortgage Assets: The Mortgage Loans to be included in the Trust
Fund are as described in Annex A hereto.
Purchase Price: The aggregate purchase price payable by the Underwriters for the
Certificates covered by this Agreement will be $172,626,974.90 (plus
$1,131,435.19 in accrued interest).
Credit Enhancement: None other than the subordination described
in the related Prospectus Supplement.
Closing Date: September 30, 1996, 9:00 a.m., New York time.
[Remainder of Page Intentionally Left Blank]
The undersigned, each as an Underwriter, agrees, subject to the terms and
provisions of the above-referenced Underwriting Agreement and the Master
Agreement among Underwriters dated December 1, 1986 between the Underwriters,
which are incorporated herein in their entirety and made a part hereof, to
purchase the respective principal amounts of the Classes of the above-referenced
Series of Certificates under the column containing such Underwriter's name as
set forth herein.
BEAR, STEARNS & CO. INC.
By: /s/ Jeffrey Mayer
Name: Jeffrey Mayer
Title: Senior Managing Director
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Sanjeev Khanna
Name: Sanjeev Khanna
Title: Vice President
Accepted:
BEAR STEARNS MORTGAGE SECURITIES INC.
By: /s/ Joseph T. Jurkowski, Jr.
Name: Joseph T. Jurkowski, Jr.
Title: Vice President
<PAGE>
Annex A
As described in the Pooling and Servicing Agreement, dated as
of September 1, 1996, among Bear Stearns Mortgage Securities
Inc., Headlands Mortgage Company and The Bank of New York, as
trustee, available upon request.
<PAGE>
EXHIBIT 4.1
BEAR STEARNS MORTGAGE SECURITIES INC.
SELLER,
HEADLANDS MORTGAGE COMPANY
MASTER SERVICER
and
THE BANK OF NEW YORK
TRUSTEE
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1996
--------------------------------
Bear Stearns Mortgage Securities Inc.
Mortgage Pass-Through Certificates
Series 1996-5
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Definitions
Page
Definitions.............................................................I-1
ARTICLE II
Conveyance of Mortgage Loans;
Original Issuance of Certificates
2.01. Conveyance of Mortgage Loans to Trustee.........................II-1
2.02. Acceptance of Mortgage Loans by Trustee.........................II-2
2.03. Representations, Warranties and Covenants of the
Master Servicer.................................................II-4
2.04. Substitution of Mortgage Loans..................................II-7
2.05. Representations and Warranties of the Trustee...................II-8
2.06. Issuance of Certificates........................................II-9
2.07. Representations and Warranties Concerning the
Seller..........................................................II-10
ARTICLE III
Administration and Servicing of Mortgage Loans
3.01. Master Servicer to Assure Servicing.............................III-1
3.02. Sub-Servicing Agreements Between Master Servicer
and Sub-Servicers...............................................III-2
3.03. Successor Sub-Servicers.........................................III-3
3.04. Liability of the Master Servicer................................III-3
3.05. Assumption or Termination of Sub-Servicing
Agreements by Trustee...........................................III-4
3.06. Collection of Mortgage Loan Payments............................III-4
3.07. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts.......................................III-5
3.08. Access to Certain Documentation and Information
Regarding the Mortgage Loans....................................III-6
3.09. Maintenance of Primary Insurance Policies;
Collection Thereunder...........................................III-6
3.10. Maintenance of Hazard Insurance and Fidelity
Coverage........................................................III-7
3.11. Due-on-Sale Clauses; Assumption Agreements......................III-9
3.12. Realization Upon Defaulted Mortgage Loans.......................III-10
3.13. Trustee to Cooperate; Release of Mortgage Files.................III-11
3.14. Servicing and Master Servicing Compensation.....................III-13
3.15. Annual Statement of Compliance..................................III-13
3.16. Annual Independent Public Accountants' Servicing
Report..........................................................III-14
3.17. REMIC-Related Covenants.........................................III-14
3.18. Additional Information..........................................III-14
ARTICLE IV
Accounts
4.01. Protected Accounts...............................................IV-1
4.02. Certificate Account..............................................IV-2
4.03. Permitted Withdrawals and Transfers from the
Certificate Account..............................................IV-4
4.04. Custody Account..................................................IV-7
ARTICLE V
Certificates
5.01. Certificates......................................................V-1
5.02. Registration of Transfer and Exchange of
Certificates......................................................V-4
5.03. Mutilated, Destroyed, Lost or Stolen Certificates.................V-9
5.04. Persons Deemed Owners.............................................V-9
5.05. Transfer Restrictions on Residual Certificates....................V-9
5.06. Restrictions on Transferability of Private
Certificates......................................................V-11
5.07. ERISA Restrictions................................................V-11
5.08. Rule 144A Information.............................................V-12
ARTICLE VI
Payments to Certificateholders
6.01. Distributions on the Certificates................................VI-1
6.02. [Reserved].......................................................VI-4
6.03. Allocation of Losses.............................................VI-4
6.04. [Reserved].......................................................VI-6
6.05. Payments.........................................................VI-6
6.06. Statements to Certificateholders.................................VI-7
6.07. Reports to the Trustee and the Master Servicer...................VI-9
6.08. Monthly Advances.................................................VI-11
6.09. Compensating Interest Payments...................................VI-11
6.10. Reports of Foreclosures and Abandonment of
Mortgaged Property...............................................VI-12
ARTICLE VII
The Master Servicer
7.01. Liabilities of the Master Servicer...............................VII-1
7.02. Merger or Consolidation of the Master Servicer...................VII-1
7.03. Indemnification of the Trustee...................................VII-1
7.04. Limitation on Liability of the Master Servicer
and Others.......................................................VII-2
7.05. Master Servicer Not to Resign....................................VII-3
7.06. [Reserved].......................................................VII-3
7.07. Sale and Assignment of Master Servicing..........................VII-3
ARTICLE VIII
Default
8.01. Events of Default............................................. VIII-1
8.02. Trustee to Act; Appointment of Successor...................... VIII-3
8.03. Notification to Certificateholders............................ VIII-4
8.04. Waiver of Defaults............................................ VIII-4
8.05. List of Certificateholders.................................... VIII-4
ARTICLE IX
Concerning the Trustee
9.01. Duties of Trustee................................................IX-1
9.02. Certain Matters Affecting the Trustee............................IX-2
9.03. Trustee Not Liable for Certificates or Mortgage
Loans............................................................IX-4
9.04. Trustee May Own Certificates.....................................IX-5
9.05. Trustee's Fees and Expenses......................................IX-5
9.06. Eligibility Requirements for Trustee.............................IX-5
9.07. Insurance........................................................IX-6
9.08. Resignation and Removal of the Trustee...........................IX-6
9.09. Successor Trustee................................................IX-7
9.10. Merger or Consolidation of Trustee...............................IX-7
9.11. Appointment of Co-Trustee or Separate Trustee....................IX-8
9.12. Master Servicer Shall Provide Information as
Reasonably Required..............................................IX-9
9.13. Federal Information Returns and Reports to
Certificateholders...............................................IX-9
ARTICLE X
Termination
10.01. Termination Upon Repurchase by Headlands or its
Designee or Liquidation of All Mortgage Loans.................... X-1
10.02. Additional Termination Requirements.............................. X-3
ARTICLE XI
Miscellaneous Provisions
11.01. Intent of Parties.................................................XI-1
11.02. Amendment.........................................................XI-1
11.03. Recordation of Agreement..........................................XI-2
11.04. Limitation on Rights of Certificateholders........................XI-2
11.05. Acts of Certificateholders........................................XI-3
11.06. [Reserved]........................................................XI-4
11.07. Governing Law.....................................................XI-4
11.08. Notices...........................................................XI-4
11.09. Severability of Provisions........................................XI-5
11.10. Successors and Assigns............................................XI-5
11.11. Article and Section Headings......................................XI-5
11.12. Counterparts......................................................XI-5
11.13. Notice to Rating Agencies ........................................XI-5
EXHIBITS
Exhibit A-1 - Form of Face of Certificates
Exhibit A-2 - Form of Reverse of Certificates
Exhibit B - Mortgage Loan Schedule
Exhibit C - Representations and Warranties of Headlands
Concerning the Mortgage Loans
Exhibit D - Form of Request for Release
Exhibit E - Form of Affidavit pursuant to Section 860E(e)(4) Exhibit F-1 - Form
of Investment Letter Exhibit F-2 - Form of Rule 144A and Related Matters
Certificate Exhibit G - Form of Special Servicing and Collateral Fund Agreement
Exhibit H - Form of Trustee's Initial Certification Exhibit I - Form of
Trustee's Final Certification
<PAGE>
POOLING AND SERVICING AGREEMENT
Pooling and Servicing Agreement dated as of September 1, 1996, among Bear
Stearns Mortgage Securities Inc., a Delaware corporation, as the seller (the
"Seller"), Headlands Mortgage Company, a California corporation ("Headlands"),
as master servicer (the "Master Servicer"), and The Bank of New York, a banking
corporation organized under the laws of New York, as trustee (the "Trustee").
PRELIMINARY STATEMENT
On or prior to the Closing Date, the Seller has acquired the Mortgage Loans
from Headlands. On the Closing Date, the Seller will sell the Mortgage Loans and
certain other property to the Trust Fund and receive in consideration therefor
Certificates evidencing the entire beneficial ownership interest in the Trust
Fund. Headlands will be the Master Servicer for the Mortgage Loans.
The Trustee shall make an election for the assets constituting the REMIC
Trust to be treated for federal income tax purposes as a REMIC. On September 30,
1996 (the "Startup Day"), all the Classes of Certificates except for the Class R
Certificates will be designated "regular interests" in such REMIC and the Class
R Certificates will be designated the "residual interest" in such REMIC.
The Mortgage Loans will have an Outstanding Principal Balance as of the
Cut-Off Date, after deducting all Scheduled Principal due on or before the
Cut-Off Date, of $175,573,616. The initial principal amount of the Certificates
will not exceed such Outstanding Principal Balance.
In consideration of the mutual agreements herein contained, the Seller, the
Master Servicer and the Trustee agree as follows:
ARTICLE I
Definitions
Whenever used in this Agreement, the following words and phrases, unless
otherwise expressly provided or unless the context otherwise requires, shall
have the meanings specified in this Article.
Account: The Custody Account, the Certificate Account, the Protected
Accounts or the Servicing Accounts as the context may require.
Accrued Certificate Interest: For any Certificate (other than a Class PO
Certificate) for any Distribution Date, the interest accrued during the related
Interest Accrual Period at the applicable Pass-Through Rate on the Current
Principal Amount (or, in the case of a Class X Certificate, the Notional Amount)
of such Certificate immediately prior to such Distribution Date, calculated on
the basis of a 360-day year consisting of twelve 30-day months, less (i) in the
case of a Senior Certificate, such Certificate's share of any Net Interest
Shortfall and the interest portion of Excess Losses and, after the Cross-Over
Date, the interest portion of any Realized Losses and (ii) in the case of a
Subordinate Certificate, such Certificate's share of any Net Interest Shortfall
and the interest portion of any Realized Losses.
Advancing Date: The fourth Business Day preceding the related Distribution
Date.
Affiliate: As to any Person, any other Person controlling, controlled by or
under common control with such Person. "Control" means the power to direct the
management and policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise. "Controlled" and
"Controlling" have meanings correlative to the foregoing. The Trustee may
conclusively presume that a Person is not an Affiliate of another Person unless
a Responsible Officer of the Trustee has actual knowledge to the contrary.
Agreement: This Pooling and Servicing Agreement and all amendments hereof
and supplements hereto.
Allocable Share: With respect to each Class of Subordinate Certificates:
(a) as to any Distribution Date and amounts distributable
pursuant to clauses (i) and (iii) of the Subordinate Optimal Principal
Amount, the fraction, expressed as a percentage, the numerator of
which is the Current Principal Amount of such Class and the
denominator of which is the aggregate Current Principal Amount of all
Classes of the Subordinate Certificates; and
(b) as to any Distribution Date and amounts distributable
pursuant to clause (ii), (iv) and (v) of the Subordinate Optimal
Principal Amount, and as to each Class of Subordinate Certificates for
which (x) the related Prepayment Distribution Trigger has been
satisfied on such Distribution Date, the fraction, expressed as a
percentage, the numerator of which is the Current Principal Amount of
such Class and the denominator of which is the aggregate Current
Principal Amount of all such Classes and (y) the related Prepayment
Distribution Trigger has not been satisfied on such Distribution Date,
0%; provided that if on a Distribution Date, the Current Principal
Amount of any Class of Subordinate Certificates for which the related
Prepayment Distribution Trigger was satisfied on such Distribution
Date is reduced to zero, any amounts distributed pursuant to this
clause (b), to the extent of such Class's remaining Allocable Share,
shall be distributed to the remaining Classes of Subordinate
Certificates in reduction of their respective Current Principal
Amounts in the order of their numerical Class designations.
Anniversary Determination Date: The Determination Date occurring in October
of each year that the Certificates are outstanding, commencing in October 1997.
Applicable Credit Rating: A rating of Aaa or AAA, in the case of Moody's or
Fitch, respectively, for any long-term deposit or security or a rating of P-1,
in the case of Moody's, or F-1+ in the case of Fitch, for any short-term deposit
or security.
Appraised Value: For any Mortgaged Property, the amount set forth as the
appraised value of such Mortgaged Property in an appraisal made for the mortgage
originator in connection with its origination of the related Mortgage Loan.
Assumed Final Distribution Date: With respect to each Class of
Certificates, September 25, 2027.
Available Funds: With respect to any Distribution Date, an amount equal to
the aggregate of the following amounts with respect to the Mortgage Loans: (a)
all previously undistributed payments on account of principal (including the
principal portion of Scheduled Payments, Principal Prepayments and the principal
portion of Net Liquidation Proceeds) and all previously undistributed payments
on account of interest received after the Cut-Off Date and on or prior to the
related Determination Date, (b) any Monthly Advances (including Certificate
Account Advances) and Compensating Interest Payments by the Master Servicer with
respect to such Distribution Date and (c) any amount reimbursed by the Master
Servicer pursuant to Subsections 4.02(d) and 4.04(d) in connection with losses
on Permitted Investments, except:
(i) all payments that were due on or before the Cut-Off
Date;
(ii) all Principal Prepayments and Liquidation Proceeds
received after the related Prepayment Period and all related
payments of interest;
(iii) all payments, other than Principal Prepayments, that
represent early receipt of Scheduled Payments due on a date or
dates subsequent to the Due Date in the month in which such
Distribution Date occurs;
(iv) amounts received on particular Mortgage Loans as late
payments of principal or interest and respecting which, and to
the extent that, there are any unreimbursed Monthly Advances
(including Certificate Account Advances);
(v) amounts of Monthly Advances (including Certificate
Account Advances) determined to be Non- recoverable Advances;
(vi) amounts permitted to be withdrawn from the Certificate
Account pursuant to Subsection 4.03(a); and
(vii) amounts withdrawn by the Trustee pursuant to
Subsection 4.03(b) to pay the Trustee's Fee.
Bankruptcy Code: The United States Bankruptcy Code, as amended, as codified
in 11 U.S.C. ss.ss. 101-1330.
Bankruptcy Coverage Termination Date: The Distribution Date upon which the
Bankruptcy Loss Amount has been reduced to zero or a negative number (or the
Cross-Over Date, if earlier).
Bankruptcy Formula Amount: As to each Anniversary Determination Date, the
greater of (i) $125,000 and (ii) the sum of (x) 0.25% of the Scheduled Principal
Balance of each Second Home Mortgage Loan and each Investor Mortgage Loan
remaining in the Trust with a Loan-to-Value Ratio greater than 80% and less than
or equal to 90%, (y) 0.50% of the Scheduled Principal Balance of each Second
Home Mortgage Loan and each Investor Mortgage Loan remaining in the Trust with a
Loan-to-Value Ratio greater than 90% and less than or equal to 95%, and (z)
0.75% of the Scheduled Principal Balance of each Second Home Mortgage Loan and
each Investor Mortgage Loan remaining in the Trust with a Loan-to-Value Ratio
greater than 95%.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient Valuation
or Debt Service Reduction.
Bankruptcy Loss Amount: As of any Determination Date prior to the first
Anniversary Determination Date, the Bankruptcy Loss Amount shall equal $125,000,
as reduced by the aggregate amount of Bankruptcy Losses since the Cut-off Date.
As of any Determination Date after the first Anniversary Determination Date,
other than an Anniversary Determination Date, the Bankruptcy Loss Amount shall
equal the Bankruptcy Loss Amount on the immediately preceding Anniversary
Determination Date as reduced by the aggregate amount of Bankruptcy Losses since
such preceding Anniversary Determination Date. As of any Anniversary
Determination Date, the Bankruptcy Loss Amount shall equal the lesser of (x) the
Bankruptcy Loss Amount as of the preceding Determination Date as reduced by any
Bankruptcy Losses for the preceding Distribution Date, and (y) the Bankruptcy
Formula Amount for such Anniversary Determination Date.
The Bankruptcy Loss Amount may be further reduced by Headlands (including
accelerating the manner in which such coverage is reduced) provided that prior
to any such reduction, Headlands shall obtain written confirmation from each
Rating Agency that such reduction shall not adversely affect the then-current
rating assigned to the related Classes of Certificates by such Rating Agency and
shall provide a copy of such written confirmation to the Trustee.
Benefit Plan Opinion: The meaning specified in Section 5.07(a) hereof.
Book-Entry Certificates: All Classes of Certificates other than the Class X
and Class R Certificates and, to the extent provided in Section 5.02, the Class
B-4, Class B-5 and Class B-6 Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a day
on which the New York Stock Exchange is closed or on which banking institutions
in New York City or in California are authorized or obligated by law or
executive order to be closed.
Certificate: Any mortgage pass-through certificate evidencing a beneficial
ownership interest in the Trust Fund signed and countersigned by the Trustee in
substantially the forms annexed hereto as Exhibit A-1 and A-2, with the blanks
therein appropriately completed.
Certificate Account: The trust account or accounts created and maintained
pursuant to Section 4.02, which shall be denominated "The Bank of New York, as
Trustee f/b/o holders of Bear Stearns Mortgage Securities Inc. Mortgage
Pass-Through Certificates, Series 1996-5 - Certificate Account."
Certificate Account Advance: As of any Determination Date, the amount on
deposit in a Protected Account or Custody Account which is not required to be
transferred to the Certificate Account for distribution during the calendar
month in which such Determination Date occurs but which is deposited in the
Certificate Account and used to make a distribution to Certificateholders during
such calendar month on account of Scheduled Payments on the Mortgage Loans due
on the Due Date for such month not being paid on or before such Determination
Date except insofar as such unpaid amounts are the result of application of the
Relief Act.
Certificate Owner: Any Person who is the beneficial owner of a Certificate
registered in the name of the Depository or its nominee.
Certificate Register: The register maintained pursuant to Section 5.02.
Certificateholder: A Holder of a Certificate.
Class: With respect to the Certificates, A-1, A-2, A-3, A-4, A-5, A-6, A-7,
A-8, A-9, A-10, A-11, PO, X, B-1, B-2, B-3, B- 4, B-5, B-6 and R.
Class A-10/A-11 Optimal Principal Amount: With respect to any Distribution
Date occurring within the first five years after the Closing Date (i.e., prior
to the Distribution Date in September 2001) zero. The Class A-10/A-11 Optimal
Principal Amount for any Distribution Date occurring thereafter will be as
follows: for any Distribution Date during the sixth and seventh years after the
Cut-Off Date, 50% of the Class A-10/A-11 Pro Rata Optimal Principal Amount for
such Distribution Date and, for any Distribution Date thereafter, 100% of the
Class A-10/A-11 Pro Rata Optimal Distribution Amount for such Distribution Date.
Notwithstanding the foregoing, if on any Distribution Date the Current Principal
Amount of each Class of Senior Certificates (other than the Class A-10, Class
A-11 and Class PO Certificates) has been reduced to zero, the Class A-10/A-11
Optimal Principal Amount shall equal the Senior Optimal Principal Amount to the
extent not distributed on such Distribution Date to the other Classes of Senior
Certificates.
Class A-10/A-11 Pro Rata Optimal Principal Amount: With respect to any
Distribution Date, an amount equal to the product of (x) the Senior Optimal
Principal Amount for such Distribution Date multiplied by (y) a fraction, the
numerator of which is the sum of the Current Principal Amounts of the Class A-10
and Class A-11 Certificates immediately prior to such Distribution Date and the
denominator of which is the aggregate Current Principal Amounts of all Classes
of Senior Certificates (other than the Class PO Certificates) immediately prior
to such Distribution Date.
Class PO Cash Shortfall: The difference between the Class PO Principal
Distribution Amount for a Distribution Date and the actual amount distributed to
holders of the Class PO Certificates on such Distribution Date in the instance
where Available Funds are insufficient to make the full amount of distributions
required to be made to holders of the Class PO Certificates.
Class PO Deferred Amount: With respect to each Distribution Date through the
Cross-Over Date, the aggregate of all amounts allocable on such Distribution
Date to the Class PO Certificates in respect of the principal portion of
Realized Losses (other than Excess Losses) and Class PO Cash Shortfall and all
amounts previously allocated in respect of such losses and Class PO Cash
Shortfall to the Class PO Certificates and not distributed on prior
Distributions Dates.
Class PO Deferred Payment Writedown Amount: With respect to any
Distribution Date, the amount if any, distributed on such date in respect of the
Class PO Deferred Amount.
Class PO Principal Distribution Amount: With respect to each Distribution
Date, an amount, without duplication, equal to the sum of:
(i) the applicable PO Percentage of all Scheduled Principal due
on each Discount Mortgage Loan on the first day of the month in which
the Distribution Date occurs, as specified in the amortization
schedule at the time applicable thereto (after adjustment for previous
principal prepayments and the principal portion of Debt Service
Reductions after the Bankruptcy Coverage Termination Date, but before
any adjustment to such amortization schedule by reason of any other
bankruptcy or similar proceeding or any moratorium or similar waiver
or grace period);
(ii) the applicable PO Percentage of the Scheduled Principal
Balance of each Discount Mortgage Loan which was the subject of a
Voluntary Principal Prepayment in full received by the Master Servicer
during the applicable Prepayment Period;
(iii) the applicable PO Percentage of all Voluntary Principal
Prepayments in part received during the applicable Prepayment Period;
(iv) the lesser of (a) the applicable PO Percentage of the sum of
(w) the net liquidation proceeds allocable to principal on each
Discount Mortgage Loan which became a Liquidated Mortgage Loan during
the related Prepayment Period (other than Discount Mortgage Loans
described in clause (x)) and (x) the Scheduled Principal Balance of
each Discount Mortgage Loan that was purchased by a primary mortgage
insurer during the related Prepayment Period as an alternative to
paying a claim under the related insurance policy, and (b) the
applicable PO Percentage of the sum of (w) the Scheduled Principal
Balance of each Discount Mortgage Loan which became a Liquidated
Mortgage Loan during the related Prepayment Period (other than
Discount Mortgage Loans described in clause (x)) and (x) the Scheduled
Principal Balance of each Discount Mortgage Loan that was purchased by
a primary mortgage insurer during the related Prepayment Period as an
alternative to paying a claim under the related Insurance policy less
(y) in the case of clause (b), the applicable PO Percentage of the
principal portion of Excess Losses (other than Debt Service
Reductions) incurred during the related Prepayment Period; and
(v) the applicable PO Percentage of the sum of (a) the Scheduled
Principal Balance of each Discount Mortgage Loan which was repurchased
by the Master Servicer in connection with such Distribution Date and
(b) the difference, if any, between the Scheduled Principal Balance of
a Discount Mortgage Loan that has been replaced by the Master Servicer
with a substitute Discount Mortgage Loan pursuant to the Agreement in
connection with such Distribution Date and the Scheduled Principal
Balance of such substitute Discount Mortgage Loan.
Closing Date: September 30, 1996.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest Payments: As defined in Section 6.09.
Corporate Trust Office: The office of the Trustee at which at any
particular time its corporate trust business is administered, which office, at
the date of the execution of this Agreement, is located at 101 Barclay Street,
12E, New York, New York 10286, Attention: Bear Stearns/Headlands 1996-5.
Corresponding Class: As indicated in Section 5.01(c).
Cross-Over Date: The first Distribution Date on which the aggregate Current
Principal Amount of the Subordinate Certificates has been reduced to zero
(giving effect to all distributions on such Distribution Date).
Current Principal Amount: With respect to any Certificate (other than a
Class X Certificate) as of any Distribution Date, the initial principal amount
of such Certificate reduced by (A) the sum of (i) all amounts distributed on
previous Distribution Dates on such Certificate with respect to principal, (ii)
the principal portion of all Realized Losses allocated prior to such
Distribution Date to such Certificate, and (iii) in the case of a Subordinate
Certificate, such Certificate's pro rata share, if any, of the Subordinate
Certificate Writedown Amount and the Class PO Deferred Payment Writedown Amount
for previous Distribution Dates. With respect to any Class of Certificates
(other than the Class X Certificates), the Current Principal Amount thereof will
equal the sum of the Current Principal Amounts of all Certificates in such
Class. Notwithstanding the foregoing, solely for purposes of giving consents,
directions, waivers, approvals, requests and notices, the Class R Certificates
after the Distribution Date on which they receive the distribution of the last
dollar of their original principal amount shall be deemed to have a Current
Principal Amount equal to their Current Principal Amount on the day immediately
preceding such Distribution Date.
Custody Account: A trust account created and maintained pursuant to Section
4.04.
Cut-Off Date: September 1, 1996.
Cut-Off Date Balance: $175,573,616.
Debt Service Reduction: Any reduction of the Scheduled Payments which a
Mortgagor is obligated to pay with respect to a Mortgage Loan as a result of any
proceeding under the Bankruptcy Code or any other similar state law or other
proceeding.
Debtor Relief Laws: Any applicable liquidation, conservatorship,
receivership, bankruptcy, insolvency, rearrangement, moratorium, reorganization,
or similar debtor relief laws affecting the rights of creditors generally from
time to time in effect.
Deficient Valuation: With respect to any Mortgage Loan, a valuation of the
Mortgaged Property by a court of competent jurisdiction in an amount less than
the then outstanding indebtedness under the Mortgage Loan, which valuation
results from a proceeding initiated under the Bankruptcy Code or any other
similar state law or other proceeding.
Definitive Certificates: The meaning specified in Subsection 5.01(b)
hereof.
Depository: The Depository Trust Company, the nominee of which is Cede &
Co., or any successor thereto.
Depository Agreement: The meaning specified in Subsection 5.01(a) hereof.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Designated Depository Institution: A depository institution (commercial
bank, mutual savings bank or savings and loan association) or trust company
(which may include the Trustee), the deposits of which are fully insured by the
FDIC to the extent provided by law.
Determination Date: The 18th day of the month of the Distribution Date, or
if such day is not a Business Day, the following Business Day.
Discount Mortgage Loan: Any Mortgage Loan with a Net Rate less than 8.125%
per annum.
Distribution Date: The 25th day of any month, beginning in the month
immediately following the month of the initial issuance of the Certificates, or,
if such 25th day is not a Business Day, the Business Day immediately following.
DTC Custodian: The Bank Of New York, or its successors in interest.
Due Date: With respect to each Mortgage Loan, the first day of each month,
on which its Scheduled Payment is due.
Due Period: With respect to any Distribution Date, the period commencing on
the second day of the month preceding the month in which the Distribution Date
occurs and ending at the close of business on the first day of the month in
which the Distribution Date occurs.
ERISA: Employee Retirement Income Security Act of 1974, as amended.
Event of Default: An event described in Section 8.01.
Excess Bankruptcy Loss: Any Bankruptcy Loss, or portion thereof, (i)
occurring after the Bankruptcy Coverage Termination Date or (ii) if on such
date, in excess of the then-applicable Bankruptcy Loss Amount.
Excess Fraud Loss: Any Fraud Loss, or portion thereof, (i) occurring after
the Fraud Coverage Termination Date or (ii) if on such date, in excess of the
then-applicable Fraud Loss Amount.
Excess Losses: The sum of any Excess Bankruptcy Losses, Excess Fraud Losses
and Excess Special Fraud Losses.
Excess Special Hazard Loss: Any Special Hazard Loss, or portion thereof,
(i) occurring after the Special Hazard Termination Date or (ii) if on such date,
in excess of the then-applicable Special Hazard Loss Amount.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
FHLMC: Federal Home Loan Mortgage Corporation or any successor thereto.
Fitch: Fitch Investors Service, L.P. and its successors in interest.
FNMA: Federal National Mortgage Association or any successor thereto.
Fractional Undivided Interest: With respect to any Class of Certificates
other than the Class X Certificates, the fractional undivided interest evidenced
by any Certificate of such Class, the numerator of which is the Current
Principal Amount of such Certificate and the denominator of which is the Current
Principal Amount of such Class. With respect to the Class X Certificates, the
fractional undivided interest evidenced by any Certificate of such Class, the
numerator of which is the Notional Amount of such Certificate and the
denominator of which is the Notional Amount of such Class. With respect to the
Certificates in the aggregate, the fractional undivided interest evidenced by
(i) a Class X Certificate will be deemed to equal 1% multiplied by a fraction,
the numerator of which is the Notional Amount of such Certificate and the
denominator of which is the Notional Amount of such Class; (ii) a Class R
Certificate will be deemed to equal 1% multiplied by a fraction the numerator of
which is the Current Principal Amount of such Certificate and the denominator of
which is the aggregate Current Principal Amount of such Class and (iii) a
Certificate of any other Class will be deemed to equal 98% (plus an additional
1% if and when the Class X Certificates have been paid in full prior to the date
of determination) multiplied by a fraction, the numerator of which is the
Current Principal Amount of such Certificate and the denominator of which is the
Current Principal Amount of all the Certificates.
Fraud Coverage Termination Date: The Distribution Date upon which the
related Fraud Loss Amount has been reduced to zero or a negative number (or the
Cross-Over Date, if earlier).
Fraud Loss: Any Realized Loss attributable to fraud in the origination of
the related Mortgage Loan.
Fraud Loss Amount: As of any Distribution Date after the Cut-Off Date, (x)
prior to the first anniversary of the Cut-Off Date, an amount equal to
$5,267,208 minus the aggregate amount of Fraud Losses that would have been
allocated to the Subordinate Certificates in accordance with Section 6.03 in the
absence of the Loss Allocation Limitation since the Cut-Off Date, and (y) from
the first through the fifth anniversary of the Cut-Off Date, an amount equal to
(1) the lesser of (a) the Fraud Loss Amount as of the most recent anniversary of
the Cut-Off Date and (b) 2.00% on the first anniversary and 1% on the second,
third or fourth anniversary of the Cut-Off Date of the aggregate Outstanding
Principal Balance of all of the Mortgage Loans as of the respective anniversary
minus (2) the Fraud Losses that would have been allocated to the Subordinate
Certificates in accordance with Section 6.03 in the absence of the Loss
Allocation Limitation since the most recent anniversary of the Cut-Off Date.
After the fifth anniversary of the Cut-Off Date the Fraud Loss Amount shall be
zero.
Funds Transfer Date: The 21st day of the month of the Distribution Date, or
if such day is not a Business Day, the preceding Business Day (but in no event
less than two Business Days prior to the related Distribution Date).
Global Certificate: Any Private Certificate registered in the name of the
Depository or its nominee, beneficial interests in which are reflected on the
books on the Depository or on the books of a Person maintaining an account with
such Depository (directly or as an indirect participant in accordance with the
rules of such Depository).
Headlands: Headlands Mortgage Company, a California corporation, or its
successors in interest.
Holder: The Person in whose name a Certificate is registered in the
Certificate Register, except that, subject to Subsection 11.05(e), solely for
the purpose of giving any consent pursuant to this Agreement, any Certificate
registered in the name of the Seller, the Master Servicer, a Sub-Servicer or the
Trustee or any Affiliate thereof shall be deemed not to be outstanding and the
Fractional Undivided Interest evidenced thereby shall not be taken into account
in determining whether the requisite percentage of Fractional Undivided
Interests necessary to effect any such consent has been obtained.
Indemnified Persons: The Trustee, its employees and any separate
co-trustee.
Independent: When used with respect to any specified Person, this term
means that such Person (a) is in fact independent of the Seller or the Master
Servicer and of any Affiliate of the Seller or the Master Servicer, (b) does not
have any direct financial interest or any material indirect financial interest
in the Seller or the Master Servicer, or any Affiliate of the Seller or the
Master Servicer, and (c) is not connected with the Seller or the Master
Servicer, or any Affiliate as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Individual Certificate: Any Private Certificate registered in the name of
the Holder other than the Depository or its nominee.
Institutional Accredited Investor: Any Person meeting the requirements of
Rule 501 (a)(1), (2), (3) or (7) of Regulation D under the Securities Act.
Insurance Policy: With respect to any Mortgage Loan, any Primary Insurance
Policy, standard hazard insurance policy, flood insurance policy or title
insurance policy.
Insurance Proceeds: Amounts paid by the insurer under any Insurance Policy
covering any Mortgage Loan or Mortgaged Property other than amounts required to
be paid over to the Mortgagor pursuant to law or the related Mortgage Note or
Security Instrument and other than amounts used to repair or restore the
Mortgaged Property or to reimburse Insured Expenses.
Insured Expenses: Expenses covered by any Insurance Policy.
Insurer: Any issuer of an Insurance Policy.
Interest Accrual Period: With respect to each Distribution Date, for each
Class of Certificates, the calendar month preceding the month in which the
Distribution Date occurs, commencing in September 1996.
Interest Shortfall: With respect to any Distribution Date and each Mortgage
Loan that during the related Prepayment Period was the subject of a Voluntary
Principal Prepayment, or constitutes a Relief Act Mortgage Loan, an amount
determined as follows:
(a) partial principal prepayments: The difference between
(i) one month's interest at the applicable Net Rate on the amount
of such prepayment and (ii) the amount of interest for the
calendar month of such prepayment (adjusted to the applicable Net
Rate) received at the time of such prepayment;
(b) principal prepayments in full received from the 16th day
(or, in the case of the first Distribution Date, from the Cut-Off
Date) through the last day of the month preceding such
Distribution Date: The difference between (i) one month's
interest at the applicable Net Rate on the Scheduled Principal
Balance of such Mortgage Loan immediately prior to such
prepayment and (ii) the amount of interest for the calendar month
of such prepayment (adjusted to the applicable Net Rate) received
at the time of such prepayment;
(c) Relief Act Mortgage Loans: As to any Relief Act Mortgage
Loan, the excess of (i) 30 days' interest (or, in the case of a
principal prepayment in full, interest to the date of prepayment)
on the Scheduled Principal Balance thereof (or, in the case of a
principal prepayment in part, on the amount so prepaid) at the
related Net Rate over (ii) 30 days' interest (or, in the case of
a principal prepayment in full, interest to the date of
prepayment) on such Scheduled Principal Balance (or, in the case
of a Principal Prepayment in part, on the amount so prepaid) at
the Net Rate required to be paid by the Mortgagor as limited by
application of the Relief Act.
Investment Letter: The letter to be furnished by each Institutional
Accredited Investor which purchases Class B-4, Class B-5 and Class B-6
Certificates in connection with such purchase, substantially in the form set
forth as Exhibit F-1 hereto.
Investor Mortgage Loan: Any Mortgage Loan secured by a non-owner occupied
property.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which the
Master Servicer has determined that all amounts it expects to recover from or on
account of such Mortgage Loan have been recovered.
Liquidation Date: With respect to any Liquidated Mortgage Loan, the date on
which the Master Servicer has certified that such Mortgage Loan has become a
Liquidated Mortgage Loan.
Liquidation Expenses: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the Master
Servicer and not recovered by the Master Servicer under any Primary Insurance
Policy for reasons other than the Master Servicer's failure to ensure the
maintenance of or compliance with a Primary Insurance Policy, such expenses
including (a) property protection expenses, (b) property sales expenses, (c)
foreclosure and sale costs, including court costs and reasonable attorneys'
fees, and (d) similar expenses reasonably paid or incurred in connection with
liquidation.
Liquidation Proceeds: Cash received in connection with the liquidation of a
defaulted Mortgage Loan, whether through trustee's sale, foreclosure sale,
Insurance Proceeds, condemnation proceeds or otherwise.
Loan Summary and Remittance Report: The report to be submitted by the
Master Servicer to the Trustee pursuant to Sub- section 6.07(b).
Loan-to-Value Ratio: The fraction, expressed as a percentage, the numerator
of which is the original principal balance of the related Mortgage Loan and the
denominator of which is the Original Value of the related Mortgaged Property.
Loss Allocation Limitation: The meaning specified in Section 6.03(d)
hereof.
Master Servicer: With respect to the Mortgage Loans, Headlands, or its
successor in interest, or any successor master servicer with respect to the
Mortgage Loans appointed as herein provided.
Master Servicing Fee: As to any Mortgage Loan and Distribution Date, an
amount equal to the product of (i) the Scheduled Principal Balance of such
Mortgage Loan as of the Due Date in the preceding calendar month and (ii) the
Master Servicing Fee Rate.
Master Servicing Fee Rate: With respect to each Mortgage Loan, the per
annum rate of 0.25%.
Monthly Advance: The advance (including a Certificate Account Advance)
required to be made by the Master Servicer on the related Advancing Date
pursuant to Section 6.08.
Moody's: Moody's Investors Service, Inc. and its successors in interest.
Mortgage File: The mortgage documents listed in Section 2.01(b) pertaining
to a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate at which interest accrues from time
to time on any Mortgage Loan pursuant to the related Mortgage Note, which rate
is equal to the "Mortgage Interest Rate" set forth with respect thereto on the
Mortgage Loan Schedule.
Mortgage Loan: A mortgage loan transferred and assigned to the Trustee
pursuant to Section 2.01 or Section 2.04 and held as a part of the Trust Fund,
as identified in the Mortgage Loan Schedule, including a mortgage loan the
property securing which has become an REO Property.
Mortgage Loan Schedule: The schedule, attached hereto as Exhibit B with
respect to the Mortgage Loans and as amended from time to time to reflect the
repurchase or substitution of Mortgage Loans pursuant to this Agreement.
Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under the related
Mortgage Loan.
Mortgaged Property: Land and improvements securing the indebtedness of a
Mortgagor under the related Mortgage Loan or, in the case of REO Property, such
REO Property.
Mortgagor: The obligor on a Mortgage Note.
Net Interest Shortfall: With respect to any Distribution Date, the Interest
Shortfall, if any, for such Distribution Date net of Compensating Interest
Payments made with respect to such Distribution Date.
Net Liquidation Proceeds: As to any Liquidated Mortgage Loan, Liquidation
Proceeds net of (i) Liquidation Expenses which are payable therefrom to the
Master Servicer in accordance with this Agreement and (ii) unreimbursed advances
by the related Sub- Servicer and Monthly Advances including Certificate Account
Advances.
Net Rate: With respect to each Mortgage Loan, the Mortgage Interest Rate in
effect from time to time less the sum of the Master Servicing Fee Rate and the
Trustee's Fee (expressed as a per annum rate), each such fee being expressed as
a per annum rate.
Non-Discount Mortgage Loan: Any Mortgage Loan with a Net Rate equal to or
greater than 8.125%.
Non-PO Percentage: (i) with respect to any Discount Mortgage Loan, the Net
Rate thereof divided by 8.125%, and (ii) with respect to any Non-Discount
Mortgage Loan, 100%.
Nonrecoverable Advance: Any advance (i) which was previously made or is
proposed to be made by the Master Servicer and (ii) which, in the good faith
judgment of the Master Servicer, will not or, in the case of a proposed advance,
would not, be ultimately recoverable by the Master Servicer from Liquidation
Proceeds, Insurance Proceeds or future payments on the Mortgage Loan with
respect to which the advance would be made.
Notional Amount: On any Distribution Date, with respect to the Class X
Certificates, an amount equal to the Scheduled Principal Balances of the
Mortgage Loans as of the Due Date in the month prior to the month of the
Distribution Date.
Officer's Certificate: A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President or Assistant
Vice President of the Master Servicer and delivered to the Trustee, as required
by this Agreement.
Opinion of Counsel: A written opinion of counsel who is or are acceptable
to the Trustee and who, unless required to be Independent (an "Opinion of
Independent Counsel"), may be internal counsel for the Master Servicer.
Original Subordinate Principal Balance: The sum of the
aggregate Current Principal Amounts of each Class of Subordinate
Certificates as of the Cut-Off Date.
Original Value: Except in the case of a refinance Mortgage Loan, the lesser
of the Appraised Value or sales price of a Mortgaged Property at the time a
Mortgage Loan is closed, and for a refinance Mortgage Loan, the Original Value
is the value of such property set forth in an appraisal acceptable to the Master
Servicer.
Outstanding Mortgage Loan: With respect to any Due Date, a Mortgage Loan
which, prior to such Due Date, was not the subject of a Principal Prepayment in
full, did not become a Liquidated Mortgage Loan and was not purchased pursuant
to Sections 2.02, 2.03 or 3.19 or replaced pursuant to Section 2.04.
Outstanding Principal Balance: As of the time of any determination, the
principal balance of a Mortgage Loan remaining to be paid by the Mortgagor, or,
in the case of an REO Property, the principal balance of the related Mortgage
Loan remaining to be paid by the Mortgagor at the time such property was
acquired by the Trust Fund.
Pass-Through Rate: As to each Class of Certificates, the rate of interest
set forth, or determined as provided with respect thereto, in Section 5.01. Any
monthly calculation of interest at a stated rate shall be based upon annual
interest at such rate divided by twelve.
Permitted Investments: Any one or more of the following obligations or
securities:
(i) direct obligations of, and obligations fully
guaranteed by the United States of America or any agency or
instrumentality of the United States of America the
obligations of which are backed by the full faith and credit
of the United States of America;
(ii) (a) demand or time deposits, federal funds or
bankers' acceptances issued by any depository institution or
trust company incorporated under the laws of the United
States of America or any state thereof (including the
Trustee acting in its commercial banking capacity) and
subject to supervision and examination by federal and/or
state banking authorities, provided that the commercial
paper and/or the short-term deposit rating and/or the
long-term unsecured debt obligations or deposits of such
depository institution or trust company at the time of such
investment or contractual commitment providing for such
investment have the Applicable Credit Rating or better from
each Rating Agency and (b) any other demand or time deposit
or certificate of deposit that is fully insured by the
Federal Deposit Insurance Corporation;
(iii) repurchase obligations with respect to (a) any
security described in clause (i) above or (b) any other
security issued or guaranteed by an agency or instrumentality
of the United States of America, the obligations of which are
backed by the full faith and credit of the United States of
America, in either case entered into with a depository
institution or trust company (acting as principal) described
in clause (ii)(a) above where the Trustee holds the security
therefor;
(iv) securities bearing interest or sold at a
discount issued by any corporation (including the Trustee)
incorporated under the laws of the United States of America or
any state thereof that have the Applicable Credit Rating or
better from each Rating Agency at the time of such investment
or contractual commitment providing for such investment;
provided, however, that securities issued by any particular
corporation will not be Permitted Investments to the extent
that investments therein will cause the then outstanding
principal amount of securities issued by such corporation and
held as part of the Trust to exceed 10% of the aggregate
Outstanding Principal Balances and amounts of all the Mortgage
Loans and Permitted Investments held as part of the Trust;
(v) commercial paper (including both noninterest-
bearing discount obligations and interest-bearing obligations
payable on demand or on a specified date not more than one
year after the date of issuance thereof) having the Applicable
Credit Rating or better from each Rating Agency at the time of
such investment;
(vi) a Reinvestment Agreement issued by any bank,
insurance company or other corporation or entity;
(vii) any other demand, money market or time deposit,
obligation, security or investment as may be acceptable to
each Rating Agency as evidenced in a written notice delivered
to the Trustee by the Master Servicer with a copy to the
Depositor and each Rating Agency; and
(viii) any money market funds the collateral of which
consists of obligations fully guaranteed by the United States
of America or any agency or instrumentality of the United
States of America the obligations of which are backed by the
full faith and credit of the United States of America (which
may include repurchase obligations secured by collateral
described in clause (i)) and having the Applicable Credit
Rating or better from each Rating Agency;
provided, however, that no instrument or security shall be a Permitted
Investment if such instrument or security evidences a right to receive only
interest payments with respect to the obligations underlying such instrument or
if such security provides for payment of both principal and interest with a
yield to maturity in excess of 120% of the yield to maturity at par.
Person: 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.
Physical Certificates: The Class X and Class R Certificates and, to the
extent provided in Section 5.02, the Class B-4, Class B-5 and Class B-6
Certificates.
PO Percentage: (i) With respect to any Discount Mortgage Loan, the
fraction, expressed as a percentage, equal to 8.125% minus the Net Rate thereof
divided by 8.125%, and (ii) with respect to any Non-Discount Mortgage Loan, 0%.
Prepayment Distribution Trigger: For a Class of Subordinate Certificates
for any Distribution Date, the Class Prepayment Distribution Trigger is
satisfied if the fraction (expressed as a percentage), the numerator of which is
the aggregate Current Principal Amount of such Class and each Class of
Subordinate Certificates subordinate thereto, if any, and the denominator of
which is the Scheduled Principal Balances of all of the Mortgage Loans as of the
Due Date in the month next preceding such Distribution Date, equals or exceeds
such percentage calculated as of the Closing Date.
Prepayment Period: With respect to any Distribution Date, (i) from the 16th
day of the month preceding such Distribution Date (or, in the case of the first
Distribution Date, the Cut-off Date) through the 15th day of the month of such
Distribution Date with respect to any Mortgage Loan that was the subject of a
voluntary prepayment in full or (ii) from the first day through the last day of
the month preceding the month of such Distribution Date with respect to any
other unscheduled prepayment of principal.
Primary Insurance Policy: Any primary mortgage guaranty insurance policy
issued in connection with a Mortgage Loan which provides compensation to a
Mortgage Note holder in the event of default by the obligor under such Mortgage
Note or the related Security Instrument, or any replacement policy therefor.
Principal Prepayment: Any payment (whether partial or full) or other
recovery of principal on a Mortgage Loan which is received in advance of its
scheduled Due Date to the extent that it is not accompanied by an amount as to
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment, including Insurance Proceeds
and the purchase price in connection with any purchase of a Mortgage Loan, any
cash deposit in connection with the substitution of a Mortgage Loan, and the
principal portion of Net Liquidation Proceeds.
Private Certificate: Any Class B-4, Class B-5 or Class B-6 Certificate.
Protected Account: A trust account established and maintained by the Master
Servicer or any Sub-Servicer with respect to the Mortgage Loans and with respect
to REO Property in a Designated Depository Institution for receipt of principal
and interest and other amounts as described in Section 4.01.
Qualified Insurer: Any insurance company duly qualified as such under the
laws of the state or states in which the related Mortgaged Property or Mortgaged
Properties is or are located, duly authorized and licensed in such state or
states to transact the type of insurance business in which it is engaged and
approved as an insurer by the Master Servicer, so long as the claims paying
ability of which is acceptable to the Rating Agencies for pass-through
certificates having the same rating as the Certificates rated by the Rating
Agencies as of the Closing Date.
Rating Agencies: Moody's and Fitch.
Rating Agency Eligible Account: An account, including one maintained with
the Trustee, which either (i) is a trust account maintained with the trust
department of a depository institution or trust company organized under the laws
of the United States of America or any one of the states thereof or the District
of Columbia or (ii) is maintained with an entity which is an institution whose
deposits are insured by the FDIC, the unsecured and uncollateralized long-term
debt obligations of which shall be rated "A-1" or better by Moody's and "A" or
better by Fitch, or the highest short-term rating by Moody's or one of the two
highest short-term ratings by Fitch, and which is either (a) a federal savings
association duly organized, validly existing and in good standing under the
federal banking laws, (b) an institution duly organized, validly existing and in
good standing under the applicable banking laws of any state, (c) a national
banking association under the federal banking laws, or (d) a principal
subsidiary of a bank holding company.
Realized Loss: Any (i) Deficient Valuation or (ii) as to any Liquidated
Mortgage Loan, (x) the Outstanding Principal Balance of such Liquidated Mortgage
Loan plus accrued and unpaid interest thereon at the Mortgage Interest Rate
through the last day of the month of such liquidation less (y) the related Net
Liquidation Proceeds.
Record Date: With respect to any Distribution Date, the close of business
on the last Business Day of the month immediately preceding the month of such
Distribution Date.
Reinvestment Agreements: One or more reinvestment agreements, acceptable to
the Rating Agencies, from a bank, insurance company or other corporation or
entity (including the Trustee).
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Relief Act Mortgage Loan: Any Mortgage Loan as to which the Scheduled
Payment thereof has been reduced due to the application of the Relief Act.
REMIC: A real estate mortgage investment conduit, as defined in the Code.
REMIC Opinion: An Opinion of Independent Counsel, to the effect that the
proposed action described therein would not, under the REMIC Provisions, (i)
cause the REMIC Trust to fail to qualify as a REMIC while any regular interest
in the REMIC Trust is outstanding, (ii) result in a tax on prohibited
transactions or (iii) constitute a taxable contribution after the Startup Day.
REMIC Provisions: The provisions of the federal income tax law relating to
REMICs, which appear at Sections 860A through 860G of the Code, and related
provisions and regulations promulgated thereunder, as the foregoing may be in
effect from time to time.
REMIC Regular Certificates: As defined in Section 5.01.
REMIC Trust: That group of assets contained in the Trust Fund designated as
a REMIC consisting of (i) the Mortgage Loans, (ii) the Certificate Account,
(iii) any REO Property and (iv) any proceeds of the foregoing.
REO Property: A Mortgaged Property acquired in the name of the Trustee, for
the benefit of Certificateholders, by foreclosure or deed-in-lieu of foreclosure
in connection with a defaulted Mortgage Loan.
Repurchase Price: With respect to any Mortgage Loan (or any property
acquired with respect thereto) required to be repurchased pursuant to Section
2.02 or 2.03 an amount equal to the sum of (i) 100% of the Outstanding Principal
Balance of such Mortgage Loan as of the date of repurchase (or if the related
Mortgaged Property was acquired with respect thereto, 100% of the Outstanding
Principal Balance at the date of the acquisition) plus (ii) accrued but unpaid
interest on the Outstanding Principal Balance at the related Mortgage Interest
Rate, through and including the last day of the month of repurchase reduced by
(ii) any portion of the Master Servicing Fee or advances payable to the
purchaser of the Mortgage Loan.
Request for Release: A request for release in the form attached hereto as
Exhibit D.
Required Insurance Policy: With respect to any Mortgage Loan, any insurance
policy which is required to be maintained from time to time under this Agreement
with respect to such Mortgage Loan.
Residual Certificates: The Class R Certificates.
Responsible Officer: Any officer assigned to the corporate trust department
or similar department of the Trustee (or any successor division or department
thereto), and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
Rule 144A Certificate: The certificate to be furnished by each purchaser of
a Private Certificate which is a Qualified Institutional Buyer as defined under
Rule 144A promulgated under the Securities Act, substantially in the form set
forth as Exhibit F-2 hereto.
Scheduled Payment: With respect to any Mortgage Loan and any month, the
scheduled payment or payments of principal and interest due during such month on
such Mortgage Loan which either is payable by a Mortgagor in such month under
the related Mortgage Note or, in the case of REO Property, would otherwise have
been payable under the related Mortgage Note.
Scheduled Principal: The principal portion of any Scheduled Payment.
Scheduled Principal Balance: With respect to any Mortgage Loan on any
Distribution Date, (A) the unpaid principal balance of such Mortgage Loan as of
the close of business on the Due Date in the month preceding the month of such
Distribution Date (i.e., taking account of the principal payment to be made on
such Due Date and irrespective of any delinquency in its payment), as specified
in the amortization schedule at the time relating thereto (before any adjustment
to such amortization schedule by reason of any bankruptcy or similar proceeding
occurring after the Cut-Off Date (other than a Deficient Valuation) or any
moratorium or similar waiver or grace period) less (B) any Principal Prepayments
(including the principal portion of Net Liquidation Proceeds) received during or
prior to the applicable Prepayment Period; provided that the Scheduled Principal
Balance of a Liquidated Mortgage Loan is zero.
Second Home Mortgage Loan: Any Mortgage Loan secured by an owner occupied
property which is not such owner's primary residence.
Securities Act: The Securities Act of 1933, as amended.
Securities Legend: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE. THE HOLDER HEREOF,
BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES
ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"),
PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB,
WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION D
UNDER THE SECURITIES ACT PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) AN OPINION OF
COUNSEL AS TO COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED
STATES. THIS CERTIFICATE MAY NOT BE TRANSFERRED TO "BENEFIT PLAN INVESTORS," AS
SUCH TERM IS DEFINED IN 29 C.F.R. ss. 2510.3-101., UNLESS THE PROPOSED
TRANSFEREE PROVIDES A BENEFIT PLAN OPINION TO THE TRUSTEE."
Security Instrument: A written instrument creating a valid first lien on a
Mortgaged Property securing a Mortgage Note, which may be any applicable form of
mortgage, deed of trust, deed to secure debt or security deed, including any
riders or addenda thereto.
Seller: Bear Stearns Mortgage Securities Inc., a Delaware corporation, or
its successors in interest.
Seller Contract: The Mortgage Loan Purchase Agreement dated as of September
24, 1996, among Headlands, as seller, and Bear Stearns Mortgage Securities Inc.,
as purchaser, and all amendments thereof and supplements thereto.
Senior Certificates: The Class A-1, Class A-2, Class A-3, Class A-4, Class
A-5, Class A-6, Class A-7, Class A-8, Class A-9, Class A-10, Class A-11, Class
PO, Class X and Class R Certificates.
Senior Optimal Principal Amount: As to any Distribution Date, an amount
equal to the sum, without duplication, of:
(i) the Senior Percentage of the applicable Non-PO
Percentage of Scheduled Principal due on the related Due Date
on each Outstanding Mortgage Loan as of such Due Date as
specified in the amortization schedule at the time applicable
thereto (after adjustments for previous Principal Prepayments
and the principal portion of Debt Service Reductions
subsequent to the Bankruptcy Coverage Termination Date but
before any adjustment to such amortization schedule by reason
of any bankruptcy (except as aforesaid) or similar proceeding
or any moratorium or similar waiver or grace period);
(ii) the Senior Prepayment Percentage of the applicable
Non-PO Percentage of all Voluntary Principal Prepayments in
part received during the related Prepayment Period, together
with the Senior Prepayment Percentage of the applicable Non-PO
Percentage of the Scheduled Principal Balance of each Mortgage
Loan which was the subject of a Voluntary Principal Prepayment
in full during the related Prepayment Period;
(iii) the lesser of (x) the Senior Prepayment Percentage of
the applicable Non-PO Percentage of the sum of (A) all Net
Liquidation Proceeds allocable to principal received in
respect of each Mortgage Loan that became a Liquidated
Mortgage Loan during the related Prepayment Period (other than
Mortgage Loans described in clause (B)) and (B) the Scheduled
Principal Balance of each such Mortgage Loan purchased by an
Insurer from the Trustee during the related Prepayment Period
pursuant to the related Primary Insurance Policy; and (y) the
Senior Percentage of the applicable Non-PO Percentage of the
sum of (A) the Scheduled Principal Balance of each Mortgage
Loan that became a Liquidated Mortgage Loan during the related
Prepayment Period (other than Mortgage Loans described in
clause (B)) and (B) the Scheduled Principal Balance of each
Mortgage Loan that was purchased by an Insurer from the
Trustee during the related Prepayment Period pursuant to the
related Primary Insurance Policy, as reduced in each case by
the Senior Percentage of the applicable Non-PO Percentage of
the principal portion of any Excess Bankruptcy Losses (other
than those attributable to Debt Service Reductions), Excess
Fraud Losses and Excess Special Hazard Losses;
(iv) the Senior Prepayment Percentage of the applicable
Non-PO Percentage of the Scheduled Principal Balance of each
Mortgage Loan which was purchased on such Distribution Date
pursuant to Section 2.02, 2.03(d) or 3.19; and
(v) the Senior Prepayment Percentage of the
applicable Non-PO Percentage of the difference, if any,
between the Scheduled Principal Balance of a Mortgage Loan
that has been replaced by the Master Servicer with a
Substitute Mortgage Loan pursuant to Section 2.04 during the
month of such Distribution Date and the Scheduled Principal
Balance of such Substitute Mortgage Loan.
Senior Percentage: On any Distribution Date, the lesser of (i) 100% and
(ii) the percentage (carried to six places rounded up) obtained by dividing the
aggregate Current Principal Amounts of all the Senior Certificates (other than
the Class PO Certificates) immediately preceding such Distribution Date by the
aggregate Current Principal Amounts of all the Classes of Certificates (other
than the Class PO Certificates) immediately preceding such Distribution Date.
Senior Prepayment Percentage: On any Distribution Date occurring during the
periods set forth below, as follows:
Period (dates inclusive) Senior Prepayment Percentage
- ------------------------------------- -------------------------------
October 25, 1996 - September 25, 2001 100%
October 25, 2001 - September 25, 2002 Applicable Senior Percentage plus 70%
of the applicable Subordinate Percentage
October 25, 2002 - September 25, 2003 Applicable Senior Percentage plus 60%
of the applicable Subordinate Percentage
October 25, 2003 - September 25, 2004 Applicable Senior Percentage plus 40%
of the applicable Subordinate Percentage
October 25, 2004 - September 25, 2005 Applicable Senior Percentage plus 20%
of the applicable Subordinate Percentage
October 25, 2005 and thereafter Applicable Senior Percentage
Notwithstanding the foregoing, if on any Distribution Date the Senior Percentage
exceeds the Senior Percentage as of the Cut-Off Date, the Senior Prepayment
Percentage for such Distribution Date will equal 100%. On the Distribution Date
after which the Current Principal Amounts of the Senior Certificates (other than
the Class PO Certificates) is zero, the Senior Prepayment Percentage shall be
the minimum percentage sufficient to effect such reduction.
In addition, notwithstanding the foregoing, no reduction of the Senior
Prepayment Percentage shall occur on any Distribution Date unless, as of the
last day of the month preceding such Distribution Date:
(i) the aggregate Scheduled Principal Balance of Mortgage Loans
delinquent 60 days or more (including for this purpose any Mortgage
Loans in foreclosure and Mortgage Loans with respect to which the
related Mortgaged Property has been acquired by the Trust Fund),
averaged over the last six months, as a percentage of the aggregate
Current Principal Amount of the Subordinate Certificates, does not
exceed 50% and (ii) cumulative Realized Losses do not exceed (a) 30%
of the Original Subordinate Principal Balance if such Distribution
Date occurs between and including October 2001 and September 2002, (b)
35% of the related Original Subordinate Principal Balance if such
Distribution Date occurs between and including October 2002 and
September 2003, (c) 40% of the related Original Subordinate Principal
Balance if such Distribution Date occurs between and including October
2003 and September 2004, (d) 45% of the related Original Subordinate
Principal Balance if such Distribution Date occurs between and
including October 2004 and September 2005, and (e) 50% of the related
Original Subordinate Principal Balance if such Distribution Date
occurs during or after October 2005.
Servicing Account: The separate trust account created and maintained by the
Master Servicer or each Sub-Servicer with respect to the Mortgage Loans or with
respect to REO Property in a Designated Depository Institution for collection of
taxes, assessments, insurance premiums and comparable items as described in
Section 3.07.
Servicing Officer: Any officer of the Master Servicer or of an agent or
independent contractor through which all or part of the Master Servicer's master
servicing responsibilities are carried out, involved in, or responsible for, the
administration and servicing of the Mortgage Loans whose name and specimen
signature appear on a list of servicing officers furnished to the Trustee by the
Master Servicer as such list may from time to time be amended in accordance with
the foregoing.
Special Hazard Loss: (i) A Realized Loss suffered by a Mortgaged Property
on account of direct physical loss, exclusive of (a) any loss covered by a
hazard policy or a flood insurance policy required to be maintained in respect
of such Mortgaged Property under Section 3.10 and (b) any loss caused by or
resulting from:
(1) normal wear and tear;
(2) conversion or other dishonest act on the part of the Trustee, the
Master Servicer or any of their agents or employees; or
(3) errors in design, faulty workmanship or faulty materials, unless the
collapse of the property or a part thereof ensues;
or (ii) any Realized Loss suffered by the Trust Fund arising from or related to
the presence or suspected presence of hazardous wastes or hazardous substances
on a Mortgaged Property unless such loss to a Mortgaged Property is covered by a
hazard policy or a flood insurance policy required to be maintained in respect
of such Mortgaged Property under Section 3.10.
Special Hazard Loss Amount: As of any Distribution Date, an amount equal to
$1,974,864 minus the sum of (i) the aggregate amount of Special Hazard Losses
that would have been allocated to the Subordinate Certificates in accordance
with Section 6.03 in the absence of the Loss Allocation Limitation and (ii) the
Adjustment Amount (as defined below) as most recently calculated. On each
anniversary of the Cut-Off Date, the "Adjustment Amount" shall be equal to the
amount, if any, by which the amount calculated in accordance with the preceding
sentence (without giving effect to the deduction of the Adjustment Amount for
such anniversary) exceeds the lesser of (x) the greater of (A) the product of
the Special Hazard Percentage for such anniversary multiplied by the Outstanding
Principal Balance of all the Mortgage Loans on the Distribution Date immediately
preceding such anniversary and (B) twice the Outstanding Principal Balance of
the Mortgage Loan which has the largest Outstanding Principal Balance on the
Distribution Date immediately preceding such anniversary, and (y) an amount
calculated by the Master Servicer and approved by each Rating Agency, which
amount shall not be less than $500,000.
Special Hazard Percentage: As of each anniversary of the Cut-Off Date, the
greater of (i) 1.00% and (ii) the largest percentage obtained by dividing (x)
the aggregate Outstanding Principal Balance (as of the immediately preceding
Distribution Date) of the Mortgage Loans secured by Mortgaged Properties located
in a single, five-digit zip code area in the State of California by (y) the
Outstanding Principal Balance of all the Mortgage Loans as of the immediately
preceding Distribution Date.
Special Hazard Termination Date: The Distribution Date upon which the
Special Hazard Loss Amount has been reduced to zero or a negative number (or the
Cross-Over Date, if earlier).
Startup Day: September 30, 1996.
Subordinate Certificate Writedown Amount: As to any Distribution Date, the
amount by which (a) the sum of the Current Principal Amounts of all the
Certificates (after giving effect to the distribution of principal and the
allocation of Realized Losses and the Class PO Deferred Payment Writedown Amount
in reduction of the Current Principal Amounts of the Certificates on such
Distribution Date) exceeds (b) the aggregate Scheduled Principal Balances of the
Mortgage Loans on the first day of the month of such Distribution Date, less any
Deficient Valuation occurring on or prior to the Bankruptcy Coverage Termination
Date.
Subordinate Certificates: Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5 and Class B-6 Certificates.
Subordinate Optimal Principal Amount: As to any Distribution Date, an
amount equal to the sum, without duplication, of the following (but in no event
greater than the aggregate Current Principal Amounts of the Subordinate
Certificates immediately prior to such Distribution Date):
(i) the Subordinate Percentage of the applicable Non-PO
Percentage of Scheduled Principal due on the related Due Date on each
Outstanding Mortgage Loan as of such Due Date as specified in the
amortization schedule at the time applicable thereto (after adjustment
for previous Principal Prepayments and the principal portion of Debt
Service Reductions subsequent to the Bankruptcy Coverage Termination
Date but before any adjustment to such amortization schedule by reason
of any bankruptcy (other than as aforesaid) or similar proceeding or
any moratorium or similar waiver or grace period);
(ii) the Subordinate Prepayment Percentage of the applicable
Non-PO Percentage of all Voluntary Principal Prepayments in part
received during the related Prepayment Period, and 100% of any Senior
Optimal Principal Amount not distributed to the Senior Certificates on
such Distribution Date, together with the Subordinate Prepayment
Percentage of the Scheduled Principal Balance of each Mortgage Loan
which was the subject of a Voluntary Principal Prepayment in full
during the related Prepayment Period;
(iii) the excess, if any, of the applicable Non-PO Percentage of
(x) the sum of (A) all Net Liquidation Proceeds allocable to principal
received during the related Prepayment Period (other than in respect
of Mortgage Loans described in clause (B)) and (B) the Scheduled
Principal Balance of each Mortgage Loan that was purchased by an
Insurer from the Trustee during the related Prepayment Period pursuant
to the related Primary Insurance Policy, over (y) the sum of the
amounts distributable pursuant to clause (iii) of the definition of
Senior Optimal Principal Amount on such Distribution Date;
(iv) the Subordinate Prepayment Percentage of the applicable
Non-PO Percentage of the Scheduled Principal Balance of each Mortgage
Loan which was purchased on such Distribution Date pursuant to Section
2.02, 2.03(d) or 3.19; and
(v) the Subordinate Prepayment Percentage of the applicable
Non-PO Percentage of the difference, if any, between the Scheduled
Principal Balance of a Mortgage Loan that has been replaced by the
Master Servicer with a Substitute Mortgage Loan pursuant to Section
2.04 during the month of such Distribution Date and the Scheduled
Principal Balance of such Substitute Mortgage Loan.
After the aggregate current Principal Amounts of the Subordinate
Certificates have been reduced to zero, the Subordinate Optimal Principal Amount
shall be zero.
Subordinate Percentage: On any Distribution Date, 100% minus the applicable
Senior Percentage.
Subordinate Prepayment Percentage: On any Distribution Date, 100% minus the
applicable Senior Prepayment Percentage, except that on any Distribution Date
after the Current Principal Amounts of the Senior Certificates (other than the
Class PO Certificates) have each been reduced to zero, the Subordinate
Prepayment Percentage will equal 100%.
Sub-Servicer: Any Person with which the Master Servicer has entered into a
Sub-Servicing Agreement and which meets the qualifications of a Sub-Servicer
pursuant to Section 3.02.
Sub-Servicing Agreement: The written contract between the Master Servicer
and a Sub-Servicer and any successor Sub- Servicer relating to servicing and
administration of certain Mortgage Loans as provided in Section 3.02.
Substitute Mortgage Loan: A mortgage loan tendered to the Trustee pursuant
to Section 2.04, in each case, in the opinion of the Master Servicer, (i) which
has an Outstanding Principal Balance not materially greater nor materially less
than the Mortgage Loan for which it is to be substituted; (ii) which has a
Mortgage Interest Rate and Net Rate not less than, and not materially greater
than, such Mortgage Loan; (iii) which has a maturity date not materially earlier
or later than such Mortgage Loan and not later than the latest maturity date of
any Mortgage Loan; (iv) which is of the same property type and occupancy type as
such Mortgage Loan; (v) which has a Loan-to-Value Ratio not greater than the
Loan-to-Value Ratio of such Mortgage Loan; (vi) which is current in payment of
principal and interest as of the date of substitution; and (vii) as to which the
payment terms do not vary in any material respect from the payment terms of the
Mortgage Loan for which it is to be substituted. The opinion of the Master
Servicer shall be evidenced by an Officer's Certificate delivered to the
Trustee.
Tax Matters Person: The Bank of New York, or any successor thereto or
assignee thereof.
Trust Fund or Trust: The corpus of the trust created by this Agreement,
consisting of the Mortgage Loans and the other assets described in Section
2.01(a).
Trustee: The Bank of New York, or its successor in interest, or any
successor trustee appointed as herein provided.
Trustee's Fees: With respect to each Distribution Date, the amount to be
paid to the Trustee calculated monthly on a Mortgage Loan by Mortgage Loan
basis, equal to the sum of (i) with respect to each Mortgage Loan which has been
prepaid in full during the related Prepayment Period, the product of (a) the
amount of the Principal Prepayment, (b) 0.01% per annum and (c) a fraction, the
numerator of which is the number of days elapsed from the Due Date in the month
prior to the month of such Distribution Date to the date of Principal Prepayment
and the denominator of which is 365, and (ii) with respect to all other Mortgage
Loans, the product of (x) the Scheduled Principal Balance of such Mortgage Loan
on the Due Date in the month prior to the month of such Distribution Date and
(y) one-twelfth of 0.01%.
Uninsured Cause: Any cause of damage to a Mortgaged Property or REO
Property such that the complete restoration of such Mortgaged Property or REO
Property is not fully reimbursable by the hazard insurance policies required to
be maintained pursuant to Section 3.10, without regard to whether or not such
policy is maintained.
Voluntary Principal Prepayment: With respect to any Distribution Date, any
Principal Prepayment received from the related Mortgagor on a Mortgage Loan.
ARTICLE II
Conveyance of Mortgage Loans;
Original Issuance of Certificates
Section 2.01. Conveyance of Mortgage Loans to Trustee. (a) The Seller
concurrently with the execution and delivery of this Agreement, sells, transfers
and assigns to the Trustee without recourse all its right, title and interest in
and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule,
including all interest and principal due with respect to the Mortgage Loans
after the Cut-Off Date, but excluding any payments of principal and interest due
on or prior to the Cut-Off Date; (ii) such assets as shall from time to time be
credited or are required by the terms of this Agreement to be credited to the
Certificate Account (excluding any income to the Master Servicer from Permitted
Investments under Subsection 4.02(d)), (iii) such assets relating to the
Mortgage Loans as from time to time may be held by the Master Servicer or a
Sub-Servicer in Protected Accounts (excluding any income to the Master Servicer
or any Sub-Servicer from Permitted Investments under Subsection 4.01(a)), (iv)
such assets relating to the Mortgage Loans as from time to time may be held by
the Trustee in the Custody Account (excluding any income to the Master Servicer
from Permitted Investments under Section 4.04(d)), (v) any Servicing Accounts
(to the extent the mortgagee has a claim thereto and excluding any income to the
Master Servicer or Sub-Servicer or interest payable to Mortgagors pursuant to
applicable law), (vi) any REO Property, (vii) the Required Insurance Policies
and any amounts paid or payable by the insurer under any Insurance Policy (to
the extent the mortgagee has a claim thereto), (viii) the Seller Contract to the
extent provided in Subsection 2.03(b), and (ix) any proceeds of the foregoing.
Although it is the intent of the parties to this Agreement that the conveyance
of the Seller's right, title and interest in and to the Mortgage Loans and other
assets in the Trust Fund pursuant to this Agreement shall constitute a purchase
and sale and not a loan, in the event that such conveyance is deemed to be a
loan, it is the intent of the parties to this Agreement that the Seller shall be
deemed to have granted to the Trustee a first priority perfected security
interest in all of the Seller's right, title and interest in, to and under the
Mortgage Loans and other assets in the Trust Fund, and that this Agreement shall
constitute a security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Seller hereby
deposits with the Trustee, with respect to each Mortgage Loan, (i) the original
Mortgage Note, endorsed without recourse to the order of the Trustee and showing
an unbroken chain of endorsements from the original payee thereof to the Person
endorsing it to the Trustee, (ii) the original Security Instrument, which shall
have been recorded, with evidence of such recording indicated thereon, (iii) the
assignment (which may be in the form of a blanket assignment if permitted in the
jurisdiction in which the Mortgaged Property is located) to the Trustee of the
Security Instrument, with evidence of recording with respect to each Mortgage
Loan in the name of the Trustee thereon, (iv) all intervening assignments of the
Security Instrument, if any, to the extent available to the Seller with evidence
of recording thereon, (v) the original or a copy of the policy or certificate of
primary mortgage guaranty insurance, to the extent available, if any, (vi) the
original policy of title insurance or mortgagee's certificate of title insurance
or commitment or binder for title insurance and (vii) originals of all
assumption and modification agreements, if any; provided, however, that in lieu
of the foregoing, the Seller may deliver the following documents, under the
circumstances set forth below: (x) in lieu of the original policy of title
insurance, the Seller may deliver a binder or commitment therefor, or, in
California, a preliminary title report, or, in Iowa, an attorney's certificate;
(y) in lieu of the original Security Instrument or intervening assignments
thereof or assumption or modification agreements which have been delivered or
are being delivered to recording offices for recording and have not been
returned to the Seller in time to permit their delivery as specified above, the
Seller may deliver a true copy thereof with a certification by Headlands or the
title company issuing the commitment for title insurance, on the face of such
copy, substantially as follows: "Certified to be a true and correct copy of the
original, which has been transmitted for recording"; and (z) in lieu of the
Security Instrument, assignment to the Trustee or intervening assignments
thereof or assumption or modification agreements, if the original has been lost
or the applicable jurisdiction retains the originals of such documents (as
evidenced by a certification from Headlands to such effect) the Seller may
deliver photocopies of such documents containing an original certification by
the judicial or other governmental authority of the jurisdiction where such
documents were recorded; and provided, further, however, that in the case of
Mortgage Loans which have been prepaid in full after the Cut-Off Date and prior
to the Closing Date, the Seller, in lieu of delivering the above documents, may
deliver to the Trustee a certification of a Servicing Officer to such effect and
shall deposit all amounts paid in respect of such Mortgage Loans in the
Certificate Account on the Closing Date. The Seller shall deliver such original
documents (including any original documents as to which certified copies had
previously been delivered) or such certified copies together with the original
title insurance policy (or, if a master title policy has been issued by the
title insurer, a mortgagee's certificate of title insurance) if a title
insurance binder or commitment or other assurance of title was originally
deposited, to the Trustee promptly after they are received. The Master Servicer
shall cause, at its expense, the Security Instrument and intervening
assignments, if any, and the assignment of the Security Instrument to the
Trustee to be recorded not later than 270 days after the Closing Date.
Section 2.02. Acceptance of Mortgage Loans by Trustee. (a) The Trustee
acknowledges receipt of, subject to the exceptions it notes pursuant to the
procedures described below, the documents (or certified copies thereof)
delivered to it pursuant to Section 2.01 and declares that it holds and will
continue to hold those documents and any amendments, replacements or supplements
thereto and all other assets of the Trust Fund delivered to it as Trustee in
trust for the use and benefit of all present and future Holders of the
Certificates. No later than 45 days after the Closing Date (or, with respect to
any Substitute Mortgage Loan, within 5 days after the receipt by the Trustee
thereof), the Trustee agrees, for the benefit of the Certificateholders, to
review each Mortgage File delivered to it and to execute and deliver, or cause
to be executed and delivered, to the Seller and the Master Servicer an Initial
Certification in the form annexed hereto as Exhibit H. In conducting such
review, the Trustee will ascertain whether all required documents have been
executed and received and whether those documents relate, determined on the
basis of the Mortgagor name, original principal balance and loan number, to the
Mortgage Loans it has received, as identified in Exhibit B to this Agreement, as
supplemented (provided, however, that with respect to those documents described
in subclauses (b)(iv), (b)(v) and (b)(vii) of Section 2.01, the Trustee's
obligations shall extend only to documents actually delivered pursuant to such
subsections). In performing any such review, the Trustee may conclusively rely
on the purported due execution and genuineness of any such document and on the
purported genuineness of any signature thereon. If the Trustee finds any
document constituting part of the Mortgage File not to have been executed or
received, or to be unrelated to the Mortgage Loans identified in Exhibit B or to
appear to be defective on its face, the Trustee shall promptly notify Headlands.
Headlands shall correct or cure any such defect within 60 days from the date of
notice from the Trustee of the defect and if Headlands fails to correct or cure
the defect within such period, and such defect materially and adversely affects
the interests of the Certificateholders in the related Mortgage Loan, Headlands,
will, subject to Section 2.04, within 90 days from the Trustee's notification
purchase such Mortgage Loan at the Repurchase Price; provided, however, that if
such defect relates solely to the inability of Headlands to deliver the original
Security Instrument or intervening assignments thereof or assumption or
modification agreement, or a certified copy because the originals of such
documents, or a certified copy have not been returned by the applicable
jurisdiction, Headlands shall not be required to purchase such Mortgage Loan if
Headlands delivers such original documents or certified copy promptly upon
receipt, but in no event later than 270 days after the Closing Date.
(b) No later than 180 days after the Closing Date, the Trustee will review,
for the benefit of the Certificateholders, the Mortgage Files and will execute
and deliver or cause to be executed and delivered to the Seller and the Master
Servicer, a Final Certification in the form annexed hereto as Exhibit I. In
conducting such review, the Trustee will ascertain whether (i) an original of
each document required to be recorded has been returned from the recording
office with evidence of recording thereon or a certified copy has been obtained
from the recording office; and (ii) an original title insurance policy (or if a
master title policy has been issued by the title insurer, a mortgagee's
certificate of title insurance) has been delivered whenever a title insurance
binder or commitment or other assurance of title was originally deposited. If
the Trustee finds any document constituting part of the Mortgage File has not
been received, or to be unrelated, determined on the basis of the Mortgagor
name, original principal balance and loan number, to the Mortgage Loans
identified in Exhibit B or to appear defective on its face, the Trustee shall
promptly notify Headlands. Headlands shall correct or cure any such defect
within 60 days from the date of notice from the Trustee of the defect and if
Headlands is unable to cure such defect within such period, and if such defect
materially and adversely affects the interests of the Certificateholders in the
related Mortgage Loan, Headlands shall, subject to Section 2.04, within 90 days
from the Trustee's notification purchase such Mortgage Loan at the Repurchase
Price; provided, however, that if such defect relates solely to the inability of
Headlands to deliver the original Security Instrument or intervening assignments
thereof, or a certified copy, because the originals of such documents, or a
certified copy, have not been returned by the applicable jurisdiction, Headlands
shall not be required to purchase such Mortgage Loan, if Headlands delivers such
original documents or certified copy promptly upon receipt, but in no event
later than 270 days after the Closing Date.
(c) In the event that a Mortgage Loan is purchased by Headlands in
accordance with Subsections 2.02(a) or (b) above or Section 3.19, Headlands
shall cause the Repurchase Price to be deposited in the Certificate Account and
shall provide written notification of such deposit (which notification shall
detail the components of the Repurchase Price), signed by a Servicing Officer,
to the Trustee. Upon deposit of the Repurchase Price in the Certificate Account,
the Trustee shall release to Headlands the related Mortgage File and shall
execute and deliver all instruments of transfer or assignment, without recourse,
furnished to it by Headlands as are necessary to vest in Headlands title to and
rights under the Mortgage Loan. Such purchase shall be deemed to have occurred
on the date on which certification of the deposit of the Repurchase Price in the
Certificate Account was received by the Trustee. The Trustee shall amend the
Mortgage Loan Schedule to reflect such repurchase and shall promptly forward to
the Rating Agencies the Loan Summary and Remittance Report which reflects the
change to the Mortgage Loan Schedule. The obligation of Headlands to repurchase
any Mortgage Loan as to which such a defect in a constituent document exists
shall be the sole remedy respecting such defect available to the
Certificateholders or to the Trustee on their behalf.
Section 2.03. Representations, Warranties and Covenants of the Master
Servicer. (a) Headlands hereby represents and warrants to the Trustee as of the
Closing Date that:
(i) It is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation and is
in good standing as a foreign corporation in each jurisdiction where
such qualification is necessary and throughout the term of this
Agreement will remain a corporation duly organized, validly existing
and in good standing under the laws of the state of its incorporation
or any state of reincorporation and in good standing as a foreign
corporation in each jurisdiction where such qualification is necessary
(except, in the case of foreign corporation qualification both on the
date hereof and in the future, where the failure so to qualify would
not reasonably be expected to have a material adverse effect on the
Master Servicer's ability to enter into this Agreement or to perform
its obligations hereunder), and has the corporate power and authority
to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement have been duly
authorized by all requisite corporate action;
(iii) This Agreement, assuming due authorization, execution, and
delivery by the other parties hereto, will constitute its legal, valid
and binding obligation, enforceable in accordance with its terms,
except only as such enforcement may be limited by applicable Debtor
Relief Laws and that certain equitable remedies may not be available
regardless of whether enforcement is sought in equity or at law;
(iv) Its execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not
(A) violate its certificate of incorporation or bylaws (B) to its
knowledge, violate any law or regulation, or any administrative or
judicial decree or order to which it is subject or (C) constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material contract, agreement or other instrument to which it is a
party or which may be applicable to it or any of its assets;
(v) To its best knowledge, after reasonable investigation, it is
not in default with respect to any order or decree of any court or any
order, regulation or demand of any federal, state, municipal or
governmental agency, which default would reasonably be expected to
have consequences that would materially and adversely affect its
financial condition or operations or its performance hereunder;
(vi) It does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained in
this Agreement to be performed by it;
(vii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of its business;
(viii) No litigation is pending or, to its best knowledge,
threatened against it, which could be reasonably expected to
materially and adversely affect its entering into this Agreement or
performing its obligations under this Agreement or which would have a
material adverse effect on its financial condition; and
(ix) As to each Mortgage Loan, the Seller Contract is in full
force and effect.
(b) The Seller hereby assigns to the Trustee, on behalf of the
Certificateholders, all of its right, title and interest in the Seller Contract
(but none of its obligations) insofar as such contract relates to the
representations and warranties set forth in Exhibit C hereto regarding the
Mortgage Loans (including the substitution and repurchase obligations of
Headlands); provided that the obligations of Headlands to substitute or
repurchase a Mortgage Loan shall be the Trustee's and the Certificateholder's
sole remedy for any breach thereof. At the request of the Trustee, the Seller
shall take such actions as may be necessary to enforce the above right, title
and interest on behalf of the Trustee and the Certificateholders or shall
execute such further documents as the Trustee may reasonably require in order to
enable the Trustee to carry out such enforcement.
(c) [Intentionally omitted.]
(d) If the Seller, Headlands, the Master Servicer or the Trustee discovers
a breach of any of the representations and warranties set forth in Exhibit C or
Section 7 of the Seller Contract, and such breach existed on the date the
representation and warranty was made, which breach materially and adversely
affects the value of the interests of Certificateholders or the Trustee in the
related Mortgage Loan, the party discovering the breach shall give prompt
written notice of the breach to the other parties. Headlands within 60 days of
its discovery or receipt of notice that such breach has occurred (whichever
occurs earlier), shall cure the breach in all material respects or, subject to
Section 2.04, shall purchase the Mortgage Loan or any property acquired with
respect thereto from the Trustee; provided, however, that if there is a breach
of any representation set forth in Exhibit C and the Mortgage Loan or the
related property acquired with respect thereto has been sold, then Headlands
shall pay, in lieu of the Repurchase Price, any excess of the Repurchase Price
over the Net Liquidation Proceeds received upon such sale. (If the Net
Liquidation Proceeds exceed the Repurchase Price, any excess shall be paid to
Headlands to the extent not required by law to be paid to the borrower.) Any
such purchase by Headlands shall be made by depositing an amount equal to the
Repurchase Price in the Certificate Account and the Trustee, upon receipt of the
Repurchase Price and of written notification of such deposit by a Servicing
Officer (which notification shall detail the components of such Repurchase
Price), shall release to Headlands the related Mortgage File and shall execute
and deliver all instruments of transfer or assignment furnished to it by
Headlands, without recourse, as are necessary to vest in Headlands title to and
rights under the Mortgage Loan or any property acquired with respect thereto.
Such purchase shall be deemed to have occurred on the date on which
certification of the deposit of the Repurchase Price in the Certificate Account
was received by the Trustee. The Trustee shall amend the Mortgage Loan Schedule
to reflect such repurchase and shall promptly notify the Master Servicer and the
Rating Agencies of such amendment. Enforcement of the obligation of Headlands to
purchase (or substitute a Substitute Mortgage Loan for) any Mortgage Loan or any
property acquired with respect thereto (or pay the Repurchase Price as set forth
in the above proviso) as to which a breach has occurred and is continuing shall
constitute the sole remedy respecting such breach available to the
Certificateholders or the Trustee on their behalf.
Section 2.04. Substitution of Mortgage Loans. Notwithstanding anything to
the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant
to Sections 2.02 or 2.03, Headlands may, no later than the date by which such
purchase by Headlands would otherwise be required, tender to the Trustee a
Substitute Mortgage Loan accompanied by an Officer's Certificate of Headlands
that such Substitute Mortgage Loan conforms to the requirements set forth in the
definition of "Substitute Mortgage Loan"; provided, however, that substitution
pursuant to this Section 2.04 in lieu of purchase shall not be permitted after
the termination of the two-year period beginning on the Startup Day. The Trustee
shall examine the Mortgage File for any Substitute Mortgage Loan in the manner
set forth in Section 2.02(a) and shall notify the Master Servicer in writing,
within five Business Days after receipt, whether or not the documents relating
to the Substitute Mortgage Loan satisfy the requirements of the third sentence
of Subsection 2.02(a). Within two Business Days after such notification,
Headlands shall deposit in the Certificate Account the amount, if any, by which
the Outstanding Principal Balance as of the next preceding Due Date of the
Mortgage Loan for which substitution is being made, after giving effect to
Scheduled Principal due on such date, exceeds the Outstanding Principal Balance
as of such date of the Substitute Mortgage Loan, after giving effect to
Scheduled Principal due on such date, which amount shall be treated for the
purposes of this Agreement as if it were the payment by Headlands of the
Repurchase Price for the purchase of a Mortgage Loan by Headlands. After such
notification to Headlands and, if any such excess exists, upon receipt of such
deposit and of written notification thereof signed by a Servicing Officer, the
Trustee shall accept such Substitute Mortgage Loan, which shall thereafter be
deemed to be a Mortgage Loan hereunder. In the event of such a substitution,
accrued interest on the Substitute Mortgage Loan for the month in which the
substitution occurs and any Principal Prepayments made thereon during such month
shall be the property of the Trust Fund and accrued interest for such month on
the Mortgage Loan for which the substitution is made and any Principal
Prepayments made thereon during such month shall be the property of Headlands.
The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the
month of substitution shall be the property of Headlands and the Scheduled
Principal on the Mortgage Loan for which the substitution is made due on such
Due Date shall be the property of the Trust Fund. Upon acceptance of the
Substitute Mortgage Loan, the Trustee shall release to Headlands the related
Mortgage File related to any Mortgage Loan released pursuant to this Section
2.04 and shall execute and deliver all instruments of transfer or assignment,
without recourse, in form as provided to it as are necessary to vest in
Headlands title to and rights under any Mortgage Loan released pursuant to this
Section 2.04. Headlands shall deliver the documents related to the Substitute
Mortgage Loan in accordance with the provisions of Subsections 2.01(b) and
2.02(b), with the date of acceptance of the Substitute Mortgage Loan deemed to
be the Closing Date for purposes of the time periods set forth in those
Subsections. The representations and warranties set forth in Exhibit C shall be
deemed to have been made by Headlands with respect to each Substitute Mortgage
Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The
Trustee shall amend the Mortgage Loan Schedule to reflect such substitution and
shall provide a copy of such amended Mortgage Loan Schedule to the Master
Servicer and the Rating Agencies.
Section 2.05. Representations and Warranties of the Trustee. The Trustee
hereby represents and warrants to the Seller and the Master Servicer, as of the
Closing Date (and in the case of paragraphs (v) and (vi) below throughout the
term of the Agreement), that:
(i) The Trustee is a banking corporation duly organized, validly
existing and in good standing under the laws of the States of New York
with a principal place of business in New York, New York;
(ii) Subject to the right of the Trustee to appoint a co-trustee
or separate trustee under Section 9.11 hereof in order to meet the
legal requirements of a particular jurisdiction, the Trustee has full
power, authority and legal right to execute and deliver this Agreement
and to perform its obligations under this Agreement and has taken all
necessary action to authorize the execution, delivery and performance
by it of this Agreement and the Certificates;
(iii) To the best of the Trustee's knowledge, after reasonable
investigation, the execution and delivery by the Trustee of this
Agreement and the Certificates and the performance by the Trustee of
its obligations under this Agreement and the Certificates will not
violate any provision of the Trustee's Articles of Association or
ByLaws or any law or regulation governing the Trustee or any order,
writ, judgment or decree of any court, arbitrator or governmental
authority or agency applicable to the Trustee or any of its assets. To
the best of the Trustee's knowledge, after reasonable investigation,
such execution, delivery and performance will not require the
authorization, consent or approval of, the giving of notice to, the
filing or registration with, or the taking of any other action with
respect to, any governmental authority or agency regulating the
activities of national banking associations. To the best of the
Trustee's knowledge, after reasonable investigation, such execution,
delivery and performance will not conflict with, or result in a breach
or violation of, any material indenture, mortgage, deed of trust,
lease or other agreement or instrument to which the Trustee is a party
or by which it or its properties is bound;
(iv) This Agreement has been duly executed and delivered by the
Trustee. This Agreement, when executed and delivered, will constitute
the valid, legal and binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms, except as the
enforcement thereof may be limited by applicable Debtor Relief Laws
and that certain equitable remedies may not be available regardless of
whether enforcement is sought in equity or at law; and
(v) All funds received by the Trustee and required to be
deposited in the Certificate Account and the Custody Account pursuant
to this Agreement will be promptly so deposited.
Section 2.06. Issuance of Certificates. The Trustee acknowledges the
assignment to it of the Mortgage Loans and the other assets comprising the Trust
Fund and, concurrently therewith, has signed, and countersigned and delivered to
the Seller, in exchange therefor, Certificates in such authorized denominations
representing such Fractional Undivided Interests as the Seller has requested.
The Trustee agrees that it will hold the Mortgage Loans and such other assets
segregated on the books of the Trustee in trust for the benefit of the
Certificateholders.
Section 2.07. Representations and Warranties Concerning the Seller. The
Seller hereby represents and warrants to the Trustee and the Master Servicer as
follows:
(i) the Seller (a) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and (b) is
qualified and in good standing as a foreign corporation to do business in
each jurisdiction where such qualification is necessary, except where the
failure so to qualify would not reasonably be expected to have a material
adverse effect on the Seller's business as presently conducted or on the
Purchaser's ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(ii) the Seller has full corporate power to own its property, to carry
on its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(iii) the execution and delivery by the Seller of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Seller; and neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with
the provisions hereof, will conflict with or result in a breach of, or
constitute a default under, any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Seller or its
properties or the articles of incorporation or by-laws of the Seller,
except those conflicts, breaches or defaults which would not reasonably be
expected to have a material adverse effect on the Seller's ability to enter
into this Agreement and to consummate the transactions contemplated hereby;
(iv) the execution, delivery and performance by the Seller of this
Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except those
consents, approvals, notices, registrations or other actions as have
already been obtained, given or made;
(v) this Agreement has been duly executed and delivered by the Seller
and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Seller
enforceable against it in accordance with its terms (subject to applicable
bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally); and
(vi) there are no actions, suits or proceedings pending or, to the
knowledge of the Seller, threatened against the Seller, before or by any
court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement or (ii)
with respect to any other matter which in the judgment of the Seller will
be determined adversely to the Seller and will if determined adversely to
the Seller materially and adversely affect the Seller's ability to enter
into this Agreement or perform its obligations under this Agreement; and
the Seller is not in default with respect to any order of any court,
administrative agency, arbitrator or governmental body so as to materially
and adversely affect the transactions contemplated by this Agreement.
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01. Master Servicer to Assure Servicing. (a) The Master Servicer
shall supervise, or take such actions as are necessary to ensure, the servicing
and administration of the Mortgage Loans and any REO Property in accordance with
this Agreement and its normal servicing practices, which generally conform to
the standards of an institution prudently servicing mortgage loans for its own
account and shall have full authority to do anything it reasonably deems
appropriate or desirable in connection with such servicing and administration.
The Master Servicer may perform its responsibilities relating to servicing
through other agents or independent contractors, but shall not thereby be
released from any of its responsibilities as hereinafter set forth. The
authority of the Master Servicer, in its capacity as master servicer, shall
include, without limitation, the power to (i) consult with and advise any
Sub-Servicer regarding administration of a related Mortgage Loan, (ii) approve
any recommendation by a Sub-Servicer to foreclose on a related Mortgage Loan,
(iii) supervise the filing and collection of insurance claims and take or cause
to be taken such actions on behalf of the insured person thereunder as shall be
reasonably necessary to prevent the denial of coverage thereunder, and (iv)
effectuate foreclosure or other conversion of the ownership of the Mortgaged
Property securing a related Mortgage Loan, including the employment of
attorneys, the institution of legal proceedings, the collection of deficiency
judgments, the acceptance of compromise proposals, the filing of claims under
any Primary Insurance Policy and any other matter pertaining to a delinquent
Mortgage Loan. The authority of the Master Servicer shall include, in addition,
the power on behalf of the Certificateholders, the Trustee or any of them to (i)
execute and deliver customary consents or waivers and other instruments and
documents, (ii) consent to transfers of any related Mortgaged Property and
assumptions of the related Mortgage Notes and Security Instruments (in the
manner provided in this Agreement) and (iii) collect any Insurance Proceeds and
Liquidation Proceeds. Without limiting the generality of the foregoing, the
Master Servicer may, and is hereby authorized, and empowered by the Trustee to,
execute and deliver, on behalf of itself, the Certificateholders, the Trustee,
or any of them, any instruments of satisfaction, cancellation, partial or full
release, discharge and all other comparable instruments, with respect to the
related Mortgage Loans, the Insurance Policies and the accounts related thereto,
and the Mortgaged Properties. The Master Servicer may exercise this power in its
own name or in the name of a Sub- Servicer.
(b) Notwithstanding the provisions of Subsection 3.01(a), the Master
Servicer shall not take any action inconsistent with the interest of the Trustee
or the Certificateholders in the Mortgage Loans or with the rights and interests
of the Trustee or the Certificateholders under this Agreement.
(c) The Master Servicer shall prepare and the Trustee shall execute any
powers of attorney and other documents in form as provided to it necessary or
appropriate to enable the Master Servicer to service and administer the related
Mortgage Loans and REO Property.
Section 3.02. Sub-Servicing Agreements Between Master Servicer and
Sub-Servicers. (a) The Master Servicer may enter into Sub-Servicing Agreements
with Sub-Servicers for the servicing and administration of the Mortgage Loans
and for the performance of any and all other activities of the Master Service
hereunder. Each Sub-Servicer shall be either (i) an institution the accounts of
which are insured by the FDIC or (ii) another entity that engages in the
business of originating or servicing mortgage loans, and in either case shall be
authorized to transact business in the state or states in which the related
Mortgaged Properties it is to service are situated, if and to the extent
required by applicable law to enable the Sub-Servicer to perform its obligations
hereunder and under the Sub-Servicing Agreement, and in either case shall be a
FHLMC or FNMA approved mortgage servicer. Any Sub-Servicing Agreement entered
into by the Master Servicer shall include the provision that such Agreement may
be immediately terminated (x) with cause and without any termination fee by any
Master Servicer hereunder other than Headlands or (y) without cause in which
case the Master Servicer shall be responsible for any termination fee or penalty
resulting therefrom. In addition, each Sub-Servicing Agreement shall provide for
servicing of the Mortgage Loans consistent with the terms of this Agreement.
With the consent of the Trustee, which consent shall not be unreasonably
withheld, the Master Servicer and the Sub-Servicers may enter into Sub-Servicing
Agreements and make amendments to the Sub-Servicing Agreements or enter into
different forms of Sub-Servicing Agreements; provided, however, that any such
amendments or different forms shall be consistent with and not violate the
provisions of this Agreement, and that no such amendment or different form shall
be made or entered into which could be reasonably expected to be materially
adverse to the interests of the Certificateholders, without the consent of the
Holders of Certificates entitled to at least 51% of the Fractional Undivided
Interests.
(b) As part of its servicing activities hereunder, the Master Servicer, for
the benefit of the Trustee and the Certificateholders, shall enforce the
obligations of each Sub- Servicer under the related Sub-Servicing Agreement.
Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Sub-Servicing Agreements and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer, in its good faith business judgment,
would require were it the owner of the related Mortgage Loans. The Master
Servicer shall pay the costs of such enforcement at its own expense, but shall
be reimbursed therefor only (i) from a general recovery resulting from such
enforcement only to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loans or (ii) from a specific recovery of
costs, expenses or attorneys' fees against the party against whom such
enforcement is directed.
Section 3.03. Successor Sub-Servicers. The Master Servicer shall be
entitled to terminate any Sub-Servicing Agreement that may exist in accordance
with the terms and conditions of such Sub-Servicing Agreement and without any
limitation by virtue of this Agreement; provided, however, that upon
termination, the Master Servicer shall either act as servicer of the related
Mortgage Loan or enter into an appropriate contract with a successor
Sub-Servicer pursuant to which such successor Sub-Servicer will be bound by all
relevant terms of the related Sub-Servicing Agreement pertaining to the
servicing of such Mortgage Loan.
Section 3.04. Liability of the Master Servicer. (a) Notwithstanding any
Sub-Servicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Master Servicer and a Sub-Servicer or
reference to actions taken through a Sub-Servicer or otherwise, the Master
Servicer shall under all circumstances remain obligated and primarily liable to
the Trustee and the Certificateholders for the servicing and administering of
the Mortgage Loans and any REO Property in accordance with this Agreement. The
obligations and liability of the Master Servicer shall not be diminished by
virtue of Sub- Servicing Agreements or by virtue of indemnification of the
Master Servicer by any Sub-Servicer, or any other Person. The obligations and
liability of the Master Servicer shall remain of the same nature and under the
same terms and conditions as if the Master Servicer alone were servicing and
administering the related Mortgage Loans. The Master Servicer shall, however, be
entitled to enter into indemnification agreements with any Sub-Servicer or other
Person and nothing in this Agreement shall be deemed to limit or modify such
indemnification. For the purposes of this Agreement, the Master Servicer shall
be deemed to have received any payment on a Mortgage Loan on the date the
Sub-Servicer received such payment; provided, however, that this sentence shall
not apply to the Trustee acting as the Master Servicer; provided, further,
however, that the foregoing provision shall not affect the obligation of the
Master Servicer if it is also the Trustee to advance amounts which are not
Nonrecoverable Advances.
(b) Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Sub-Servicer
in its capacity as such and not as an originator shall be deemed to be between
the Sub-Servicer and the Master Servicer alone, and the Trustee and
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Sub-Servicer
except as set forth in Section 3.05.
Section 3.05. Assumption or Termination of Sub-Servicing Agreements by
Trustee. (a) If the Trustee or its designee shall assume the master servicing
obligations of the Master Servicer in accordance with Section 8.02, the Trustee,
to the extent necessary to permit the Trustee to carry out the provisions of
Section 8.02 with respect to the Mortgage Loans, shall succeed to all of the
rights and obligations of the Master Servicer under each of the Sub-Servicing
Agreements. In such event, the Trustee or its designee as the successor master
servicer shall be deemed to have assumed all of the Master Servicer's rights and
obligations therein and to have replaced the Master Servicer as a party to such
Sub- Servicing Agreements to the same extent as if such Sub-Servicing Agreements
had been assigned to the Trustee or its designee as a successor master servicer,
except that the Trustee or its designee as a successor master servicer shall not
be deemed to have assumed any obligations or liabilities of the Master Servicer
arising prior to such assumption and the Master Servicer shall not thereby be
relieved of any liability or obligations under such Sub-Servicing Agreements.
(b) In the event that the Trustee or its designee as successor master
servicer for the Trustee assumes the servicing obligations of the Master
Servicer under Section 8.02, upon the reasonable request of the Trustee or such
designee as successor master servicer, the Master Servicer shall at its own
expense deliver to the Trustee, or at its written request to such designee,
photocopies of all documents and records, electronic or otherwise, relating to
the Sub-Servicing Agreements and the related Mortgage Loans or REO Property then
being serviced and an accounting of amounts collected and held by it, if any,
and will otherwise cooperate and use its reasonable best efforts to effect the
orderly and efficient transfer of the Sub-Servicing Agreements, or
responsibilities hereunder to the Trustee, or at its written request to such
designee as successor master servicer.
Section 3.06. Collection of Mortgage Loan Payments. (a) The Master Servicer
will coordinate and monitor remittances by Sub- Servicers to the Trustee with
respect to the Mortgage Loans in accordance with this Agreement.
(b) The Master Servicer shall make its reasonable best efforts to collect
or cause to be collected all payments required under the terms and provisions of
the Mortgage Loans and shall follow, and use its best efforts to cause
Sub-Servicers to follow, collection procedures comparable to the collection
procedures of prudent mortgage lenders servicing mortgage loans for their own
account to the extent such procedures shall be consistent with this Agreement.
Consistent with the foregoing, the Master Servicer may in its discretion (i)
waive or permit to be waived any late payment charge, prepayment charge,
assumption fee, or any penalty interest in connection with the prepayment of a
Mortgage Loan and (ii) suspend or reduce or permit to be suspended or reduced
regular monthly payments for a period of up to six months, or arrange or permit
an arrangement with a Mortgagor for a scheduled liquidation of delinquencies. In
the event the Master Servicer shall consent to the deferment of the due dates
for payments due on a Mortgage Note, the Master Servicer shall nonetheless make
a Monthly Advance or shall cause the related Sub-Servicer to make an advance to
the same extent as if such installment were due, owing and delinquent and had
not been deferred through liquidation of the Mortgaged Property; provided,
however, that the obligation of the Master Servicer to make a Monthly Advance
shall apply only to the extent that the Master Servicer believes, in good faith,
that such advances are not Nonrecoverable Advances.
(c) Within five Business Days after the Master Servicer has determined that
all amounts which it expects to recover from or on account of a Mortgage Loan
have been recovered and that no further Liquidation Proceeds will be received in
connection therewith, the Master Servicer shall provide to the Trustee a
certificate of a Servicing Officer that such Mortgage Loan became a Liquidated
Mortgage Loan as of the date of such determination.
Section 3.07. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts. (a) The Master Servicer shall establish and maintain or cause the
Sub-Servicers to establish and maintain, in addition to the Protected Accounts,
one or more Servicing Accounts. The Master Servicer or a Sub-Servicer will
deposit and retain therein all collections from the Mortgagors for the payment
of taxes, assessments, insurance premiums, or comparable items as agent of the
Mortgagors.
(b) The deposits in the Servicing Accounts shall be held in a Designated
Depository Institution in an account designated as a "Mortgage Loan Servicing
Account," held in trust by the Master Servicer or a Sub-Servicer as Trustee of
Taxes and Insurance Custodial Account for borrowers and for Headlands (and its
successors and assigns) acting on its own behalf and for Headlands as agent for
holders of various pass-through securities and other interests in mortgage loans
sold by it; and agent for various mortgagors, as their interests may appear or
under such other designation as may be permitted by a Sub-Servicing Agreement.
The amount at any time credited to a Servicing Account must be fully insured by
the FDIC, or, to the extent that such deposits exceed the limits of such
insurance, such excess must be (i) transferred to another fully insured account
in another Designated Depository Institution or (ii) if permitted by applicable
law, invested in Permitted Investments held in trust by the Master Servicer or a
Sub-Servicer as described above and maturing, or be subject to redemption or
withdrawal, no later than the date on which such funds are required to be
withdrawn, and in no event later than 45 days after the date of investment. The
Master Servicer may, or may permit a Sub-Servicer to, establish Servicing
Accounts not conforming to the foregoing requirements to the extent that such
Servicing Accounts are Rating Agency Eligible Accounts. Withdrawals of amounts
from the Servicing Accounts may be made only to effect timely payment of taxes,
assessments, insurance premiums, or comparable items, to reimburse the Master
Servicer or a Sub- Servicer for any advances made with respect to such items, to
refund to any Mortgagors any sums as may be determined to be overages, to pay
interest, if required, to Mortgagors on balances in the Servicing Accounts or to
clear and terminate the Servicing Accounts at or any time after the termination
of this Agreement in accordance with Section 10.01.
Section 3.08. Access to Certain Documentation and Information Regarding the
Mortgage Loans. The Master Servicer shall provide, and shall cause any
Sub-Servicer to provide, to the Trustee and the Seller access to the
documentation regarding the related Mortgage Loans and REO Property and to the
Certificateholders, the FDIC, and the supervisory agents and examiners of the
FDIC (to which the Trustee shall also provide) access to the documentation
regarding the related Mortgage Loans required by applicable regulations, such
access being afforded without charge but only upon reasonable request and during
normal business hours at the offices of the Master Servicer, the Sub- Servicers
or the Trustee that are designated by these entities; provided, however, that,
unless otherwise required by law, the Trustee, the Master Servicer or the
Sub-Servicer shall not be required to provide access to such documentation if
the provision thereof would violate the legal right to privacy of any Mortgagor
provided, further, however, that the Trustee and the Seller shall coordinate
their requests for such access so as not to impose an unreasonable burden on, or
cause an interruption of, the business of the Master Servicer or any
Sub-Servicer. The Master Servicer, the Sub-Servicers and the Trustee shall allow
representatives of the above entities to photocopy any of the documentation and
shall provide equipment for that purpose at a charge that covers their own
actual out-of-pocket costs.
Section 3.09. Maintenance of Primary Insurance Policies; Collection
Thereunder. The Master Servicer shall, or shall cause the related Sub-Servicer
to, exercise its best reasonable efforts to maintain and keep in full force and
effect each Primary Insurance Policy by a Qualified Insurer, or other insurer
satisfactory to the Rating Agencies, with respect to each conventional Mortgage
Loan as to which as of the Cut-Off Date such a Primary Insurance Policy was in
effect (or, in the case of a Substitute Mortgage Loan, the date of substitution)
and the original principal amount of the related Mortgage Note exceeded 80% of
the Original Value in an amount at least equal to the excess of such original
principal amount over 75% of such Original Value until the principal amount of
any such Mortgage Loan is reduced below 80% of the Original Value or, based upon
a new appraisal, the principal amount of such Mortgage Loan represents less than
80% of the new appraised value. The Master Servicer shall, or shall cause the
related Sub-Servicer to, effect the timely payment of the premium on each
Primary Insurance Policy. The Master Servicer and the related Sub-Servicer shall
have the power to substitute for any Primary Insurance Policy another
substantially equivalent policy issued by another Qualified Insurer; provided
that such substitution is subject to the condition, to be evidenced by a writing
from each Rating Agency, that it would not cause the ratings on the Certificates
to be downgraded or withdrawn.
Section 3.10. Maintenance of Hazard Insurance and Fidelity Coverage. (a)
The Master Servicer shall maintain and keep, or cause each Sub-Servicer to
maintain and keep, with respect to each Mortgage Loan and each REO Property, in
full force and effect hazard insurance (fire insurance with extended coverage)
equal to at least the lesser of the Outstanding Principal Balance of the
Mortgage Loan or the current replacement cost of the Mortgaged Property, and
containing a standard mortgagee clause; provided, however, that the amount of
hazard insurance may not be less than the amount necessary to prevent loss due
to the application of any co-insurance provision of the related policy. Unless
applicable state law requires a higher deductible, the deductible on such hazard
insurance policy may be no more than $1000 or 1% of the applicable amount of
coverage, whichever is less. In the case of a condominium unit or a unit in a
planned unit development, the required hazard insurance shall take the form of a
multiperil policy covering the entire condominium project or planned unit
development, in an amount equal to at least 100% of the insurable value based on
replacement cost.
(b) Any amounts collected by the Master Servicer or a Sub-Servicer under
any such hazard insurance policy (other than amounts to be applied to the
restoration or repair of the Mortgaged Property or amounts released to the
Mortgagor in accordance with the Master Servicer's or a Sub-Servicer's normal
servicing procedures, the terms of the Mortgage Note, the Security Instrument or
applicable law) shall be deposited initially in a Protected Account, for
transmittal to the Certificate Account or Custody Account, subject to withdrawal
pursuant to Section 4.03.
(c) Any cost incurred by a Master Servicer or a Sub- Servicer in
maintaining any such hazard insurance policy shall not be added to the amount
owing under the Mortgage Loan for the purpose of calculating monthly
distributions to Certificateholders, notwithstanding that the terms of the
Mortgage Loan so permit. Such costs shall be recoverable by the Master Servicer
or a Sub- Servicer out of related late payments by the Mortgagor or out of
Insurance Proceeds or Liquidation Proceeds or by the Master Servicer from the
Repurchase Price, to the extent permitted by Section 4.03.
(d) No earthquake or other additional insurance is to be required of any
Mortgagor or maintained on property acquired with respect to a Security
Instrument other than pursuant to such applicable laws and regulations as shall
at any time be in force and shall require such additional insurance. When, at
the time of origination of the Mortgage Loan, the Mortgaged Property is located
in a federally designated special flood hazard area, the Master Servicer shall
use its best reasonable efforts to cause with respect to the Mortgage Loans and
each REO Property, flood insurance (to the extent available and in accordance
with mortgage servicing industry practice) to be maintained. Such flood
insurance shall cover the Mortgaged Property, including all items taken into
account in arriving at the Appraised Value on which the Mortgage Loan was based,
and shall be in an amount equal to the lesser of (i) the Outstanding Principal
Balance of the related Mortgage Loan and (ii) the minimum amount required under
the terms of coverage to compensate for any damage or loss on a replacement cost
basis, but not more than the maximum amount of such insurance available for the
related Mortgaged Property under either the regular or emergency programs of the
National Flood Insurance Program (assuming that the area in which such Mortgaged
Property is located is participating in such program). Unless applicable state
law requires a higher deductible, the deductible on such flood insurance may not
exceed $1,000 or 1% of the applicable amount of coverage, whichever is less.
(e) If insurance has not been maintained complying with Subsections 3.10(a)
and (d) and there shall have been a loss which would have been covered by such
insurance had it been maintained, the Master Servicer shall pay, or cause the
related Sub-Servicer to pay, for any necessary repairs.
(f) The Master Servicer shall present, or cause the related Sub-Servicer to
present, claims under the related hazard insurance or flood insurance policy.
(g) The Master Servicer shall obtain and maintain at its own expense and
for the duration of this Agreement a blanket fidelity bond and shall cause each
Sub-Servicer to obtain and maintain an errors and omissions insurance policy
covering such Sub-Servicer's officers, employees and other persons acting on its
behalf in connection with its activities under this Agreement. The amount of
coverage shall be at least equal to the coverage maintained by the Master
Servicer acceptable to FNMA or FHLMC to service loans for it or otherwise in an
amount as is commercially available at a cost that is generally not regarded as
excessive by industry standards. The Master Servicer shall promptly notify the
Trustee of any material change in the terms of such bond or policy. The Master
Servicer shall provide annually to the Trustee a certificate of insurance that
such bond and policy are in effect. If any such bond or policy ceases to be in
effect, the Master Servicer shall, to the extent possible, give the Trustee ten
days' notice prior to any such cessation and shall use its best efforts to
obtain a comparable replacement bond or policy, as the case may be. Any amounts
relating to the Mortgage Loans collected under such bond or policy shall be
remitted to the Certificate Account to the extent that such amounts have not
previously been paid to such account.
Section 3.11. Due-on-Sale Clauses; Assumption Agreements. (a) In any case
in which the Master Servicer is notified by any Mortgagor or Sub-Servicer that a
Mortgaged Property relating to a Mortgage Loan has been or is about to be
conveyed by the Mortgagor, the Master Servicer shall enforce, or shall instruct
such Sub-Servicer to enforce, any due-on-sale clause contained in the related
Security Instrument to the extent permitted under the terms of the related
Mortgage Note and by applicable law unless the Master Servicer reasonably
believes such enforcement is likely to result in legal action by the Mortgagor.
The Master Servicer or the related Sub-Servicer may repurchase a Mortgage Loan
at the Repurchase Price when the Master Servicer requires acceleration of the
Mortgage Loan, but only if the Master Servicer is satisfied, as evidenced by an
Officer's Certificate delivered to the Trustee, that either (i) such Mortgage
Loan is in default or default is reasonably foreseeable or (ii) if such Mortgage
Loan is not in default or default is not reasonably foreseeable, such repurchase
will have no adverse tax consequences for the Trust Fund or any
Certificateholder. If the Master Servicer reasonably believes that such
due-on-sale clause cannot be enforced under applicable law or if the Mortgage
Loan does not contain a due-on-sale clause, the Master Servicer is authorized,
and may authorize any Sub-Servicer, to consent to a conveyance subject to the
lien of the Mortgage, and to take or enter into an assumption agreement from or
with the Person to whom such property has been or is about to be conveyed,
pursuant to which such Person becomes liable under the related Mortgage Note and
unless prohibited by applicable state law, such Mortgagor remains liable
thereon, on condition, however, that the related Mortgage Loan shall continue to
be covered (if so covered before the Master Servicer or the related Sub-Servicer
enters into such agreement) by any Primary Insurance Policy. The Master Servicer
shall notify the Trustee, whenever possible, before the completion of such
assumption agreement, and shall forward to the Trustee the original copy of such
assumption agreement, which copy shall be added by the Trustee to the related
Mortgage File and which shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. In connection with any such assumption agreement,
the interest rate on the related Mortgage Loan shall not be changed and no other
material alterations in the Mortgage Loan shall be made unless such material
alteration would not cause the REMIC Trust to fail to qualify as a REMIC for
federal income tax purposes, as evidenced by a REMIC Opinion. Any fee or
additional interest collected by the Master Servicer or Sub- Servicer for
consenting to any such conveyance or entering into any such assumption agreement
may be retained by the Master Servicer or the related Sub-Servicer as additional
servicing compensation.
(b) Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Master Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any assumption of
a Mortgage Loan by operation of law or any conveyance by the Mortgagor of the
related Mortgaged Property or assumption of a Mortgage Loan which the Master
Servicer reasonably believes it may be restricted by law from preventing, for
any reason whatsoever or if the exercise of such right would impair or threaten
to impair any recovery under any applicable Insurance Policy, or, in the Master
Servicer's judgment, be reasonably, likely to result in legal action by the
Mortgagor.
Section 3.12. Realization Upon Defaulted Mortgage Loans. (a) The Master
Servicer shall, or shall direct the related Sub- Servicer to, foreclose upon or
otherwise comparably convert the ownership of properties securing any Mortgage
Loans that come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.06 except that the Master Servicer shall not, and shall not direct the
related Sub-Servicer to, foreclose upon or otherwise comparably convert a
Mortgaged Property if there is evidence of toxic waste thereon and the Master
Servicer determines it would be imprudent to do so or not in accordance with
appropriate servicing standards. The Master Servicer can conclusively rely on
results of third party inspections from parties it reasonably believes are
qualified to conduct such inspections. In connection with such foreclosure or
other conversion, the Master Servicer in conjunction with the related
Sub-Servicer, if any, shall use its best reasonable efforts to preserve REO
Property and to realize upon defaulted Mortgage Loans in such manner as to
maximize the receipt of principal and interest by the Certificateholders, taking
into account, among other things, the timing of foreclosure and the
considerations set forth in Subsection 3.12(b). The foregoing is subject to the
proviso that the Master Servicer shall not be required to expend its own funds
in connection with any foreclosure or towards the restoration of any property
unless it determines in good faith (i) that such restoration or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan to Certificateholders
after reimbursement to itself for such expenses and (ii) that such expenses will
be recoverable to it either through Liquidation Proceeds (respecting which it
shall have priority for purposes of reimbursements from the Certificate Account
pursuant to Section 4.03) or through Insurance Proceeds (respecting which it
shall have similar priority). The Master Servicer shall be responsible for all
other costs and expenses incurred by it in any such proceedings; provided,
however, that it shall be entitled to reimbursement thereof (as well as its
normal servicing compensation) to the extent that transfers or withdrawals from
the Certificate Account with respect thereto are permitted under Section 4.03.
Any income from or other funds (net of any income taxes) generated by REO
Property shall be deemed for purposes of this Agreement to be Insurance
Proceeds.
(b) The Trust Fund shall not acquire any real property (or any personal
property incident to such real property) except in connection with a default or
imminent default of a Mortgage Loan. In the event that the Trust Fund acquires
any real property (or personal property incident to such real property) in
connection with a default or imminent default of a Mortgage Loan, such property
shall be disposed of by the Trust Fund within two years after its acquisition by
the Trust Fund unless the Trustee shall have received a REMIC Opinion with
respect to such longer retention or the Master Servicer applies for and receives
an extension of the two-year period under Section 856(e)(3) of the Code, in
which case such two year period will be extended by the period set forth in such
REMIC Opinion or approved application, as the case may be. The Trustee shall
have no obligation to pay for such REMIC Opinion.
(c) Notwithstanding anything to the contrary contained herein, the Master
Servicer shall have the right, at its sole option, to enter into an agreement
substantially in the form of Exhibit G hereto with a Holder of the Class B-6
Certificates (provided that such form may be revised to incorporate an option on
the part of such Person to purchase a defaulted Mortgage Loan at the end of the
six-month period referred to in Subsection 2.02(f) thereof). It is understood
that the right of the Master Servicer to be reimbursed for Monthly Advances and
Nonrecoverable Advances under this Agreement shall not be affected in any way by
the provisions of any such agreement. The Trustee hereby agrees to perform such
obligations as may be required of it pursuant to the provisions of such
agreement. The Master Servicer agrees to provide the Trustee with such
information as may be necessary, or as the Trustee may reasonably request, for
the Trustee to perform such obligations.
Section 3.13. Trustee to Cooperate; Release of Mortgage Files. (a) Upon
payment in full of any Mortgage Loan or the receipt by the Master Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Master Servicer will immediately notify the Trustee by a
certification signed by a Servicing Officer in the Form of Exhibit D (which
certification shall include a statement to the effect that all amounts received
or to be received in connection with such payment which are required to be
deposited in the Certificate Account have been or will be so deposited in the
appropriate subaccount thereof) and shall request delivery to the Master
Servicer or Sub-Servicer, as the case may be, of the Mortgage File. Upon receipt
of such certification and request, the Trustee shall promptly release the
related Mortgage File to the Master Servicer or Sub-Servicer and execute and
deliver to the Master Servicer, without recourse, the request for reconveyance,
deed of reconveyance or release or satisfaction of mortgage or such instrument
releasing the lien of the Security Instrument (furnished by the Master
Servicer), together with the Mortgage Note with written evidence of cancellation
thereon. No expenses incurred in connection with any instrument of satisfaction
or deed of reconveyance shall be chargeable to the Certificate Account.
(b) From time to time as is appropriate for the servicing or foreclosure of
any Mortgage Loan or collection under a Required Insurance Policy, the Master
Servicer shall deliver to the Trustee a Request for Release signed by a
Servicing Officer on behalf of the Master Servicer in substantially the form
attached as Exhibit D hereto. Upon receipt of the Request for Release, the
Trustee shall deliver the Mortgage File or any document therein to the Master
Servicer or Sub-Servicer, as the case may be.
(c) The Master Servicer shall cause each Mortgage File or any document
therein released pursuant to Subsection 3.13(b) to be returned to the Trustee
when the need therefor no longer exists, and in any event within 21 days of the
Master Servicer's receipt thereof, unless the Mortgage Loan has become a
Liquidated Mortgage Loan and the Liquidation Proceeds relating to the Mortgage
Loan have been deposited in the Certificate Account or such Mortgage File is
being used to pursue foreclosure or other legal proceedings. Prior to return of
a Mortgage File or any document to the Trustee, the Master Servicer, the related
Insurer or Sub- Servicer to whom such file or document was delivered shall
retain such file or document in its respective control unless the Mortgage File
or such document has been delivered to an attorney, or to a public trustee or
other public official as required by law, to initiate or pursue legal action or
other proceedings for the foreclosure of the Mortgaged Property either
judicially or non-judicially, and the Master Servicer has delivered to the
Trustee a certificate of a Servicing Officer certifying as to the name and
address of the Person to which such Mortgage File or such document was delivered
and the purpose or purposes of such delivery. If a Mortgage Loan becomes a
Liquidated Mortgage Loan, the Trustee shall deliver the Request for Release with
respect thereto to the Master Servicer upon deposit of the related Liquidation
Proceeds in the Certificate Account.
(d) The Trustee shall execute and deliver to the Master Servicer any court
pleadings, requests for trustee's sale or other documents necessary to (i) the
foreclosure or trustee's sale with respect to a Mortgaged Property; (ii) any
legal action brought to obtain judgment against any Mortgagor on the Mortgage
Note or Security Instrument; (iii) obtain a deficiency judgment against the
Mortgagor; or (iv) enforce any other rights or remedies provided by the Mortgage
Note or Security Instrument or otherwise available at law or equity. Together
with such documents or pleadings the Master Servicer shall deliver to the
Trustee a certificate of a Servicing Officer in which it requests the Trustee to
execute the pleadings or documents. The certificate shall certify and explain
the reasons for which the pleadings or documents are required. It shall further
certify that the Trustee's execution and delivery of the pleadings or documents
will not invalidate any insurance coverage under the Required Insurance
Policies, affect the REMIC status of the Trust or invalidate or otherwise affect
the lien of the Security Instrument, except for the termination of such a lien
upon completion of the foreclosure or trustee's sale.
Section 3.14. Servicing and Master Servicing Compensation. (a) As
compensation for its activities hereunder, the Master Servicer shall be entitled
to receive the Master Servicing Fee from full payments of accrued interest on
each Mortgage Loan.
(b) The Master Servicer may retain additional servicing compensation in the
form of prepayment charges, if any, assumption fees, tax service fees, fees for
statement of account or payoff, late payment charges, interest on amounts
deposited in any Accounts or Permitted Investments of such amounts, or
otherwise. The Master Servicer may retain, as additional servicing compensation,
amounts in respect of interest paid by borrowers in connection with any
principal prepayment in full received by the Master Servicer from the first day
through the 15th day of each month, other than the month of the Cut-off Date.
The Master Servicer shall be required to pay all expenses it incurs in
connection with servicing activities under this Agreement, including fees and
expenses to Sub-Servicers, and shall not be entitled to reimbursement except as
provided in this Agreement. Expenses to be paid by the Master Servicer under
this Subsection 3.14(b) shall include payment of the expenses of the accountants
retained pursuant to Section 3.16.
Section 3.15. Annual Statement of Compliance. Within 120 days after
December 31 of each year, commencing December 1996, the Master Servicer at its
own expense, shall deliver to the Trustee, with a copy to the Rating Agencies,
an Officer's Certificate stating, as to the signer thereof, that (i) a review of
the activities of the Master Servicer during the preceding fiscal year and of
performance under this Agreement has been made under such officer's supervision,
(ii) to the best of such officer's knowledge, based on such review, the Master
Servicer has fulfilled all its obligations under this Agreement for such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof including the steps being taken by the Master Servicer to remedy such
default; (iii) a review of the activities of each Sub-Servicer during the
Sub-Servicer's most recently ended fiscal year on or prior to such December 31
and its performance under its Sub-Servicing Agreement has been made under such
Officer's supervision; and (iv) to the best of the Servicing Officer's
knowledge, based on his review and the certification of an officer of the
Sub-Servicer (unless the Servicing Officer has reason to believe that reliance
on such certification is not justified), either each Sub-Servicer has performed
and fulfilled its duties, responsibilities and obligations under this Agreement
and its Sub-Servicing Agreement in all material respects throughout the year,
or, if there has been a default in performance or fulfillment of any such
duties, responsibilities or obligations, specifying the nature and status of
each such default known to the Servicing Officer. Copies of such statements
shall be provided by the Master Servicer to the Certificateholders upon request
or by the Trustee at the expense of the Master Servicer should the Master
Servicer fail to provide such copies.
Section 3.16. Annual Independent Public Accountants' Servicing Report. (a)
Within 120 days after December 31 of each year, commencing December, 1996, the
Master Servicer, at its expense, shall cause a firm of Independent public
accountants who are members of the American Institute of Certified Public
Accountants to furnish a statement to the Master Servicer, which will be
provided to the Trustee and the Rating Agencies to the effect that, in
connection with the firm's examination of the Master Servicer's financial
statements as of the end of such fiscal year, nothing came to their attention
that indicated that the Master Servicer was not in compliance with Sections
3.07, 3.15, 4.01, 4.02, 4.03 and 4.04 except for (i) such exceptions as such
firm believes to be immaterial and (ii) such other exceptions as are set forth
in such statement.
(b) Within 120 days after December 31 of each year, commencing December
1996, the Master Servicer, at its expense, shall furnish to the Trustee the most
recently available letter or letters from one or more firms of Independent
certified public accountants who are members of the American Institute of
Certified Public Accountants reporting the results of such firm's examination of
the servicing procedures of any Sub-Servicer and any Master Servicer (other than
Headlands or the Trustee) in accordance with the requirements of the Uniform
Single Attestation Program for Mortgage Bankers.
Section 3.17. REMIC-Related Covenants. For as long as REMIC Trust shall
exist, the Master Servicer and the Trustee shall act in accordance herewith to
assure continuing treatment of the REMIC Trust as a REMIC, and the Trustee shall
comply with any directions of the Master Servicer to assure such continuing
treatment. In particular, the Trustee shall not (a) sell or permit the sale of
all or any portion of the Mortgage Loans or of any Permitted Investment unless
such sale is as a result of a repurchase of the Mortgage Loans pursuant to this
Agreement or the Trustee has received a REMIC Opinion prepared at the expense of
the Trust Fund; and (b) other than with respect to a substitution pursuant to
Section 2.04, accept any contribution to the REMIC Trust after the Startup Day
without receipt of a REMIC Opinion.
Section 3.18. Additional Information. The Master Servicer agrees to furnish
the Seller from time to time upon reasonable request, such further information,
reports and financial statements as the Seller deems appropriate to prepare and
file all necessary reports with the Securities and Exchange Commission.
ARTICLE IV
Accounts
Section 4.01. Protected Accounts. (a) The Master Servicer shall require
each Sub-Servicer to establish and maintain a Protected Account complying with
the requirements set forth in this Section 4.01, with records to be kept with
respect thereto on a Mortgage Loan by Mortgage Loan basis, into which accounts
shall be deposited within 24 hours of receipt all collections of principal and
interest on any Mortgage Loan and with respect to any REO Property received by
the Master Servicer, or a Sub-Servicer, including Principal Prepayments,
Insurance Proceeds, Net Liquidation Proceeds, and advances made from the
Sub-Servicer's own funds (less servicing compensation as permitted by Subsection
3.14(a)) and all other amounts to be deposited in the Protected Accounts. The
Master Servicer is hereby authorized to make withdrawals from and deposits to
the related Protected Accounts for purposes required or permitted by this
Agreement. All Protected Accounts shall be held in a Designated Depository
Institution and segregated on the books of such institution. The amount at any
time credited to a Protected Account shall be fully insured by the FDIC or, to
the extent that such balance exceeds the lesser of $100,000 or the limits of
such insurance, such excess must be transferred to the appropriate subaccount of
the Certificate Account or the related Custody Account or invested in Permitted
Investments.
Amounts on deposit in a Protected Account may be invested in Permitted
Investments, such Permitted Investments to mature, or to be subject to
redemption or withdrawal, no later than the date on which such funds are
required to be withdrawn for deposit in the Custody Account or Certificate
Account, and shall be held until required for such deposit. The income earned
from Permitted Investments made pursuant to this Section 4.01 shall be paid to
the Master Servicer or the related Sub-Servicer as additional compensation for
its obligations under this Agreement, and the risk of loss of moneys required to
be distributed to the Certificateholders resulting from such investments shall
be borne by and be the risk of the Master Servicer or the related Sub- Servicer.
The Master Servicer shall cause the related Sub-Servicer to deposit the amount
of any such loss in the related Protected Account within two Business Days of
receipt of notification of such loss but not later than the second Business Day
prior to the Distribution Date on which the moneys so invested are required to
be distributed to the Certificateholders. The Master Servicer may, and the
Master Servicer may permit the related Sub-Servicer to, transfer funds to other
accounts (which shall for purposes hereof be deemed to be Protected Accounts) or
to establish Protected Accounts not conforming to the foregoing requirements, to
the extent that such other accounts or Protected Accounts are Rating Agency
Eligible Accounts.
(b) On or before each Funds Transfer Date, the Master Servicer shall
withdraw or shall cause (by written direction to the Trustee if such withdrawal
is from a Custody Account) to be withdrawn from the Protected Accounts or the
Custody Account and shall immediately deposit or cause to be deposited in the
Certificate Account amounts representing the following collections and payments
(other than with respect to principal of or interest on the Mortgage Loans due
on or before the Cut-Off Date):
(i) Scheduled Payments on the Mortgage Loans received or advanced by
the Master Servicer or Sub- Servicers which were due on or before the
related Due Date, net of the amount thereof comprising the Master Servicing
Fee due the Master Servicer;
(ii) Full Principal Prepayments and any Liquidation Proceeds received
by the Master Servicer or Sub-Servicers with respect to such Mortgage Loans
in the related Prepayment Period, with interest to the date of prepayment
or liquidation, net of the amount thereof comprising the Master Servicing
Fee due the Master Servicer;
(iii) Partial prepayments of principal received by the Master Servicer
or Sub-Servicers for such Mortgage Loans in the related Prepayment Period;
and
(iv) Any amount to be used as a Certificate Account Advance.
(c) Withdrawals may be made from a Protected Account only to make
remittances as provided in Subsections 4.01(b) or 4.03(c), or Section 4.04; to
reimburse the Master Servicer or a Sub-Servicer for advances of principal and
interest which have been recovered by subsequent collection from the related
Mortgagor; to remove amounts deposited in error; to remove fees, charges or
other such amounts deposited on a temporary basis; or to clear and terminate the
account at the termination of this Agreement in accordance with Section 10.01.
(d) The Master Servicer shall deliver to the Trustee on or prior to the
Determination Date in each month a statement from the institution at which each
Protected Account is maintained showing deposits and withdrawals during the
prior month.
Section 4.02. Certificate Account. (a) The Trustee shall establish and
maintain in the name of the Trustee, for the benefit of the Certificateholders,
the Certificate Account as a segregated non-interest bearing trust account or
accounts. The Trustee will deposit in the Certificate Account as received the
following amounts:
(i) Any amounts withdrawn from a Protected Account pursuant to
Subsection 4.01(b) or the Custody Account pursuant to Section 4.04;
(ii) Any Monthly Advance and any Compensating Interest Payments;
(iii) Any Insurance Proceeds or Liquidation Proceeds received by the
Master Servicer which were not deposited in a Protected Account or the
Custody Account;
(iv) The Repurchase Price with respect to any Mortgage Loans purchased
by Headlands pursuant to Sections 2.02 or 2.03 or by the Master Servicer
pursuant to Section 3.19, any amounts which are to be treated pursuant to
Section 2.04 as the payment of such a Repurchase Price, and all proceeds of
any Mortgage Loans or property acquired with respect thereto repurchased by
the Master Servicer or its designee pursuant to Section 10.01 which were
not deposited in a Protected Account or the Custody Account;
(v) Any amounts required to be deposited with respect to losses on
Permitted Investments pursuant to Subsection 4.02(d) or Section 4.04(d)
below; and
(vi) Any other amounts received by the Master Servicer or the Trustee
and required to be deposited in the Certificate Account pursuant to this
Agreement.
(b) All amounts deposited to the Certificate Account shall be held by the
Trustee in the name of the Trustee in trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement, subject to the right of the Master Servicer to require the Trustee to
make withdrawals therefrom as provided herein. The foregoing requirements for
crediting the Certificate Account shall be exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, payments in the
nature of prepayment or late payment charges or assumption, tax service,
statement account or payoff, substitution, satisfaction, release and other like
fees and charges need not be credited by the Master Servicer or the related Sub-
Servicer to the Certificate Account and may be retained by the Master Servicer
or the related Sub-Servicer as servicing compensation. In the event that the
Master Servicer shall deposit or cause to be deposited to the Certificate
Account any amount not required to be credited thereto, the Trustee, upon
receipt of a written request therefor signed by a Servicing Officer of the
Master Servicer, shall promptly transfer such amount to the Master Servicer, any
provision herein to the contrary notwithstanding.
(c) The Certificate Account shall constitute a trust account of the Trust
Fund segregated on the books of the Trustee and held by the Trustee in trust,
and the Certificate Account and the funds deposited therein shall not be subject
to, and shall be protected from, all claims, liens, and encumbrances of any
creditors or depositors of the Trustee or the Master Servicer (whether made
directly, or indirectly through a liquidator or receiver of the Trustee or the
Master Servicer). The amount at any time credited to the Certificate Account
shall be (i) insured by the FDIC to the maximum coverage provided thereby, (ii)
at the written direction of the Master Servicer invested, in the name of the
Trustee, or its nominee, for the benefit of the Certificate-holders, in such
Permitted Investments to be held by the Trustee as the Master Servicer may
direct (such direction to be confirmed in writing) and in the absence of such
direction, the Trustee shall invest funds in the Certificate Account in
Permitted Investments described in clause (viii) of the definition thereof, or
(iii) from the maturity of any Permitted Investment on the Business Day prior to
a Distribution Date through the distribution of such funds on such Distribution
Date or at such other time and in such amount as, in the judgment of the Master
Servicer, cannot reasonably be invested in accordance with items (i) or (ii) of
this sentence, held by the Trustee in such Certificate Account. All Permitted
Investments shall mature or be subject to redemption or withdrawal on or before,
and shall be held until, the next succeeding Distribution Date if the obligor
for such Permitted Investment is the Trustee or, if such obligor is any other
Person, the Business Day preceding such Distribution Date. With respect to the
Certificate Account and the funds deposited therein, the Trustee shall take such
action as may be necessary to ensure that the Certificateholders shall be
entitled to the priorities afforded to such a trust account (in addition to a
claim against the estate of the Trustee) as provided by 12 U.S.C. ss. 92a(e), if
applicable, or any applicable comparable state statute applicable to state
chartered banking corporations.
(d) The income earned from Permitted Investments made pursuant to this
Section 4.02 shall be paid to the Master Servicer, as additional compensation
for its obligations under this Agreement, and the risk of loss of moneys
required to be distributed to the Certificateholders resulting from such
investments shall be borne by and be the risk of the Master Servicer. The amount
of any such loss shall be remitted by the Master Servicer to the Trustee for
deposit in the Certificate Account within two Business Days of receipt of
notification of such loss but not later than the second Business Day prior to
the Distribution Date on which the moneys so invested are required to be
distributed to the Certificateholders.
Section 4.03. Permitted Withdrawals and Transfers from the Certificate
Account. (a) The Trustee will, from time to time on demand of the Master
Servicer, make or cause to be made such withdrawals or transfers from the
Certificate Account as the Master Servicer has designated for such transfer or
withdrawal as specified in a certificate signed by a Servicing Officer (upon
which the Trustee may conclusively rely) for the following purposes:
(i) [intentionally omitted];
(ii) to reimburse the Master Servicer or any Sub- Servicer for any
Monthly Advance of its own funds or any advance of such Sub-Servicer's own
funds, the right of the Master Servicer or a Sub-Servicer to reimbursement
pursuant to this subclause (ii) being limited to amounts received on a
particular Mortgage Loan (including, for this purpose, the Repurchase Price
therefor, Insurance Proceeds and Liquidation Proceeds) which represent late
payments or recoveries of the principal of or interest on such Mortgage
Loan respecting which such Monthly Advance or advance was made;
(iii) to reimburse the Master Servicer or any Sub- Servicer from
Insurance Proceeds or Liquidation Proceeds relating to a particular
Mortgage Loan for amounts expended by the Master Servicer or such
Sub-Servicer pursuant to Section 3.12 in good faith in connection with the
restoration of the related Mortgaged Property which was damaged by an
Uninsured Cause or in connection with the liquidation of such Mortgage
Loan;
(iv) to reimburse the Master Servicer or any Sub- Servicer from
Insurance Proceeds relating to a particular Mortgage Loan for Insured
Expenses incurred with respect to such Mortgage Loan and to reimburse the
Master Servicer or such Sub-Servicer from Liquidation Proceeds from a
particular Mortgage Loan for Liquidation Expenses incurred with respect to
such Mortgage Loan;
(v) to pay the Master Servicer or any Sub-Servicer (payment to any
Sub-Servicer to be subject to prior payment to the Master Servicer of an
amount equal to the Master Servicing Fee), as appropriate, from Liquidation
Proceeds or Insurance Proceeds received in connection with the liquidation
of any Mortgage Loan, the amount which it or such Sub-Servicer would have
been entitled to receive under subclause (x) of this Subsection 4.03(a) as
servicing compensation on account of each defaulted scheduled payment on
such Mortgage Loan if paid in a timely manner by the related Mortgagor, but
only to the extent that the aggregate of Liquidation Proceeds and Insurance
Proceeds with respect to such Mortgage Loan, after any reimbursement to the
Master Servicer or any Sub-Servicer, pursuant to subclauses (ii), (iii),
(iv) and (vii) of this Subsection 4.03(a), exceeds the Outstanding
Principal Balance of such Mortgage Loan plus accrued and unpaid interest
thereon at the related Mortgage Interest Rate less the Master Servicing Fee
Rate to but not including the date of payment;
(vi) to pay the Master Servicer or any Sub-Servicer (payment to any
Sub-Servicer to be subject to prior payment to the Master Servicer of the
portion of the Master Servicing Fee which the Master Servicer is entitled
to retain as evidenced in writing to the Trustee by the Master Servicer, as
appropriate, from the Repurchase Price for any Mortgage Loan, the amount
which it or such Sub-Servicer would have been entitled to receive under
subclause (x) of this Subsection 4.03(a) as servicing compensation, but
only to the extent that the Repurchase Price with respect to such Mortgage
Loan after any reimbursement to the related Master Servicer and Sub-
Servicer pursuant to subclauses (ii) and (vii) of this Subsection 4.03(a)
exceeds the Outstanding Principal Balance of such Mortgage Loan plus
accrued and unpaid interest thereon at the related Mortgage Interest Rate
less the Master Servicing Fee Rate through the last day of the month of
repurchase;
(vii) to reimburse the Master Servicer or any Sub- Servicer for
advances of funds pursuant to Sections 3.07, 3.09 and 3.10, the right to
reimbursement pursuant to this subclause being limited to amounts received
on the related Mortgage Loan (including, for this purpose, the Repurchase
Price therefor, Insurance Proceeds and Liquidation Proceeds) which
represent late recoveries of the payments for which such advances were
made;
(viii) to pay the Master Servicer or any Sub-Servicer, as the case may
be, with respect to each Mortgage Loan that has been purchased pursuant to
Section 2.02, 2.03, 2.04, 3.19 or 10.01, all amounts received thereon,
representing recoveries of principal that reduce the Outstanding Principal
Balance of the related Mortgage Loan below the Outstanding Principal
Balance used in calculating the Repurchase Price or representing interest
included in the calculation of the Repurchase Price or accrued after the
end of the month during which such repurchase occurs;
(ix) to reimburse the Master Servicer or any Sub- Servicer for any
Monthly Advance or advance, after a Realized Loss has been allocated with
respect to the related Mortgage Loan if the Monthly Advance or advance has
not been reimbursed pursuant to clauses (ii) and (vii);
(x) to pay the Master Servicer and any Sub-Servicer servicing
compensation as set forth in Section 3.14;
(xi) to reimburse the Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to Subsection
7.04(d);
(xii) to clear and terminate the Certificate Account pursuant to
Section 10.01; and
(xiii) to remove amounts deposited in error.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Certificate Account pursuant to subclauses (i) through
(vii), inclusive, and (ix).
(b) On each Distribution Date, the Trustee shall make the following
payments in the priority set forth from the funds in the Certificate Account:
(i) First, the Trustee's Fees shall be paid to the Trustee; and
(ii) Second, the amount distributable to the Holders of the
Certificates shall be payable in accordance with Section 6.01.
(c) Notwithstanding the provisions of this Section 4.03, the Master
Servicer may, but is not required to, allow the Sub- Servicers to deduct from
amounts received by them or from the related Protected Account, prior to deposit
in the Certificate Account or the Custody Account, any portion to which such
Sub- Servicers are entitled as servicing compensation (including income on
Permitted Investments) or reimbursement of any reimbursable advances made by
such Sub-Servicers.
Section 4.04 Custody Account. (a) The Trustee shall establish and maintain
for the benefit of the Certificateholders the Custody Account as a segregated
non-interest bearing trust account in the corporate trust department of a
Designated Depository Institution. The Custody Account shall constitute a trust
account of the Trust Fund segregated on the books of the Designated Depository
Institution and held by the Designated Depository Institution in trust, and such
Account and the funds deposited therein shall not be subject to, and shall be
protected from, all claims, liens, and encumbrances of any creditors or
depositors of the Designated Depository Institution, the Trustee, the Master
Servicer, any Sub-Servicer (whether made directly, or indirectly through a
liquidator or receiver of the Designated Depository Institution, the Trustee,
any Master Servicer, or any Sub-Servicer). With respect to the Custody Account
maintained with the Trustee and the funds deposited therein, the Trustee shall
take such action as may be necessary to ensure that the Certificateholders shall
be entitled to the priorities afforded to such a trust account (in addition to a
claim against the estate of the Trustee) as provided by 12 U.S.C. ss. 92a(e), if
applicable, or any applicable comparable state statute applicable to state
chartered banking corporations. The Custody Account shall be an outside reserve
fund of the REMIC Trust and shall not constitute a part of the REMIC Trust. The
Trustee shall be the legal owner of the portion of the Funds held in the Custody
Account for the benefit of the Certificateholders and for all Federal income tax
purposes, shall be the owner of the Custody Account. For all Federal tax
purposes, amounts, if any, transferred by the REMIC Trust to the Custody Account
shall be treated as amounts distributed by the REMIC Trust to Headlands.
(b) Within one Business Day after receipt, the Master Servicer shall
withdraw or shall cause to be withdrawn from each Protected Account and shall
immediately deposit or cause to be deposited in the Custody Account all amounts
in the Protected Account not otherwise invested in Permitted Investments
pursuant to Section 4.01 and exceeding the lesser of $100,000 or the FDIC
insurance limit (other than with respect to principal of or interest on the
Mortgage Loans due on or before the Cut-Off Date).
(c) Withdrawals may be made from the Custody Account only to make
remittances as provided in Sections 4.01(b) or 4.04(d); to reimburse the Master
Servicer or any Sub-Servicer for advances of principal and interest which have
been recovered by subsequent collection from the related Mortgagor; to remove
amounts deposited in error; to remove fees, charges or other such amounts
deposited on a temporary basis; or to clear and terminate the account at the
termination of this Agreement in accordance with Section 10.01.
(d) Funds in the Custody Account may be invested at the direction of the
Master Servicer (such direction to be confirmed promptly in writing) in
Permitted Investments held in trust for the benefit of the Certificateholders
and in the absence of such directions, funds in the Custody Account shall be
invested in Permitted Investments described in clause (viii) of the definition
thereof. Such Permitted Investments must mature, or be subject to redemption or
withdrawal, no later than the date on which such funds are required to be
withdrawn for deposit in the Certificate Account pursuant to Section 4.01(b) and
shall be held in such Account until required for such deposit. The income earned
from Permitted Investments made pursuant to this Section 4.04 shall be paid to
the Master Servicer as additional compensation for its obligations under this
Agreement, and the risk of loss of moneys required to be distributed to the
Certificateholders resulting from such investments shall be borne by and be the
risk of the Master Servicer. The amount of any such loss shall be deposited by
the Master Servicer in the Custody Account within two Business Days of receipt
of notification of such loss but not later than the second Business Day prior to
the Distribution Date on which the moneys so invested are required to be
distributed to the Certificateholders.
ARTICLE V
Certificates
Section 5.01. Certificates. (a) The Depository, the Seller and the Trustee
have entered into a Depository Agreement dated as of September 30, 1996 (the
"Depository Agreement"). Except for the Physical Certificates, the Individual
Certificates and as provided in Subsection 5.01(b), the Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of such Certificates may not be transferred by the
Trustee except to a successor to the Depository; (ii) ownership and transfers of
registration of such Certificates on the books of the Depository shall be
governed by applicable rules established by the Depository; (iii) the Depository
may collect its usual and customary fees, charges and expenses from its
Depository Participants; (iv) the Trustee shall deal with the Depository as
representative of such Certificate Owners of the respective Class of
Certificates for purposes of exercising the rights of Certificateholders under
this Agreement, and requests and directions for and votes of such representative
shall not be deemed to be inconsistent if they are made with respect to
different Certificate Owners; and (v) the Trustee may rely and shall be fully
protected in relying upon information furnished by the Depository with respect
to its Depository Participants.
All transfers by Certificate Owners of such respective Classes of
Book-Entry Certificates and Global Certificates shall be made in accordance with
the procedures established by the Depository Participant or brokerage firm
representing such Certificate Owners. Each Depository Participant shall only
transfer Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository's
normal procedures.
(b) If (i)(A) the Seller advises the Trustee in writing that the Depository
is no longer willing or able to properly discharge its responsibilities as
Depository and (B) the Trustee or the Seller is unable to locate a qualified
successor within 30 days or (ii) the Seller at its option advises the Trustee in
writing that it elects to terminate the book-entry system through the
Depository, the Trustee shall request that the Depository notify all Certificate
Owners of the occurrence of any such event and of the availability of
definitive, fully registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration, the Trustee shall issue the Definitive
Certificates. Neither the Seller, the Master Servicer nor the Trustee shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions.
(c) The Classes of the Certificates shall have the following designations,
initial principal amounts and Pass-Through Rates:
Initial Principal Pass-Through
Designation Amount Rate
A-1 $20,014,113 6.900%
A-2 $30,130,628 10.000%
A-3 $17,198,182 7.250%
A-4 $13,428,000 7.500%
A-5 $15,658,333 7.750%
A-6 $15,227,744 7.950%
A-7 $14,390,000 8.125%
A-8 $ 8,380,000 8.125%
A-9 $ 6,490,000 8.125%
A-10 $18,800,467 8.125%
A-11 $ 2,000,000 8.125%
PO $ 249,093 (1)
X (2) (2)
B-1 $ 5,267,208 8.125%
B-2 $ 3,511,472 8.125%
B-3 $ 2,370,244 8.125%
B-4 $ 1,229,015 8.125%
B-5 $ 351,147 8.125%
B-6 $ 877,870 8.125%
R $ 100 8.125%
* Original Notional Amount
(1) The Class PO Certificates are principal only Certificates and
will not bear interest.
(2) The Class X Certificates will bear interest on their Notional
Amount at a variable Pass-Through Rate equal to a fraction,
the numerator of which is equal to the product of (a) the
Scheduled Principal Balances of the Non-Discount Mortgage
Loans and (b) the excess of (x) the weighted average of the
Net Rates of the Non-Discount Mortgage Loans over (v) 8.125%
per annum and the denominator of which is equal to the
Scheduled Principal Balances of the Mortgage Loans.
(e) With respect to each Distribution Date, each Class of Certificates
(other than the Class PO Certificates) shall accrue interest during the related
Interest Accrual Period. With respect to each Distribution Date and each such
Class of Certificates, interest shall be calculated based upon the respective
Pass-Through Rate set forth, or determined as provided, above and the Current
Principal Amount or Notional Amount, as the case may be, of such Class
applicable to such Distribution Date.
(f) The Certificates shall be substantially in the forms set forth in
Exhibit A-1 and A-2. On original issuance, the Trustee shall sign, countersign
and shall deliver them at the direction of the Seller. Pending the preparation
of definitive Certificates of any Class, the Trustee may sign and countersign
temporary Certificates that are printed, lithographed or typewritten, in
authorized denominations for Certificates of such Class, substantially of the
tenor of the definitive Certificates in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers or authorized signatories executing such Certificates may
determine, as evidenced by their execution of such Certificates. If temporary
Certificates are issued, the Seller will cause Definitive Certificates to be
prepared without unreasonable delay. After the preparation of Definitive
Certificates, the temporary Certificates shall be exchangeable for Definitive
Certificates upon surrender of the temporary Certificates at the office of the
Trustee, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Certificates, the Trustee shall sign and countersign and
deliver in exchange therefor a like aggregate principal amount, in authorized
denominations for such Class, of definitive Certificates of the same Class.
Until so exchanged, such temporary Certificates shall in all respects be
entitled to the same benefits as Definitive Certificates.
(g) Each Class of Book-Entry Certificates will be registered as a single
Certificate of such Class held by a nominee of the Depository or the DTC
Custodian, and beneficial interests will be held by investors through the
book-entry facilities of the Depository in minimum denominations of $25,000 and
increments of $1 in excess thereof, except that one Certificate of each such
Class may be issued in a different amount so that the sum of the denominations
of all outstanding Certificates of such Class shall equal the Current Principal
Amount of such Class on the Closing Date. Each Class of Global Certificates
shall be issued in fully registered form in minimum dollar denominations of
$25,000 and integral multiples of $1 in excess thereof, except that one
Certificate of each Class may be in a different denomination so that the sum of
the denominations of all outstanding Certificates of such Class shall equal the
Current Principal Amount of such Class on the Closing Date. On the Closing Date,
the Trustee shall execute and countersign (i) one or more Global Certificates of
each Class and/or (ii) Individual Certificates all in an aggregate principal
amount that shall equal the Current Principal Amount of such Class on the
Closing Date. The Global Certificates shall be delivered by the Seller to the
Depository or pursuant to the Depository's instructions, shall be delivered by
the Seller on behalf of the Depository to and deposited with the DTC Custodian.
The Class X Certificates and the Class B-4, Class B-5 and Class B-6 Certificates
will be issued in certificated fully-registered form in minimum denominations of
$1,000,000 and $25,000, respectively, and increments of $1 in excess thereof,
except that one Certificate of each such Class may be issued in a different
amount so that the sum of the denominations of all outstanding Certificates of
such Class shall equal the Current Principal Amount (or Notional Amount in the
case of the Class X Certificates) of such Class on the Closing Date. The Class R
Certificates shall be issued in certificated fully-registered form in the
denomination of $100 each. The Trustee shall sign them by facsimile or manual
signature and countersign them by manual signature on behalf of the Trustee by
authorized signatories, who shall be Responsible Officers of the Trustee or its
agent. A Certificate bearing the manual and facsimile signatures of individuals
who were the authorized signatories of the Trustee or its agent at the time of
issuance shall bind the Trustee, notwithstanding that such individuals or any of
them have ceased to hold such positions prior to the delivery of such
Certificate.
(h) No Certificate shall be entitled to any benefit under this Agreement,
or be valid for any purpose, unless there appears on such Certificate the
countersignature of the Trustee or its agent, and such countersignature upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly executed and delivered hereunder. All Certificates
issued on the Closing Date shall be dated the Closing Date. All Certificates
issued thereafter shall be dated the date of their countersignature.
(i) The Closing Date is hereby designated as the "startup" day of the REMIC
Trust within the meaning of Section 860G(a)(9) of the Code.
(j) For federal income tax purposes, the REMIC Trust shall have a tax year
that is a calendar year and shall report income on an accrual basis.
(k) The Trustee shall cause the REMIC Trust to elect to be treated as a
REMIC under Section 860D of the Code. Any inconsistencies or ambiguities in this
Agreement or in the administration of any Trust established hereby shall be
resolved in a manner that preserves the validity of such elections.
(l) The Assumed Final Distribution Date for each Class of Certificates is
September 25, 2027.
Section 5.02. Registration of Transfer and Exchange of Certificates. (a)
The Trustee shall maintain at an office or agency a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided.
(b) Subject to Subsection 5.01(a) and, in the case of each Class of Global
Certificates or Physical Certificates upon the satisfaction of the conditions
set forth below, upon surrender for registration of transfer of any Certificate
at any office or agency of the Trustee maintained for such purpose, the Trustee
shall sign, countersign and shall deliver, in the name of the designated
transferee or transferees, a new Certificate of a like Class and aggregate
Fractional Undivided Interest, but bearing a different number.
(c) By acceptance of an Individual Certificate, whether upon original
issuance or subsequent transfer, each holder of such a Certificate acknowledges
the restrictions on the transfer of such Certificate set forth in the Securities
Legend and agrees that it will transfer such a Certificate only as provided
herein. In addition to the provisions of Subsection 5.02(h), the following
restrictions shall apply with respect to the transfer and registration of
transfer of an Individual Certificate to a transferee that takes delivery in the
form of an Individual Certificate:
(i) The Trustee shall register the transfer of an Individual
Certificate if the requested transfer is being made to a transferee who has
provided the Trustee with a Rule 144A Certificate.
(ii) The Trustee shall register the transfer of any Individual
Certificate if (x) the transferor has advised the Trustee in writing that
the Certificate is being transferred to an Institutional Accredited
Investor; and (y) prior to the transfer the transferee furnishes to the
Trustee an Investment Letter, provided that, if based upon an Opinion of
Counsel to the effect that the delivery of (x) and (y) above are not
sufficient to confirm that the proposed transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act and other applicable laws, the Trustee
shall as a condition of the registration of any such transfer require the
transferor to furnish such other certifications, legal opinions or other
information prior to registering the transfer of an Individual Certificate
as shall be set forth in such Opinion of Counsel.
(d) Subject to Subsection 5.02(h), so long as the Global Certificate of
such Class remains outstanding and is held by or on behalf of the Depository,
transfers of beneficial interests in such Class of Global Certificates, or
transfers by holders of Individual Certificates of such Class to transferees
that take delivery in the form of beneficial interests in the Global
Certificate, may be made only in accordance with this Subsection 5.02(d) and in
accordance with the rules of the Depository:
(i) In the case of a beneficial interest in the Global Certificate
being transferred to an Institutional Accredited Investor, such transferee
shall be required to take delivery in the form of an Individual Certificate
or Certificates and the Trustee shall register such transfer only upon
compliance with the provisions of Subsection 5.02(c)(ii).
(ii) In the case of a beneficial interest in a Class of Global
Certificates being transferred to a transferee that takes delivery in the
form of an Individual Certificate of such Class or Certificates, except as
set forth in clause (i) above, the Trustee shall register such transfer
only upon compliance with the provisions of Subsection 5.02(c)(i).
(iii) In the case of an Individual Certificate of a Class being
transferred to a transferee that takes delivery in the form of a beneficial
interest in a Global Certificate of such Class, the Trustee shall register
such transfer if the transferee has provided the Trustee with a Rule 144A
Certificate.
(iv) No restrictions shall apply with respect to the transfer or
registration of transfer of a beneficial interest in the Global Certificate
of a Class to a transferee that takes delivery in the form of a beneficial
interest in the Global Certificate of such Class.
(e) Subject to Subsection 5.02(h), an exchange of a beneficial interest in
a Global Certificate of a Class for an Individual Certificate or Certificates of
such Class, an exchange of an Individual Certificate of a Class or Certificates
of a Class for a beneficial interest in the Global Certificate of such Class and
an exchange of an Individual Certificate or Certificates of a Class for another
Individual Certificate or Certificates of such Class (in each case, whether or
not such exchange is made in anticipation of subsequent transfer, and, in the
case of the Global Certificate of such Class, so long as such Certificate
remains outstanding and is held by or on behalf of the Depository) may be made
only in accordance with this Subsection 5.02(e) and in accordance with the rules
of the Depository:
(i) A holder of a beneficial interest in a Global Certificate of a
Class may at any time exchange such beneficial interest for an Individual
Certificate or Certificates of such Class.
(ii) A holder of an Individual Certificate of a Class may exchange
such Certificate for a beneficial interest in the Global Certificate of
such Class if such holder furnishes to the Registrar a Rule 144A
Certificate.
(iii) A holder of an Individual Certificate of a Class may exchange
such Certificate for an equal aggregate principal amount of Individual
Certificates of such Class in different authorized denominations without
any certification.
(f) (i) Upon acceptance for exchange or transfer of an Individual
Certificate of a Class for a beneficial interest in a Global Certificate of such
Class as provided herein, the Trustee shall cancel such Individual Certificate
and shall (or shall request the Depository to) endorse on the schedule affixed
to the applicable Global Certificate (or on a continuation of such schedule
affixed to the Global Certificate and made a part thereof) an appropriate
notation evidencing the date of such exchange or transfer and an increase in the
certificate balance of the Global Certificate equal to the certificate balance
of such Individual Certificate exchanged or transferred therefor.
(ii) Upon acceptance for exchange or transfer of a beneficial interest
in a Global Certificate of a Class for an Individual Certificate of such
Class as provided herein, the Trustee shall (or shall request the
Depository to) endorse on the schedule affixed to such Global Certificate
(or on a continuation of such schedule affixed to such Global Certificate
and made a part thereof) an appropriate notation evidencing the date of
such exchange or transfer and a decrease in the certificate balance of such
Global Certificate equal to the certificate balance of such Individual
Certificate issued in exchange therefor or upon transfer thereof.
(g) The Securities Legend shall be placed on any Individual Certificate
issued in exchange for or upon transfer of another Individual Certificate or of
a beneficial interest in a Global Certificate.
(h) Subject to the restrictions on transfer and exchange set forth in this
Section 5.02, the holder of any Individual Certificate may transfer or exchange
the same in whole or in part (in an initial certificate balance equal to the
minimum authorized denomination or any integral multiple of $1 in excess
thereof) by surrendering such Certificate at the Corporate Trust Office, or at
the office of any transfer agent, together with an executed instrument of
assignment and transfer satisfactory in form and substance to the Trustee in the
case of transfer and a written request for exchange in the case of exchange. The
holder of a beneficial interest in a Global Certificate may, subject to the
rules and procedures of the Depository, cause the Depository (or its nominee) to
notify the Trustee in writing of a request for transfer or exchange of such
beneficial interest for an Individual Certificate or Certificates. Following a
proper request for transfer or exchange, the Trustee shall, within five Business
Days of such request made at such Corporate Trust Office, sign, countersign and
deliver at such Corporate Trust Office, to the transferee (in the case of
transfer) or holder (in the case of exchange) or send by first class mail at the
risk of the transferee (in the case of transfer) or holder (in the case of
exchange) to such address as the transferee or holder, as applicable, may
request, an Individual Certificate or Certificates, as the case may require, for
a like aggregate Fractional Undivided Interest and in such authorized
denomination or denominations as may be requested. The presentation for transfer
or exchange of any Individual Certificate shall not be valid unless made at the
Corporate Trust Office by the registered holder in person, or by a duly
authorized attorney-in-fact.
(i) At the option of the Certificateholders, Certificates may be exchanged
for other Certificates of authorized denominations of a like Class and aggregate
Fractional Undivided Interest, upon surrender of the Certificates to be
exchanged at any such office or agency; provided, however, that no Certificate
may be exchanged for new Certificates unless the original Fractional Undivided
Interest represented by each such new Certificate (i) is at least $25,000 with
respect to the Certificates other than the Residual Certificates, which shall be
at least $100 or (ii) is acceptable to the Seller as indicated to the Trustee in
writing. Whenever any Certificates are so surrendered for exchange, the Trustee
shall sign and countersign and the Trustee shall deliver the Certificates which
the Certificateholder making the exchange is entitled to receive.
(j) If the Trustee so requires, every Certificate presented or surrendered
for transfer or exchange shall be duly endorsed by, or be accompanied by a
written instrument of transfer, with a signature guarantee, in form satisfactory
to the Trustee, duly executed by the holder thereof or his or her attorney duly
authorized in writing.
(k) No service charge shall be made for any transfer or exchange of
Certificates, but the Trustee may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
(l) The Trustee shall cancel all Certificates surrendered for transfer or
exchange but shall retain such Certificates in accordance with its standard
retention policy or for such further time as is required by the record retention
requirements of the Securities Exchange Act of 1934, as amended, and thereafter
may destroy such Certificates.
(m) The following legend shall be placed on each Class PO and Class X
Certificate, whether upon original issuance or upon issuance of any other Class
PO or Class X Certificate, in exchange therefor or upon transfer thereof:
This Certificate may not be transferred to "Benefit Plan
Investors" as such term is defined in 29 C.F.R. ss. 2510.3-101 unless
the transferee provides a Benefit Plan Opinion to the Trustee;
provided that this Certificate may be transferred to a Benefit Plan
Investor without delivery of a Benefit Plan Opinion if this
Certificate is made available for purchase in the secondary market
through an underwriting or sale or placement by an entity which has
been granted an underwriter's prohibited transaction exemption similar
to PTE 90-30 or PTE 90-24.
(n) The following legend shall be placed on each Class A-11 and Class B
Certificate, whether upon original issuance or upon issuance of any other
Certificate of any such Class in exchange therefor or upon transfer thereof:
This Certificate may not be transferred to "Benefit Plan
Investors" as such term is defined in 29 C.F.R. ss. 2510.3-101 unless
the transferee provides a Benefit Plan Opinion to the Trustee.
(o) Subject to the matters set forth in Section 5.02, (j), (k) and (m), the
Class PO and Class X Certificates may be transferred without provision of any
additional documents to the Trustee.
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates. (a) If (i)
any mutilated Certificate is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Trustee such security or
indemnity as it may require to save it harmless, and (iii) the Trustee has not
received notice that such Certificate has been acquired by a third Person, the
Trustee shall sign, countersign and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and Fractional Undivided Interest but in each case bearing a different
number. The mutilated, destroyed, lost or stolen Certificate shall thereupon be
canceled of record by the Trustee and shall be of no further effect and evidence
no rights.
(b) Upon the issuance of any new Certificate under this Section 5.03, the
Trustee may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Any duplicate Certificate issued pursuant to this Section 5.03 shall constitute
complete and indefeasible evidence of ownership in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Seller, the Master Servicer, the
Trustee and any agent of the Seller, the Master Servicer or the Trustee may
treat the Person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions pursuant to Section
6.01 and for all other purposes whatsoever. Neither the Seller, the Master
Servicer, the Trustee nor any agent of the Seller, the Master Servicer or the
Trustee shall be affected by notice to the contrary. No Certificate shall be
deemed duly presented for a transfer effective on any Record Date unless the
Certificate to be transferred is presented no later than the close of business
on the third Business Day preceding such Record Date.
Section 5.05. Transfer Restrictions on Residual Certificates. (a) Residual
Certificates, or interests therein, may not be transferred without the prior
express written consent of the Tax Matters Person. As a prerequisite to such
consent, the proposed transferee must provide the Tax Matters Person and the
Trustee with an affidavit that the proposed transferee is not a Disqualified
Organization (as defined in Subsection 5.05(b)) (and, unless the Tax Matters
Person consents to the transfer to a person who is not a U.S. Person, an
affidavit that it is a U.S. Person) as provided in Subsection 5.05(b).
(b) No transfer, sale or other disposition of a Residual Certificate
(including a beneficial interest therein) may be made unless, prior to the
transfer, sale or other disposition of the Residual Certificate, the proposed
transferee (including the initial purchasers thereof) delivers to the Tax
Matters Person and the Trustee an affidavit in the form attached hereto as
Exhibit E stating, among other things, that as of the date of such transfer (i)
such transferee is not any of (A) the United States, any state or political
subdivision thereof, any foreign government, any international organization, or
any agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation all of whose activities are subject to tax
under Chapter 1 of Subtitle A of the Code and (except in the case of FHLMC) a
majority of whose board of directors is not selected by the United States, or
any state or political subdivision thereof), (B) any organization that is exempt
from any tax imposed by Chapter 1 of Subtitle A of the Code, other than (x) a
tax-exempt farmers' cooperative within the meaning of Section 521 of the Code or
(y) an organization that is subject to the tax imposed by section 511 of the
Code on "unrelated business taxable income" or (C) a corporation operating on a
cooperative basis that is engaged in furnishing electric energy or providing
telephone service to persons in rural areas (within the meaning of Section
1381(a)(2)(C) of the Code) (any Person described in (A), (B), or (C) being
referred to herein as a "Disqualified Organization") and that (ii) such
transferee is not acquiring such Residual Certificate for the account of a
Disqualified Organization. The Tax Matters Person shall not consent to a
transfer of a Residual Certificate if it has actual knowledge that any statement
made in the affidavit issued pursuant to the preceding sentence is not true.
Notwithstanding any transfer, sale or other disposition of a Residual
Certificate to a Disqualified Organization, such transfer, sale or other
disposition shall be deemed to be of no legal force or effect whatsoever and
such Disqualified Organization shall not be deemed to be a Holder of a Residual
Certificate for any purpose hereunder, including, but not limited to, the
receipt of distributions thereon. If any purported transfer shall be in
violation of the provisions of this Subsection 5.05(b), then the prior Holder
thereof shall, upon discovery that the transfer of such Residual Certificate was
not in fact permitted by this Subsection 5.05(b), be restored to all rights as a
Holder thereof retroactive to the date of the purported transfer. The Trustee
and the Tax Matters Person shall be under no liability to any Person for any
registration or transfer of a Residual Certificate that is not permitted by this
Subsection 5.05(b) or for making payments due on such Residual Certificate to
the purported Holder thereof or taking any other action with respect to such
purported Holder under the provisions of this Agreement so long as the written
affidavit referred to above was received with respect to such transfer, and the
Tax Matters Person and the Trustee had no knowledge that it was untrue. The
prior Holder shall be entitled to recover from any purported Holder of a
Residual Certificate that was in fact not a permitted transferee under this
Subsection 5.05(b) at the time it became a Holder all payments made on such
Residual Certificate. Each Holder of a Residual Certificate, by acceptance
thereof, shall be deemed for all purposes to have consented to the provisions of
this Subsection 5.05(b) and to any amendment of this Agreement deemed necessary
(whether as a result of new legislation or otherwise) by counsel of the Tax
Matters Person or the Seller to ensure that the Residual Certificates are not
transferred to a Disqualified Organization and that any transfer of such
Residual Certificates will not cause the imposition of a tax upon the Trust or
cause the REMIC Trust to fail to qualify as a REMIC.
(c) Unless the Tax Matters Person shall have consented in writing (which
consent may be withheld in the Tax Matters Person's sole discretion), the
Residual Certificates (including a beneficial interest therein) may not be
purchased by or transferred to any person who is not (i) a citizen or resident
of the United States, (ii) a corporation, partnership or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof or (iii) an estate or trust that is subject to U.S. federal income tax
regardless of the source of its income.
Section 5.06. Restrictions on Transferability of Private Certificates. (a)
No offer, sale, transfer or other disposition of a Private Certificate shall be
made by any Holder thereof unless registered under the Securities Act, or an
exemption from the registration requirements of the Securities Act and any
applicable state securities or "Blue Sky" laws is available and the prospective
transferee (other than the Seller or its affiliates) of such Certificate signs
and delivers to the Trustee an Investment Letter, if the transferee is an
Institutional Accredited Investor, in the form set forth as Exhibit F-1 hereto,
or a Rule 144A Certificate, if the transferee is a Qualified Institutional
Buyer, in the form set forth as Exhibit F-2 hereto. In the case of a proposed
transfer of a Private Certificate to a transferee other than a Qualified
Institutional Buyer, the Trustee shall require an Opinion of Counsel that such
transaction is exempt from the registration requirements of the Securities Act.
The cost of such opinion shall not be an expense of the Trustee or the Trust
Fund.
(b) Each Class B-4, Class B-5 and Class B-6 Certificate shall bear a
Securities Legend.
Section 5.07. ERISA Restrictions. (a) Subject to the provisions of
subsection (b), no Class A-11, Class PO, Class X or Class B Certificates may be
acquired by, or transferred to, an entity which is acquiring such Certificates
directly or indirectly for or on behalf of, a "benefit plan investor" described
in or subject to 29 C.F.R. ss. 2510.3-101 (the "Plan Asset Regulations")
("Benefit Plan Investor") unless the proposed transferee provides a Benefit Plan
Opinion to the Trustee. A "Benefit Plan Opinion" is an Opinion of Counsel (upon
which the Trustee is authorized to rely) to the effect that neither the proposed
transfer and/or holding of a Certificate nor the servicing, management and
operation of the Trust (i) will result in a prohibited transaction under Section
406 of ERISA or Section 4975 of the Code which is not covered under an
individual or class prohibited transaction exemption including but not limited
to Department of Labor Prohibited Transaction Exemption ("PTE") 84-14 (Class
Exemption for Plan Asset Transactions Determined by Independent Qualified
Professional Asset Managers); PTE 91-38 (Class Exemption for Certain
Transactions Involving Bank Collective Investment Funds); PTE 90-1 (Class
Exemption for Certain Transactions Involving Insurance Company Pooled Separate
Accounts), PTE 95-60 (Class Exemption for Certain Transactions Involving
Insurance Company General Accounts), and PTCE 96-23 (Class Exemption for Plan
Asset Transactions Determined by In-House Asset Managers or (ii) rise to any
additional fiduciary duties under ERISA on the part of the Master Servicer or
the Trustee. A Benefit Plan Opinion shall not be an expense of the Trustee or
the Master Servicer.
(b) In the event that the Class PO or Class X Certificates are made
available for purchase in the secondary market through an underwriting or sale
or placement by an entity which has been granted an underwriter's prohibited
transaction exemption similar to PTE 90-30 and PTE 90-24, no Benefit Plan
Opinion shall be required for the Class PO or Class X Certificates,
respectively, to be acquired by, or transferred to, an entity which is acquiring
such Certificates directly or indirectly for or on behalf of, a Benefit Plan
Investor.
(c) Any Person acquiring a Book-Entry Certificate or a Global Certificate
which represents one of the Classes referred to in Section 5.07(a), by
acquisition of such Certificate, shall be deemed to have represented to the
Trustee that such Person is not a Benefit Plan Investor nor a trustee, fiduciary
or other party acting on behalf of any Benefit Plan Investor.
Section 5.08. Rule 144A Information. For so long as any Subordinate
Certificates are outstanding and are "restricted securities" within the meaning
of Rule 144(a)(3) of the Securities Act, (1) the Master Servicer will provide or
cause to be provided to any holder of such Certificates and any prospective
purchaser thereof designated by such a holder, upon the request of such holder
or prospective purchaser, the information required to be provided to such holder
or prospective purchaser by Rule 144A(d)(4) under the Securities Act; and (2)
the Master Servicer shall update such information from time to time in order to
prevent such information from becoming false and misleading and will take such
other actions as are necessary to ensure that the safe harbor exemption from the
registration requirements of the Securities Act under Rule 144A is and will be
available for resales of such Certificates conducted in accordance with Rule
144A.
ARTICLE VI
Payments to Certificateholders
Section 6.01. Distributions on the Certificates. (a) On each Distribution
Date, the Trustee shall withdraw the Available Funds from the Certificate
Account and distribute them in the following order of priority:
(i) to each Class of interest-bearing Senior Certificates, the Accrued
Certificate Interest on each such Class for such Distribution Date, any Net
Interest Shortfall and the interest portion of Realized Losses allocable to
the interest-bearing Senior Certificates being allocated among such Classes
in proportion to the amount of Accrued Certificate Interest otherwise
distributable thereon, except that after the Cross-Over Date the Class A-11
Certificates will bear the Interest Portion of any Realized Losses (other
than Excess Losses) otherwise allocable to the Class A-8 and Class A-9
Certificates;
(ii) to each Class of interest-bearing Senior Certificates, any
Accrued Certificate Interest thereon remaining undistributed from previous
Distribution Dates, any shortfall in available amounts being allocated
among such Classes in proportion to the amount of such Accrued Certificate
Interest remaining undistributed for each such Class on such Distribution
Date (no interest shall be paid on such undistributed amounts);
(iii) to the Senior Certificates (other than the Class X Certificates)
in reduction of the Current Principal Amounts thereof;
(a) the Senior Optimal Principal Amount, in the following order of
priority:
(i) concurrently to the Class A-10 and Class A-11
Certificates, pro rata based upon their Current Principal Amounts
up to the Class A-10/Class A-11 Optimal Principal Amount for such
Distribution Date, until the Current Principal Amounts thereof
have been reduced to zero;
(ii) to the Class R Certificates, until the Current
Principal Amount thereof has been reduced to zero;
(iii) concurrently, 60.4838712602% to the Class A-1
Certificates and 39.5161287398% to the Class A-2 Certificates,
until the Current Principal Amount of the Class A-1 Certificates
has been reduced to zero;
(iv) concurrently, 68.1818189026% to the Class A-3
Certificates and 31.8181810974% to the Class A-2 Certificates,
until the Current Principal Amount of the Class A-3 Certificates
has been reduced to zero;
(v) concurrently, 75.0000000000% to the Class A-4
Certificates and 25.0000000000% to the Class A-2 Certificates,
until the Current Principal Amount of the Class A-4 Certificates
has been reduced to zero;
(vi) concurrently, 83.3333315593% to the Class A-5
Certificates and 16.6666684407% to the Class A-2 Certificates,
until the Current Principal Amount of the Class A-5 Certificates
has been reduced to zero;
(vii) concurrently, 91.4634152201% to the Class A-6
Certificates and 8.5365847799% to the Class A-2 Certificates,
until the Current Principal Amounts thereof have been reduced to
zero;
(viii) sequentially to the Class A-7, Class A- 8 and Class
A-9 Certificates, in that order, until the respective Current
Principal Amounts thereof has been reduced to zero; and
(b) the Class PO Principal Distribution Amount for such Distribution
Date, to the Class PO Certificates, until the Current Principal
Amount thereof has been reduced to zero;
(iv) the Class PO Deferred Amount for such Distribution Date to the
Class PO Certificates; provided, that (a) on any Distribution Date,
distributions pursuant to this clause (iv), shall not exceed the excess, if
any, of (x) the Available Funds remaining after giving effect to
distributions pursuant to clauses (i) through (iii) above over (y) the
amount of Accrued Certificate Interest for such Distribution Date and
Accrued Certificate Interest remaining undistributed from previous
Distribution Dates on all Classes of Subordinate Certificates then
outstanding, (b) such distributions shall not reduce the Current Principal
Amount of the Class PO Certificates and (c) no distribution will be made in
respect of the Class PO Deferred Amount after the Cross-Over Date;
(v) to the Class B-1 Certificates, to the extent of remaining
Available Funds, in the following order: (a) the Accrued Certificate
Interest thereon for such Distribution Date, (b) any Accrued Certificate
Interest thereon remaining undistributed from previous Distribution Dates
and (c) such Class's Allocable Share for such Distribution Date;
(vi) to the Class B-2 Certificates, to the extent of remaining
Available Funds, in the following order: (a) the Accrued Certificate
Interest thereon for such Distribution Date, (b) any Accrued Certificate
Interest thereon remaining undistributed from previous Distribution Dates
and (c) such Class's Allocable Share for such Distribution Date;
(vii) to the Class B-3 Certificates, to the extent of remaining
Available Funds, in the following order: (a) the Accrued Certificate
Interest thereon for such Distribution Date, (b) any Accrued Certificate
Interest thereon remaining undistributed from previous Distribution Dates
and (c) such Class's Allocable Share for such Distribution Date;
(viii) to the Class B-4 Certificates, to the extent of remaining
Available Funds, in the following order: (a) the Accrued Certificate
Interest thereon for such Distribution Date, (b) any Accrued Certificate
Interest thereon remaining undistributed from previous Distribution Dates
and (c) such Class's Allocable Share for such Distribution Date;
(ix) to the Class B-5 Certificates, to the extent of remaining
Available Funds, in the following order: (a) the Accrued Certificate
Interest thereon for such Distribution Date, (b) any Accrued Certificate
Interest thereon remaining undistributed from previous Distribution Dates
and (c) such Class's Allocable Share for such Distribution Date; and
(x) to the Class B-6 Certificates, to the extent of remaining
Available Funds, in the following order: (a) the Accrued Certificate
Interest thereon for such Distribution Date, (b) any Accrued Certificate
Interest thereon remaining undistributed from previous Distribution Dates
and (c) such Class's Allocable Share for such Distribution Date;
If, on any Distribution Date, after distributions have been made pursuant
to clauses (i) and (ii) above on any Distribution Date, remaining Available
Funds are less than the sum of the Senior Optimal Principal Amount and the Class
PO Principal Distribution Amount for such Distribution Date, such amounts shall
be proportionately reduced, and such remaining Available Funds will be
distributed on the Senior Certificates (other than the Class X Certificates) in
accordance with clauses (iii)(a) and (iii)(b) above on the basis of such reduced
amounts. Notwithstanding any reduction in principal distributable to the Class
PO Certificates pursuant to this paragraph, the principal balance of the Class
PO Certificates shall be reduced not only by principal so distributed but also
by the Class PO Shortfall for such Distribution Date.
(b) On each Distribution Date, Available Funds, if any, remaining in the
REMIC Trust after payment of interest and principal, as described above, will be
distributed to the Class R Certificates.
(c) If on any Distribution Date the Current Principal Amounts of the
Subordinate Certificates have each been reduced to zero, the amount
distributable as principal to the Senior Certificates (other than the Class PO
and Class X) for such Distribution Date and each succeeding Distribution Date
shall be allocated among the Classes of Senior Certificates, pro rata, on the
basis of their respective Current Principal Amounts immediately prior to such
Distribution Date, regardless of the priorities and amounts set forth in
Subsection 6.01(a); except that the Class A-11 Certificates will bear any
Realized Losses (other than Excess Losses) otherwise allocable to the Class A-8
and Class A-9 Certificates.
(d) No Accrued Certificate Interest will be payable with respect to any
class of Certificates after the Distribution Date on which the outstanding
principal balance (or Notional Amount) of such Certificate has been reduced to
zero.
Section 6.02. [Reserved]
Section 6.03. Allocation of Losses. (a) On or prior to each Reporting Date,
the Master Servicer shall determine the amount of any Realized Loss in respect
of each Mortgage Loan that occurred during the immediately preceding calendar
month.
(b) With respect to any Distribution Date, the principal portion of each
Realized Loss (other than any Excess Special Hazard Loss, Excess Fraud Loss and
Excess Bankruptcy Loss) shall be allocated as follows:
(i) the applicable PO Percentage of any such Realized Loss shall be
allocated to the Class PO Certificates; and
(ii) the applicable Non-PO Percentage of any such Realized Loss shall
be allocated as follows:
first, to the Class B-6 Certificates until the Current Principal
Amount thereof has been reduced to zero;
second, to the Class B-5 Certificates until the Current Principal
Amount thereof has been reduced to zero;
third, to the Class B-4 Certificates until the Current Principal
Amount thereof has been reduced to zero;
fourth, to the Class B-3 Certificates until the Current Principal
Amount thereof has been reduced to zero;
fifth, to the Class B-2 Certificates until the Current Principal
Amount thereof has been reduced to zero;
sixth, to the Class B-1 Certificates until the Current Principal
Amount thereof has been reduced to zero; and
seventh, to the Classes of Senior Certificates, pro rata, in
accordance with their Current Principal Amounts; except that the Class A-11
Certificates will bear any Realized Losses otherwise allocable to the Class
A-8 and Class A-9 Certificates.
(c) With respect to any Distribution Date, the principal portion of any
Excess Loss (other than those attributable to Debt Service Reductions) shall be
allocated as follows:
(i) the applicable PO Percentage of any such Excess Loss shall be
allocated to the Class PO Certificates; and
(ii) the applicable Non-PO Percentage of any such Excess Loss shall be
allocated among all Classes of Certificates (other than the Class PO and
Class X Certificates), pro rata, based on the respective Current Principal
Amounts thereof.
(d) Notwithstanding the foregoing, no such allocation of any Realized Loss
shall be made on a Distribution Date to a Class of Certificates to the extent
that such allocation would result in the reduction of the aggregate Current
Principal Amounts of all the Certificates as of such Distribution Date, after
giving effect to all distributions and prior allocations of Realized Losses on
such date, to an amount less than the aggregate Scheduled Principal Balance of
the Mortgage Loans as of the first day of the month of such Distribution Date,
less any Deficient Valuations occurring on or prior to the Bankruptcy Coverage
Termination Date (such limitation, the "Loss Allocation Limitation").
(e) Any Realized Losses allocated to a Class of Certificates pursuant to
Subsections 6.03(b) or (c) shall be allocated among the Certificates of such
Class in proportion to their respective Current Principal Amounts. Any
allocation of Realized Losses pursuant to this Subsection 6.03(e) shall be
accomplished by reducing the Current Principal Amount of the related
Certificates on the related Distribution Date in accordance with Subsection
6.03(f).
(f) Realized Losses allocated in accordance with this Section 6.03 shall be
allocated on the Distribution Date in the month following the month in which
such loss was incurred and, in the case of the principal portion thereof, after
giving effect to distributions made on such Distribution Date, except that the
aggregate amount of Realized Losses to be allocated to the Class PO Certificates
on such Distribution Date will be taken into account in determining
distributions in respect of the Class PO Deferred Amount.
(g) On each Distribution Date, the Master Servicer shall determine the
Subordinate Certificate Writedown Amount, if any. Any such Certificate Writedown
Amount shall effect a corresponding reduction in the Current Principal Amount of
(i) if prior to the Cross-Over Date, the Subordinate Certificates in the reverse
order of their numerical Class designations and (ii) after the Cross-Over Date,
the Senior Certificates pro rata based in their respective Current Principal
Amounts, which reduction shall occur on such Distribution Date after giving
effect to distributions made on such Distribution Date.
(h) On each Distribution Date, on or prior to the CrossOver Date, the
Master Servicer shall determine the Class PO Deferred Payment Amount Writedown
Amount, if any. Any such Class PO Deferred Payment Writedown Amount shall effect
a corresponding reduction in the Current Principal Amount of the Subordinate
Certificates in the reverse order of their numerical Class designations.
The interest portion of any Realized Losses occurring prior to the
Cross-Over Date will not be allocated among any Certificates, but will reduce
the amount of Available Funds on the related Distribution Date. As a result of
the subordination of the Subordinate Certificates in right of distribution, such
Realized Losses on the Mortgage Loans will be borne first by the Subordinate
Certificates in inverse order of their numerical Class designations.
Section 6.04. [Reserved]
Section 6.05. Payments. (a) No later than the Determination Date, the
Master Servicer shall provide to the Trustee any information with respect to the
Mortgage Loans required to enable the Trustee to make, or cause its agent to
make, distributions on the Certificates and prepare reports to
Certificateholders.
(b) On each Distribution Date, other than the final Distribution Date, the
Trustee shall distribute to each Certificateholder of record on the directly
preceding Record Date the Certificateholder's pro rata share of its Class (based
on the aggregate Fractional Undivided Interest represented by such Holder's
Certificates) of all amounts required to be distributed on such Distribution
Date to such Class. The Trustee shall calculate such amounts based upon the
information provided by the Master Servicer pursuant to Subsection 6.05(a).
(c) Payment of the above amounts to each Certificateholder shall be made
(i) by check mailed to each Certificateholder entitled thereto at the address
appearing in the Certificate Register or (ii) upon receipt by the Trustee on or
before the fifth Business Day preceding the Record Date of written instructions
from a Certificateholder holding Certificates representing an initial aggregate
Current Principal Amount and/or Notional Amount of not less than $1,000,000 by
wire transfer to a United States dollar account maintained by the payee at any
United States depository institution with appropriate facilities for receiving
such a wire transfer; provided, however, that the final payment in respect of
each Class of Certificates will be made only upon presentation and surrender of
such respective Certificates at the office or agency of the Trustee specified in
the notice to Certificateholders of such final payment.
Section 6.06. Statements to Certificateholders. (a) Concurrently with each
distribution to Certificateholders, the Trustee shall forward by first-class
mail to each Certificateholder, with a copy to the Seller, the Master Servicer
and the Rating Agencies, a statement setting forth the following information,
expressed with respect to clauses (i) through (vi) in the aggregate and as a
Fractional Undivided Interest representing an initial Current Principal Amount
of $1,000, or, in the case of the Class X Certificates, a Notional Amount of
$1,000, or, in the case of the Class R Certificates, an initial Current
Principal Amount of $100:
(i) the Current Principal Amount (or Notional Amount in the case of
the Class X Certificates) of each Class of Certificates immediately prior
to such Distribution Date;
(ii) the amount of the distribution allocable to principal on each
applicable Class of Certificates;
(iii) the aggregate amount of interest accrued at the related
Pass-Through Rate with respect to each Class of Certificates (other than
the Class PO Certificates) during the related Interest Accrual Period;
(iv) the Interest Shortfall and any other adjustments to interest at
the related Pass-Through Rate necessary to account for any difference
between interest accrued and aggregate interest distributed with respect to
each Class of Certificates (other than the Class PO Certificates);
(v) the amount of the distribution allocable to interest on each Class
of Certificates (other than the Class PO Certificates);
(vi) the Class X Pass-Through Rate with respect to such Distribution
Date;
(vii) the Current Principal Amount and/or Notional Amount of each
applicable Class of Certificates after such Distribution Date and the Class
PO Deferred Amount;
(viii) the amount of any Monthly Advances and Compensating Interest
Payments by the Master Servicer included in such distribution;
(ix) the amount of any Realized Losses (listed separately for each
category of Realized Loss) during the related Prepayment Period and the
amount and source (separately identified) of any distribution in respect
thereof included in such distribution;
(x) the amount of Scheduled Principal and Principal Prepayments,
(including but separately identifying the principal amount of Net
Liquidation Proceeds);
(xi) the number of Mortgage Loans (excluding REO Property), remaining
in the Trust Fund as of the end of the related Due Period;
(xii) information regarding any Mortgage Loan delinquencies as of the
end of the related Due Period, including the aggregate number, aggregate
Outstanding Principal Balance and aggregate Scheduled Principal Balance of
Mortgage Loans delinquent one month, two months and three months or more;
(xiii) the number of Mortgage Loans in the foreclosure process as of
the end of the related Due Period and the aggregate Outstanding Principal
Balance of such Mortgage Loans;
(xiv) the number and aggregate Outstanding Principal Balance of all
Mortgage Loans which were REO Property as of the end of the related Due
Period;
(xv) the book value (the sum of (A) the Outstanding Principal Balance
of the Mortgage Loan, (B) accrued interest through the date of foreclosure
and (C) foreclosure expenses) of any REO Property; provided that, in the
event that such information is not available to the Master Servicer and the
Trustee on the Distribution Date, such information shall be furnished
promptly after it becomes available;
(xvi) the amount of Realized Losses allocated to each Class of
Certificates since the prior Distribution Date and in the aggregate for all
prior Distribution Dates; and
(xvii) the then applicable Senior Percentage, Senior Prepayment
Percentage, Subordinate Percentage and Subordinate Prepayment Percentage.
The information set forth above shall be calculated, or reported, as the
case may be, by the Trustee based on data provided by the Master Servicer
pursuant to Subsection 6.05(a) and, with respect to prior periods, Section 6.06,
upon which the Trustee may conclusively rely. The information furnished by the
Master Servicer shall be sufficient for the Trustee to calculate any statements
it is required to make.
(b) By April 30 of each year beginning in 1997, the Trustee will furnish a
report to each Holder of the Certificates of record at any time during such
calendar year as to the aggregate of amounts reported pursuant to subclauses
(a)(ii) and (a)(v) above with respect to the Certificates, plus information with
respect to the amount of servicing compensation and such other customary
information as the Master Servicer determines and advises the Trustee to be
necessary and/or to be required by the Internal Revenue Service or by a federal
or state law or rules or regulations to enable such Holders to prepare their tax
returns for such calendar year. Copies of such report shall also be furnished to
the Master Servicer. Such obligations shall be deemed to have been satisfied to
the extent that substantially comparable information shall be provided by the
Trustee pursuant to the requirements of the Code.
The Master Servicer shall supply to the Trustee in a timely manner the
information required for the statements described above which, where
appropriate, shall be the information from which the Trustee can calculate the
statements it is required to make.
Section 6.07. Reports to the Trustee and the Master Servicer. (a) Not later
than 15 days after each Distribution Date, the Trustee shall forward to the
Master Servicer a statement setting forth the status of the Certificate Account
and the Custody Account as of the close of business on the last day of the month
of the Distribution Date and showing, for the month covered by such statement,
deposits in or withdrawals from the Certificate Account and the Custody Account.
(b) On or before the Reporting Date, the Master Servicer shall provide to
the Trustee, with respect to the Mortgage Loans and the REO Property,
respectively, a Loan Summary and Remittance Report which shall be based upon
reports from Sub-Servicers, if any, received by the Master Servicer on or before
the 7th Business Day of such month with respect to the Mortgage Loans and REO
Property and containing the following information (in respect of the REO
Property, only such information which is applicable):
(i) Aggregate deposits to and withdrawals from the Certificate Account
since the date of the prior statement, stated separately for each category
of deposit specified in Section 4.02 and each category of withdrawal
specified in Section 4.03, indicating separately the aggregate of amounts
withdrawn which are not applicable to a particular Mortgage Loan;
(ii) Amount of Available Funds expected for the related Distribution
Date and attributable to each of the following categories:
(A) regularly scheduled principal;
(B) Principal Prepayments (stated separately for
partial and full prepayments and Net
Liquidation Proceeds, stating Liquidation
Proceeds and Liquidation Expenses
separately);
(C) Insurance Proceeds;
(D) interest on the Mortgage Loans;
(E) Monthly Advances made by the Master Servicer;
(F) Certificate Account Advances;
(G) Compensating Interest Payments; and
(H) reimbursements in connection with losses on
Permitted Investments.
(iii) Aggregate Outstanding Principal Balances of the Mortgage Loans
as of the related Due Date, without giving effect to payments due on such
date;
(iv) Realized Losses for the prior month and, in the aggregate, from
the Closing Date;
(v) Aggregate Scheduled Principal Balance of the Mortgage Loans as of
the related Due Date;
(vi) Book value of any collateral acquired by means of foreclosure,
grant of deed in lieu of foreclosure or otherwise in respect of any
Mortgage Loan;
(vii) Number and aggregate principal balance of Mortgage Loans which
are 30, 60, 90 and 120 days delinquent, those which are in foreclosure and
those which are REO Property;
(viii) Interest Shortfall with respect to the related Distribution
Date and portion thereof resulting from the provisions of the Relief Act;
(ix) Amount, if any, by which the aggregate of payments of scheduled
principal and interest on the Mortgage Loans that were due on the related
Due Date and delinquent, other than as a result of the Relief Act, as of
the 18th day of such month exceeds the sum of the Monthly Advances to be
made by the Master Servicer and Certificate Account Advances for such
Distribution Date;
(x) Aggregate Master Servicing Fee for the related Due Period; and
(xi) Such other information regarding each Mortgage Loan, including an
updated Mortgage Loan Schedule in magnetic tape format, as may be
reasonably requested by the Trustee.
(c) Not less than three Business Days prior to any Distribution Date for
which the Current Principal Amount of a Class of Certificates will be reduced to
zero, the Master Servicer shall provide the Trustee with notice thereof.
Section 6.08. Monthly Advances. If the Scheduled Payment (together with any
advances from the Sub-Servicers) on a Mortgage Loan that was due on the Due Date
in the month of a Distribution Date and is delinquent other than as a result of
application of the Relief Act exceeds the amount deposited in the Custody
Account or the Certificate Account which will be used for a Certificate Account
Advance with respect to such Mortgage Loan, the Master Servicer will deposit in
the Certificate Account not later than the Advancing Date immediately preceding
the related Distribution Date an amount equal to such deficiency net of the
related Master Servicing Fee for such Mortgage Loan except to the extent the
Master Servicer determines any such advance to be nonrecoverable from
Liquidation Proceeds, Insurance Proceeds or future payments on the Mortgage Loan
for which such Monthly Advance was made. Subject to the foregoing, the Master
Servicer shall continue to make such advances through the date that the related
Mortgaged Property has, in the judgment of the Master Servicer, been completely
liquidated. Any amount used as a Certificate Account Advance shall be replaced
by the Master Servicer by deposit in the Certificate Account on or before any
future date to the extent that funds in the Certificate Account on such date are
less than the amount required to be transferred by the Master Servicer to the
Certificate Account. If applicable, on the fifth Business Day preceding each
Distribution Date, the Master Servicer shall present an Officer's Certificate to
the Trustee (i) stating that the Master Servicer elects not to make a Monthly
Advance in a stated amount and (ii) detailing the reason it deems the advance to
be nonrecoverable.
Section 6.09. Compensating Interest Payments. The Master Servicer shall
deposit in the Certificate Account not later than the Advancing Date immediately
preceding the related Distribution Date an amount equal to the least of (i) the
aggregate amounts determined pursuant to subclauses (a) and (b) of the
definition of Interest Shortfall for the related Distribution Date, (ii) the
Master Servicing Fee for such Distribution Date and (iii) 1/12 of 0.125% of the
Scheduled Principal Balances of the Mortgage Loans for such Distribution Date
(such amount, the "Compensating Interest Payment"). The Master Servicer shall
not be entitled to any reimbursement of any Compensating Interest Payment.
Section 6.10. Reports of Foreclosures and Abandonment of Mortgaged
Property. Each year the Master Servicer shall report or cause to be reported to
the Internal Revenue Service foreclosures and abandonments of any Mortgaged
Property as required by Section 6050J of the Code.
ARTICLE VII
The Master Servicer
Section 7.01. Liabilities of the Master Servicer. The Master Servicer shall
be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by it herein. Only the Master Servicer,
any successor Master Servicer or the Trustee acting as Master Servicer shall be
liable with respect to the servicing of the Mortgage Loans and the REO Property
for actions taken by any such person in contravention of the Master Servicer's
duties hereunder.
Section 7.02. Merger or Consolidation of the Master Servicer. (a) The
Master Servicer will keep in full effect its existence, rights and franchises as
a corporation under the laws of the state of its incorporation, and will obtain
and preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans and to perform its duties under this Agreement.
(b) Any Person into which the Master Servicer may be merged or
consolidated, or any corporation resulting from any merger or consolidation to
which the Master Servicer shall be a party, or any Person succeeding to the
business of the Master Servicer, shall be the successor of the Master Servicer
hereunder, without the execution or filing of any paper or further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 7.03. Indemnification of the Trustee. The Master Servicer agrees to
indemnify the Indemnified Persons for, and to hold them harmless against, any
loss, liability or expense incurred on their part, arising out of, or in
connection with, this Agreement, including the costs and expenses (including
reasonable legal fees and expenses) of defending themselves against any such
claim other than any loss, liability or expense incurred by reason of such
Person's willful misfeasance, bad faith or negligence in the performance of
duties hereunder or by reason of reckless disregard of obligations and duties
hereunder, provided that with respect to any such claim, the Trustee shall have
given the Master Servicer written notice thereof promptly after the Trustee
shall have with respect to such claim knowledge thereof. The Master Servicer
shall assume the defense of any claim for which an Indemnified Person is
entitled to indemnification pursuant to this Section 7.03, and the Master
Servicer shall pay all expenses in connection therewith, including reasonable
legal fees, and shall promptly pay, discharge and satisfy any judgment or decree
which may be rendered against an Indemnified Person in respect of such claim.
Section 7.04. Limitation on Liability of the Master Servicer and Others.
Subject to the obligation of the Master Servicer to indemnify the Indemnified
Persons pursuant to Section 7.03:
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
Indemnified Persons, the Seller, the Trust Fund or the Certificateholders for
taking any action or for refraining from taking any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Master Servicer or any such Person against
any breach of warranties or representations made herein or any liability which
would otherwise be imposed by reason of such Person's willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder.
(b) The Master Servicer and any director, officer, employee or agent of the
Master Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder.
(c) The Master Servicer and any director, officer, employee or agent of the
Master Servicer shall be indemnified by the Trust and held harmless thereby
against any loss, liability or expense incurred in connection with any legal
proceedings relating to this Agreement or the Certificates (including reasonable
legal fees and disbursements of counsel), other than (i) any loss, liability or
expense related to its failure to perform its duties in compliance with this
Agreement (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement) and (ii) any loss, liability or expense
incurred by reason of such Person's willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder.
(d) The Master Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its duties under
this Agreement and that in its opinion may involve it in any expense or
liability; provided, however, the Master Servicer may in its discretion
undertake any such action which it may deem necessary or desirable with respect
to this Agreement and the rights and duties of the parties hereto and the
interests of the Certificateholders hereunder. In such event, the legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund, and the Master Servicer shall
be entitled to be reimbursed therefor out of the Certificate Account as provided
by Subsection 4.03(a). Nothing in this Subsection 7.04(d) shall affect the
Master Servicer's obligation to supervise, or to take such actions as are
necessary to ensure, the servicing and administration of the Mortgage Loans
pursuant to Subsection 3.01(a).
(e) In taking or recommending any course of action pursuant to this
Agreement, unless specifically required to do so pursuant to this Agreement, the
Master Servicer shall not be required to investigate or make recommendations
concerning potential liabilities which the Trust might incur as a result of such
course of action by reason of the condition of the Mortgaged Properties but
shall give notice to the Trustee if it has notice of such potential
liabilities.
Section 7.05. Master Servicer Not to Resign. Except as provided in Section
7.07, the Master Servicer shall not resign from the obligations and duties
hereby imposed on it except upon a determination that any such duties hereunder
are no longer permissible under applicable law. Any such determination
permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Independent Counsel to such effect delivered to the Trustee. No such
resignation by the Master Servicer shall become effective until the Trustee or a
successor to the Master Servicer shall have assumed the responsibilities and
obligations of the Master Servicer in accordance with Section 8.02 hereof. The
Trustee shall notify the Rating Agencies of the resignation of the Master
Servicer.
Section 7.06. [Reserved]
Section 7.07. Sale and Assignment of Master Servicing. The Master Servicer
may sell and assign its rights and delegate its duties and obligations in their
entirety as Master Servicer under this Agreement; provided, however, that: (i)
the purchaser or transferee accepting such assignment and delegation (a) shall
be a Person which shall be qualified to service mortgage loans for FNMA or
FHLMC; (b) shall, in the case of successor master servicers only, have a net
worth of not less than $10,000,000 (unless otherwise approved by each Rating
Agency pursuant to clause (ii) below); (c) shall be reasonably satisfactory to
the Trustee (as evidenced in a writing signed by the Trustee) as having a
comparable servicing ability to that of the Master Servicer on the Closing Date;
(d) shall execute and deliver to the Trustee an agreement, in form and substance
reasonably satisfactory to the Trustee, which contains an assumption by such
Person of the due and punctual performance and observance of each covenant and
condition to be performed or observed by it as master servicer under this
Agreement, any custodial agreement and any agreement substantially in the form
of Exhibit G hereto from and after the effective date of such agreement; (ii)
each Rating Agency shall be given prior written notice of the identity of the
proposed successor to the Master Servicer and each Rating Agency's rating of the
Certificates in effect immediately prior to such assignment, sale and delegation
will not be downgraded or withdrawn as a result of such assignment, sale and
delegation, as evidenced by a letter to such effect delivered to the Master
Servicer and the Trustee; and (iii) the Master Servicer assigning and selling
the master servicing shall deliver to the Trustee an Officer's Certificate and
an Opinion of Independent Counsel, each stating that all conditions precedent to
such action under this Agreement have been completed and such action is
permitted by and complies with the terms of this Agreement. No such assignment
or delegation shall affect any liability of the Master Servicer arising prior to
the effective date thereof.
ARTICLE VIII
Default
Section 8.01. Events of Default. "Event of Default," wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) The Master Servicer fails to cause to be deposited in the
Certificate Account any amount so required to be deposited pursuant to this
Agreement, and such failure continues unremedied for a period of two
Business Days after the date such deposit was required to be made; or
(ii) The Master Servicer fails to observe or perform in any material
respect any other covenants and agreements set forth in the Certificates or
this Agreement to be performed by it, which covenants and agreements
materially affect the rights of Certificateholders, and such failure
continues unremedied for a period of 60 days after the date on which
written notice of such failure, properly requiring the same to be remedied,
shall have been given to the Master Servicer by the Trustee or to the
Master Servicer and the Trustee by the Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than 25% of the Trust
Fund; or
(iii) There is entered against the Master Servicer a decree or order
by a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or liquidator in
any insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings, or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order is unstayed and in
effect for a period of 60 consecutive days, or an involuntary case is
commenced against the Master Servicer under any applicable insolvency or
reorganization statute and the petition is not dismissed within 60 days
after the commencement of the case; or
(iv) The Master Servicer consents to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating
to the Master Servicer or substantially all of its property; or the Master
Servicer admits in writing its inability to pay its debts generally as they
become due, files a petition to take advantage of any applicable insolvency
or reorganization statute, makes an assignment for the benefit of its
creditors, or voluntarily suspends payment of its obligations; or
(v) The Master Servicer assigns or delegates its duties or rights
under this Agreement in contravention of the provisions permitting such
assignment or delegation under Sections 7.05 or 7.07.
In each and every such case, so long as such Event of Default with respect to
the Master Servicer shall not have been remedied, either the Trustee or the
Holders of Certificates evidencing Fractional Undivided Interests aggregating
not less than 51% of the principal of the Trust Fund, by notice in writing to
the Master Servicer (and to the Trustee if given by such Certificateholders),
with a copy to the Rating Agencies, may terminate all of the rights and
obligations (but not the liabilities) of the Master Servicer under this
Agreement and in and to the Mortgage Loans and/or the REO Property serviced by
the Master Servicer and the proceeds thereof. Upon the receipt by the Master
Servicer of the written notice, all authority and power of the Master Servicer
under this Agreement, whether with respect to the Certificates, the Mortgage
Loans, REO Property or under any other related agreements, including the Sub-
Servicing Agreements (but only to the extent that such other agreements relate
to the Mortgage Loans or REO Property) shall, subject to Section 8.02,
automatically and without further action pass to and be vested in the Trustee
pursuant to this Section 8.01; and, without limitation, the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Master
Servicer as attorney-in-fact or otherwise, any and all documents and other
instruments and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer agrees to cooperate with
the Trustee in effecting the termination of the Master Servicer's rights and
obligations hereunder, including, without limitation, the transfer to the
Trustee of (i) the property and amounts which are then or should be part of the
Trust or which thereafter become part of the Trust; (ii) originals or copies of
all documents of the Master Servicer reasonably requested by the Trustee to
enable it to assume the Master Servicer's duties thereunder; and (iii) the
rights and obligations of the Master Servicer under the Sub- Servicing
Agreements with respect to the Mortgage Loans. In addition to any other amounts
which are then, or, notwithstanding the termination of its activities under this
Agreement, may become payable to the Master Servicer under this Agreement, the
Master Servicer shall be entitled to receive, out of any amount received on
account of a Mortgage Loan or REO Property, that portion of such payments which
it would have received as reimbursement pursuant to Section 3.14 if notice of
termination had not been given. The termination of the rights and obligations of
the Master Servicer shall not affect any obligations incurred by the Master
Servicer prior to such termination.
Section 8.02. Trustee to Act; Appointment of Successor. (a) Upon the
receipt by the Master Servicer of a notice of termination pursuant to Section
8.01 or an Opinion of Independent Counsel pursuant to Section 7.05 to the effect
that the Master Servicer is legally unable to act or to delegate its duties to a
Person which is legally able to act, the Trustee shall automatically become the
successor in all respects to the Master Servicer in its capacity under this
Agreement and the transactions set forth or provided for herein and shall
thereafter be subject to all the responsibilities, duties, liabilities and
limitations on liabilities relating thereto placed on the Master Servicer by the
terms and provisions hereof; provided, however, that the Trustee (i) shall be
under no obligation to purchase any Mortgage Loan pursuant to Section 10.01; and
(ii) shall have no obligation whatsoever with respect to any liability incurred
by the Master Servicer at or prior to the time of receipt by the Master Servicer
of such notice or by the Trustee of such Opinion of Independent Counsel. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans which the Master Servicer would have been entitled to retain
if the Master Servicer had continued to act hereunder, except for those amounts
due the Master Servicer as reimbursement for advances previously made or
expenses previously incurred. Notwithstanding the above, the Trustee may, if it
shall be unwilling so to act, or shall, if it is legally unable so to act,
appoint or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution which is a FNMA- or
FHLMC-approved servicer, and with respect to a successor to the Master Servicer
only, having a net worth of not less than $10,000,000, as the successor to the
Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder.
Pending appointment of a successor to the Master Servicer hereunder, the Trustee
shall act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on the Mortgage Loans as it and
such successor shall agree; provided, however, that no such compensation shall
be in excess of that permitted the Trustee under this Subsection 8.02(a), and
that such successor shall undertake and assume the obligations of the Trustee to
pay compensation to any third Person acting as an agent or independent
contractor in the performance of master servicing responsibilities hereunder.
The Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
(b) If the Trustee shall succeed to any duties of either the Master
Servicer respecting the Mortgage Loans as provided herein, it shall do so in a
separate capacity and not in its capacity as Trustee and, accordingly, the
provisions of Article IX shall be inapplicable to the Trustee in its duties as
the successor to the Master Servicer in the servicing of the Mortgage Loans
(although such provisions shall continue to apply to the Trustee in its capacity
as Trustee); the provisions of Article VII, however, shall apply to it in its
capacity as successor master servicer.
Section 8.03. Notification to Certificateholders. Upon any termination or
appointment of a successor to the Master Servicer, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register and to the Rating Agencies.
Section 8.04. Waiver of Defaults. The Trustee shall transmit by mail to all
Certificateholders, within 60 days after the occurrence of any Event of Default
known to the Trustee, unless such Event of Default shall have been cured, notice
of each such Event of Default hereunder known to the Trustee. The Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less than
51% of the Trust Fund may, on behalf of all Certificateholders, waive any
default by the Master Servicer in the performance of its obligations hereunder
and the consequences thereof, except a default in the making of or the causing
to be made any required distribution on the Certificates. Upon any such waiver
of a past default, such default shall be deemed to cease to exist, and any Event
of Default arising therefrom shall be deemed to have been timely remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived. The Master Servicer shall give notice of any such waiver to
the Rating Agencies.
Section 8.05. List of Certificateholders. Upon written request of three or
more Certificateholders of record, for purposes of communicating with other
Certificateholders with respect to their rights under this Agreement, the
Trustee will send to such Certificateholders a list of all Certificateholders on
its register.
ARTICLE IX
Concerning the Trustee
Section 9.01. Duties of Trustee. (a) The Trustee, prior to the occurrence
of an Event of Default and after the curing or waiver of all Events of Default
which may have occurred, undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement as duties of the Trustee. If an
Event of Default has occurred and has not been cured or waived, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise under the circumstances in the conduct of his own affairs.
(b) Upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments which are specifically required
to be furnished to the Trustee pursuant to any provision of this Agreement, the
Trustee shall examine them to determine whether they are in the form required by
this Agreement; provided, however, that the Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Master Servicer
hereunder.
(c) The Trustee shall make monthly distributions and the final distribution
to the Certificateholders as provided in Sections 6.01 and 10.01 herein.
(d) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Agreement;
(ii) The Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the directions of the Holders of Certificates evidencing Fractional
Undivided Interests aggregating not less than 25% of the Trust Fund, if
such action or non-action relates to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or other power conferred upon the Trustee, under this
Agreement; and
(iv) The Trustee shall not be required to take notice or be deemed to
have notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee's corporate trust department shall have
actual knowledge thereof. In the absence of such notice, the Trustee may
conclusively assume there is no such default or Event of Default.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
of the obligations of the Master Servicer under this Agreement, except during
such time, if any, as the Trustee shall be the successor to, and be vested with
the rights, duties, powers and privileges of, the Master Servicer in accordance
with the terms of this Agreement.
(e) All funds received by the Trustee and required to be deposited in the
Certificate Account and the Custody Account pursuant to this Agreement will be
promptly so deposited by the Trustee.
Section 9.02. Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 9.01:
(i) The Trustee may rely and shall be protected in acting or
refraining from acting in reliance on any resolution, Officer's
Certificate, certificate of a Servicing Officer, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) The Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection with respect to any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement, other than its obligation
to give notices pursuant to this Agreement, or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders pursuant to the provisions of
this Agreement, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby. Nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default of which a Responsible Officer of the
Trustee's corporate trust department has actual knowledge (which has not
been cured), to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their exercise,
as a prudent person would exercise under the circumstances in the conduct
of his own affairs;
(iv) The Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after
the curing or waiver of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less
than 25% of the Trust Fund and provided that the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, reasonably assured to the Trustee by the security afforded
to it by the terms of this Agreement. The Trustee may require reasonable
indemnity against such expense or liability as a condition to taking any
such action. The reasonable expense of every such examination shall be paid
by the Certificateholders requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or through agents or
attorneys; provided, however, that the Trustee may not appoint any agent to
perform its custodial or paying agent functions under this Agreement
without the express written consent of the Master Servicer, which consent
will not be unreasonably withheld. The Trustee shall not be liable or
responsible for the misconduct or negligence of any of the Trustee's agents
or attorneys or a custodian or paying agent appointed hereunder by the
Trustee with due care and, when required, with the consent of the Master
Servicer;
(vii) Should the Trustee deem the nature of any action required on its
part, other than a payment or transfer under Subsection 4.02(b) or Section
4.03, to be unclear, the Trustee may require prior to such action that it
be provided by the Master Servicer with reasonable further instructions;
(viii) The right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be accountable for other than its negligence or willful
misconduct in the performance of any such act;
(ix) The Trustee shall not be required to give any bond or surety with
respect to the execution of the trust created hereby or the powers granted
hereunder; and
(x) The Trustee shall have no duty to conduct any affirmative
investigation as to the occurrence of any condition requiring the
repurchase of any Mortgage Loan by Headlands pursuant to this Agreement or
the eligibility of any Mortgage Loan for purposes of this Agreement.
Section 9.03. Trustee Not Liable for Certificates or Mortgage Loans. The
recitals contained herein and in the Certificates (other than the signature and
countersignature of the Trustee on the Certificates) shall be taken as the
statements of the Seller, and the Trustee shall have no responsibility for their
correctness. The Trustee makes no representation as to the validity or
sufficiency of the Certificates (other than the signature and countersignature
of the Trustee on the Certificates) or of any Mortgage Loan except as expressly
provided in Sections 2.02 and 2.05 hereof. The Trustee's signature and
countersignature (or countersignature of its agent) on the Certificates shall be
solely in its capacity as Trustee and shall not constitute the Certificates an
obligation of the Trustee in any other capacity. The Trustee shall not be
accountable for the use or application by the Seller of any of the Certificates
or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Seller with respect to the Mortgage Loans. Subject to the
provisions of Section 2.05, the Trustee shall not be responsible for the
legality or validity of this Agreement or any document or instrument relating to
this Agreement, the validity of the execution of this Agreement or of any
supplement hereto or instrument of further assurance, or the validity, priority,
perfection or sufficiency of the security for the Certificates issued hereunder
or intended to be issued hereunder. The Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage or any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of the Trust Fund or its ability to
generate the payments to be distributed to Certificateholders, under this
Agreement. The Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to record this Agreement.
Section 9.04. Trustee May Own Certificates. The Trustee in its individual
capacity or in any capacity other than as Trustee hereunder may become the owner
or pledgee of any Certificates with the same rights it would have if it were not
Trustee, and may otherwise deal with the parties hereto.
Section 9.05. Trustee's Fees and Expenses. The Master Servicer covenants
and agrees to pay to the Trustee the Trustee's Fee with respect to the calendar
month in which the Closing Date occurs. With respect to the calendar month
following the month in which the Closing Date occurs and all subsequent calendar
months, the Trustee's Fee shall be paid from the Certificate Account, pursuant
to Subsection 4.03(b). If the funds in the Certificate Account are not
sufficient to pay the Trustee's Fees, the Master Servicer will be liable for
payment of the Trustee's Fees. The Master Servicer further covenants and agrees
to pay or reimburse the Trustee from time to time upon request for all
reasonable out-of-pocket expenses, disbursements and advances incurred or made
by the Trustee in the administration of the trusts hereunder as set forth in a
fee letter sent by the Trustee to the Master Servicer (including the reasonable
compensation, expenses and disbursements of its counsel) except any such
expense, disbursement or advance as may arise from its negligence or intentional
misconduct or which is the responsibility of the Certificateholders or the Trust
Fund hereunder. Such compensation and reimbursement obligation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust.
Section 9.06. Eligibility Requirements for Trustee. The Trustee and any
successor Trustee shall during the entire duration of this Agreement be a state
bank or trust company or a national banking association with its principal
office in New York County, California or such other state and city reasonably
acceptable to the Master Servicer and organized and doing business under the
laws of such state or the United States of America, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus and
undivided profits of at least $40,000,000 or, in the case of a successor
Trustee, $50,000,000, subject to supervision or examination by federal or state
authority and, in the case of a successor Trustee other than pursuant to Section
9.10, rated in one of the two highest long-term debt categories of, or otherwise
acceptable to, each of the Rating Agencies. The Trustee shall not be an
Affiliate of the Master Servicer, unless the Trustee acts as successor Master
Servicer hereunder. If the Trustee publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 9.06 the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 9.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 9.08.
Section 9.07. Insurance. The Trustee, at its own expense, shall at all
times maintain and keep in full force and effect: (i) fidelity insurance, (ii)
theft of documents insurance and (iii) forgery insurance. All such insurance
shall be in amounts, with standard coverage and subject to deductibles, as are
customary for insurance typically maintained by banks which act as custodians
for investor-owned mortgage pools. A certificate of an officer of the Trustee as
to the Trustee's compliance with this Section 9.07 shall be furnished to the
Master Servicer or any Certificateholder upon request.
Section 9.08. Resignation and Removal of the Trustee. (a) The Trustee may
at any time resign and be discharged from the Trust hereby created by giving
written notice thereof to the Master Servicer, with a copy to the Rating
Agencies. Upon receiving such notice of resignation, the Master Servicer shall
promptly appoint a successor Trustee by written instrument, in triplicate, one
copy of which instrument shall be delivered to each of the resigning Trustee and
the successor Trustee. If no successor Trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.06 and shall fail to resign after written
request therefor by the Master Servicer or if at any time the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Master Servicer shall be entitled to remove the Trustee and appoint a successor
Trustee by written instrument, in triplicate, one copy of which instrument shall
be delivered to each of the Trustee so removed and the successor Trustee.
(c) The Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than 51% of the Trust Fund may at any time remove the
Trustee and appoint a successor Trustee by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to each of the Master
Servicer, the Trustee so removed and the successor so appointed.
(d) No resignation or removal of the Trustee and appointment
of a successor Trustee pursuant to any of the provisions of this Section 9.08
shall become effective except upon appointment of and acceptance of such
appointment by the successor Trustee as provided in Section 9.09.
Section 9.09. Successor Trustee. (a) Any successor Trustee appointed as
provided in Section 9.08 shall execute, acknowledge and deliver to the Master
Servicer and to its predecessor Trustee an instrument accepting such appointment
hereunder. The resignation or removal of the predecessor Trustee shall then
become effective and such successor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee herein. The predecessor Trustee shall after payment of its
outstanding fees and expenses promptly deliver to the successor Trustee all
assets and records of the Trust held by it hereunder, and the Master Servicer
and the predecessor Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor Trustee all such rights, powers, duties
and obligations.
(b) No successor Trustee shall accept appointment as provided in this
Section 9.09 unless at the time of such acceptance such successor Trustee shall
be eligible under the provisions of Section 9.06.
(c) Upon acceptance of appointment by a successor Trustee as provided in
this Section 9.09, the successor Trustee shall mail notice of the succession of
such Trustee hereunder to all Certificateholders at their addresses as shown in
the Certificate Register and to the Rating Agencies. The Master Servicer shall
pay the cost of any mailing by the successor Trustee.
Section 9.10. state bank or trust company or national banking association
into which the Trustee may be merged or converted or with which it may be
consolidated or any state bank or trust company or national banking association
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any state bank or trust company or national banking
association succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such state bank or trust company or national banking association shall
be eligible under the provisions of Section 9.06. Such succession shall be valid
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
Section 9.11. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust or property constituting the same may at the time be located, the Master
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee and the Master Servicer to act as co-trustee or co-trustees, jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust, and to vest in such Person or Persons, in such capacity, such
title to the Trust, or any part thereof, and, subject to the other provisions of
this Section 9.11, such powers, duties, obligations, rights and trusts
as the Master Servicer and the Trustee may consider necessary or
desirable.
(b) If the Master Servicer shall not have joined in such appointment within
15 days after the receipt by it of a written request so to do, or in case an
Event of Default with respect to the Master Servicer shall have occurred and be
continuing, the Trustee shall have the power to make such appointment without
the Master Servicer.
(c) No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor Trustee under Section 9.06 hereunder and
no notice to Certificateholders of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 9.08 hereof.
(d) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 9.11, all rights, powers, duties and
obligations conferred or imposed upon the Trustee and required to be conferred
on such co-trustee shall be conferred or imposed upon and exercised or performed
by the Trustee and such separate trustee or co-trustee jointly, except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed (whether as Trustee hereunder or as successor to the
Master Servicer hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or any portion thereof
in any such jurisdiction) shall be exercised and performed by such separate
trustee or co-trustee at the direction of the Trustee.
(e) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(f) To the extent not prohibited by law, any separate trustee or co-trustee
may, at any time, request the Trustee, its agent or attorney-in-fact, with full
power and authority, to do any lawful act under or with respect to this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
(g) No trustee under this Agreement shall be personally liable by reason of
any act or omission of another trustee under this Agreement. The Master Servicer
and the Trustee acting jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee, except that following the occurrence
of any Event of Default which has not been cured, the Trustee acting alone may
accept the resignation of or remove any separate trustee or co-trustee.
Section 9.12. Master Servicer Shall Provide Information as Reasonably
Required. The Master Servicer shall furnish to the Trustee, during the term of
this Agreement, such periodic, special, or other reports or information as may
reasonably be requested by the Trustee in order to fulfill its duties and
obligations under this Agreement.
Section 9.13. Federal Information Returns and Reports to
Certificateholders. (a) For Federal income tax purposes, the taxable year of the
REMIC Trust shall be a calendar year and the Trustee shall maintain or cause the
maintenance of the books of the REMIC Trust assets on the accrual method of
accounting.
(b) The Trustee shall prepare and file or cause to be filed
with the Internal Revenue Service Federal tax information returns with respect
to the REMIC Trust, the Trust Fund, if applicable, and the Certificates
containing such information and at the times and in the manner as may be
required by the Code or applicable Treasury regulations, and shall furnish to
each Holder of Certificates at any time during the calendar year for which such
returns or reports are made such statements or information at the times and in
the manner as may be required thereby. In connection with the foregoing, the
Trustee shall provide the name and address of the person who can be contacted to
obtain information required to be reported to the holders of regular interests
in the REMIC Trust (the "REMIC Reporting Agent") as required by IRS Form 8811.
The Trustee shall make the elections to treat the REMIC Trust as a REMIC (which
election shall apply to the taxable period ending December 31, 1996 and each
calendar year thereafter) in such manner as the Code or applicable Treasury
regulations may prescribe. The Trustee shall sign all tax information returns
filed pursuant to this Section and any other returns as may be required by the
Code, and in doing so shall rely entirely upon, and shall have no liability for
information provided by, or calculations provided by, the Seller or the Master
Servicer. The Trustee is hereby designated as the "Tax Matters Person" (within
the meaning of Treas. Reg. ss. 1.860F-4(d)) for the REMIC Trust. Any Holder of a
Residual Certificate will by acceptance thereof appoint the Trustee as agent and
attorney-in-fact for the purpose of acting as Tax Matters Person for the REMIC
Trust during such time as the Trustee does not own any such Residual
Certificate. In the event that the Code or applicable Treasury regulations
prohibit the Trustee from signing tax or information returns or other
statements, or the Trustee from acting as Tax Matters Person (as an agent or
otherwise), the Trustee shall take whatever action that in its sole good faith
judgment is necessary for the proper filing of such information returns or for
the provision of a tax matters person, including designation of the Holder of a
Residual Certificate to sign such returns or act as tax matters person. Each
Holder of a Residual Certificate shall be bound by this Section.
(c) The Trustee shall provide upon request such information (which shall be
provided by the Master Servicer) as required in Section 860D(a)(6)(B) of the
Code to the Internal Revenue Service, to any Person purporting to transfer a
Residual Certificate to a Person other than a transferee permitted by Section
5.05(b), and to any regulated investment company, real estate investment trust,
common trust fund, partnership, trust, estate, organization described in Section
1381 of the Code, or nominee holding an interest in a pass-through entity
described in Section 860E(e)(6) of the Code, any record holder of which is not a
transferee permitted by Section 5.05(b) (or which is deemed by statute to be an
entity with a disqualified member).
(d) The Trustee shall prepare and file or cause to be filed any state
income tax returns required with respect to the REMIC Trust or the Trust Fund.
ARTICLE X
Termination
Section 10.01. Termination Upon Repurchase by Headlands or its Designee or
Liquidation of All Mortgage Loans. (a) Subject to Section 10.02, the respective
obligations and responsibilities of the Seller, the Master Servicer and the
Trustee created hereby, other than the obligation of the Trustee or the Master
Servicer to make payments to Certificateholders as hereinafter set forth and to
the Trustee, shall terminate upon:
(i) the repurchase by or at the direction of the Master Servicer or
its designee of all Mortgage Loans and all property remaining in the Trust
at a price equal to (a) 100% of the Outstanding Principal Balance of each
Mortgage Loan (other than a Mortgage Loan related to REO Property) as of
the date of repurchase, net of the principal portion of any unreimbursed
Monthly Advances made by the purchaser, together with interest at the
applicable Mortgage Interest Rate accrued but unpaid through and including
the last day of the month of repurchase, plus (b) the appraised value of
any REO Property (but not more than the Outstanding Principal Balance of
the related Mortgage Loan, together with interest at the applicable
Mortgage Interest Rate accrued on that balance but unpaid through and
including the last day of the month of repurchase), less the good faith
estimate of the Master Servicer of liquidation expenses to be incurred in
connection with its disposal thereof, such appraisal to be calculated by an
appraiser mutually agreed upon by the Master Servicer and the Trustee at
the expense of the Master Servicer; or
(ii) the later of the making of the final payment or other
liquidation, or any advance with respect thereto, of the last Mortgage Loan
remaining in the Trust Fund or the disposition of all property acquired
with respect to any Mortgage Loan; provided, however, that in the event
that an advance has been made, but not yet recovered, at the time of such
termination, the Person having made such advance shall be entitled to
receive, notwithstanding such termination, any payments received subsequent
thereto with respect to which such advance was made.
(b) In no event, however, 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 of this Agreement.
(c) [Intentionally omitted.]
(d) The right of the Master Servicer or its designee to repurchase all
Mortgage Loans pursuant to Subsection 10.01(a)(i) above shall be exercisable
only if (i) the aggregate Scheduled Principal Balance of such Mortgage Loans at
the time of any such repurchase is less than 10% of the Cut-Off Date Balance or
(ii) the Master Servicer based upon an Opinion of Counsel, has determined that
the REMIC status of the REMIC Trust has been lost or that a substantial risk
exists that such REMIC status will be lost for the then-current taxable year. At
any time thereafter, the Master Servicer may elect to terminate the Trust at any
time, and upon such election, the Master Servicer or its designee shall
repurchase all the Mortgage Loans.
(e) [Intentionally omitted].
(f) The Trustee shall give notice of any termination to the
Certificateholders, with a copy to the Rating Agencies, upon which the
Certificateholders shall surrender their Certificates to the Trustee for payment
of the final distribution and cancellation. Such notice shall be given by
letter, mailed not earlier than the 15th day and not later than the 25th day of
the month next preceding the month of such final distribution, and shall specify
(i) the Distribution Date upon which final payment of the Certificates will be
made upon presentation and surrender of the Certificates at the office of the
Trustee therein designated, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Trustee therein specified.
(g) If the option of the Master Servicer to repurchase or cause the
repurchase of all Mortgage Loans under Subsection 10.01(a)(i) above is
exercised, the Master Servicer and/or its designee, as the case may be, shall
deliver to the Trustee for deposit in the Certificate Account, by the Business
Day prior to the applicable Distribution Date, an amount equal to the repurchase
price for the Mortgage Loans being purchased by it and all property acquired
with respect to such Mortgage Loans remaining in the Trust. Upon the
presentation and surrender of the Certificates, the Trustee shall distribute an
amount equal to (i) the amount otherwise distributable to the Certificateholders
on such Distribution Date but for such repurchase, (ii) the Current Principal
Amount and any accrued but unpaid interest at the Pass-Through Rate to the
Certificateholders of each Class, and (iii) the remainder to the Class R
Certificateholders. Upon deposit of the required repurchase price and delivery
to the Trustee of an Officer's Certificate from the Master Servicer certifying
that such deposit in the Certificate Account has been made, and following such
final Distribution Date, the Trustee shall promptly release to the Master
Servicer and/or its designee, as the case may be, the Mortgage Files for the
remaining Mortgage Loans, and the Accounts shall terminate, subject to the
Trustee's obligation to hold any amounts payable to Certificateholders in trust
without interest pending final distributions pursuant to Subsection 10.01(i).
(h) In the event that this Agreement is terminated by reason of the payment
or liquidation of all Mortgage Loans or the disposition of all property acquired
with respect to all Mortgage Loans under Subsection 10.01(a)(ii) above, the
Master Servicer shall deliver to the Trustee for deposit in the Certificate
Account all distributable amounts remaining in the Custody Account and shall
cause the Sub-Servicers to deliver to the Trustee for deposit in the Certificate
Account all distributable amounts remaining in their Protected Accounts. Upon
the presentation and surrender of the Certificates, the Trustee shall distribute
to the Certificateholders, in accordance with their respective interests, all
distributable amounts remaining in the Certificate Account. Upon deposit by the
Sub-Servicers of such distributable amounts and delivery to the Trustee of an
Officer's Certificate from the Master Servicer certifying that such deposit has
been made, and following such final Distribution Date, the Trustee shall
promptly release to the Master Servicer the Mortgage Files for the remaining
Mortgage Loans, and the Accounts shall terminate, subject to the Trustee's
obligation to hold any amounts payable to the Certificateholders in trust
without interest pending final distributions pursuant to Subsection 10.01(i).
(i) If not all of the Certificateholders shall surrender their Certificates
for cancellation within six months after the time specified in the
above-mentioned written notice, the Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice, not all the Certificates shall have been
surrendered for cancellation, the Trustee may take appropriate steps, or appoint
any agent to take appropriate steps, to contact the remaining Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds and other assets which remain subject to this Agreement.
Section 10.02 Additional Termination Requirements. (a) If the option of the
Master Servicer to repurchase all the Mortgage Loans under Subsection
10.01(a)(i) above is exercised, the Trust and the REMIC Trust shall be
terminated in accordance with the following additional requirements, unless the
Trustee has been furnished with an Opinion of Counsel to the effect that the
failure of the Trust to comply with the requirements of this Section 10.02 will
not (i) result in the imposition of taxes on "prohibited transactions" as
defined in Section 860F of the Code on the REMIC Trust or (ii) cause the REMIC
Trust to fail to qualify as a REMIC at any time that any Regular Certificates
are outstanding:
(i) within 90 days prior to the final Distribution Date, at the
written direction of the Master Servicer, the Trustee shall adopt a plan of
complete liquidation of the Trust Fund and the REMIC Trust provided to it
by the Master Servicer meeting the requirements of a "Qualified
Liquidation" under Section 860F of the Code and any regulations thereunder
as prepared by Headlands;
(ii) at or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the Trustee
shall sell for cash all of the assets of the Trust to or at the direction
of the Master Servicer; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit from the Certificate
Account (or cause to be distributed or credited) (i) to the
Certificateholders other than the Holders of the Class X Certificates and
the Class R Certificates, the Current Principal Amount of the Certificates
plus (except with respect to the Class PO Certificates) 30 days' interest
thereon at the applicable Pass-Through Rate, (ii) to the Holders of the
Class X Certificates, 30 days' interest on the Notional Amount thereof at
the applicable Pass-Through Rate, and (iii) to the Class R
Certificateholders, all cash on hand from the Certificate Account (other
than cash retained to meet claims); and the Trust and the REMIC Trust shall
terminate at such time.
(b) By their acceptance of the Residual Certificates, the Holders thereof
hereby (i) agree to adopt such a plan of complete liquidation upon the written
request of the Master Servicer and to take such action in connection therewith
as may be reasonably requested by the Master Servicer and (ii) appoint the
Master Servicer as their attorney-in-fact, with full power of substitution, for
purposes of adopting such a plan of complete liquidation. The Trustee shall
adopt such plan of liquidation by filing the appropriate statement on the final
tax return of the REMIC Trust.
ARTICLE XI
Miscellaneous Provisions
Section 11.01. Intent of Parties. The parties intend that the
REMIC Trust shall be treated as a REMIC for federal income tax purposes and that
the provisions of this Agreement should be construed in furtherance of this
intent.
Section 11.02. Amendment. (a) This Agreement may be amended from time to
time by the Seller, the Trustee and the Master Servicer, without notice to or
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions herein that may be defective or inconsistent with
any other provisions herein, to comply with any changes in the Code or to make
any other provisions with respect to matters or questions arising under this
Agreement which shall not be inconsistent with the provisions of this Agreement;
provided, however, that such action shall not, as evidenced by an Opinion of
Independent Counsel, adversely affect in any material respect the interests of
any Certificateholder.
(b) This Agreement may also be amended from time to time by the Seller, the
Trustee and the Master Servicer, with the consent of the holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 51% of the
Trust Fund for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Certificateholders; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of the Holder of such Certificate, (ii) reduce
the aforesaid percentage of Certificates the Holders of which are required to
consent to any such amendment, without the consent of the Holders of all
Certificates then outstanding, or (iii) cause the REMIC Trust to fail to qualify
as a REMIC for federal income tax purposes, as evidenced by an Opinion of
Independent Counsel which shall be provided to the Trustee other than at the
Trustee's expense.
(c) Promptly after the execution of any such amendment, the Trustee shall
furnish a copy of such amendment or written notification of the substance of
such amendment to each Certificateholder, with a copy to the Rating Agencies.
(d) In the case of an amendment under Subsection 11.02(b) above, it shall
not be necessary for the Certificateholders to approve the particular form of
such an amendment. Rather, it shall be sufficient if the Certificateholders
approve the substance of the amendment. The manner of obtaining such consents
and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable regulations as the
Trustee may prescribe.
Section 11.03. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere. The Master
Servicer shall effect such recordation, at its expense upon the request in
writing of a Certificateholder, but only if such direction is accompanied by an
Opinion of Counsel (provided at the expense of the Certificateholder requesting
recordation) to the effect that such recordation would materially and
beneficially affect the interests of the Certificateholders or is required by
law.
Section 11.04. Limitation on Rights of Certificateholders. (a) The death or
incapacity of any Certificateholder shall not terminate this Agreement or the
Trust, nor entitle such Certificateholder's legal representatives or heirs to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of the Trust, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
(b) Except as expressly provided in this Agreement, no Certificateholders
shall have any right to vote or in any manner otherwise control the operation
and management of the Trust, or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Certificates, be
construed so as to establish the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholders be under
any liability to any third Person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon, under or with respect to this Agreement against the
Seller, the Master Servicer or any successor to any such parties unless (i) such
Certificateholder previously shall have given to the Trustee a written notice of
a continuing default, as herein provided, (ii) the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 51% of the
Trust Fund shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs and expenses and liabilities to be incurred therein or thereby, and (iii)
the Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding.
(d) No one or more Certificateholders shall have any right by virtue of any
provision of this Agreement to affect the rights of any other Certificateholders
or to obtain or seek to obtain priority or preference over any other such
Certificateholder, or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.04, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.05. Acts of Certificateholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this 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 an agent duly appointed in writing.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is expressly required, to the Seller. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Agreement and conclusive in favor of the Trustee and the Seller,
if made in the manner provided in this Section 11.05.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his or her
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the individual executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing on such Certificates, except an endorsement in
accordance with Section 5.02 made on a Certificate presented in accordance with
Section 5.04) shall be proved by the Certificate Register, and neither the
Trustee, the Seller, the Master Servicer nor any successor to any such parties
shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action of the holder of any Certificate shall bind every future holder
of the same Certificate and the holder of every Certificate issued upon the
registration of transfer or exchange thereof, if applicable, or in lieu thereof
with respect to anything done, omitted or suffered to be done by the Trustee,
the Seller, the Master Servicer or any successor to any such party in reliance
thereon, whether or not notation of such action is made upon such Certificates.
(e) In determining whether the Holders of the requisite percentage of
Certificates evidencing Fractional Undivided Interests have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Certificates owned by the Trustee, the Seller, the Master Servicer or any
Sub-Servicer or any Affiliate thereof shall be disregarded, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Certificates which the Trustee knows to be so owned shall be so disregarded.
Certificates which have been pledged in good faith to the Trustee, the Seller,
the Master Servicer or any Sub-Servicer or any Affiliate thereof may be regarded
as outstanding if the pledgor establishes to the satisfaction of the Trustee the
pledgor's right to act with respect to such Certificates and that the pledgor is
not an Affiliate of the Trustee, the Seller, the Master Servicer or any
Sub-Servicer, as the case may be.
Section 11.06. [Reserved]
Section 11.07. Governing Law. THIS AGREEMENT AND THE CERTIFICATES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ITS CONFLICT OF LAWS RULES AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.08. Notices. All demands and notices hereunder shall be in
writing and shall be deemed given when delivered at or mailed by registered
mail, return receipt requested, postage prepaid, or by recognized overnight
courier, to (i) in the case of the Seller, 245 Park Avenue, New York, New York
10167, Attention: Vice President-Servicing, or such other address as may
hereafter be furnished to the other parties hereto in writing; (ii) in the case
of Headlands, 700 Larkspur Landing Circle, Suite 250, Larkspur, California 94939
or such other address as may hereafter be furnished to the other parties hereto
in writing; (iii) in the case of the Trustee, at its Corporate Trust Office, or
such other address as may hereafter be furnished to the other parties hereto in
writing; or (iv) in the case of the Rating Agencies, Moody's, 99 Church Street,
New York, New York 10007 and Fitch, One State Street Plaza, New York, New York
10004, Attention: Mortgage-Backed Surveillance. Any notice delivered to the
Seller, the Master Servicer or the Trustee under this Agreement shall be
effective only upon receipt. Any notice required or permitted to be mailed to a
Certificateholder, unless otherwise provided herein, shall be given by
first-class mail, postage prepaid, at the address of such Certificateholder as
shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder receives such notice.
Section 11.09. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severed from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
Section 11.10. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto.
Section 11.11. Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 11.12. Counterparts. This Agreement may be executed in two or more
counterparts each of which when so executed and delivered shall be an original
but all of which together shall constitute one and the same instrument.
Section 11.13 Notice to Rating Agencies. The article and section headings
herein are for convenience of reference only, and shall not limited or otherwise
affect the meaning hereof. The Trustee shall use its best efforts to promptly
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer or the
Trustee;
4. The repurchase or substitution of Mortgage Loans;
5. The final payment to Certificateholders; and
6. Any change in the location of the Custody Account or the
Certificate Account.
In addition, in accordance with Section 6.06 and Section 3.16, the Trustee
and the Master Servicer, respectively, shall promptly furnish to each Rating
Agency copies of the following:
1. Each report to Certificateholders described in Section 6.06; and
2. Each annual independent public accountants' servicing report
received as described in Section 3.16.
IN WITNESS WHEREOF, the Seller, Headlands and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
BEAR STEARNS MORTGAGE SECURITIES INC.,
as Seller
By: /s/ Joseph T. Jurkowski
Name: Joseph T. Jurkowski
Title: Vice President
HEADLANDS MORTGAGE COMPANY,
as Master Servicer
By: /s/ Gilbert J. MacQuarrie
Name: Gilbert J. MacQuarrie
Title: Senior Vice President/
Chief Financial Officer
THE BANK OF NEW YORK
as Trustee
By: /s/ Franklin B. Austin
Name: Franklin B. Austin
Title:Assistant Treasurer
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of September, 1996 before me, a notary public in and for
said State, personally appeared Joseph T. Jurkowski, Jr., known to me to be a
Vice President of Bear Stearns Mortgage Securities Inc., the corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Steve Levitan
Notary Public
[Notarial Seal]
<PAGE>
STATE OF CALIFORNIA )
) ss.:
COUNTY OF MARIN )
On the 30th day of September, 1996 before me, a notary public
in and for said State, personally appeared Gilbert J. MacQuarrie, known to me to
be a Senior Vice President of Headlands Mortgage Company, the corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Melissa Sigrid Farley
Notary Public
[Notarial Seal]
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of September, 1996 before me, a notary public in and for
said State, personally appeared Franklin B. Austin, known to me to be the
Assistant Treasurer of The Bank of New York, that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said bank and acknowledged to me that such bank executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Steve Levitan
Notary Public
[Notarial Seal]
<PAGE>
EXHIBIT A-1
FORM OF FACE OF CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. A-1-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first lien mortgage loans sold by
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class : A-1
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination") :
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 6.900% Principal Amount :
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice. Unless this Certificate has been
countersigned by an authorized signatory of the Trustee by manual signature,
this Certificate shall not be entitled to any benefit under the Agreement, or be
valid for any purpose.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS A-1 CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
<PAGE>
MORTGAGE PASS-THROUGH CERTIFICATE,
No. A-2-1
SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first lien mortgage loans sold by
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class : A-2
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination") :
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 10.000% Principal Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS A-2 CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. A-3-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first lien mortgage loans sold by
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class : A-3
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination") :
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 7.250% Principal Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS A-3 CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. A-4-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first lien mortgage loans sold by
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class : A-4
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 7.500% Principal Amount : $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS A-4 CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. A-5-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first lien mortgage loans sold by
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class : A-5
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 7.750% Principal Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS A-5 CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. A-6-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first lien mortgage loans sold by
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class : A-6
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 7.950% Principal Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS A-6 CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. A-7-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first lien mortgage loans sold by
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class: A-7
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 8.125% Principal Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS A-7 CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. A-8-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first lien mortgage loans sold by
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class : A-8
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 8.125% Principal Amount : $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS A-8 CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. A-9-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first lien mortgage loans sold by
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class: A-9
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 8.125% Principal Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS A-9 CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. A-10-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first lien mortgage loans sold by
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class : A-10
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 8.125% Principal Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS A-10 CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A "BENEFIT PLAN INVESTOR," AS
SUCH TERM IS DEFINED IN 29 C.F.R. ss. 2510.3-101 UNLESS THE TRANSFEREE PROVIDES
A BENEFIT PLAN OPINION TO THE TRUSTEE.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. A-11-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first lien mortgage loans sold by
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class: A-11
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 8.125% Principal Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS A-11 CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO "BENEFIT PLAN INVESTORS" AS SUCH
TERM IS DEFINED IN 29 C.F.R. ss. 2510.3-101 UNLESS THE TRANSFEREE PROVIDES A
BENEFIT PLAN OPINION TO THE TRUSTEE; PROVIDED THAT THIS CERTIFICATE MAY BE
TRANSFERRED TO A BENEFIT PLAN INVESTOR WITHOUT DELIVER OF A BENEFIT PLAN OPTION
IF THIS CERTIFICATE IS MADE AVAILABLE FOR PURCHASE IN THE SECONDARY MARKET
THROUGH AN UNDERWRITING OR SALE OR PLACEMENT BY AN ENTITY WHICH HAS BEEN GRANTED
AN UNDERWRITER'S PROHIBITED TRANSACTION EXEMPTION SIMILAR TO PTE 90-30 OR 90-24.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
UNDER TREASURY REGULATIONS RELATING TO ORIGINAL ISSUE DISCOUNT ("OID"),
TAXPAYERS MAY RELY ON THIS INFORMATION. THIS CERTIFICATE WAS ISSUED ON SEPTEMBER
30, 1996 AT A PRICE EQUAL TO _____% OF ITS ORIGINAL PRINCIPAL AMOUNT. UNDER
TREASURY REGULATIONS RELATING TO OID, ALL PAYMENTS TO BE RECEIVED ON THIS
CERTIFICATE ARE TREATED AS PART OF THIS CERTIFICATE'S STATED REDEMPTION PRICE AT
MATURITY. ACCORDINGLY, THIS CERTIFICATE WAS ISSUED WITH OID FOR FEDERAL INCOME
TAX PURPOSES IN AN AMOUNT EQUAL TO _____% OF ITS ORIGINAL PRINCIPAL AMOUNT. THE
MONTHLY YIELD TO MATURITY OF THIS CERTIFICATE EXPRESSED ON AN ANNUAL BASIS IS
APPROXIMATELY _____%, AND THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL
PERIOD (SEPTEMBER 30, 1996 THROUGH OCTOBER 25, 1996) AS A PERCENTAGE OF THE
ORIGINAL PRINCIPAL AMOUNT OF THE CERTIFICATE IS APPROXIMATELY _____%. THE
COMPUTATION OF THE MONTHLY YIELD TO MATURITY AND THE OID AMOUNTS, INCLUDING THE
AMOUNT OF OID ALLOCABLE TO THE SHORT PERIOD, SPECIFIED ABOVE WAS BASED ON: (I)
THE EXACT METHOD AND (II) A PREPAYMENT ASSUMPTION OF 100% SPA (AS DEFINED IN THE
PROSPECTUS SUPPLEMENT). THE ACTUAL YIELD TO MATURITY, PREPAYMENT ASSUMPTION, AND
OID AMOUNTS MAY DIFFER FROM THOSE SET FORTH ABOVE.
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL DECREASE BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS THEN CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED
HEREIN.
THE YIELD TO THE HOLDER OF THIS CERTIFICATE WILL BE SENSITIVE TO THE RATE
OF PRINCIPAL PAYMENTS ON THE MORTGAGE LOANS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. PO-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first
lien mortgage loans sold by BEAR
STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class : PO
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : N/A Principal Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
The Class PO certificates are principal only Certificates and will
receive no interest. The Trustee will distribute on the 25th day of each month,
or, if such 25th day is not a Business Day, the immediately following Business
Day (each, a "Distribution Date"), commencing on the First Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the calendar month preceding
the month of such Distribution Date, an amount equal to the product of the
Fractional Undivided interest evidenced by this Certificate and the amount
required to be distributed to Holders of Certificates of the same Class as this
Certificate. The Assumed Final Distribution Date is the first anniversary of the
Distribution Date immediately following the latest scheduled maturity date of
any Mortgage Loan and is not likely to be the date on which the Current
Principal Amount of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS PO CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO "BENEFIT PLAN INVESTORS" AS SUCH
TERM IS DEFINED IN 29 C.F.R. ss. 2510.3-101 UNLESS THE TRANSFEREE PROVIDES A
BENEFIT PLAN OPINION TO THE TRUSTEE; PROVIDED THAT THIS CERTIFICATE MAY BE
TRANSFERRED TO A BENEFIT PLAN INVESTOR WITHOUT DELIVER OF A BENEFIT PLAN OPTION
IF THIS CERTIFICATE IS MADE AVAILABLE FOR PURCHASE IN THE SECONDARY MARKET
THROUGH AN UNDERWRITING OR SALE OR PLACEMENT BY AN ENTITY WHICH HAS BEEN GRANTED
AN UNDERWRITER'S PROHIBITED TRANSACTION EXEMPTION SIMILAR TO PTE 90-30 OR 90-24.
UNDER TREASURY REGULATIONS RELATING TO ORIGINAL ISSUE DISCOUNT ("OID"),
TAXPAYERS MAY RELY ON THIS INFORMATION. THIS CERTIFICATE WAS ISSUED ON SEPTEMBER
30, 1996 WITH AN ISSUE PRICE (EXCLUSIVE OF ACCRUED INTEREST) EQUAL TO ____% OF
ITS ORIGINAL NOTIONAL PRINCIPAL AMOUNT. BASED ON THIS ISSUE PRICE, THIS
CERTIFICATE WAS ISSUED WITH OID FOR FEDERAL INCOME TAX PURPOSES IN AN AMOUNT
EQUAL TO _____% OF ITS ORIGINAL NOTIONAL PRINCIPAL AMOUNT. THE MONTHLY YIELD TO
MATURITY OF THIS CERTIFICATE EXPRESSED ON AN ANNUAL BASIS IS APPROXIMATELY
_____%, AND THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD
(SEPTEMBER 30, 1996 THROUGH OCTOBER 25, 1996) AS A PERCENTAGE OF THE ORIGINAL
NOTIONAL PRINCIPAL AMOUNT OF THE CERTIFICATE IS APPROXIMATELY _____%. THE
COMPUTATION OF THE MONTHLY YIELD TO MATURITY AND THE OID AMOUNTS, INCLUDING THE
AMOUNT OF OID ALLOCABLE TO THE SHORT PERIOD, SPECIFIED ABOVE WAS BASED ON: (I)
THE EXACT METHOD AND (II) A PREPAYMENT ASSUMPTION OF 100% SPA (AS DEFINED IN THE
PROSPECTUS SUPPLEMENT AND BY APPLYING SUCH PREPAYMENT ASSUMPTION PRO-RATA TO
EACH MORTGAGE). THE ACTUAL YIELD TO MATURITY, PREPAYMENT ASSUMPTION, AND OID
AMOUNTS MAY DIFFER FROM THOSE SET FORTH ABOVE.
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL DECREASE AS THE AGGREGATE
PRINCIPAL AMOUNT OF THE MORTGAGE LOANS DECREASES. ACCORDINGLY, FOLLOWING THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE NOTIONAL AMOUNT OF THIS CERTIFICATE
WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS THEN NOTIONAL AMOUNT BY INQUIRY OF THE TRUSTEE
NAMED HEREIN.
THE YIELD TO THE HOLDER OF THIS CERTIFICATE WILL BE EXTREMELY SENSITIVE TO
THE RATE OF PRINCIPAL PAYMENTS ON THE MORTGAGE LOANS.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. X-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first lien mortgage loans sold by
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class: X
First Distribution Date : October 25, 1996 Initial Notional Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : Variable Notional Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
The Class X Certificates will not be entitled to any distributions of
principal. The Class X Certificates will be deemed to have a notional principal
amount equal to the Scheduled Principal Balances of the Mortgage Loans and will
bear interest on their Notional Amount at a variable Pass-Through Rate equal to
the excess of (a) the weighted average of the Net Rates of the Mortgage Loans
over (b) the weighted average of the Pass-Through Rates of all the Certificates
(other than the Class X Certificates). The Pass-Through Rate applicable to the
Class X Certificates for the first Interest Accrual Period is approximately
1.18% per annum.
The Trustee will distribute on the 25th day of each month, or, if
such 25th day is not a Business Day, the immediately following Business Day
(each, a "Distribution Date"), commencing on the First Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the calendar month preceding
the month of such Distribution Date, an amount equal to the product of the
Fractional Undivided interest evidenced by this Certificate and the amount
required to be distributed to Holders of Certificates of the same Class as this
Certificate. The Assumed Final Distribution Date is the first anniversary of the
Distribution Date immediately following the latest scheduled maturity date of
any Mortgage Loan and is not likely to be the date on which the Current
Principal Amount of this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS X CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO "BENEFIT PLAN INVESTORS," AS
SUCH TERM IS DEFINED IN 29 C.F.R. ss. 2510.3-101, UNLESS THE PROPOSED TRANSFEREE
PROVIDES A BENEFIT PLAN OPINION TO THE TRUSTEE.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
UNDER TREASURY REGULATIONS RELATING TO ORIGINAL ISSUE DISCOUNT ("OID"),
TAXPAYERS MAY RELY ON THIS INFORMATION. THIS CERTIFICATE WAS ISSUED ON SEPTEMBER
30, 1996 AT A PRICE (EXCLUSIVE OF ACCRUED INTEREST) EQUAL TO _____% OF ITS
ORIGINAL PRINCIPAL AMOUNT. BASED ON THIS ISSUE PRICE, THIS CERTIFICATE WAS
ISSUED WITH OID FOR FEDERAL INCOME TAX PURPOSES IN AN AMOUNT EQUAL TO _____% OF
ITS ORIGINAL PRINCIPAL AMOUNT. THE MONTHLY YIELD TO MATURITY OF THIS CERTIFICATE
EXPRESSED ON AN ANNUAL BASIS IS APPROXIMATELY ____%, AND THE AMOUNT OF OID
ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (SEPTEMBER 30, 1996 THROUGH OCTOBER
25, 1996) AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THE CERTIFICATE IS
APPROXIMATELY _____%. THE COMPUTATION OF THE MONTHLY YIELD TO MATURITY AND THE
OID AMOUNTS, INCLUDING THE AMOUNT OF OID ALLOCABLE TO THE SHORT PERIOD,
SPECIFIED ABOVE WAS BASED ON: (I) THE EXACT METHOD AND (II) A PREPAYMENT
ASSUMPTION OF 100% SPA (AS DEFINED IN THE PROSPECTUS SUPPLEMENT). THE ACTUAL
YIELD TO MATURITY, PREPAYMENT ASSUMPTION, AND OID AMOUNTS MAY DIFFER FROM THOSE
SET FORTH ABOVE.
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. B-1-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first
lien mortgage loans sold by BEAR
STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class: B-1
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 8.125% Principal Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO "BENEFIT PLAN INVESTORS," AS
SUCH TERM IS DEFINED IN 29 C.F.R. ss. 2510.3-101, UNLESS THE PROPOSED TRANSFEREE
PROVIDES A BENEFIT PLAN OPINION TO THE TRUSTEE.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
UNDER TREASURY REGULATIONS RELATING TO ORIGINAL ISSUE DISCOUNT ("OID"),
TAXPAYERS MAY RELY ON THIS INFORMATION. THIS CERTIFICATE WAS ISSUED ON SEPTEMBER
30, 1996 AT A PRICE (EXCLUSIVE OF ACCRUED INTEREST) EQUAL TO _____% OF ITS
ORIGINAL PRINCIPAL AMOUNT. BASED ON THIS ISSUE PRICE, THIS CERTIFICATE WAS
ISSUED WITH OID FOR FEDERAL INCOME TAX PURPOSES IN AN AMOUNT EQUAL TO _____% OF
ITS ORIGINAL PRINCIPAL AMOUNT. THE MONTHLY YIELD TO MATURITY OF THIS CERTIFICATE
EXPRESSED ON AN ANNUAL BASIS IS APPROXIMATELY _____%, AND THE AMOUNT OF OID
ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (SEPTEMBER 30, 1996 THROUGH OCTOBER
25, 1996) AS A PERCENTAGE OF THE [A ORIGINAL PRINCIPAL AMOUNT OF THE CERTIFICATE
IS APPROXIMATELY _____%. THE COMPUTATION OF THE MONTHLY YIELD TO MATURITY AND
THE OID AMOUNTS, INCLUDING THE AMOUNT OF OID ALLOCABLE TO THE SHORT PERIOD,
SPECIFIED ABOVE WAS BASED ON: (I) THE EXACT METHOD AND (II) A PREPAYMENT
ASSUMPTION OF 100% SPA (AS DEFINED IN THE PROSPECTUS SUPPLEMENT). THE ACTUAL
YIELD TO MATURITY, PREPAYMENT ASSUMPTION, AND OID AMOUNTS MAY DIFFER FROM THOSE
SET FORTH ABOVE.
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. B-2-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first
lien mortgage loans sold by BEAR
STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class: B-2
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 8.125% Principal Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS B-2 CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO "BENEFIT PLAN INVESTORS," AS
SUCH TERM IS DEFINED IN 29 C.F.R. ss. 2510.3-101, UNLESS THE PROPOSED TRANSFEREE
PROVIDES A BENEFIT PLAN OPINION TO THE TRUSTEE.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
UNDER TREASURY REGULATIONS RELATING TO ORIGINAL ISSUE DISCOUNT ("OID"),
TAXPAYERS MAY RELY ON THIS INFORMATION. THIS CERTIFICATE WAS ISSUED ON SEPTEMBER
30, 1996 AT A PRICE (EXCLUSIVE OF ACCRUED INTEREST) EQUAL TO _____% OF ITS
ORIGINAL PRINCIPAL AMOUNT. BASED ON THIS ISSUE PRICE, THIS CERTIFICATE WAS
ISSUED WITH OID FOR FEDERAL INCOME TAX PURPOSES IN AN AMOUNT EQUAL TO _____% OF
ITS ORIGINAL PRINCIPAL AMOUNT. THE MONTHLY YIELD TO MATURITY OF THIS CERTIFICATE
EXPRESSED ON AN ANNUAL BASIS IS APPROXIMATELY _____%, AND THE AMOUNT OF OID
ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (SEPTEMBER 30, 1996 THROUGH OCTOBER
25, 1996) AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THE CERTIFICATE IS
APPROXIMATELY ____%. THE COMPUTATION OF THE MONTHLY YIELD TO MATURITY AND THE
OID AMOUNTS, INCLUDING THE AMOUNT OF OID ALLOCABLE TO THE SHORT PERIOD,
SPECIFIED ABOVE WAS BASED ON: (I) THE EXACT METHOD AND (II) A PREPAYMENT
ASSUMPTION OF 100% SPA (AS DEFINED IN THE PROSPECTUS SUPPLEMENT). THE ACTUAL
YIELD TO MATURITY, PREPAYMENT ASSUMPTION, AND OID AMOUNTS MAY DIFFER FROM THOSE
SET FORTH ABOVE.
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. B-3-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first
lien mortgage loans sold by BEAR
STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class: B-3
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 8.125% Principal Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS B-3 CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO "BENEFIT PLAN INVESTORS," AS
SUCH TERM IS DEFINED IN 29 C.F.R. ss. 2510.3-101, UNLESS THE PROPOSED TRANSFEREE
PROVIDES A BENEFIT PLAN OPINION TO THE TRUSTEE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES OR
BLUE SKY LAW OF ANY STATE. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE,
AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE ACT AND OTHER APPLICABLE LAWS AND ONLY
(1) PURSUANT TO RULE 144A UNDER THE ACT ("RULE 144A") TO A PERSON THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR
THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE ACT (IF AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN "INSTITUTIONAL
ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) OR
(7) OF REGULATION D UNDER THE ACT PURCHASING NOT FOR DISTRIBUTION IN VIOLATION
OF THE ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY
IN THE FORM PROVIDED IN THE AGREEMENT AND (B) AN OPINION OF COUNSEL AS TO
COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES. THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN, BEAR STEARNS
MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE REFERRED TO
BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR INSURED BY
ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY. THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC"), AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). UNDER TREASURY REGULATIONS
RELATING TO ORIGINAL ISSUE DISCOUNT ("OID"), TAXPAYERS MAY RELY ON THIS
INFORMATION. THIS CERTIFICATE WAS ISSUED ON SEPTEMBER 30, 1996 WITH AN ISSUE
PRICE (EXCLUSIVE OF ACCRUED INTEREST) EQUAL TO _____% OF ITS ORIGINAL PRINCIPAL
AMOUNT. BASED ON THIS ISSUE PRICE, THIS CERTIFICATE WAS ISSUED WITH OID FOR
FEDERAL INCOME TAX PURPOSES IN AN AMOUNT EQUAL TO _____% OF ITS ORIGINAL
PRINCIPAL AMOUNT. THE MONTHLY YIELD TO MATURITY OF THIS CERTIFICATE EXPRESSED ON
AN ANNUAL BASIS IS APPROXIMATELY _____%, AND THE AMOUNT OF OID ALLOCABLE TO THE
SHORT FIRST ACCRUAL PERIOD (SEPTEMBER 30, 1996 THROUGH OCTOBER 25, 1996) AS A
PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THE CERTIFICATE IS APPROXIMATELY
____%. THE COMPUTATION OF THE MONTHLY YIELD TO MATURITY AND THE OID AMOUNTS,
INCLUDING THE AMOUNT OF OID ALLOCABLE TO THE SHORT PERIOD, SPECIFIED ABOVE WAS
BASED ON: (I) THE EXACT METHOD AND (II) A PREPAYMENT ASSUMPTION OF 100% SPA (AS
DEFINED IN THE PROSPECTUS SUPPLEMENT). THE ACTUAL YIELD TO MATURITY, PREPAYMENT
ASSUMPTION, AND OID AMOUNTS MAY DIFFER FROM THOSE SET FORTH ABOVE. THE CURRENT
PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PRINCIPAL PAYMENTS
HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE
CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE
DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS
CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. B-4-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first lien mortgage loans sold by
BEAR STEARNS MORTGAGE SECURITIES INC.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class: B-4
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 8.125% Principal Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were originated by Headlands Mortgage Company and subsequently
sold to BSMSI. Headlands will act as master servicer of the Mortgage Loans (the
"Master Servicer," which term includes any successors thereto under the
Agreement referred to below). The Trust was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), by and among BSMSI, as seller, Headlands, as Master Servicer, and
The Bank of New York, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS B-4 CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO "BENEFIT PLAN INVESTORS," AS
SUCH TERM IS DEFINED IN 29 C.F.R. ss. 2510.3-101, UNLESS THE PROPOSED TRANSFEREE
PROVIDES A BENEFIT PLAN OPINION TO THE TRUSTEE. THIS CERTIFICATE HAS NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE. THE HOLDER
HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE
REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE
ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE ACT
("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER
HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT (IF AVAILABLE) OR (3) IN
CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING
THEREOF IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT
PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE ACT, SUBJECT TO (A) THE
RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE
AGREEMENT AND (B) AN OPINION OF COUNSEL AS TO COMPLIANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
UNDER TREASURY REGULATIONS RELATING TO ORIGINAL ISSUE DISCOUNT ("OID"),
TAXPAYERS MAY RELY ON THIS INFORMATION. THIS CERTIFICATE WAS ISSUED ON SEPTEMBER
30, 1996 WITH AN ISSUE PRICE (EXCLUSIVE OF ACCRUED INTEREST) EQUAL TO _____% OF
ITS ORIGINAL PRINCIPAL AMOUNT. BASED ON THIS ISSUE PRICE, THIS CERTIFICATE WAS
ISSUED WITH OID FOR FEDERAL INCOME TAX PURPOSES IN AN AMOUNT EQUAL TO _____% OF
ITS ORIGINAL PRINCIPAL AMOUNT. THE MONTHLY YIELD TO MATURITY OF THIS CERTIFICATE
EXPRESSED ON AN ANNUAL BASIS IS APPROXIMATELY _____%, AND THE AMOUNT OF OID
ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (SEPTEMBER 30, 1996 THROUGH OCTOBER
25, 1996) AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THE CERTIFICATE IS
APPROXIMATELY ____%. THE COMPUTATION OF THE MONTHLY YIELD TO MATURITY AND THE
OID AMOUNTS, INCLUDING THE AMOUNT OF OID ALLOCABLE TO THE SHORT PERIOD,
SPECIFIED ABOVE WAS BASED ON: (I) THE EXACT METHOD AND (II) A PREPAYMENT
ASSUMPTION OF 100% SPA (AS DEFINED IN THE PROSPECTUS SUPPLEMENT). THE ACTUAL
YIELD TO MATURITY, PREPAYMENT ASSUMPTION, AND OID AMOUNTS MAY DIFFER FROM THOSE
SET FORTH ABOVE.
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. B-5-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first lien mortgage loans sold by
BEAR STEARNS MORTGAGE SECURITIES INC.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class: B-5
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 8.125% Principal Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were originated by Headlands Mortgage Company and subsequently
sold to BSMSI. Headlands will act as master servicer of the Mortgage Loans (the
"Master Servicer," which term includes any successors thereto under the
Agreement referred to below). The Trust was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), by and among BSMSI, as seller, Headlands, as Master Servicer, and
The Bank of New York, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS B-5 CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO "BENEFIT PLAN INVESTORS," AS
SUCH TERM IS DEFINED IN 29 C.F.R. ss. 2510.3-101, UNLESS THE PROPOSED TRANSFEREE
PROVIDES A BENEFIT PLAN OPINION TO THE TRUSTEE. THIS CERTIFICATE HAS NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE. THE HOLDER
HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE
REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE
ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE ACT
("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER
HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT (IF AVAILABLE) OR (3) IN
CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING
THEREOF IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT
PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE ACT, SUBJECT TO (A) THE
RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE
AGREEMENT AND (B) AN OPINION OF COUNSEL AS TO COMPLIANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
UNDER TREASURY REGULATIONS RELATING TO ORIGINAL ISSUE DISCOUNT ("OID"),
TAXPAYERS MAY RELY ON THIS INFORMATION. THIS CERTIFICATE WAS ISSUED ON SEPTEMBER
30, 1996 WITH AN ISSUE PRICE (EXCLUSIVE OF ACCRUED INTEREST) EQUAL TO _____% OF
ITS ORIGINAL PRINCIPAL AMOUNT. BASED ON THIS ISSUE PRICE, THIS CERTIFICATE WAS
ISSUED WITH OID FOR FEDERAL INCOME TAX PURPOSES IN AN AMOUNT EQUAL TO _____% OF
ITS ORIGINAL PRINCIPAL AMOUNT. THE MONTHLY YIELD TO MATURITY OF THIS CERTIFICATE
EXPRESSED ON AN ANNUAL BASIS IS APPROXIMATELY _____%, AND THE AMOUNT OF OID
ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD (SEPTEMBER 30, 1996 THROUGH OCTOBER
25, 1996) AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THE CERTIFICATE IS
APPROXIMATELY ____%. THE COMPUTATION OF THE MONTHLY YIELD TO MATURITY AND THE
OID AMOUNTS, INCLUDING THE AMOUNT OF OID ALLOCABLE TO THE SHORT PERIOD,
SPECIFIED ABOVE WAS BASED ON: (I) THE EXACT METHOD AND (II) A PREPAYMENT
ASSUMPTION OF 100% SPA (AS DEFINED IN THE PROSPECTUS SUPPLEMENT). THE ACTUAL
YIELD TO MATURITY, PREPAYMENT ASSUMPTION, AND OID AMOUNTS MAY DIFFER FROM THOSE
SET FORTH ABOVE.
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. B-6-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first lien mortgage loans sold by
BEAR STEARNS MORTGAGE SECURITIES INC.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class: B-6
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 8.125% Principal Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were originated by Headlands Mortgage Company and subsequently
sold to BSMSI. Headlands will act as master servicer of the Mortgage Loans (the
"Master Servicer," which term includes any successors thereto under the
Agreement referred to below). The Trust was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), by and among BSMSI, as seller, Headlands, as Master Servicer, and
The Bank of New York, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS B-6 CERTIFICATES
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC., HEADLANDS MORTGAGE COMPANY OR THE TRUSTEE
REFERRED TO BELOW OR ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN THE "REMIC TRUST" AS DEFINED IN THE AGREEMENT REFERRED TO BELOW,
WHICH IS A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), AND IS NOT TREATED AS INDEBTEDNESS OF THE
TRUST REFERRED TO BELOW. EACH PURCHASER OF THE INTEREST REPRESENTED BY THIS
CERTIFICATE WILL BE REQUIRED TO REPRESENT IN AN AFFIDAVIT THAT IT IS NOT A
"DISQUALIFIED ORGANIZATION" AND WILL NOT TRANSFER THIS CERTIFICATE TO A
"DISQUALIFIED ORGANIZATION." THE TERM "DISQUALIFIED ORGANIZATION" IS DEFINED IN
SECTION 860E(e)(5) OF THE CODE AND IN THE AGREEMENT. EACH PURCHASER WILL ALSO BE
REQUIRED TO REPRESENT IN SUCH AFFIDAVIT THAT (A) IT IS NOT ACQUIRING
CERTIFICATES FOR THE ACCOUNT OF A DISQUALIFIED ORGANIZATION AND (B) IT WILL NOT
TRANSFER THIS CERTIFICATE UNLESS (1) IT HAS RECEIVED A SIMILAR AFFIDAVIT FROM
THE PROPOSED TRANSFEREE AND (2) AS OF THE TIME OF THE TRANSFER, IT DOES NOT HAVE
ACTUAL KNOWLEDGE THAT THE AFFIDAVIT OF THE PROPOSED TRANSFEREE IS FALSE. IN THE
EVENT THAT LEGISLATION IS ENACTED WHICH WOULD SUBJECT THE TRUST REFERRED TO
BELOW TO TAX (OR DISQUALIFY THE TRUST REFERRED TO BELOW) ON THE TRANSFER OF AN
INTEREST REPRESENTED BY THIS CERTIFICATE TO ANY OTHER PERSON OR PERSONS, BEAR
STEARNS MORTGAGE SECURITIES INC. SHALL, WITHOUT FURTHER ACTION ON THE PART OF
THE HOLDERS OF THE CLASS R CERTIFICATES BE EMPOWERED, TO THE FULLEST EXTENT
POSSIBLE AND AS IF THEY HAD SO VOTED, TO AMEND THE AGREEMENT REFERRED TO BELOW
TO RESTRICT OR PROHIBIT PROSPECTIVELY SUCH TRANSFER. THIS CERTIFICATE MAY NOT BE
TRANSFERRED TO A NON-U.S. PERSON AS DESCRIBED IN SECTION 5.05(c) OF THE
AGREEMENT REFERRED TO BELOW WITHOUT THE PRIOR WRITTEN CONSENT OF THE BANK OF NEW
YORK, AS TAX MATTERS PERSON.
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
MORTGAGE PASS-THROUGH CERTIFICATE,
No. R-1 SERIES 1996-5
evidencing a beneficial interest in a Trust
consisting primarily of conventional, first
lien mortgage loans sold by BEAR
STEARNS MORTGAGE SECURITIES INC.
CUSIP No.
<TABLE>
<CAPTION>
<S> <C> <C>
Cut-Off Date : September 1, 1996 Class: R
First Distribution Date : October 25, 1996 Initial Principal Amount of this
Assumed Final Distribution Date : September 25, 2027 Certificate ("Denomination"):
Master Servicer : Headlands Mortgage Company Approximate Original Class
Pass-Through Rate : 8.125% Principal Amount: $
</TABLE>
THIS CERTIFIES THAT
is the registered owner of the Fractional Undivided Interest evidenced hereby in
the beneficial ownership interest of Certificates of the same Class as this
Certificate in a trust (the "Trust") consisting primarily of conventional one-
to four- family, fully amortizing, first lien mortgage loans (collectively, the
"Mortgage Loans") sold by Bear Stearns Mortgage Securities Inc. ("BSMSI"). The
Mortgage Loans were sold by Headlands Mortgage Company to BSMSI. Headlands will
act as master servicer of the Mortgage Loans (the "Master Servicer," which term
includes any successors thereto under the Agreement referred to below). The
Trust was created pursuant to the Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), by and among BSMSI, as
seller, Headlands, as Master Servicer, and The Bank of New York, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month prior to the
month in which a Distribution Date (as hereinafter defined) occurs on the
Current Principal Amount hereof at a per annum rate equal to the Pass-Through
Rate. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month of
such Distribution Date, an amount equal to the product of the Fractional
Undivided interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the same Class as this Certificate.
The Assumed Final Distribution Date is the first anniversary of the Distribution
Date immediately following the latest scheduled maturity date of any Mortgage
Loan and is not likely to be the date on which the Current Principal Amount of
this Class of Certificates will be reduced to zero.
Distributions on this Certificate will be made by the Trustee by check
mailed to the address of the Person entitled thereto as such name and address
shall appear on the Certificate Register or, if such Person so requests by
notifying the Trustee in writing as specified in the Agreement and if such
Person holds Certificates with an initial aggregate Current Principal Amount
and/or initial aggregate notional amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized
signatory of the Trustee by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: September 30, 1996
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but solely
as Trustee
By
AUTHORIZED OFFICER
By_________________________________________
Authorized signatory of The Bank of New York, not in its
individual capacity but solely as Trustee
<PAGE>
FORM OF CLASS R CERTIFICATES
EXHIBIT A-2
FORM OF REVERSE OF CERTIFICATES
BEAR STEARNS MORTGAGE SECURITIES INC.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1996-5
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"), issued in
twenty Classes. The Certificates, in the aggregate, evidence the entire
beneficial ownership interest in the Trust formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust for payment hereunder and that the Trustee
is not liable to the Certificateholders for any amount payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Master Servicer and the rights of the Certificateholders under the Agreement
from time to time by the Master Servicer and the Trustee with the consent of the
Holders of Certificates evidencing Fractional Undivided Interests aggregating
not less than 51%. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Trustee upon
surrender of this Certificate for registration of transfer at the offices or
agencies maintained by the Trustee in the City of New York, State of New York,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
in authorized denominations representing a like aggregate Fractional Undivided
Interest will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate Fractional Undivided Interest, as requested by
the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Master Servicer, the Trustee and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Master Servicer, the Trustee nor any
such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust created thereby
(other than the obligations to make payments to Certificateholders with respect
to the termination of the Agreement) shall terminate upon the earlier of (i) the
later of the (A) final payment or other liquidation (or Monthly Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust and (B)
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan and the remittance of all funds due under the
Agreement, or (ii) the optional repurchase by the party named in the Agreement
of all the Mortgage Loans and other assets of the Trust in accordance with the
terms of the Agreement. Such optional repurchase may be made only on or after
the Distribution Date on which the aggregate Scheduled Principal Balance of the
Mortgage Loans is less than 10% of the aggregate Scheduled Principal Balance of
the Mortgage Loans at the Cut-Off Date. The exercise of such right will effect
the early retirement of the Certificates. The Trust also may be terminated on
any Distribution Date upon the determination, based upon an opinion of counsel,
that REMIC status of the REMIC Trust has been lost or that a substantial risk
exists that such status will be lost for the then current year. In no event,
however, will the Trust created by the Agreement continue beyond the expiration
of 21 years after the death of certain persons identified in the Agreement.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(Please print or typewrite name and address including postal zip code
assignee)
the within Certificate and hereby authorizes the transfer of registration of
such interest to the assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new Certificate
of a like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
Dated:
Signature by or on behalf of assignor
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
for
the account of
account number , or, if mailed by check to
.
Applicable statements should be mailed to ,
.
This information is provided by ,
the assignee named above, or ,
as its agent.
<PAGE>
EXHIBIT B
MORTGAGE LOAN SCHEDULE
Omitted
Available Upon Request
<PAGE>
EXHIBIT C
Representations and Warranties of Headlands Mortgage Company
Concerning the Mortgage Loans
The representations are set forth in Section 7 of the Seller Contract and
are available upon request.
<PAGE>
EXHIBIT D
REQUEST FOR RELEASE
(for Trustee)
Loan Information
Name of Mortgagor: _____________________________
Loan No.: ____________________________
Trustee
Name: ____________________________
Address: ____________________________
Trustee Mortgage
File No.: _____________________________
Master Servicer
Name: _____________________________
Address: _____________________________
Certificates: Mortgage Pass-Through Certificates,
Series 1996-5
The undersigned hereby acknowledges that it has received from
_______________________, as Trustee for the holders of Bear Stearns Mortgage
Securities Inc. Mortgage Pass-Through Certificates, Series 1996-5, the documents
referred to below (the "Documents"). All capitalized terms not otherwise defined
in this Request for Release shall have the meanings given them in the Pooling
and Servicing Agreement dated as of September 1, 1996 (the "Pooling and
Servicing Agreement") among the Trustee, Headlands Mortgage Company and Bear
Stearns Mortgage Securities Inc.
( ) Mortgage Note dated ________, 19__, in the original principal
sum of $____________, made by _____________, payable to, or
endorsed to the order of, the Trustee.
( ) Mortgage recorded on _____________ as instrument no.
_____________ in the County Recorder's Office of the County of
_______________, State of ____________ in book/reel/docket
_______________ of official records at page/image ________.
( ) Deed of Trust recorded on _______________ as instrument no.
_________ in the County Recorder's Office of the County of
_______________, State of _______________ in book/reel/docket
__________ of official records at page/image _____________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee,
recorded on ______________ as instrument no. ______ in the
County Recorder's Office of the County of _______________,
State of _______________ in book/reel/docket __________ of
official records at page/image ________________.
( ) Other documents, including any amendments, assignments or
other assumptions of the Mortgage Note or Mortgage:
( )
( )
( )
( )
The undersigned hereby acknowledges and agrees as follows:
(1) The Master Servicer shall, and if the Master Servicer
releases the Documents to a Sub-Servicer or related Insurer the Master
Servicer shall cause such Sub-Servicer or related Insurer to, hold and
retain possession of the Documents in trust for the benefit of the
Trustee, solely for the purposes provided in the Agreement.
(2) The Master Servicer shall not cause or permit the Documents
to become subject to, or encumbered by, any claim, liens, security
interest, charges, writs of attachment or other impositions nor shall
the Master Servicer assert or seek to assert any claims or rights of
setoff to or against the Documents or any proceeds thereof.
(3) The Master Servicer shall return the Documents to the Trustee
when the need therefor no longer exists, and in any event within 21
days of the Master Servicer's receipt thereof, unless the Mortgage
Loan relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Certificate Account or the Documents
are being used to pursue foreclosure or other legal proceedings and
except as expressly provided in the Agreement.
(4) Prior to the return of the Documents to the Trustee, the
Master Servicer shall, and if the Master Servicer releases such
Documents to a Sub-Servicer or related Insurer, the Master Servicer
shall cause such Sub-Servicer or related Insurer to, retain the
Documents in its control unless the Documents have been delivered to
an attorney, or to a public trustee or other public official as
required by law, to initiate or pursue legal action or other
proceedings for the foreclosure of the Mortgaged Property either
judicially or nonjudicially, and the Master Servicer has delivered to
the Trustee a certificate of a Servicing Officer certifying as to the
name and address of the Person to which the Documents were delivered
and the purpose or purposes of such delivery.
(5) The Documents and any proceeds thereof, including any
proceeds of proceeds, coming into the possession or control of the
Master Servicer shall at all times be earmarked for the account of the
Trustee, and the Master Servicer shall keep the Documents and any
proceeds separate and distinct from all other property in the
possession, custody or control of the Master Servicer.
Date: ______________________, 19__
[Name of Master Servicer]
By:_______________________
Its:______________________
<PAGE>
EXHIBIT E
Affidavit pursuant to
Section 860E(e)(4) of
the Internal Revenue
Code of 1986, as
amended, and for
other purposes
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Investor] (the "Investor"), a
[savings institution] [corporation] duly organized and existing under the laws
of [the State of ] [the United States], on behalf of which he makes this
affidavit.
2. That (i) the Investor is not a "disqualified organization" as defined in
Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended, and will
not be a disqualified organization as of September 30, 1996; (ii) it is not
acquiring the Bear Stearns Mortgage Securities Inc. Mortgage Pass-Through
Certificates, Series 1996-5, Class R Certificates (the "Residual Certificates")
for the account of a disqualified organization; (iii) it consents to any
amendment of the Pooling and Servicing Agreement that shall be deemed necessary
by Bear Stearns Mortgage Securities Inc. (upon advice of counsel) to constitute
a reasonable arrangement to ensure that the Residual Certificates will not be
owned directly or indirectly by a disqualified organization; and (iv) it will
not transfer such Residual Certificates unless (a) it has received from the
transferee an affidavit in substantially the same form as this affidavit
containing these same four representations and (b) as of the time of the
transfer, it does not have actual knowledge that such affidavit is false.
3. That the Investor is one of the following: (i) a citizen or resident of
the United States, (ii) a corporation, partnership or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof or (iii) an estate or trust that is subject to U.S. federal income tax
regardless of the source of its income.
4. That the Investor's taxpayer identification number is -----------.
5. That no purpose of the acquisition of the Residual Certificates is to
avoid or impede the assessment or collection of tax.
6. That the Investor understands that, as the holder of the Residual
Certificates, the Investor may incur tax liabilities in excess of any cash flows
generated by such Residual Certificates.
7. That the Investor intends to pay taxes associated with holding the
Residual Certificates as they become due.
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed
on its behalf, pursuant to authority of its Board of Directors, by its [Title of
Officer] this day of , 199_.
[NAME OF INVESTOR]
By:
[Name of Officer]
[Title of Officer]
[Address of Investor for
receipt of distributions]
Address of Investor
for receipt of tax
information:
<PAGE>
Personally appeared before me the above-named [Name of Officer], known or
proved to me to be the same person who executed the foregoing instrument and to
be the [Title of Officer] of the Investor, and acknowledged to me that he
executed the same as his free act and deed and the free act and deed of the
Investor.
Subscribed and sworn before me this day of , 199_.
NOTARY PUBLIC
COUNTY OF
STATE OF
My commission expires the day of , 19 .
--- ------------- --
<PAGE>
EXHIBIT F-1
FORM OF INVESTMENT LETTER
[Date]
[SELLER]
The Bank of New York, as Trustee
101 Barclay Street
New York, New York 10286
Attention: Bear Stearns/Headlands 1996-5
Re: BSMSI Series 1996-5 Mortgage Pass-Through
Certificates (the "Certificates"), including the Class B-4, Class B-5
and Class B-6 Certificates (the "Privately Offered
Certificates")
Dear Sirs:
In connection with our purchase of Privately Offered Certificates, we
confirm that:
(i) we understand that the Privately Offered Certificates are
not being registered under the Securities Act of 1933, as
amended (the "Act") or any applicable state securities or
"Blue Sky" laws, and are being sold to us in a transaction
that is exempt from the registration requirements of such
laws;
(ii) any information we desired concerning the Certificates,
including the Privately Offered Certificates, the trust in
which the Certificates represent the entire beneficial
ownership interest (the "Trust") or any other matter we
deemed relevant to our decision to purchase Privately
Offered Certificates has been made available to us;
(iii) we are able to bear the economic risk of investment in
Privately Offered Certificates; we are an institutional
"accredited investor" as defined in Section 501(a) of
Regulation D promulgated under the Act and a sophisticated
institutional investor;
(iv) we are acquiring Privately Offered Certificates for our own
account, not as nominee for any other person, and not with a
present view to any distribution or other disposition of the
Privately Offered Certificates;
(v) we agree the Privately Offered Certificates must be held
indefinitely by us (and may not be sold, hypothecated or in
any way disposed of) unless subsequently registered under
the Act and any applicable state securities or "Blue Sky"
laws or an exemption from the registration requirements of
the Act and any applicable state securities or "Blue Sky"
laws is available;
(vi) we agree that in the event that at some future time we wish
to dispose of or exchange any of the Privately Offered
Certificates (such disposition or exchange not being
currently foreseen or contemplated), we will not transfer or
exchange any of the Privately Offered Certificates unless:
(A) (1) the sale is to an Eligible Purchaser (as
defined below), (2) a letter to substantially the same
effect as either this letter or, if the Eligible Purchaser
is a Qualified Institutional Buyer as defined under Rule
144A of the Act, the Rule 144A and Related Matters
Certificate in the form attached to the Pooling and
Servicing Agreement (as defined below) is executed promptly
by the purchaser and delivered to the addressees hereof and
(3) all offers or solicitations in connection with the sale,
whether directly or through any agent acting on our behalf,
are limited only to Eligible Purchasers and are not made by
means of any form of general solicitation or general
advertising whatsoever; and
(B) if the Privately Offered Certificate is not
registered under the Act (as to which we acknowledge you
have no obligation), the Privately Offered Certificate is
sold in a transaction that does not require registration
under the Act and any applicable state securities or "blue
sky" laws and, if The Bank of New York (the "Trustee") so
requests, a satisfactory Opinion of Counsel is furnished to
such effect, which Opinion of Counsel shall be an expense of
the transferor or the transferee;
(vii) we agree to be bound by all of the terms (including those
relating to restrictions on transfer) of the Pooling and
Servicing (as defined below), pursuant to which the Trust
was formed; we have reviewed carefully and understand the
terms of the Pooling and Servicing Agreement;
(viii) we are not "benefit plan investors," as such term is
defined in 29 C.F.R. ss. 2510.3-101, nor a trustee,
fiduciary or other party acting on behalf of any such
"benefit plan investors;"
(ix) We understand that each of the Class [B-4] [B-5] [B-6]
Certificates bears, and will continue to bear, a legend to
substantiate the following effect: "THIS CERTIFICATE HAS NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES
LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE,
AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE
ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE
144A UNDER THE ACT ("RULE 144A") TO A PERSON THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT (IF
AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN "INSTITUTIONAL
ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT
PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE ACT,
SUBJECT TO (A) THE RECEIPT BY THE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B)
THE RECEIPT BY THE TRUSTEE OF AN OPINION OF COUNSEL AS TO
COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED
STATES. THIS CERTIFICATE MAY NOT BE TRANSFERRED TO "BENEFIT
PLAN INVESTORS," AS SUCH TERM IS DEFINED IN 29 C.F.R.ss.
2510.3-101., UNLESS THE PROPOSED TRANSFEREE PROVIDES A
BENEFIT PLAN OPINION TO THE TRUSTEE."
"Eligible Purchaser" means a corporation, partnership or other entity which
we have reasonable grounds to believe and do believe (i) can make
representations with respect to itself to substantially the same effect as the
representations set forth herein, and (ii) is either a Qualified Institutional
Buyer as defined under Rule 144A of the Act or an institutional "Accredited
Investor" as defined under Rule 501 of the Act.
Terms not otherwise defined herein shall have the meanings assigned to them
in the Pooling and Servicing Agreement dated as of September 1, 1996 among Bear
Stearns Mortgage Securities Inc., Headlands Mortgage Company and The Bank of New
York (the "Pooling and Servicing Agreement").
IN WITNESS WHEREOF, this document has been executed by the undersigned
who is duly authorized to do so on behalf of the undersigned Eligible Purchaser
on the ____ day of ________, 19__.
Very truly yours,
[PURCHASER]
By:__________________________
(Authorized Officer)
By:__________________________
Attorney-in-fact
<PAGE>
EXHIBIT F-2
FORM OF RULE 144A AND RELATED MATTERS CERTIFICATE
[Date]
[SELLER]
The Bank of New York, as Trustee
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Office
Re: BSMSI Series 1996-5 Mortgage Pass-Through
Certificates, Class B-4, Class B-5,
and Class B-6 Certificates (the "Privately
Offered Certificates")
Dear Sirs:
In connection with our purchase of Privately Offered Certificates, the
undersigned certifies to each of the parties to whom this letter is addressed
that it is a qualified institutional buyer (as defined in Rule 144A under the
Securities Act of 1933, as amended (the "Act")) as follows:
1. It owned and/or invested on a discretionary basis eligible securities
(excluding affiliate's securities, bank deposit notes and CD's, loan
participations, repurchase agreements, securities owned but subject to
a repurchase agreement and swaps), as described below:
Date: _____________, 19__ (must be on or after the close of
its most recent fiscal year)
Amount: $_________________; and
2. The dollar amount set forth above is:
a. greater than $100 million and the undersigned is one of the
following entities:
(1) an insurance company as defined in Section 2(13) of the Act;
or1
- --------
1 A purchase by an insurance company for one or more of its
separate accounts, as defined by section 2(a)(37) of the
Investment Company Act of 1940, which are neither registered
nor required to be registered thereunder, shall be deemed to
be a purchase for the account of such insurance company.
(2) an investment company registered under the Investment
Company Act or any business development company as defined
in Section 2(a)(48) of the Investment Company Act of 1940;
or
(3) a Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of
the Small Business Investment Act of 1958; or
(4) a plan (i) established and maintained by a state, its
political subdivisions, or any agency or instrumentality of
a state or its political subdivisions, the laws of which
permit the purchase of securities of this type, for the
benefit of its employees and (ii) the governing investment
guidelines of which permit the purchase of securities of
this type; or
(5) a business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940; or
(6) a corporation (other than a U.S. bank, savings and loan
association or equivalent foreign institution), partnership,
Massachusetts or similar business trust, or an organization
described in Section 501(c)(3) of the Internal Revenue Code;
or
(7) a U.S. bank, savings and loan association or equivalent
foreign institution, which has an audited net worth of at
least $25 million as demonstrated in its latest annual
financial statements; or
(8) an investment adviser registered under the Investment
Advisers Act; or
b. greater than $10 million, and the undersigned is a broker-dealer
registered with the SEC; or
c. less than $10 million, and the undersigned is a broker-dealer
registered with the SEC and will only purchase Rule 144A
securities in transactions in which it acts as a riskless
principal (as defined in Rule 144A); or
d. less than $100 million, and the undersigned is an investment
company registered under the Investment Company Act of 1940,
which, together with one or more registered investment companies
having the same or an affiliated investment adviser, owns at
least $100 million of eligible securities; or
e. less than $100 million, and the undersigned is an entity, all the
equity owners of which are qualified institutional buyers.
The undersigned further certifies that it is purchasing a Privately Offered
Certificate for its own account or for the account of others that independently
qualify as "Qualified Institutional Buyers" as defined in Rule 144A. It is aware
that the sale of the Privately Offered Certificates is being made in reliance on
its continued compliance with Rule 144A. It is aware that the transferor may
rely on the exemption from the provisions of Section 5 of the Act provided by
Rule 144A. The undersigned understands that the Privately Offered Certificates
may be resold, pledged or transferred only to (i) a person reasonably believed
to be a Qualified Institutional Buyer that purchases for its own account or for
the account of a Qualified Institutional Buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance in Rule 144A, or (ii) an
institutional "accredited investor," as such term is defined under Rule 501 of
the Act in a transaction that otherwise does not constitute a public offering.
The undersigned agrees that if at some future time it wishes to dispose of
or exchange any of the Privately Offered Certificates, it will not transfer or
exchange any of the Privately Offered Certificates to a Qualified Institutional
Buyer without first obtaining a Rule 144A and Related Matters Certificate in the
form hereof from the transferee and delivering such certificate to the
addressees hereof. Prior to making any transfer of Privately Offered
Certificates, if the proposed Transferee is an institutional "accredited
investor," the transferor shall obtain from the transferee and deliver to the
addressees hereof an Investment Letter in the form attached to the Pooling and
Servicing Agreement dated as of September 1, 1996 among Bear Stearns Mortgage
Securities Inc., as Seller, Headlands Corporation as Master Servicer, and The
Bank of New York, as Trustee, pursuant to which the Certificates were issued.
The undersigned certifies that it is not a "benefit plan investor," as such
term is defined in 29 C.F.R. ss. 2510.3- 101, nor a trustee, fiduciary or other
party who is acquiring a Privately Offered Certificate directly or indirectly
for or on behalf of "benefit plan investors."
IN WITNESS WHEREOF, this document has been executed by the undersigned who
is duly authorized to do so on behalf of the undersigned Qualified Institutional
Buyer on the ____ day of _______, 19__.
Name of Institution
Signature
Name
Title2
- --------
2 Must be President, Chief Financial Officer, or other
executive officer.
<PAGE>
EXHIBIT G
FORM OF SPECIAL SERVICING AND COLLATERAL FUND AGREEMENT
This SPECIAL SERVICING AND COLLATERAL FUND AGREEMENT (the "Agreement") is
made and entered into as of __________________, 1996, between Headlands Mortgage
Company (the "Company") and [ ] (the "Purchaser").
PRELIMINARY STATEMENT
_______________________________ is the holder of the entire interest in The
Mortgage Pass-Through Certificates, Series 1996-5, Class B-6
Certificates (the "Class B-6 Certificates"). The Class B-6 Certificates were
issued pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") dated as of September 1, 1996 between the Company (in its capacity
as master servicer thereunder, the "Master Servicer"), Bear Stearns Mortgage
Securities Inc. and The Bank of New York, as Trustee.
[ ] intends to resell all of the Class B-6
Certificates directly to the Purchaser on or promptly after the
date hereof.
In connection with such sale, the parties hereto have agreed that the
Company, as Master Servicer, will engage in certain special servicing procedures
relating to foreclosures for the benefit of the Purchaser, and that the
Purchaser will deposit funds in a collateral fund to cover any losses
attributable to such procedures as well as all advances and costs in connection
therewith, as set forth herein.
In consideration of the mutual agreements herein contained,
the receipt and sufficiency of which are hereby acknowledged, the Company and
the Purchaser agree that the following provisions shall become effective and
shall be binding on and enforceable by the Company and the Purchaser upon the
acquisition by the Purchaser of the Class B-6 Certificates.
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
Account: The Custody Account, the Certificate Account, the Protected
Accounts or the Servicing Accounts as the context may require.
Accrued Certificate Interest: For any Certificate (other than a Class PO
Certificate) for any Distribution Date, the interest accrued during the related
Interest Accrual Period at the applicable Pass-Through Rate on the Current
Principal Amount (or, in the case of a Class X Certificate, the Notional Amount)
of such Certificate immediately prior to such Distribution Date, calculated on
the basis of a 360-day year consisting of twelve 30-day months, less (i) in the
case of a Senior Certificate, such Certificate's share of any Net Interest
Shortfall and the interest portion of Excess Losses and, after the Cross-Over
Date, the interest portion of any Realized Losses and (ii) in the case of a
Subordinate Certificate, such Certificate's share of any Net Interest Shortfall
and the interest portion of any Realized Losses.
Advancing Date: The fourth Business Day preceding the related Distribution
Date.
Affiliate: As to any Person, any other Person controlling,
controlled by or under common control with such Person. "Control" means the
power to direct the management and policies of a Person, directly or indirectly,
whether through ownership of voting securities, by contract or otherwise.
"Controlled" and "Controlling" have meanings correlative to the foregoing. The
Trustee may conclusively presume that a Person is not an Affiliate of another
Person unless a Responsible Officer of the Trustee has actual knowledge to the
contrary.
Agreement: This Pooling and Servicing Agreement and all amendments hereof
and supplements hereto.
Allocable Share: With respect to each Class of Subordinate Certificates:
(a) as to any Distribution Date and amounts distributable
pursuant to clauses (i) and (iii) of the Subordinate Optimal Principal
Amount, the fraction, expressed as a percentage, the numerator of
which is the Current Principal Amount of such Class and the
denominator of which is the aggregate Current Principal Amount of all
Classes of the Subordinate Certificates; and
(b) as to any Distribution Date and amounts distributable
pursuant to clause (ii), (iv) and (v) of the Subordinate Optimal
Principal Amount, and as to each Class of Subordinate Certificates for
which (x) the related Prepayment Distribution Trigger has been
satisfied on such Distribution Date, the fraction, expressed as a
percentage, the numerator of which is the Current Principal Amount of
such Class and the denominator of which is the aggregate Current
Principal Amount of all such Classes and (y) the related Prepayment
Distribution Trigger has not been satisfied on such Distribution Date,
0%; provided that if on a Distribution Date, the Current Principal
Amount of any Class of Subordinate Certificates for which the related
Prepayment Distribution Trigger was satisfied on such Distribution
Date is reduced to zero, any amounts distributed pursuant to this
clause (b), to the extent of such Class's remaining Allocable Share,
shall be distributed to the remaining Classes of Subordinate
Certificates in reduction of their respective Current Principal
Amounts in the order of their numerical Class designations.
Anniversary Determination Date: The Determination Date occurring in October
of each year that the Certificates are outstanding, commencing in October 1997.
Applicable Credit Rating: A rating of Aaa or AAA, in the case of Moody's or
Fitch, respectively, for any long-term deposit or security or a rating of P-1,
in the case of Moody's, or F-1+, in the case of Fitch, for any short-term
deposit or security.
Appraised Value: For any Mortgaged Property, the amount set forth as the
appraised value of such Mortgaged Property in an appraisal made for the mortgage
originator in connection with its origination of the related Mortgage Loan.
Assumed Final Distribution Date: With respect to each Class of
Certificates, September 25, 2027.
Available Funds: With respect to any Distribution Date, an amount equal to
the aggregate of the following amounts with respect to the Mortgage Loans: (a)
all previously undistributed payments on account of principal (including the
principal portion of Scheduled Payments, Principal Prepayments and the principal
portion of Net Liquidation Proceeds) and all previously undistributed payments
on account of interest received after the Cut-Off Date and on or prior to the
related Determination Date, (b) any Monthly Advances (including Certificate
Account Advances) and Compensating Interest Payments by the Master Servicer with
respect to such Distribution Date and (c) any amount reimbursed by the Master
Servicer pursuant to Subsections 4.02(d) and 4.04(d) in connection with losses
on Permitted Investments, except:
(i) all payments that were due on or before the Cut-Off Date;
(ii) all Principal Prepayments and Liquidation Proceeds received
during the month in which such Distribution Date occurs and all
related payments of interest;
(iii) all payments, other than Principal Prepayments, that
represent early receipt of Scheduled Payments due on a date or dates
subsequent to the Due Date in the month in which such Distribution
Date occurs;
(iv) amounts received on particular Mortgage Loans as late
payments of principal or interest and respecting which, and to the
extent that, there are any unreimbursed Monthly Advances (including
Certificate Account Advances);
(v) amounts of Monthly Advances (including Certificate Account
Advances) determined to be Non- recoverable Advances;
(vi) amounts permitted to be withdrawn from the Certificate
Account pursuant to Subsection 4.03(a); and
(vii) amounts withdrawn by the Trustee pursuant to Subsection
4.03(b) to pay the Trustee's Fee.
Bankruptcy Code: The United States Bankruptcy Code, as amended, as codified
in 11 U.S.C. ss.ss. 101-1330.
Bankruptcy Coverage Termination Date: The Distribution Date upon which the
Bankruptcy Loss Amount has been reduced to zero or a negative number (or the
Cross-Over Date, if earlier).
Bankruptcy Formula Amount: As to each Anniversary Determination Date, the
greater of (i) $125,000 and (ii) the sum of (x) 0.25% of the Scheduled Principal
Balance of each Second Home Mortgage Loan and each Investor Mortgage Loan
remaining in the Trust with a Loan-to-Value Ratio greater than 80% and less than
or equal to 90%, (y) 0.50% of the Scheduled Principal Balance of each Second
Home Mortgage Loan and each Investor Mortgage Loan remaining in the Trust with a
Loan-to-Value Ratio greater than 90% and less than or equal to 95%, and (z)
0.75% of the Scheduled Principal Balance of each Second Home Mortgage Loan and
each Investor Mortgage Loan remaining in the Trust with a Loan-to-Value Ratio
greater than 95%.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient Valuation
or Debt Service Reduction.
Bankruptcy Loss Amount: As of any Determination Date prior to the first
Anniversary Determination Date, the Bankruptcy Loss Amount shall equal $125,000,
as reduced by the aggregate amount of Bankruptcy Losses since the Cut-off Date.
As of any Determination Date after the first Anniversary Determination Date,
other than an Anniversary Determination Date, the Bankruptcy Loss Amount shall
equal the Bankruptcy Loss Amount on the immediately preceding Anniversary
Determination Date as reduced by the aggregate amount of Bankruptcy Losses since
such preceding Anniversary Determination Date. As of any Anniversary
Determination Date, the Bankruptcy Loss Amount shall equal the lesser of (x) the
Bankruptcy Loss Amount as of the preceding Determination Date as reduced by any
Bankruptcy Losses for the preceding Distribution Date, and (y) the Bankruptcy
Formula Amount for such Anniversary Determination Date.
The Bankruptcy Loss Amount may be further reduced by Headlands (including
accelerating the manner in which such coverage is reduced) provided that prior
to any such reduction, Headlands shall obtain written confirmation from each
Rating Agency that such reduction shall not adversely affect the then-current
rating assigned to the related Classes of Certificates by such Rating Agency and
shall provide a copy of such written confirmation to the Trustee.
Benefit Plan Opinion: The meaning specified in Section 5.07(a) hereof.
Book-Entry Certificates: All Classes of Certificates other than the Class X
and Class R Certificates and, to the extent provided in Section 5.02, the Class
B-4, Class B-5 and Class B-6 Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in New York City are required or authorized by law
or executive order to be closed.
Collateral Fund: The fund established and maintained pursuant to Section
3.01 hereof.
Collateral Fund Permitted Investments: Either (i) obligations of, or
obligations fully guaranteed as to principal and interest by, the United States,
or any agency or instrumentality thereof, provided such obligations are backed
by the full faith and credit of the United States, (ii) repurchase agreements on
obligations specified in clause (i) provided that the unsecured obligations of
the party agreeing to repurchase such obligations are at the time rated by each
Rating Agency in the highest long-term rating category, (iii) federal funds,
certificates of deposit, time deposits and banker's acceptances of any U.S.
depository institution or trust company incorporated under the laws of the
United States or any state provided that the debt obligations of such depository
institution or trust company at the date of acquisition thereof have been rated
by each Rating Agency in the highest short-term rating category, (iv) commercial
paper of any corporation incorporated under the laws of the United States or any
state thereof which on the date of acquisition has the highest short term rating
of each Rating Agency, and (v) other obligations or securities that are
acceptable to each Rating Agency as a Collateral Fund Permitted Investment
hereunder and will not, as evidenced in writing, result in a reduction or
withdrawal in the then current rating of the Certificates and, for each of the
preceding clauses, the maturity thereof shall be not later than the earlier to
occur of (A) 30 days from the date of the related investment and (B) the
Business Day preceding the next succeeding Distribution Date.
Commencement of Foreclosure: The first official action required under local
law in order to commence foreclosure proceedings or to schedule a trustee's sale
under a deed of trust, including (i) in the case of a mortgage, any filing or
service of process necessary to commence an action to foreclose or (ii) in the
case of a deed of trust, the posting, publishing, filing or delivery of a notice
of sale, but not including in either case (x) any notice of default, notice of
intent to foreclose or sell or any other action prerequisite to the actions
specified in (i) or (ii) above and, upon the consent of the Purchaser which will
be deemed given unless expressly withheld within two Business Days of
notification, (y) the acceptance of a deed-in-lieu of foreclosure (whether in
connection with a sale of the related property or otherwise) or (z) initiation
and completion of a short pay-off.
Current Appraisal: With respect to any Mortgage Loan as to which the
Purchaser has made an Election to Delay Foreclosure, an appraisal of the related
Mortgaged Property obtained by the Purchaser as nearly contemporaneously as
practicable to the time of the Purchaser's election, prepared based on the
Company's customary requirements for such appraisals.
Election to Delay Foreclosure: Any election by the Purchaser to delay the
Commencement of Foreclosure, made in accordance with Section 2.02(b).
Election to Foreclosure: Any election by the Purchaser to proceed with the
Commencement of Foreclosure, made in accordance with Section 2.03(a).
Required Collateral Fund Balance: As of any date of determination, an
amount equal to the aggregate of all amounts previously required to be deposited
in the Collateral Fund pursuant to Section 2.02(d) (after adjustments for all
withdrawals and deposits prior to such date pursuant to Section 2.02(e)) and
Section 2.03(b) (after adjustment for all withdrawals and deposits prior to such
date pursuant to Section 2.03(c)) and Section 3.02, reduced by all withdrawals
therefrom prior to such date pursuant to Section 2.02(g) and Section 2.03(d).
Section 1.02. Definitions Incorporated by Reference.
All capitalized terms not otherwise defined in this Agreement shall have
the meanings assigned in the Pooling and Servicing Agreement.
ARTICLE II
SPECIAL SERVICING PROCEDURES
Section 2.01. Reports and Notices.
(a) In connection with the performance of its duties under the Pooling and
Servicing Agreement relating to the realization upon defaulted Mortgage Loans,
the Company as Master Servicer shall provide to the Purchaser the following
notices and reports:
i) Within five Business Days after each Distribution Date (or
included in or with the monthly statements to Certificateholders
pursuant to the Pooling and Servicing Agreement), the Company, as
Master Servicer, shall provide to the Purchaser a report, using the
same methodology and calculations in its standard servicing reports,
indicating for the Trust Fund the number of Mortgage Loans that are
(A) thirty days, (B) sixty days, (C) ninety days or more delinquent or
(D) in foreclosure, and indicating for each such Mortgage Loan the
loan number and outstanding principal balance.
ii) Prior to the Commencement of Foreclosure in connection with
any Mortgage Loan, the Company shall provide the Purchaser with a
notice (sent by facsimile transmission) of such proposed and imminent
foreclosure, stating the loan number and the aggregate amount owing
under the Mortgage Loan. Such notice may be provided to the Purchaser
in the form of a copy of a referral letter from the Company to an
attorney requesting the institution of foreclosure or a copy of a
request to foreclose received by the Company from the related primary
servicer which has been approved by the Company.
(b) If requested by the Purchaser, the Company shall make its servicing
personnel available (during their normal business hours) to respond to
reasonable inquiries, in writing by facsimile transmission, by the Purchaser in
connection with any Mortgage Loan identified in a report under subsection (a)(i)
or (a)(ii) which has been given to the Purchaser, provided, that (1) the Company
shall only be required to provide information that is readily accessible to its
servicing personnel and is non- confidential and (2) the Company shall respond
within five Business Days orally or in writing by facsimile transmission.
(c) In addition to the foregoing, the Company shall provide to the
Purchaser such information as the Purchaser may reasonably request concerning
each Mortgage Loan that is at least sixty days delinquent and each Mortgage Loan
which has become real estate owned, through the final liquidation thereof,
provided, that the Company shall only be required to provide information that is
readily accessible to its servicing personnel and is non-confidential.
Section 2.02. Purchaser's Election to Delay Foreclosure Proceedings.
(a) The Purchaser shall be deemed to direct the Company that in the event
that the Company does not receive written notice of the Purchaser's election
pursuant to subsection (b) below within 24 hours (exclusive of any intervening
non- Business Days) of transmission of the notice provided by the Company under
Section 2.01(a)(ii) subject to extension as set forth in Section 2.02(b), the
Company may proceed with the Commencement of Foreclosure in respect of such
Mortgage Loan in accordance with its normal foreclosure policies without further
notice to the Purchaser. Any foreclosure that has been initiated may be
discontinued (i) without notice to the Purchaser if the Mortgage Loan has been
brought current or if a refinancing or prepayment occurs with respect to the
Mortgage Loan (including by means of a short payoff approved by the Company) or
(ii) withnotice to the Purchaser if the Company has reached the terms of a
forbearance agreement with the borrower. In such latter case the Company may
complete such forbearance agreement unless instructed otherwise by the Purchaser
within two Business Days of notification.
(b) In connection with any Mortgage Loan with respect to which a notice
under Section 2.01(a)(ii) has been given to the Purchaser, the Purchaser may
elect to request that the Company delay the Commencement of Foreclosure until
such time as the Purchaser determines that the Company may proceed with the
Commencement of Foreclosure. Such election must be evidenced by written notice
received within 24 hours (exclusive of any intervening non-Business Days) of
transmission of the notice provided by the Company under Section 2.01(a)(ii).
The Purchaser shall send a copy of such notice of election to each Rating Agency
as soon as practicable thereafter. Such 24 hour period shall be extended for no
longer than an additional four Business Days after the receipt of the
information if the Purchaser requests additional information related to such
foreclosure within such 24 hour period; provided, however, that the Purchaser
will have at least one Business Day to make such election following its receipt
of any requested additional information. Any such additional information shall
(i) not be confidential in nature and (ii) be obtainable by the Company from
existing reports, certificates or statements or otherwise be readily accessible
to its servicing personnel. The Purchaser agrees that it has no right to deal
with the mortgagor. However, if the Company's normal foreclosure policies
include acceptance of a deed-in-lieu of foreclosure or short payoff, the
Purchaser will be notified and given two Business Days to respond. The Company
shall have the right to reject the notice of election by written notice to the
Purchaser within 24 hours of receipt of such notice of election, in which event
the Company may proceed with the Commencement of Foreclosure.
(c) With respect to any Mortgage Loan as to which the Purchaser has made an
Election to Delay Foreclosure which has not been rejected, the Purchaser shall
obtain a Current Appraisal as soon as practicable, and shall provide the Company
with a copy of such Current Appraisal.
(d) Within two Business Days of making any Election to Delay Foreclosure
which has not been rejected, the Purchaser shall remit by wire transfer to the
Trustee, for deposit in the Collateral Fund, an amount, as calculated by the
Company, equal to the sum of (i) 125% of the greater of the Scheduled Principal
Balance of the Mortgage Loan and the value shown in the Current Appraisal
referred to in subsection (c) above (or, if such Current Appraisal has not yet
been obtained, the Company's estimate thereof, in which case the required
deposit under this subsection shall be adjusted upon obtaining such Current
Appraisal), and (ii) three months' interest on the Mortgage Loan at the
applicable Mortgage Interest Rate. If any Election to Delay Foreclosure which
has not been rejected extends for a period in excess of three months (such
excess period being referred to herein as the "Excess Period"), the Purchaser
shall remit by wire transfer in advance to the Trustee for deposit in the
Collateral Fund the amount of each additional month's interest, as calculated by
the Company, equal to interest on the Mortgage Loan at the applicable Mortgage
Interest Rate for the Excess Period. The terms of this Agreement will no longer
apply to the servicing of any Mortgage Loan upon the failure of the Purchaser to
deposit the above amounts relating to the Mortgage Loan within two Business Days
of (i) the Election to Delay Foreclosure which has not been rejected or (ii) the
beginning of the related Excess Period, as the case may be.
(e) With respect to any Mortgage Loan as to which the Purchaser has made an
Election to Delay Foreclosure which has not been rejected, the Company or the
Trustee may withdraw from the Collateral Fund from time to time amounts
necessary to reimburse the Company for all related Monthly Advances and
Liquidation Expenses thereafter made by the Company as Master Servicer in
accordance with the Pooling and Servicing Agreement. To the extent that the
amount of any such Liquidation Expense is determined by the Company based on
estimated costs, and the actual costs are subsequently determined to be higher,
the Company may, or the Trustee shall at the Company's direction, withdraw the
additional amount from the Collateral Fund to reimburse the Company. In the
event that the Mortgage Loan is brought current by the mortgagor, the amounts so
withdrawn from the Collateral Fund shall be redeposited therein as and to the
extent that reimbursement therefor from amounts paid by the mortgagor is not
prohibited pursuant to the Pooling and Servicing Agreement as of the date
hereof. Except as provided in the preceding sentence, amounts withdrawn from the
Collateral Fund to cover Monthly Advances and Liquidation Expenses shall not be
redeposited therein or otherwise reimbursed to the Purchaser. If and when any
such Mortgage Loan is brought current by the mortgagor, all amounts remaining in
the Collateral Fund in respect of such Mortgage Loan (after adjustment for all
previous withdrawals and deposits pursuant to this subsection and after
reimbursement to the Master Servicer for all related Monthly Advances) shall be
released to the Purchaser.
(f) With respect to any Mortgage Loan as to which the Purchaser has made an
Election to Delay Foreclosure which has not been rejected, the Company shall
continue to service the Mortgage Loan in accordance with its customary
procedures (other than the delay in Commencement of Foreclosure as provided
herein). If and when, following such election, the Purchaser shall notify the
Company that it believes that it is appropriate to do so, the Company shall
proceed with the Commencement of Foreclosure; provided that, in any event, if
the Mortgage Loan is not brought current by the Mortgagor by the time the
Mortgage Loan becomes 6 months delinquent, the Purchaser's election shall no
longer be effective and the Company shall be entitled to proceed with the
Commencement of Foreclosure.
(g) Upon the occurrence of a liquidation with respect to any Mortgage Loan
as to which the Purchaser made an Election to Delay Foreclosure which has not
been rejected and as to which the Company proceeded with the Commencement of
Foreclosure in accordance with subsection (f) above, the Company shall calculate
the amount, if any, by which the value shown on the Current Appraisal obtained
under subsection (c) exceeds the actual sales price obtained for the related
Mortgaged Property (net of Liquidation Expenses and unreimbursed Monthly
Advances related to the extended foreclosure period), and the Company shall, or
the Trustee shall at the direction of the Company, withdraw the amount of such
excess from the Collateral Fund and shall remit the same to the Trust Fund for
application as additional Liquidation Proceeds pursuant to the Pooling and
Servicing Agreement. After making such withdrawal, all amounts remaining in the
Collateral Fund in respect of such Mortgage Loan (after adjustment for all
withdrawals and deposits pursuant to subsection (e) and after reimbursement to
the Master Servicer for all related Monthly Advances) shall be released to the
Purchaser.
Section 2.03. Purchaser's Election to Commence Foreclosure Proceedings.
(a) In connection with any Mortgage Loan identified in a report under
Section 2.01(a)(i)(B), the Purchaser may elect to instruct the Company to
proceed with the Commencement of Foreclosure as soon as practicable. Such
election must be evidenced by written notice received by the Company by 5:00
p.m., New York City time, on the third Business Day following the delivery of
such report under Section 2.01(a)(i). The Company shall have the right to reject
the notice of election by written notice to the Purchaser within 24 hours of
receipt of such notice of election, in which event, the Company may delay the
Commencement of Foreclosure.
(b) Within two Business Days of making any Election to Foreclose which has
not been rejected, the Purchaser shall remit to the Trustee, for deposit in the
Collateral Fund, an amount, as calculated by the Company, equal to 125% of the
current Scheduled Principal Balance of the Mortgage Loan and three months'
interest on the Mortgage Loan at the applicable Mortgage Rate. If and when any
such Mortgage Loan is brought current by the mortgagor, all amounts in the
Collateral Fund in respect of such Mortgage Loan (after adjustment for all
withdrawals and deposits pursuant to subsection (c) below) shall be released to
the Purchaser. The terms of this Agreement will no longer apply to the servicing
of any Mortgage Loan upon the failure of the Purchaser to deposit the above
amounts relating to the Mortgage Loan within two Business Days of the Election
to Foreclose.
(c) With respect to any Mortgage Loan as to which the Purchaser has made an
Election to Foreclose which has not been rejected, the Company shall continue to
service the Mortgage Loan in accordance with its customary procedures. In
connection therewith, the Company shall have the same rights to make withdrawals
for Monthly Advances and Liquidations Expenses from the Collateral Fund as are
provided under Section 2.02(e), and the Company shall make reimbursements
thereto to the limited extent provided under such subsection. The Company shall
not be required to proceed with the Commencement of Foreclosure which has not
been rejected if (i) the same is stayed as a result of the mortgagor's
bankruptcy or is otherwise barred by applicable law, or to the extent that all
legal conditions precedent thereto have not yet been complied with, or (ii) the
Company believes there is a breach of representations or warranties by the
Company, which may result in a repurchase or substitution of such Mortgage Loan,
or (iii) the Company has or expects to have the right under the Pooling and
Servicing Agreement to purchase the defaulted Mortgage Loan and intends to
exercise such right or (iv) the Company reasonably believes the Mortgaged
Property may be contaminated with or affected by hazardous wastes or hazardous
substances (and the Company supplies the Purchaser with information supporting
such belief) or (v) the same is prohibited by or is otherwise inconsistent with
the provisions of the Pooling and Servicing Agreement. Any foreclosure that has
been initiated may be discontinued (i) without notice to the Purchaser if the
Mortgage Loan has been brought current or if a refinancing or prepayment occurs
with respect to the Mortgage Loan (including by means of a short payoff approved
by the Purchaser) or (ii) with notice to the Purchaser if the Company has
reached the terms of a forbearance agreement unless instructed otherwise by the
Purchaser within two Business Days of notification.
(d) Upon the occurrence of a liquidation with respect to any Mortgage Loan
as to which the Purchaser made an Election to Foreclose which has not been
rejected and as to which the Company proceeded with the Commencement of
Foreclosure in accordance with subsection (c) above, the Company shall calculate
the amount, if any, by which the Scheduled Principal Balance of the Mortgage
Loan at the time of liquidation (plus all unreimbursed Monthly Advances and
Liquidation Expenses in connection therewith other than those previously paid
from the Collateral Fund) exceeds the actual sales price obtained for the
related Mortgaged Property, and the Company shall, or the Trustee shall at the
direction of the Company, withdraw the amount of such excess from the Collateral
Fund and shall remit the same to the Trust Fund for application as additional
Liquidation Proceeds pursuant to the Pooling and Servicing Agreement. After
making such withdrawal, all amounts remaining in the Collateral Fund (after
adjustment for all withdrawals and deposits pursuant to subsection (c) above and
after reimbursement to the Master Servicer for all related Monthly Advances) in
respect of such Mortgage Loan shall be released to the Purchaser.
Section 2.04. Termination.
(a) With respect to all Mortgage Loans included in the Trust Fund, the
Purchaser's right to make any Election to Delay Foreclosure or any Election to
Foreclose and the Company's obligations under Section 2.01 shall terminate on
the earliest to occur of the following: (i) at such time as the Current
Principal Amount of the Class B-6 Certificates has been reduced to zero, (ii) if
the greater of (x) [43%] (or such lower or higher percentage that represents the
Company's actual loss experience with respect to the Mortgage Loans) of the
aggregate principal balance of all Mortgage Loans that are in foreclosure or are
more than 90 days delinquent on a contractual basis and the aggregate book value
of REO Properties or (y) the aggregate amount that the Company estimates through
its normal servicing practices will be required to be withdrawn from the
Collateral Fund with respect to Mortgage Loans as to which the Purchaser has
made an Election to Delay Foreclosure or an Election to Foreclose which has not
been rejected exceeds (z) the then-current Current Principal Amount of the Class
B-6 Certificates, or (iii) upon any transfer by the Purchaser of any interest
(other than a minority interest therein, but only if the transferee provides
written acknowledgment to the Company of the Purchaser's right hereunder and
that such transferee will have no rights hereunder) in the Class B-6
Certificates (whether or not such transfer is registered under the Pooling and
Servicing Agreement), including any such transfer in connection with a
termination of the Trust Fund. Unless earlier terminated as set forth herein,
this Agreement and the respective rights, obligations and responsibilities of
the Purchaser and the Company hereunder shall terminate upon the later to occur
of (i) the final liquidation of the last Mortgage Loan as to which the Purchaser
made any Election to Delay Foreclosure or any Election to Foreclose and the
withdrawal of all remaining amounts in the Collateral Fund as provided herein
and (ii) ten (10) Business Days' notice.
(b) The Purchaser's rights pursuant to Section 2.02 or 2.03 of this
Agreement shall terminate with respect to a Mortgage Loan as to which the
Purchaser has exercised its rights under Section 2.02 or 2.03 hereof (so long as
such exercise has not been rejected), upon Purchaser's failure to deposit any
amounts required pursuant to Section 2.02(d) or 2.03(b) after one Business Day's
notice of such failure.
ARTICLE III
COLLATERAL FUND; SECURITY INTEREST
Section 3.01. Collateral Fund. Upon payment by the Purchaser of the initial
amount required to be deposited in the Collateral Fund pursuant to Article II,
the Company shall request the Trustee to establish and maintain with the Trustee
a segregated account entitled "Bear Stearns Mortgage Securities Inc. Mortgage
Pass-Through Certificates, Series 1996-5 Collateral Fund, for the benefit of
Headlands Mortgage Company and The Bank of New York on behalf of
Certificateholders, as secured parties" (the "Collateral Fund"). Amounts held in
the Collateral Fund shall continue to be the property of the Purchaser, subject
to the first priority security interest granted hereunder for the benefit of
such secured parties, until withdrawn from the Collateral Fund pursuant to the
Section 2.02 or 2.03 hereof.
Upon the termination of this Agreement and the liquidation of all Mortgage
Loans as to which the Purchaser has made any Election to Delay Foreclosure or
any Election to Foreclose pursuant to Section 2.04 hereof, the Company shall
distribute to the Purchaser all amounts remaining in the Collateral Fund
together with any investment earnings thereon (after giving effect to all
withdrawals therefrom permitted under this Agreement).
The Purchaser shall not take or direct the Company or the Trustee to take
any action contrary to any provision of the Pooling and Servicing Agreement. In
no event shall the Purchaser (i) take or cause the Trustee or the Company to
take any action that could cause the Trust Fund to fail to qualify as a REMIC or
cause the imposition on the Trust Fund of any "prohibited transaction" or
"prohibited contribution" taxes or (ii) cause the Trustee or the Company to fail
to take any action necessary to maintain the status of the Trust Fund as a
REMIC.
Section 3.02. Collateral Fund Permitted Investments.
The Company shall, at the written direction of the Purchaser, direct the
Trustee to invest the funds in the Collateral Fund in the name of the Trustee in
Collateral Fund Permitted Investments. Such direction shall not be changed more
frequently then quarterly. In the absence of any direction, the Trustee shall
invest such funds in investments permitted pursuant to clause (iii) of the
definition of Collateral Fund Permitted Investments herein.
All income and gain realized from any investment as well as any interest
earned on deposits in the Collateral Fund (net of any losses on such
investments) and any payments of principal made in respect of any Collateral
Fund Permitted Investment shall be deposited in the Collateral Fund upon
receipt. All costs and realized losses associated with the purchase and sale of
Collateral Fund Permitted Investments shall be borne by the Purchaser and the
amount of net realized losses shall be promptly deposited by the Purchaser in
the Collateral Fund. The Company shall periodically (but not more frequently
than monthly) direct the Trustee to distribute to the Purchaser upon request an
amount of cash, to the extent cash is available therefor in the Collateral Fund,
equal to the amount by which the balance of the Collateral Fund, after giving
effect to all other distributions to be made from the Collateral Fund on such
date, exceeds the Required Collateral Fund Balance. Any amounts so distributed
shall be released from the lien and security interest of this Agreement.
Section 3.03. Grant of Security Interest.
In order to secure the obligations of the Purchaser hereunder to the
Company and the Trustee for the benefit of Certificateholders (other than its
obligations under Section 4.10), the Purchaser hereby grants to the Company and
to the Trustee for the benefit of the Certificateholders a security interest in
and lien on all of the Purchaser's right, title and interest, whether now owned
or hereafter acquired, in and to: (1) the Collateral Fund, (2) all amounts
deposited in the Collateral Fund and Collateral Fund Permitted Investments in
which such amounts are invested (and the distributions and proceeds of such
investments) and (3) all cash and non-cash proceeds of any of the foregoing,
including proceeds of the voluntary or involuntary conversion thereof (all of
the foregoing collectively, the "Collateral").
The Purchaser acknowledges the lien on and security interest in the
Collateral for the benefit of the Company and the Trustee on behalf of the
Certificateholders. The Purchaser shall take all actions requested by the
Company as may be reasonably necessary to perfect the security interest created
under this Agreement in the Collateral and cause it to be prior to all other
security interests and liens, including the execution and delivery to the
Company or at its direction the Trustee for filing of appropriate financing
statements in accordance with applicable law.
Section 3.04. Collateral Shortfalls.
In the event that amounts on deposit in the Collateral Fund at any time are
insufficient to cover any withdrawals therefrom that the Company or the Trustee
is then entitled to make hereunder, the Purchaser shall be obligated to pay such
amounts to the Company or the Trustee immediately upon demand. Such obligation
shall constitute a general corporate obligation of the Purchaser. The failure to
pay such amounts within two Business Days of such demand (except for amounts to
cover interest on a Mortgage Loan pursuant to Sections 2.02(d) and 2.03(b)),
shall cause an immediate termination of the Purchaser's right to make any
Election to Delay Foreclosure or Election to Foreclose and the Company's
obligations under this Agreement with respect to all Mortgage Loans to which
such insufficiencies relate, without the necessity of any further notice or
demand on the part of the Company.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01. Amendment.
This Agreement may be amended from time to time by the Company and the
Purchaser by written agreement signed by the Company and the Purchaser provided
that no such amendment shall have a material adverse effect on the holders of
other Classes of Certificates.
Section 4.02. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
Section 4.03. Governing Law.
This Agreement shall be construed in accordance with the laws of the State
of New York and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
Section 4.04. Notices.
All demands, notices and direction hereunder shall be in writing or by
telecopy and shall be deemed effective upon receipt to:
(a) in the case of the Company,
or such other address as may hereafter be furnished in writing by
the Company, or
(a) in the case of the Purchaser,
================================
--------------------------------
Attention: ____________________
Phone: ________________________
Fax: __________________________.
Section 4.05. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever, including regulatory, held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
Section 4.06. Successor and Assigns.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and the respective successors and assigns of the
parties hereto; provided, however, that the rights under this Agreement cannot
be assigned by the Purchaser without the consent of the Company.
Section 4.07. Article and Section Headings.
The article and section headings herein are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
Section 4.08. Third Party Beneficiaries.
The Trustee on behalf of Certificateholders is the intended third party
beneficiary of this Agreement.
Section 4.09. Confidentiality.
The Purchaser agrees that all information supplied by or on behalf of the
Company pursuant to Sections 2.01 or 2.02, including individual account
information, is the property of the Company and the Purchaser agrees to use such
information solely for the purposes set forth in this Agreement and to hold such
information confidential and not to disclose such information.
Section 4.10. Indemnification.
The Purchaser agrees to indemnify and hold harmless the Company and the
Trustee against any and all losses, claims, damages or liabilities to which it
may be subject, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon actions taken by the
Company or Trustee in accordance with the provisions of this Agreement and which
actions conflict or are alleged to conflict with the Company's or the Trustee's
obligations under the Pooling and Servicing Agreement. The Purchaser hereby
agrees to reimburse the Company and the Trustee on demand for the reasonable
legal or other expenses incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action. The Company agrees
to indemnify the Trustee against any losses, claims, damages or liabilities to
which it may be subject which arise out of or relate to this Agreement except
for any losses, claims, damages or liabilities resulting from the Trustee's
willful misfeasance, bad faith or negligence.
Section 4.11. Representations and Warranty
The Purchaser represents and warrants that it is not an "affiliate" (as
defined in the Securities Act of 1933, as amended) of Headlands Mortgage
Company.
Section 4.12. Expenses of Trustee. The Purchaser shall pay the reasonable
fees and expenses of the Trustee in connection with the Trustee's duties under
this Agreement.
<PAGE>
IN WITNESS WHEREOF, the Company and the Purchaser have caused their names
to be signed hereto by their respective officers thereunto duly authorized, all
as of the day and year first above written.
HEADLANDS MORTGAGE COMPANY
By:________________________
Name:
Title:
[PURCHASER]
By:_______________________
Name:
Title:
<PAGE>
EXHIBIT H
FORM OF INITIAL CERTIFICATION
[Seller]
[Master Servicer]
Re: Pooling and Servicing Agreement dated as of
September 1, 1996, among Bear Stearns Mortgage
Securities Inc., as seller, Headlands Mortgage
Company, as master servicer, and The Bank of New
York, as trustee
Mortgage Pass-Through Certificates, Series 1996-5
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that, except
as otherwise noted on the attached exception report, that as to each Mortgage
Loan listed on the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or listed on the attachment hereto) it has reviewed the Mortgage File and
the Mortgage Loan Schedule and has determined that: (i) all documents required
to be included in the Mortgage File pursuant to the Pooling and Servicing
Agreement are in its possession; (ii) such documents have been reviewed by it
and appear regular on their face, have, where applicable, been executed and
relate to such Mortgage Loan; and (iii) based on examination by it, and only as
to such documents, the information set forth in the Mortgage Loan Schedule as to
Mortgagor Name, original principal balance and loan number respecting such
Mortgage Loan is correct and accurately reflects the information in the Mortgage
Loan File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representation that any documents specified in subclauses (iv), (v) and (vii) of
Section 2.01(b) should be included in any Mortgage File. The Trustee makes no
representations as to: (i) the validity, legality, enforceability or genuineness
of any of the documents contained in each Mortgage File of any of the Mortgage
Loans identified on the Mortgage Loan Schedule or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
THE BANK OF NEW YORK
By:_______________________
Name:
Title:
<PAGE>
EXHIBIT I
FORM OF FINAL CERTIFICATION
[Seller]
[Master Servicer]
Re: Pooling and Servicing Agreement dated as of
September 1, 1996, among Bear Stearns Mortgage
Securities Inc., as seller, Headlands Mortgage
Company, as master servicer, and The Bank of New
York, as trustee
Mortgage Pass-Through Certificates, Series 1996-5
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that, except
as otherwise noted on the attached exception report, that as to each Mortgage
Loan listed on the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or listed on the attachment hereto) it has received the documents set forth
in Section 2.01 and has determined that (i) all documents required to be
included in the Mortgage File pursuant to the Pooling and Servicing Agreement
are in its possession; (ii) such documents have been reviewed by it and appear
regular on their face, have, where applicable, been executed and relate to such
Mortgage Loan; and (iii) based on examination by it, and only as to such
documents, the information set forth in the Mortgage Loan Schedule as to
Mortgagor name, original principal balance and loan number respecting such
Mortgage Loan is correct and accurately reflects the information in the Mortgage
Loan File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representation that any documents specified in subclauses (iv), (v) and (vii) of
Section 2.01(b) should be included in any Mortgage File. The Trustee makes no
representations as to: (i) the validity, legality, enforceability or genuineness
of any of the documents contained in each Mortgage File of any of the Mortgage
Loans identified on the Mortgage Loan Schedule or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
THE BANK OF NEW YORK
By:_______________________
Name:
Title:
