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)
MARCH 31, 1997
Bear Stearns Mortgage Securities Inc. (as Depositor under a Pooling
Agreement dated as of March 1, 1997 providing for the issuance of Mortgage
Pass-Through Certificates, Series 1997-2)
BEAR STEARNS MORTGAGE SECURITIES INC.
(Exact name of registrant as specified in charter)
DELAWARE 333-13617 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 March 24, 1997 between the Registrant
and Bear, Stearns & Co. Inc.
4.1 Pooling Agreement dated as of March 1, 1997 between the
Registrant and First Trust National Association, as Trustee.
<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: April 11, 1997 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
March 24, 1997 between the
Registrant and Bear, Stearns & Co.
Inc.
4.1 Pooling Agreement dated as of
March 1, 1997 between the Registrant
and First Trust National Association,
as Trustee.
EXHIBIT 1.1
BEAR STEARNS MORTGAGE SECURITIES INC.
Pass-Through Certificates
TERMS AGREEMENT
Dated: March 24, 1997
To: BEAR STEARNS MORTGAGE SECURITIES INC.
Re: Underwriting Agreement dated June 25, 1996
Series Designation: Series 1997-2
Class Designation Schedule: Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5 and Class R
Terms of the Certificates:
Original Principal Pass-Through
Class Amount (1) Interest Rate
A-1 $ 16,125,845 6.750%
A-2 $ 16,629,916 6.500%
A-3 $ 17,681,374 6.750%
A-4 $ 16,668,278 6.500%
A-5 $ 15,195,964 6.875%
R $ 100 6.500%
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(1) The initial principal amount of each class of certificates will be
decreased by an amount equal to the principal payments received on the
related pooled certificate group during March 1997.
DISTRIBUTION DATES: With respect to each month, the third Business Day after the
Pooled Certificate Distribution Date in such month with respect to any class of
Pooled Certificates commencing in April 1997. Each Pooled Certificate
Distribution Date is the 25th day of each month or, if such 25th day is not a
Business Day (with respect to the respective Pooled Certificate), the next such
succeeding Business Day.
CERTIFICATE RATING: "AAA" by Fitch Investors Service, L.P. and "Aaa" by Moody's
Investors Service Inc.
FORM OF CERTIFICATES: Book-entry (Depository Trust Company).
TRUST FUND ASSETS: Certain interests in trusts or assets held in trusts created
pursuant to certain trust or pooling agreements or indentures which consist
primarily of one or more pools of conventional, fixed rate, one-to-four family,
fully amortizing, level payment, first mortgage loans ("Mortgage Loan") with
original maturities of up to approximately either 15 or 30 years (collectively
referred to as the "Pooled Certificates"). The Pooled Certificates to be
included in the Trust Fund are as described in Schedule A hereto.
PURCHASE PRICE: The aggregate purchase price payable by the Underwriter for the
Certificates covered by this Agreement will be 94.15% of the principal balance
of the Certificates plus accrued interest from March 1, 1997 to, but not
including, the Closing Date.
CREDIT ENHANCEMENT: a reserve fund in the amount of $20,000 to pay Prepayment
Interest Shortfalls (as defined in the Pooling Agreement), resulting from
prepayments on the Mortgage Loans, and a reserve fund in the amount of $2,613 to
cover Class Interest Shortfalls (as defined in the Pooling Agreement).
CLOSING DATE: March 31, 1997, 9:00 a.m., New York time.
MISCELLANEOUS MATTERS: (a) The Pooling and Servicing Agreement and the Mortgage
Loan Schedule referred to in the Underwriting Agreement shall be deemed to be
references to the Pooling Agreement dated as of March 1, 1997 between the
Company and First Trust National Association, as trustee (the "Pooling
Agreement") and the Pooled Certificates Schedule, respectively;
(b) the Certificates, except for the Class R Certificates, will constitute
mortgage related securities for purposes of the Secondary Mortgage Market
Enhancement Act of 1984; and
(c) notices to the Underwriter shall be to the attention of Jeffrey Mayer and
notices to the Company shall be to the attention of Joseph T. Jurkowski, Jr.
The undersigned, as sole Underwriter, agrees, subject to the terms and
provisions of the above-referenced Underwriting Agreement, which is incorporated
herein in its entirety and made a part hereof, to purchase the principal amount
of the Class of the above-referenced Series of Certificates set forth herein.
BEAR, STEARNS & CO. INC.
By: /S/ JEFFREY MAYER
Name: Jeffrey Mayer
Title: Senior Managing Director
Accepted:
BEAR STEARNS MORTGAGE SECURITIES INC.
By: /S/ SARA BONESTEEL
Name: Sara M. Bonesteel
Title: Vice President
<PAGE>
SCHEDULE A
POOLED CERTIFICATES
Abbreviation Class %
FULL NAME OF SERIES USED HEREIN IN TRUST
GROUP A-1 POOLED CERTIFICATES
Chase Mortgage Finance Corporation, Multi- CHASE 1994-F 100%
Class Mortgage Pass-Through Certificates,
Series 1994 F, Class A-15
Chase Mortgage Finance Corporation, Multi- CHASE 1994-F 100%
Class Mortgage Pass-Through Certificates,
Series 1994 F, Class A-16
Chase Mortgage Finance Corporation, Multi- CHASE 1994-F 100%
Class Mortgage Pass-Through Certificates,
Series 1994 F, Class A-17
GROUP A-2 POOLED CERTIFICATES
GE Capital Mortgage Services, Inc., REMIC GECAP 1994-11 100%
Multi-Class Pass-Through Certificates,
Series 1994-11, Class A 7
GE Capital Mortgage Services, Inc., REMIC GECAP 1994-11 100%
Multi-Class Pass-Through Certificates,
Series 1994-11, Class A 8
GROUP A-3 POOLED CERTIFICATES
The Prudential Home Mortgage Securities PHMSC 1993-29 50.27%
Company, Inc., Mortgage Pass-Through
Certificates, Series 1993-29, Class A-14
The Prudential Home Mortgage Securities PHMSC 1993-29 50.27%
Company, Inc., Mortgage Pass-Through
Certificates, Series 1993-29, Class A-15
The Prudential Home Mortgage Securities
Company, Inc., Mortgage Pass-Through PHMSC 1993-29 50.27%
Certificates, Series 1993-29, Class A-16
GROUP A-4 POOLED CERTIFICATES
The Prudential Home Mortgage Securities PHMSC 1994-7 100%
Company, Inc., Mortgage Pass-Through
Certificates, Series 1994-7, Class A-7
The Prudential Home Mortgage Securities PHMSC 1994-7 100%
Company, Inc., Mortgage Pass-Through
Certificates, Series 1994-7, Class A-8
GROUP A-5 POOLED CERTIFICATES
PNC Mortgage Securities Corp., Mortgage PNC 1993-12 92.51%
Pass-Through Certificates, Series 1993-12,
Class F-1
PNC Mortgage Securities Corp., Mortgage PNC 1993-12 92.51%
Pass-Through Certificates, Series 1993-12,
Class S-1
<PAGE>
Ratings1
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Current
Principal
Series Class Balance S&P M F
Class 94-F A-15 $ 11,457,057 - Aaa AAA
Class 94-F A-16 $ 3,523,576 - Aaa AAA
Class 94-F A-17 $ 1,145,212 - Aaa AAA
GECAP 94-11 A7 $ 12,010,495 AAA - AAA
GECAP 94-11 A8 $ 4,619,421 AAA - AAA
PRU 93-29 A-14 $ 11,934,927 AAA - AAA
PRU 93-29 A-15 $ 3,293,156 AAA - AAA
PRU 93-29 A-16 $ 2,453,291 AAA - AAA
PRU 94-7 A-7 $ 12,746,331 - Aaa AAA
PRU 94-7 A-8 $ 3,921,948 - Aaa AAA
PNC 93-12 F-1 $ 10,996,872 - Aaa AAA
PNC 93-12 S-1 $ 4,199,092 - Aaa AAA
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(1) Key: S&P = Standard & Poor's Investor Services, a division of The McGraw
Hill Companies, Inc.
M = Moody's Investor Service, Inc.
F = Fitch Investors Service, L.P.
EXHIBIT 4.1
BEAR STEARNS MORTGAGE SECURITIES INC.,
Depositor
and
FIRST TRUST NATIONAL ASSOCIATION,
Trustee
--------------------------------
POOLING AGREEMENT
Dated as of March 1, 1997
--------------------------------
$82,301,477
Bear Stearns Mortgage Securities Inc.
Pass-Through Certificates
Series 1997-2
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.............................................1
ARTICLE II
CONVEYANCE OF THE POOLED CERTIFICATES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of the Pooled Certificates....................15
Section 2.02. Acceptance of Trust Fund by Trustee;
Initial Issuance of Certificates.........................17
Section 2.03. Representations and Warranties of the
Depositor and the Trustee................................18
Section 2.04. Substitution of Pooled Certificates......................23
ARTICLE III
ADMINISTRATION OF THE POOLED CERTIFICATES;
PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS
Section 3.01. Administration of the Trust Fund and the
Pooled Certificates......................................24
Section 3.02. Collection of Monies.....................................25
Section 3.03. Establishment of the Accounts; Deposits
Therein..................................................25
Section 3.04. Permitted Withdrawals From the
Certificate Account......................................28
Section 3.05. Distributions............................................30
Section 3.06. Statements to Certificateholders.........................32
Section 3.07. Access to Certain Documentation and
Information..............................................34
Section 3.08. Calculation of Amounts to be Distributed.................34
Section 3.09. REMIC-Related Covenants..................................35
ARTICLE IV
THE CERTIFICATES
Section 4.01. The Certificates.........................................35
Section 4.02. Registration of Transfer and Exchange of
Certificates.............................................38
Section 4.03. Mutilated, Destroyed, Lost or Stolen
Certificates.............................................39
Section 4.04. Persons Deemed Owners....................................40
Section 4.05. Transfer Restrictions on Residual
Certificates.............................................40
ARTICLE V
THE TRUSTEE
Section 5.01. Duties of Trustee........................................42
Section 5.02. Federal Information Returns and Reports
to Certificateholders....................................44
Section 5.03. Certain Matters Affecting the Trustee....................45
Section 5.04. Trustee Not Liable for Certificates or
Pooled Certificates......................................46
Section 5.05. Trustee May Own Certificates.............................47
Section 5.06. Trustee's Fees; Indemnification of the
Trustee..................................................47
Section 5.07. Eligibility Requirements for Trustee.....................48
Section 5.08. Resignation and Removal of the Trustee...................49
Section 5.09. Successor Trustee........................................50
Section 5.10. Merger or Consolidation of Trustee.......................50
Section 5.11. Appointment of Co-Trustee or Separate
Trustee..................................................51
ARTICLE VI
THE DEPOSITOR
Section 6.01. Liability of the Depositor...............................52
Section 6.02. Merger, Consolidation or Conversion of
the Depositor............................................52
Section 6.03. Limitation on Liability of the Depositor
and Others...............................................54
ARTICLE VII
TERMINATION
Section 7.01. Termination..............................................54
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment................................................56
Section 8.02. Counterparts.............................................57
Section 8.03. Limitation on Rights of
Certificateholders.......................................57
Section 8.04. Governing Law............................................58
Section 8.05. Notices..................................................59
Section 8.06. Severability of Provisions...............................59
Section 8.07. Successors and Assigns...................................59
Section 8.08. Article and Section Headings.............................59
Section 8.09. Notices to Rating Agencies...............................60
Section 8.10. Intent of Parties........................................60
Schedule A - Pooled Certificates
Exhibit A - Form of Class A-1 Certificate
Exhibit B - Form of Class A-2 Certificate
Exhibit C - Form of Class A-3 Certificate
Exhibit D - Form of Class A-4 Certificate
Exhibit E - Form of Class A-5 Certificate
Exhibit F - Form of Class R Certificate
Annex 1 - Form of Class R Purchaser Affidavit
<PAGE>
POOLING AGREEMENT, dated as of March 1, 1997, by and between Bear
Stearns Mortgage Securities Inc., as depositor (the "Depositor"), and First
Trust National Association, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor intends to cause the issuance of and to sell its
Pass-Through Certificates, Series 1997-2 (the "Certificates") representing in
the aggregate the entire beneficial ownership of a trust fund (the "Trust
Fund"), the primary assets of which are the Pooled Certificates (defined
herein).
All things necessary to make this Agreement a valid declaration of
trust by the Depositor in accordance with its terms have been done.
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 March
31, 1997 (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.
In consideration of the premises and the mutual agreements herein
contained, the Depositor and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.
Whenever used in this Agreement, including the Preliminary Statement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
ACCOUNTS: The Certificate Account, including all subaccounts therein,
the Prepayment Shortfall Account, the Interest Account and the Trustee Fee
Account.
ACQUIRED MORTGAGE ASSET: Any Underlying Mortgage Loan or related
Mortgaged Property acquired and to be serviced and administered on behalf and
for the benefit of the Trustee, as Pooled Certificateholder, and the other
holders of the related Underlying Series, all in accordance with the related
Underlying Agreement.
AFFILIATE: With respect to any specified Person, any other Person that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"controlling," "controlled by" and "under common control with" have meanings
correlative to the foregoing.
AGREEMENT: This Pooling Agreement and all amendments hereof and
supplements hereto.
AVAILABLE FUNDS: With respect to a Distribution Date and (i) with
respect to a Class of Certificates other than the Class R Certificates, the
aggregate amount on deposit in the subaccount of the Certificate Account
relating to the Pooled Certificate Group with the same alpha-numeric designation
as such Class of Certificates as of the immediately preceding Determination Time
plus any transfers made to such subaccount of the Certificate Account from the
Prepayment Interest Shortfall Account and the Interest Account and (ii) with
respect to the Class R Certificates, the aggregate amount on deposit in the
subaccount of the Certificate Account established with respect to the Class R
Certificates plus with respect to each Distribution Date on which a Class of
Certificates, other than the Class R Certificates, is paid in full, any amounts
(other than investment income) then remaining in the subaccount of the
Certificate Account with respect to such Class, net in each case of any portion
thereof which represents amounts to be paid to any Person pursuant to clause
(ii) of Section 3.04.
BUSINESS DAY: Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York or in the city in which the Corporate
Trust Office of the Trustee is located are authorized or obligated by law or
executive order to close.
CERTIFICATE: Any certificate, evidencing a beneficial interest in the
Trust Fund as executed hereunder by the Trustee and authenticated and delivered
hereunder by the Certificate Registrar, substantially, with respect to each
Class, in the form of Exhibits A through F, hereto, respectively, with all
blanks therein appropriately completed.
CERTIFICATE ACCOUNT: The trust account or accounts, which shall at all
times be Eligible Accounts, created and maintained by the Trustee for the
benefit of the Certificateholders pursuant to Section 3.03(a). Funds deposited
in the Certificate Account shall be held in trust for the Certificateholders for
the uses and purposes set forth in Article III hereof (except that the Trustee
shall be entitled to all investment income thereon as additional compensation).
The Certificate Account shall have 6 subaccounts, one with respect to each
Pooled Certificate Group and its corresponding Class of Certificates and one
with respect to the Class R Certificates.
CERTIFICATE OWNER: Any Person who is the beneficial owner of a
Certificate registered in the name of the Depository or its nominee.
CERTIFICATE REGISTRAR AND CERTIFICATE REGISTER: Shall each have the
meanings provided in Section 4.02.
CERTIFICATEHOLDER OR HOLDER: As to the Certificates, the person in
whose name a Certificate is registered in the Certificate Register, except that,
solely for the purpose of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the Depositor or any
Affiliate thereof shall be deemed not to be outstanding and shall not be taken
into account for purposes of determining whether the Holders of Certificates
evidencing the requisite aggregate Percentage Interest necessary to effect any
such consent, approval or waiver has been obtained, unless such Persons
collectively own all of the Certificates or all of the Certificates of one or
more Classes, if the vote is to be taken by such applicable Class or Classes.
CLASS: Collectively, all of the Certificates bearing the same
designation.
CLASS BALANCE: With respect to any Class of Certificates, the
aggregate principal amount of Certificates of such Class outstanding as of any
date of determination, which is equal to the Original Class Balance for such
Class minus the sum of (i) the aggregate of all distributions of principal
previously made on such Class of Certificates pursuant to Section 3.05 and (ii)
the principal portion of any losses allocated to the Pooled Certificates in the
related Pooled Certificate Group on or prior to the immediately preceding Pooled
Certificate Distribution Date. 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 Class Balance equal to their Class Balance on the day
immediately preceding such Distribution Date.
CLASS INTEREST SHORTFALL: As to each Distribution Date, the cash
shortfall caused by the difference between the amount of interest at the
pass-through rates to be received by the Trustee on each Pooled Certificate
Distribution Date with respect to the Group A-1 Pooled Certificates, the Group
A-3 Pooled Certificates or the Group A-5 Pooled Certificates, as the case may be
(i.e. 6.74954%, 6.74999% and 6.87487%, respectively), and the amount of interest
at the 6.750%, 6.750% and 6.875% Pass- Through Rate, respectively, scheduled to
be paid to the Holders of the Class A-1, Class A-3 or Class A-5 Certificates,
respectively.
CLOSING DATE: March 31, 1997.
CODE: The Internal Revenue Code of 1986, as amended.
COMPANY: Bear Stearns Mortgage Capital Corporation.
CORPORATE TRUST OFFICE: The corporate trust office of the Trustee at
which at any particular time its corporate trust business with respect to this
Agreement shall be administered, which office at the date of the execution of
this Agreement is located at 180 East Fifth Street, St. Paul, Minnesota 55101,
Attention: Structured Finance Department, telephone no. (612) 244-0727,
facsimile no. (617) 244-0089.
DEFINITIVE CERTIFICATES: The meaning specified in Section 4.01(b)
hereof.
DELETED POOLED CERTIFICATE: A Pooled Certificate replaced by a
Substitute Pooled Certificate.
DEPOSITOR: Bear Stearns Mortgage Securities Inc., a Delaware
corporation, or its successor in interest.
DEPOSITORY: DTC, the nominee of which is Cede & Co., or any successor
thereto.
DEPOSITORY AGREEMENT: The meaning specified in Subsection 4.01(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.
DETERMINATION TIME: With respect to a Pooled Certificate Group, 3:00
p.m. on the second Business Day following a Pooled Certificate Distribution
Date.
DISTRIBUTION DATE: With respect to any month, the Distribution Date
shall be the third Business Day after the last Pooled Certificate Distribution
Date to occur in such month. The first Distribution Date shall occur on April
30, 1997.
DTC: The Depository Trust Company.
ELIGIBLE ACCOUNT: Any of (i) an account maintained with a federal or
state chartered depository institution or trust company, the short-term
unsecured debt obligations of which are rated at least F-1+ by Fitch and T-1 by
Moody's (or comparable rating if Fitch and/or Moody's is not a Rating Agency) at
any time funds are on deposit therein, (ii) a trust account or accounts
maintained with the trust department of a federally chartered depository
institution or trust company acting in its fiduciary capacity, or (iii) a trust
account or accounts maintained with the trust department of a state chartered
depository institution or trust company acting in its fiduciary capacity and
subject to regulations regarding fiduciary funds on deposit therein
substantially similar to 12 CFR ' 9.10(b).
ERISA: The Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder.
FHLMC: The Federal Home Loan Mortgage Corporation or its successors.
FINAL DISTRIBUTION DATE: With respect to the Pooled Certificates in
any Pooled Certificate Group or a Class of Certificates or all of the
Certificates, as applicable, the Pooled Certificate Distribution Date or the
Distribution Date, as applicable, on which the final distribution on the Pooled
Certificates within such Pooled Certificate Group or on the applicable Class of
Certificates or on the last to be paid of the Certificates, as applicable, is to
be made in accordance with the related Underlying Agreement or this Agreement,
as the case may be.
FITCH: Fitch Investors Service, L.P.
FLOATING RATE POOLED CERTIFICATE: Any Pooled Certificate with an
interest rate that is reset periodically based on an index and that varies
directly with changes in such index.
FNMA: The Federal National Mortgage Association and its successors.
GNMA: The Government National Mortgage Association and its successors.
GROUP A-1 POOLED CERTIFICATES: The certificates sold by the Depositor
to, and registered in the name of, or held for the benefit of, the Trustee
pursuant to Section 2.01 or 2.04 and as more particularly described in Schedule
A hereto, as amended from time to time (excluding from and after the respective
date of substitution or repurchase any Deleted Pooled Certificates from Pooled
Certificate Group A-1 and including from and after the date of substitution any
Substitute Pooled Certificates in Pooled Certificate Group A-1).
GROUP A-2 POOLED CERTIFICATES: The certificates sold by the Depositor
to, and registered in the name of, or held for the benefit of, the Trustee
pursuant to Section 2.01 or 2.04 and as more particularly described in Schedule
A hereto, as amended from time to time (excluding from and after the respective
date of substitution or repurchase any Deleted Pooled Certificates from Pooled
Certificate Group A-2 and including from and after the date of substitution any
Substitute Pooled Certificates in Pooled Certificate Group A-2).
GROUP A-3 POOLED CERTIFICATES: The certificates sold by the Depositor
to, and registered in the name of, or held for the benefit of, the Trustee
pursuant to Section 2.01 or 2.04 and as more particularly described in Schedule
A hereto, as amended from time to time (excluding from and after the respective
date of substitution or repurchase any Deleted Pooled Certificates from Pooled
Certificate Group A-3 and including from and after the date of substitution any
Substitute Pooled Certificates in Pooled Certificate Group A-3).
GROUP A-4 POOLED CERTIFICATES: The certificates sold by the Depositor
to, and registered in the name of, or held for the benefit of, the Trustee
pursuant to Section 2.01 or 2.04 and as more particularly described in Schedule
A hereto, as amended from time to time (excluding from and after the respective
date of substitution or repurchase any Deleted Pooled Certificates from Pooled
Certificate Group A-4 and including from and after the date of substitution any
Substitute Pooled Certificates in Pooled Certificate Group A-4).
GROUP A-5 POOLED CERTIFICATES: The certificates sold by the Depositor
to, and registered in the name of, or held for the benefit of, the Trustee
pursuant to Section 2.01 or 2.04 and as more particularly described in Schedule
A hereto, as amended from time to time (excluding from and after the respective
date of substitution or repurchase any Deleted Pooled Certificates from Pooled
Certificate Group A-5 and including from and after the date of substitution any
Substitute Pooled Certificates in Pooled Certificate Group A-5).
INDEPENDENT: When used with respect to any specified Person, such a
Person who (i) is in fact independent of the Depositor and any Affiliate of the
Depositor, (ii) does not have any direct financial interest in the Depositor or
in any Affiliate of the Depositor, and (iii) is not connected with the Depositor
or any Affiliate of the Depositor as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions.
INTEREST ACCOUNT: The reserve fund, held by the Trustee, but not as
part of the REMIC Trust, which is available to pay the Class Interest Shortfall.
INVERSE FLOATING RATE POOLED CERTIFICATE: Any Pooled Certificate with
an interest rate that is reset periodically based on an index and that varies
inversely with changes in such index.
INVESTMENT COMPANY ACT: The Investment Company Act of 1940, as amended
from time to time, and the rules and regulations promulgated thereunder.
MAJORITY CERTIFICATEHOLDERS: The Holders of Certificates evidencing in
the aggregate greater than 50% of the aggregate Class Balances of all the
Certificates.
MAJORITY CLASS CERTIFICATEHOLDERS: For any Class, the Holders of
Certificates evidencing in the aggregate greater than 50% of the aggregate Class
Balance of all the Certificates of such Class.
MORTGAGE: With respect to any Underlying Mortgage Loan, any mortgage,
deed of trust or other similar instrument securing the related Mortgage Note and
creating a lien on the related Mortgaged Property.
MORTGAGE NOTE: The original executed note evidencing the indebtedness
of the Mortgagor under an Underlying Mortgage Loan, together with any rider,
addendum or amendment thereto.
MORTGAGED PROPERTY: The real property subject to the lien of a
Mortgage.
MORTGAGOR: The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired a Mortgaged Property and
assumed the obligations of the original obligor under the Mortgage Note.
NOTICE OF FINAL DISTRIBUTION: With respect to the Pooled Certificates,
any notice provided pursuant to the related Underlying Agreement to the effect
that final distribution on a Pooled Certificate shall be made only upon
presentment and surrender thereof. With respect to a Class of Certificates, the
notice to be provided pursuant to Section 7.01(b) to the effect that final
distribution on such Class of Certificates shall be made only upon presentment
and surrender thereof.
OFFICERS' CERTIFICATE: A certificate signed by the Chairman of the
Board, the President, a Senior Vice President, a Vice President or an Assistant
Vice President and by the Treasurer, the Secretary, an Assistant Treasurer or an
Assistant Secretary of the Depositor or the Trustee, as required by this
Agreement.
OPINION OF COUNSEL: A written opinion of counsel, who may be counsel
for the Depositor, which opinion is addressed to the Trustee and is reasonably
acceptable to the Trustee.
ORIGINAL CLASS BALANCE: The aggregate principal balance of any Class
of Certificates as of the Closing Date as set forth in Section 4.01(c).
PASS-THROUGH RATE: As to each Class of Certificates, the rate of
interest set forth in Section 4.01(c). Any monthly calculations of interest at a
stated rate shall be based upon annual interest at such rate divided by 12.
PERCENTAGE INTEREST: With respect to each Class of Certificates and
any Certificate in such Class, the portion of such Class represented by such
Certificate, expressed as a percentage, the numerator of which is the initial
outstanding principal amount of such Certificate as of the Closing Date, as
specified on the face thereof, and the denominator of which is the Original
Class Balance for such Class and with respect to all Classes of Certificates and
any Certificate of any Class, the portion of all Certificates represented by
such Certificate expressed as a percentage, the numerator of which is the
initial principal amount of such Certificate as of the Closing Date as specified
on the face thereof, and the denominator of which is the sum of the Original
Class Balances of all Classes of Certificates.
PERMITTED INVESTMENTS: Any one or more of the following obligations or
securities:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of
not more than 90 days and, in the case of bankers' acceptances, shall
in no event have an original maturity of more than 365 days or a
remaining maturity of more than 30 days) denominated in United States
dollars issued by, any depository institution or trust company
(including the Trustee or any agent of the Trustee, acting in its
respective commercial capacities) incorporated under the laws of the
United States of America or any state thereof and subject to
supervision and examination by federal and/or state banking
authorities, so long as at the time of such investment or contractual
commitment providing for such investment the commercial paper or other
short-term debt obligations of such depository institution or trust
company (or, in the case of a depository institution which is the
principal subsidiary of a holding company, the commercial paper or
other short-term debt obligations of such holding company) have a
credit rating of "A-1+" from Fitch and "T-1" from Moody's;
(iii) repurchase obligations with respect to any security
described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has
been entered into with a depository institution or trust company
(acting as principal) described in clause (ii) above;
(iv) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States of
America or any state thereof which securities are rated "AAA" by Fitch
and "Aaa" by Moody's, 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 investment therein will cause the then
outstanding principal amount of securities issued by such corporation
and held as part of the Trust Fund to exceed 10% of the sum of the
aggregate outstanding principal balance of all Pooled Certificates and
the aggregate principal amount of all Permitted Investments in the
Certificate Account;
(v) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof which on the date of acquisition has been
rated by each Rating Agency in its highest short- term rating
available, provided that such commercial paper shall have a remaining
maturity of not more than 30 days;
(vi) certificates or receipts representing ownership interests in
future principal payments on obligations of the United States of
America or its agencies or instrumentalities (which obligations are
backed by the full faith and credit of the United States of America)
held by a custodian on behalf of the holders of such receipts;
(vii) money market funds which are rated by Fitch at the time at
which the investment is made in its highest long-term rating category,
any such money market funds which provide for demand withdrawals being
conclusively deemed to satisfy any maturity requirements for Permitted
Investments set forth in the Certificates or this Agreement; and
(viii) any other demand, money market or time deposit obligation,
or interest bearing security or investment as may be acceptable to
both Rating Agencies (written confirmation of which shall be furnished
to the Trustee);
provided, however, that no instrument shall be a Permitted Investment if it
represents, either (1) the right to receive only interest payments with respect
to the underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal payments with respect to such instrument provide a yield to maturity
greater than 120% of the yield to maturity at par of such underlying
obligations.
PERSON: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
POOLED CERTIFICATE: The whole or portion of any class of
mortgage-backed pass-through securities as set forth on Schedule A attached
hereto as it may be amended from time to time and in the aggregate, the
collective reference to the Group A-1 Pooled Certificates through the Group A-5
Pooled Certificates, inclusive.
POOLED CERTIFICATEHOLDER: With respect to Pooled Certificates in
physical form, the registered holder of the Pooled Certificates, which following
the execution and delivery of this Agreement by the parties hereto and
registration on the books of the applicable trustee with respect to the
Underlying Series, shall be the Trustee for the benefit of the
Certificateholders and with respect to Pooled Certificates in book-entry form,
the Trustee or its Depository Participant for the benefit of the
Certificateholders.
POOLED CERTIFICATE DISTRIBUTION DATE: With respect to each of the
Pooled Certificates the 25th day of each month or, if such day is not a business
day as defined in the relevant Underlying Agreement, the next succeeding
business day as so defined.
POOLED CERTIFICATE DISTRIBUTION DATE STATEMENT: Each report provided
monthly to holders of Pooled Certificates in connection with each Pooled
Certificate Distribution Date pursuant to the related Underlying Agreement.
POOLED CERTIFICATE GROUP: Any group of Pooled Certificates underlying
a Class of Certificates.
POOLED CERTIFICATE GROUP A-1: The group of mortgage- backed securities
consisting of Group A-1 Pooled Certificates.
POOLED CERTIFICATE GROUP A-2: The group of mortgage-backed securities
consisting of Group A-2 Pooled Certificates.
POOLED CERTIFICATE GROUP A-3: The group of mortgage- backed securities
consisting of Group A-3 Pooled Certificates.
POOLED CERTIFICATE GROUP A-4: The group of mortgage- backed securities
consisting of Group A-4 Certificates.
POOLED CERTIFICATE GROUP A-5: The group of mortgage- backed securities
consisting of Group A-5 Certificates.
PREFERENCE AMOUNT: Any amount previously distributed to a
Certificateholder that is recoverable and sought to be recovered as a voidable
preference by a trustee in bankruptcy pursuant to the United States Bankruptcy
Code (11 U.S.C.), as amended from time to time, in accordance with a final
nonappealable order of a court having competent jurisdiction.
PREPAYMENT INTEREST SHORTFALL ACCOUNT: The reserve fund, held by the
Trustee, but not as part of the REMIC Trust, which is available to pay any
Prepayment Interest Shortfall.
PREPAYMENT INTEREST SHORTFALL: A shortfall in the amount of interest
received on a Pooled Certificate Distribution Date resulting from any
prepayments in full or in part of Underlying Mortgage Loans or the operation of
the Soldiers' and Sailors' Relief Act of 1940, as amended, which, in each case,
is not reimbursed by the related servicer or master servicer or covered by
subordination provided for with respect to the Underlying Series.
PURCHASE AGREEMENT: The Purchase Agreement dated as of March 24, 1997
between Bear, Stearns & Co., Inc. and the Depositor relating to the Pooled
Certificates.
RATING AGENCY: Each of Fitch or Moody's or their respective
successors. If both such agencies or their successors are no longer in
existence, "Rating Agency" shall be deemed to refer to such nationally
recognized statistical rating agency, or other comparable Person, designated by
the Depositor, notice of which designation shall be given to the Trustee and the
Depositor, and specific ratings of Fitch or Moody's shall be deemed to refer to
the equivalent ratings of the party so designated.
RECORD DATE: With respect to any Distribution Date, the last Business
Day of the month preceding the month in which such Distribution Date occurs;
provided, however, that for this purpose the Distribution Date is deemed to
occur on the 28th of each month, without regard to whether such day is a
Business Day.
RELIEF ACT: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
REMIC: A real estate mortgage investment conduit, as defined in the
Code.
REMIC OPINION: A written opinion of counsel, acceptable to the
Trustee, 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: Each Class of Certificates other than the
Class R Certificates.
REMIC TRUST: That group of assets contained in the Trust Fund
designated as a REMIC consisting of (i) the Pooled Certificates, (ii) the
Certificate Account, (iii) the Trustee Fee Account and (iv) any proceeds of the
foregoing.
REPURCHASE PRICE: In connection with the repurchase of a Pooled
Certificate pursuant to Section 2.03(c), a price equal to the outstanding
principal balance of the Pooled Certificate as of the date of repurchase, plus
interest thereon at the applicable Pooled Certificate Pass-Through Rate through
the next succeeding Pooled Certificate Distribution Date unless the repurchase
is made on a Pooled Certificate Distribution Date, then interest through such
date, net of interest received by the Trust Fund on such Pooled Certificates on
such Date.
RESIDUAL CERTIFICATES: The Class R Certificates.
RESPONSIBLE OFFICER: When used with respect to the Trustee, any
officer of the Trustee assigned to and working in its Corporate Trust Office or
similar group administering the Trusts hereunder and also, with respect to a
particular matter, any other officer of the Trustee to whom a particular matter
is referred by the Trustee because of such officer's knowledge of and
familiarity with the particular subject.
SECURITIES ACT: The Securities Act of 1933, as amended.
SINGLE CERTIFICATe: A Certificate with an original Certificate Balance
of $1,000.
SUBSTITUTE POOLED CERTIFICATE: One or more pass-through mortgage
related securities tendered to the Trustee pursuant to Section 2.04, issued by
the same depositor as the Deleted Pooled Certificate or by GNMA, FNMA or FHLMC,
which meet the following criteria, (i) if any of the Substitute Pooled
Certificates has a fixed interest rate, the rate shall be no lower than the rate
of the related Certificate, (ii) if any Substitute Pooled Certificate does not
have a fixed interest rate, then substitution shall be with at least one
Floating Rate Substitute Pooled Certificate and at least one Inverse Floating
Rate Substitute Pooled Certificate, the interest rates on which, taken together,
result in a fixed interest rate no lower than the Pass-Through Rate borne by the
Class of Certificates with the same alpha-numeric designation as the Deleted
Pooled Certificate being substituted for, (iii) the sum of the outstanding
principal amounts of the Substitute Pooled Certificates equals the sum of the
outstanding principal amounts of the Deleted Pooled Certificates being
substituted for and (iv) for any Pooled Certificate being substituted for, the
Substitute Pooled Certificate (a) as of the date of substitution, has Underlying
Mortgage Loans with a weighted average gross coupon no more than 50 basis points
below or no more than 50 basis points above the weighted average gross coupon of
the Underlying Mortgage Loans relating to the Deleted Pooled Certificate, (b)
has Underlying Mortgage Loans consisting of conventional, fixed rate, one- to
four-family, fully amortizing, level payment, first lien mortgage loans with
original maturities of up to 15 years in the case where the Deleted Pooled
Certificates were in Pooled Certificate Group A-3 or Group A-4 and otherwise up
to 30 years, (c) if not issued by GNMA, FNMA or FHLMC, is rated as of the date
of substitution in at least the same rating category by each Rating Agency, (d)
the inclusion of which in the Trust Fund will not result in a withdrawal or
downgrading in the rating assigned to the Certificates by either Rating Agency,
written confirmation of which shall be provided by the Rating Agency to the
Trustee and (e) will not cause the REMIC Trust to lose its status as a REMIC for
federal income tax purposes as indicated in an Opinion of Counsel to be provided
to the Trustee.
SUPPLEMENTAL DISTRIBUTION DATE: The meaning specified in Section
3.05(a) hereof.
TAX MATTERS PERSON: The meaning specified in Section 5.02(b) and,
initially, First Trust National Association.
TRUSTEE: First Trust National Association, in its capacity as trustee,
or its successor in interest.
TRUSTEE FEE: With respect to any Distribution Date, the monthly fee
equal to $193.45 plus all reinvestment earnings on amounts in the Certificate
Account.
TRUSTEE FEE ACCOUNT: The trust account or accounts, which shall at all
times be Eligible Accounts, created and maintained by the Trustee for the
benefit of the Trustee pursuant to Section 3.03(e).
TRUST FUND: The segregated pool of assets subject hereto, constituting
the corpus of the trust created hereby and to be administered hereunder,
consisting of:
(i) the Pooled Certificates;
(ii) all amounts payable on the Pooled Certificates following the
Closing Date pursuant to the Underlying Agreements;
(iii) the Certificate Account, the Prepayment Interest Shortfall
Account, the Interest Account and the Trustee Fee Account and such
funds or assets as are from time to time deposited therein;
(iv) the Depositor's rights under the Purchase Agreement; and
(v) the income, payments and proceeds of each of the foregoing.
Underlying Agreements: The agreements pursuant to which the related
Pooled Certificates were issued, as in effect on the Closing Date.
Underlying Mortgage Loans: The mortgage loans in which a Pooled
Certificate evidences a beneficial ownership interest.
Underlying Series: Each series of securities which includes one or
more classes of Pooled Certificates, as set forth on Schedule A hereto.
Underlying Event of Default: An event of default under an Underlying
Agreement.
ARTICLE II
CONVEYANCE OF THE POOLED CERTIFICATES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. CONVEYANCE OF THE POOLED CERTIFICATES.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby sell, transfer, assign, set-over and otherwise convey to the
Trustee, in trust, for the use and benefit of the Certificateholders, without
recourse, all the right, title and interest of the Depositor (i) in and to the
Pooled Certificates, (ii) in and to the Purchase Agreement and (iii) in and to
all other assets constituting the Trust Fund. Such assignment includes, without
limitation, all amounts payable on the Pooled Certificates pursuant to the
Underlying Agreements following the Closing Date or, with respect to Substitute
Pooled Certificates, following the date of substitution.
(b) In connection with such transfer and assignment, and concurrently
with its execution and delivery of this Agreement, or, with respect to
Substitute Pooled Certificates, on the date of substitution, the Depositor shall
deliver to, and deposit with, the Trustee the Pooled Certificates together with
bond powers executed in blank or in the name of the Trustee, as trustee, except
that, with respect to any Pooled Certificates held by the Depository, the
Depositor shall have caused the Pooled Certificates to be registered in the
book-entry records of DTC in the name of the Trustee. The Depositor also shall
deposit with the Trustee no later than the Closing Date or, with respect to
Substitute Pooled Certificates, on the date of substitution, the Underlying
Agreements with respect to each Pooled Certificate and the most recent Pooled
Certificate Distribution Date Statements received by the Depositor.
(c) The transfer of the Pooled Certificates and all other assets
constituting the Trust Fund is absolute and is intended by the parties hereto as
a sale.
(d) It is intended that the conveyances by the Depositor to the
Trustee of the Pooled Certificates as provided for in this Section 2.01 be
construed as a sale by the Depositor to the Trustee of the Pooled Certificates
for the benefit of the Certificateholders. Further, it is not intended that any
such conveyance be deemed to be a pledge of the Pooled Certificates by the
Depositor to the Trustee to secure a debt or other obligation of the Depositor.
However, in the event that the Pooled Certificates are held to be property of
the Depositor, or if for any reason this Agreement is held or deemed to create a
security interest in the Pooled Certificates, then it is intended that (a) this
Agreement shall also be deemed to be a security agreement within the meaning of
Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction; (b) the conveyance
provided for in Section 2.01 shall be deemed to be a grant by the Depositor to
the Trustee of a security interest in all of the Depositor's right (including
the power to convey title thereto), title and interest, whether now owned or
hereafter acquired, in and to (1) the Pooled Certificates, (2) all amounts
payable pursuant to the Pooled Certificates in accordance with the terms thereof
and (3) any and all general intangibles consisting of, arising from or relating
to any of the foregoing, and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts from time to time held in the
Accounts, whether in the form of cash, instruments, securities or other
property; (c) the possession by the Trustee or any agent of the Trustee of such
items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be "possession by the secured party," or
possession by a purchaser or a person designated by such secured party, for
purposes of perfecting the security interest pursuant to the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction (including, without limitation, Section 9-305, 8-313 or 8-321
thereof); and (d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose of perfecting such security interest under applicable law.
The Depositor and the Trustee, at the direction of the Depositor or
the Majority Certificateholders, shall, to the extent consistent with this
Agreement, take such reasonable actions as may be determined to be necessary to
ensure that, if this Agreement were deemed to create a security interest in the
Pooled Certificates, and the other property described above, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement.
Section 2.02. ACCEPTANCE OF TRUST FUND BY TRUSTEE; INITIAL
ISSUANCE OF CERTIFICATES.
The Trustee acknowledges (i) receipt of the Underlying Agreements and
the most recent Pooled Certificate Distribution Date Statements, (ii) the
receipt by it and the transfer, delivery and assignment to it of the Pooled
Certificates, in good faith and without notice of any adverse claim, (iii) the
receipt by it of $20,000 for deposit in the Prepayment Interest Shortfall
Account, $2,613 for deposit in the Interest Account, $65,000 for deposit in the
Trustee Fee Account and $100.54 for deposit into the subaccount of the
Certificate Account relating to the Class R Certificates, and the assignment to
it of all other assets included in the Trust Fund and declares that it holds and
will hold the Pooled Certificates and all other assets included in the Trust
Fund in trust for the exclusive use and benefit of all present and future
Certificateholders (except also for its benefit in the case of the Trustee Fee
Account) in accordance with the terms of this Agreement. Concurrently with such
transfer, delivery and assignment and in exchange therefor, pursuant to the
written request of the Depositor executed by an officer of the Depositor, the
Trustee has executed and caused to be authenticated and delivered to or upon the
order of the Depositor, the Certificates in authorized denominations evidencing
the entire beneficial ownership of the Trust Fund.
The Trustee shall, within three Business Days of the Closing Date or,
with respect to Substitute Pooled Certificates, within three Business Days of
the date of substitution, deliver to the applicable trustee for reregistration
in the name of the Trustee, as trustee hereunder each Pooled Certificate
delivered to it in physical form along with the related bond power received from
the Depositor.
Until the Trust Fund is terminated in accordance with Section 7.01,
except as provided herein, the Trustee shall not assign, sell, dispose of or
transfer any interest in the Pooled Certificates or any other asset constituting
the Trust Fund or permit the Pooled Certificates or any other asset constituting
the Trust Fund to be subjected to any lien, claim or encumbrance arising by,
through or under the Trustee or any person claiming by, through or under the
Trustee.
Section 2.03. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR
AND THE TRUSTEE.
(a) The Depositor hereby represents and warrants to the Trustee and
for the benefit of the Certificateholders, as of the Closing Date and with
respect to any Substitute Pooled Certificate, as of the related date of
substitution, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
and the Depositor is possessed of all licenses necessary to carry on
its business.
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, will not violate the Depositor's
certificate of incorporation or bylaws or 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 agreement or
other instrument to which it is a party or which is applicable to it
or any of its assets.
(iii) The Depositor has the full right, power and authority to
enter into and consummate all transactions contemplated by this
Agreement, including but not limited to selling the Pooled
Certificates to the Trustee, has duly authorized the execution,
delivery and performance of this Agreement, and has duly executed and
delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, constitutes a valid, legal and binding
obligation of the Depositor, enforceable against the Depositor in
accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation is likely to affect materially and
adversely either the ability of the Depositor to perform its
obligations under this Agreement or the financial condition of the
Depositor.
(vi) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor which, if determined
adversely to the Depositor, would prohibit the Depositor from entering
into this Agreement or is likely to materially and adversely affect
either the ability of the Depositor to perform its obligations under
this Agreement or the financial condition of the Depositor.
(vii) The Depositor was, immediately prior to the transfer of the
Pooled Certificates to the Trustee, the sole owner thereof free and
clear of any lien, pledge, charge or encumbrance of any kind (except
any lien created by this Agreement).
(viii) The Depositor acquired the Pooled Certificates in good
faith without notice of any adverse claim, lien, charge, encumbrance
or security interest (including without limitation, federal tax liens
or liens arising under ERISA).
(ix) The Depositor has not assigned any interest in the Pooled
Certificates or any distributions thereon, except as contemplated
herein.
(x) The Trustee, in its capacity as a Pooled Certificateholder,
will be entitled to distributions under the Underlying Agreements
equal to all distributions of interest and principal made on the
Pooled Certificates.
(xi) As of the Closing Date, each Pooled Certificate Group has an
aggregate principal balance greater than or equal to the Original
Class Balance of the Class of Certificates with the same alpha-numeric
designation.
(xii) The information relating to the each Pooled Certificate
Group set forth in Schedule A is true and correct in all material
respects.
(xiii) Each Pooled Certificate is either a Certificated Security
(as such term is defined in Article 8 of the Uniform Commercial Code),
in the possession of the Trustee together with bond powers executed in
blank or to the Trustee signed by an appropriate person or an
Uncertificated Security (as such term is defined in Article 8 of the
Uniform Commercial Code) registered on the books of DTC in the name of
the Trustee or its financial intermediary on behalf of the Trustee.
(xiv) The Pooled Certificates were structured to be REMIC regular
interests under the REMIC Provisions;
(xv) The Depositor has no actual knowledge that (a) each trust
issuing each Pooled Certificate was not duly created and is not
validly existing and (b) each Pooled Certificate (1) was not validly
issued by such trust and (2) is not outstanding, (3) is not the legal,
valid, binding and enforceable obligation of such trust and (4) is not
entitled to the benefits of the pooling and servicing agreement, trust
agreement or other document pursuant to which such Pooled Certificate
was issued (except as limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights generally
or to the extent that such enforceability may be subject to the
exercise of judicial discretion in accordance with general equitable
principles).
(xvi) The Depositor has no actual knowledge that each trust or
other issuer issuing Pooled Certificates does not own all right, title
and interest in and to the Underlying Mortgage Loans and other
property constituting the trust estate of such trust, free and clear
of any claim, lien, charge, security interest or other encumbrance
(except the lien of the applicable pooling and servicing agreement,
trust agreement or other document pursuant to which each Pooled
Certificate was issued), or that such Underlying Mortgage Loans and
other property would constitute property of any entity transferring
the same to the trust in the event any such transferring entity became
subject to proceedings under Section 541 of the United States
Bankruptcy Code, 11 U.S.C. Sec. 101 et seq., as amended (the
"Bankruptcy Code"), and accordingly, payments on the Underlying
Mortgage Loans would be subject to the automatic stay of Section 362
of the Bankruptcy Code.
(xvii) The Depositor has no actual knowledge that any pooling and
servicing agreement, trust agreement or other document pursuant to
which each Pooled Security was issued was required to be registered or
qualified under the Trust Indenture Act of 1939, as amended, and no
trust or other issuer issuing Pooled Certificates was required to be
registered as an investment company under the Investment Company Act
of 1940, as amended.
(b) The Trustee hereby represents and warrants to the Depositor and
for the benefit of the Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association, duly organized
and validly existing under the laws of the United States of America.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by
the Trustee, will not violate the Trustee's charter or bylaws or
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 agreement or other instrument to which it is a party
or which is applicable to it or any of its assets.
(iii) The Trustee has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Depositor, constitutes a valid, legal and binding
obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation is likely to affect materially and
adversely either the ability of the Trustee to perform its obligations
under this Agreement or the financial condition of the Trustee.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the
Trustee from entering into this Agreement or is likely to materially
and adversely affect either the ability of the Trustee to perform its
obligations under this Agreement or the financial condition of the
Trustee.
(vii) The Pooled Certificates will be registered in the name of
the Trustee; the information relating to the Pooled Certificates set
forth on Schedule A hereto conforms to information set forth on the
face of the Pooled Certificates and the most recent Pooled Certificate
Distribution Date Statements, as applicable; it has acquired the
Pooled Certificates on behalf of the Certificateholders from the
Depositor in good faith, for value, and, to the best of the Trustee's
knowledge, without notice or actual knowledge of any adverse claim,
lien, charge, encumbrance or security interest (including, without
limitation, federal tax liens or liens arising under ERISA); it has
not and will not, in any capacity, assert any claim or interest in the
Pooled Certificates and will hold such Pooled Certificates and the
proceeds thereof in trust pursuant to the terms of this Agreement; and
it has not encumbered or transferred its right, title or interest in
the Pooled Certificates.
(c) It is understood and agreed that the foregoing representations and
warranties shall survive the execution and delivery of this Agreement. Upon
discovery by either party hereto of a breach of any of the foregoing
representations and warranties which materially and adversely affects the
interests of the Certificateholders or either party hereto, the party
discovering such breach will give prompt written notice thereof to the other
party hereto and to the Certificateholders. Within thirty (30) days of the
earlier of either discovery by or notice to the Depositor of any breach of a
representation or warranty of the Depositor that materially and adversely
affects the interests of the Certificateholders, the Depositor shall use its
best efforts promptly to cure such breach in all material respects and, if such
breach cannot be cured, the Depositor shall, at the election of the Majority
Class Certificateholders of the related Class, repurchase each Pooled
Certificate affected by the breach, as well as all of the Pooled Certificates
within the same Pooled Certificate Group as the Pooled Certificate with respect
to which a breach has occurred, at the Repurchase Price provided that if the
Majority Class Certificateholders of the related Class exercise the foregoing
election, the Depositor shall alternatively at its option substitute one or more
Substitute Pooled Certificates for the Pooled Certificate affected by the breach
pursuant to Section 2.04, as well as all of the Pooled Certificates within the
same Pooled Certificate Group as the Pooled Certificate with respect to which a
breach has occurred. If the Depositor is to repurchase Pooled Certificates, the
Trustee shall promptly determine the Repurchase Price in accordance with the
definition thereof. Repurchase of any of the Pooled Certificates pursuant to the
foregoing provisions of this Section 2.03(c) shall be accomplished by (i)
deposit in the Certificate Account on the Business Day prior to the next
succeeding Distribution Date of the amount of the Repurchase Price and (ii)
amending Schedule A hereto to remove the related Deleted Pooled Certificates.
Section 2.04. SUBSTITUTION OF POOLED CERTIFICATES. Notwithstanding
anything to the contrary in this Agreement, in lieu of repurchasing a Pooled
Certificate pursuant to Section 2.03(c), the Depositor may, no later than the
date by which such repurchase by the Depositor would otherwise be required,
tender to the Trustee one or more Substitute Pooled Certificates accompanied by
an Officer's Certificate of the Depositor that each of such Substitute Pooled
Certificates conforms to the requirements set forth in the definition of
"Substitute Pooled Certificate;" provided, however, that substitution pursuant
to this Section 2.04 in lieu of repurchase shall not be permitted after the
termination of the two-year period beginning on the Closing Date. The Trustee
shall accept any such Substitute Pooled Certificate, which shall thereafter be
deemed to be a Pooled Certificate hereunder. In the event of such a
substitution, payments received on the Substitute Pooled Certificate for the
month in which the substitution occurs shall be the property of the Depositor
and payments received on the Deleted Pooled Certificates during such month shall
be the property of the Trust Fund. Upon acceptance of any Substitute Pooled
Certificate, the Trustee shall release to the Depositor 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 the Depositor title to and rights
under the related Deleted Pooled Certificate released pursuant to this Section
2.04. The Depositor shall deliver the documents related to any Substitute Pooled
Certificate in accordance with the provisions of Section 2.01. The
representations and warranties set forth in 2.03(a) concerning the Pooled
Certificates shall be deemed to have been made by the Depositor with respect to
each Substitute Pooled Certificate as of the date of acceptance of such
Substitute Pooled Certificate by the Trustee. On or prior to the date of
substitution, the Trustee shall amend Schedule A hereto, to reflect such
substitution and shall provide a copy of such amended Schedule to the Depositor
and the Rating Agencies.
ARTICLE III
ADMINISTRATION OF THE POOLED CERTIFICATES;
PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS
Section 3.01. ADMINISTRATION OF THE TRUST FUND AND
THE POOLED CERTIFICATES.
(a) If at any time the Trustee, as a holder of a Pooled Certificate,
is requested in such capacity, whether by a Certificateholder, a holder of a
certificate of an Underlying Series or a party to the related Underlying
Agreement or any other Person, to take any action or to give any consent,
approval or waiver, including without limitation in connection with the
servicing and administration of Acquired Mortgage Assets, an amendment of any
Underlying Agreement or the occurrence of an Underlying Event of Default, the
Trustee shall promptly notify the Depositor and all of the holders of the Class
or Classes of Certificates with the same alpha-numeric designation as the Pooled
Certificate Group or Pooled Certificate Groups, which contain the Pooled
Certificate as to which action is requested, of such request and of its planned
course of action with respect thereto and shall, in its capacity as a holder of
Pooled Certificates, take such action in connection with the exercise and/or
enforcement of any rights and/or remedies available to it in such capacity with
respect to such request as the Majority Class Certificateholders of the affected
Class or Classes shall direct in writing. The Trustee shall promptly furnish to
the Depositor and, upon the written request of a Certificateholder, such
Certificateholder, all notices, statements, reports or other information that it
receives as holder of the Pooled Certificates, including without limitation
information regarding the Underlying Mortgage Loans and any Acquired Mortgage
Assets.
Section 3.02. COLLECTION OF MONIES.
(a) In connection with its receipt of any distribution on the Pooled
Certificates on any Pooled Certificate Distribution Date (or such later date on
which the Trustee shall receive the related Pooled Certificate Distribution Date
Statement), the Trustee shall review each related Pooled Certificate
Distribution Date Statement delivered to it and shall confirm that the aggregate
amount of such distribution received is consistent with the information
contained therein (it being understood that the Trustee shall be entitled to
rely on the accuracy and correctness of the information set forth on such
statements).
If the Trustee shall gain actual knowledge of any Underlying Event of
Default, the Trustee shall promptly notify the Certificateholders and the
Depositor of such occurrence and such parties shall proceed in accordance with
the terms and conditions of Section 3.01.
(b) If the Trustee receives a Notice of Final Distribution in respect
of any of the Pooled Certificates, the Trustee shall present and surrender any
related Pooled Certificates which are in certificated form for final payment
thereon in accordance with the terms and conditions of the related Underlying
Agreement and such notice. The Trustee shall promptly deposit in the Certificate
Account the final distribution received upon presentation and surrender of such
Pooled Certificates for distribution in accordance with Section 3.05 hereof on
the next succeeding Distribution Date.
Section 3.03. ESTABLISHMENT OF THE ACCOUNTS; DEPOSITS THEREIN.
(a) The Trustee, for the benefit of the Certificateholders, shall
establish and maintain one or more interest bearing accounts (collectively, the
"Certificate Account"), each of which shall be an Eligible Account, entitled
"First Trust National Association, as trustee for the registered holders of Bear
Stearns Mortgage Securities Inc. Trust Certificates, Series 1997-2," held in
trust by the Trustee for the benefit of the Certificateholders. The Certificate
Account shall have one subaccount for all funds collected with respect to each
Pooled Certificate Group and one subaccount relating to the Class R
Certificates, into which $100 plus one month's interest at 6.500% thereon will
be deposited on the Closing Date. The Trustee shall cause all distributions
received on the Pooled Certificates of each Pooled Certificate Group by the
Trustee in its capacity as holder of the Pooled Certificates, from whatever
source, and all amounts received by it representing payment of a Repurchase
Price pursuant to Section 2.03(c), subsequent to the Closing Date to be
deposited directly into the applicable subaccount of the Certificate Account. On
each Distribution Date the Trustee also shall deposit from the Prepayment
Interest Shortfall Account into the applicable subaccount of the Certificate
Account funds with respect to any Prepayment Interest Shortfalls on the related
Pooled Certificate Group, to the extent required by Section 3.03(d). On each
Distribution Date on which the Class A-1, Class A-3 and/or Class A-5
Certificates are outstanding, the Trustee shall additionally deposit from the
Interest Account into the applicable subaccount of the Certificate Account funds
to the extent of the Class Interest Shortfall on the applicable Class of
Certificates pursuant to Section 3.03(c). The Certificate Account is initially
located at the Trustee. The Trustee shall give notice to the Depositor and to
Certificateholders of any new location of the Certificate Account prior to any
change thereof.
(b) In the event that payments in respect of the Pooled Certificates
are received by the Trustee prior to the related Distribution Date, the Trustee
may invest such funds deposited in the Certificate Account in one or more
Permitted Investments held in the name of the Trustee and shall receive as
compensation, in addition to the Trustee Fee, any interest or investment income
earned on such Permitted Investments, which may be withdrawn by the Trustee on
each Distribution Date and shall not constitute Available Funds. Notwithstanding
the foregoing, no such Permitted Investment may mature later than the day before
such related Distribution Date and no such investment shall be sold prior to its
maturity date. The amount of any net losses incurred in respect of any such
investments shall be deposited in the Certificate Account by the Trustee out of
its own funds immediately as realized.
(c) The Trustee, for the benefit of the Class A-1, Class A-3 and Class
A-5 Certificateholders, shall establish and maintain one or more interest
bearing accounts (collectively, the "Interest Account"), each of which shall be
an Eligible Account, entitled "First Trust National Association, as trustee for
the registered holders of Bear Stearns Mortgage Securities Inc. Trust
Certificates, Series 1997-2, Class A-1, Class A-3 and Class A-5 held in trust
(but outside of the REMIC Trust) by the Trustee for the benefit of the Class
A-1, Class A-3 and Class A-5 Certificateholders. Funds in the Interest Account
shall not be invested. The Interest Account is initially located at the Trustee.
The Trustee shall give notice to the Depositor and the Class A-1, Class A-3 and
Class A-5 Certificateholders of any new location of the Interest Account prior
to any change thereof. On the Closing Date, the Depositor shall provide to the
Trustee for deposit in the Interest Account $2,613. On each Distribution Date,
the Trustee shall transfer from the Interest Account to the applicable
subaccount of the Certificate Account an amount necessary to cover the
applicable Class Interest Shortfall. Any funds remaining in such Interest
Account after the Class A-1, A-3 and Class A-5 Certificates have been paid in
full shall be transferred to the Prepayment Interest Shortfall Account.
(d) The Trustee, for the benefit of the Certificateholders, shall
establish and maintain one or more interest bearing accounts (collectively, the
"Prepayment Interest Shortfall Account"), each of which shall be an Eligible
Account, entitled "First Trust National Association, as trustee for the
registered holders of Bear Stearns Mortgage Securities Inc. Trust Certificates,
Series 1997-2", held in trust (but outside of the REMIC Trust) by the Trustee
for the benefit of the Certificateholders of all Classes. The Prepayment
Interest Shortfall Account is initially located at the Trustee. The Trustee
shall give notice to the Depositor and the Certificateholders of any new
location of the Prepayment Interest Shortfall Account prior to any change
thereof. On the Closing Date, the Depositor shall provide to the Trustee for
deposit in the Prepayment Interest Shortfall Account $20,000. Following each
Determination Time, the Trustee will determine if there is any Prepayment
Interest Shortfall with respect to a Pooled Certificate Group. If such
Prepayment Interest Shortfall has been allocated to Pooled Certificates in one
or more Pooled Certificate Groups, the Trustee will withdraw the lesser of the
aggregate amount thereof and the amount then remaining in the Prepayment
Interest Shortfall Account for deposit in the applicable subaccount or
subaccounts of the Certificate Account. If there is an insufficient amount on
deposit in the Prepayment Interest Shortfall Account, the amount thereof will be
allocated among such subaccounts based upon the amount of Prepayment Interest
Shortfall allocated to the related Pooled Certificate Groups.
(e) The Trustee shall establish and maintain one or more interest
bearing accounts (collectively, the "Trustee Fee Account"), each of which shall
be an Eligible Account, held in trust by the Trustee for the benefit of the
Certificateholders and the Trustee, entitled "First Trust National Association,
as trustee for the registered holders of Bear Stearns Mortgage Securities Inc.
Trust Certificates, Series 1997-2." The Trustee Fee Account is initially located
at the Trustee. The Trustee shall give notice to the Depositor and the
Certificateholders of any new location of the Trustee Fee Account prior to any
change thereof. On the Closing Date the Depositor shall provide to the Trustee
for deposit in the Trustee Fee Account $65,000. On each Distribution Date the
Trustee may withdraw as its fee from the Trustee Fee Account $_193.45, together
with all investment earnings on amounts in the Trustee Fee Account as of each
such date of withdrawal. The Trustee shall invest any amounts deposited in the
Trustee Fee Account in one or more Permitted Investments provided that
sufficient funds shall be available to pay the $193.45 on each Distribution
Date. The amount of any net losses incurred in respect of any investment shall
be deposited in the Trustee Fee Account by the Trustee out of its own funds
immediately as realized. If the Trustee resigns or is removed and a successor
trustee is appointed, any amounts on deposit in the Trustee Fee Account shall
thereafter be held in the same manner by and for the benefit of the successor
trustee. Upon the termination of the Trust Fund, any amount (including earnings)
remaining in the Trustee Fee Account shall be paid to the Trustee.
(f) With respect to each 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. 92a(e), if applicable, or any applicable comparable state statute
applicable to state chartered banking corporations.
Section 3.04. PERMITTED WITHDRAWALS FROM THE CERTIFICATE ACCOUNT.
The Trustee may from time to time withdraw funds from the Certificate
Account for the following purposes:
(i) to make distributions in the amounts and in the manner
provided for in Section 3.05;
(ii) to pay to the Person entitled thereto any amount deposited
in the Certificate Account in error;
(iii) to clear and terminate the Certificate Account upon the
termination of this Agreement; and
(iv) to pay itself, as additional compensation, the net
reinvestment income permitted to be paid to it as provided in Section
3.03(b).
On each Distribution Date, the Trustee shall withdraw all funds from
the Certificate Account and shall use such funds withdrawn from the Certificate
Account only for the purposes described in this Section 3.04 and in Section
3.05.
Section 3.05. DISTRIBUTIONS.
(a) On each Distribution Date, the Trustee shall apply the Available
Funds on deposit in each subaccount of the Certificate Account as of such
Distribution Date in the following manner and order of priority, except that on
the first Distribution Date all amounts in the subaccount of the Certificate
Account relating to the Class R Certificates (other than investment income)
shall be first paid to the Holders of the Class R Certificates:
(A) from amounts with respect to interest received on the Pooled
Certificates of a Pooled Certificate Group and from any
transfers from the Prepayment Interest Shortfall Account and
the Interest Account, to the Certificateholders of the Class
with the same alpha-numeric designation as distributions of
interest, an amount equal to interest for such Class accrued
at the applicable per annum Pass-Through Rate during the
Interest Accrual Period preceding such Distribution Date on
its Class Balance immediately prior to such Distribution
Date, less the sum of any Prepayment Interest Shortfalls to
the extent not covered by funds transferred from the
Prepayment Interest Shortfall Account and the interest
portion of any losses allocated to the Pooled Certificates
in the related Pooled Certificate Group, plus the portion,
if any, of interest accrued for such Class for any prior
Distribution Date which remains unpaid;
(B) from amounts with respect to principal received on the
Pooled Certificates of such Pooled Certificate Group, to the
Certificateholders of the Class with the same alpha-numeric
designation as distributions of principal, an amount equal
to such principal received; and
(C) on each Distribution Date on which a Class of Certificates,
other than the Class R Certificates, is paid in full,
Available Funds, if any, remaining in the related subaccount
of the Certificate Account (other than investment income)
after payment of interest and principal, as described above
to Certificateholders of such Class will be distributed to
the Class R Certificates.
If the Trustee has not received a distribution on, or the Pooled
Certificate Distribution Date Statement with respect to, the Pooled Certificates
of a Pooled Certificate Group by the Determination Time, the distribution
allocable to the related Class of Certificates will not be made on the
immediately following Distribution Date, but, (i) if such distribution and such
Pooled Certificate Distribution Date Statement are received by 3:00 p.m. on the
fifth Business Day after the Determination Time, the Trustee will make the
distribution on the sixth Business Day after the Determination Time (a
"Supplemental Distribution Date") or (ii) if received after 3:00 p.m. on the
fifth Business Day after the Determination Time, it will be made on the next
succeeding Distribution Date, and in neither case will additional interest be
paid thereon.
(b) All distributions made to Certificateholders of a Class pursuant
to Section 3.05(a) on each Distribution Date or on a Supplemental Distribution
Date shall be allocated pro rata among the outstanding Certificates of such
Class based upon their respective Percentage Interests and, except in the case
of the final distribution to the Certificateholders, shall be made to the
Holders of record on the related Record Date. Distributions to any
Certificateholder on any Distribution Date shall be made by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing (which wiring
instructions may be in the form of a standing order applicable to all future
Distribution Dates) no less than five Business Days prior to the related Record
Date (or, in the case of the initial Distribution Date, no later than the
related Record Date) and is the registered owner of Certificates with an
aggregate initial Certificate Balance of not less than $1,000,000, or otherwise
by check mailed by first class mail to the address of such Certificateholder
appearing in the Certificate Register. Final distribution to each
Certificateholder will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
(c) Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or the accrual of original issue discount that
the Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from payments to any Certificateholder pursuant
to federal withholding requirements, the Trustee shall indicate the amount
withheld to such Certificateholders.
(d) The Trustee may conclusively rely on the information set forth in
the Pooled Certificate Distribution Date Statements in making the calculations
called for in this Section 3.05, including, without limitation, the
determinations of the interest and principal to be paid on each Class of
Certificates. If the information available to the Trustee in any Pooled
Certificate Distribution Date Statement is insufficient to make the calculations
provided for in this Section 3.05, the Trustee shall promptly request the
underlying trustee with respect to the Pooled Certificates to provide sufficient
information in writing, and after receipt of such information the Trustee shall
make on the following Distribution Date any necessary adjustments in the
application of amounts in the applicable subaccount of the Certificate Account.
If such information is not received from such underlying trustee, the Trustee
shall not be responsible for making any such adjustment.
Section 3.06. STATEMENTS TO CERTIFICATEHOLDERS.
On each Distribution Date, the Trustee shall prepare, and shall
forward by mail, a statement to each Certificateholder, the Depositor and the
Rating Agency stating:
(i) the Available Funds for each Class of Certificates for such
Distribution Date;
(ii) the amount of interest and principal being distributed on
each Class of Certificates for such Distribution Date, separately
stating the amount of interest provided from the Prepayment Interest
Shortfall Account;
(iii) the Class Balances for each Class of Certificates before
and after applying payments on such Distribution Date;
(iv) the remaining amount in the Prepayment Interest Shortfall
Account following the payment on such Distribution Date;
(v) the outstanding principal amount immediately prior to and
after taking into account distributions made on the immediately prior
Pooled Certificate Distribution Date, and the current interest rate
and current realized losses allocated to, each of the Pooled
Certificates in each Pooled Certificate Group on the immediately prior
Pooled Certificate Distribution Date; and
(vi) any amount in the Trustee Fee Account applied to pay the
Trustee Fee and the balance of the Trustee Fee Account as of such
Distribution Date.
In the case of the information furnished pursuant to clauses (ii) and
(iii) above, the amounts shall also be expressed as a dollar amount per Single
Certificate. The Trustee's responsibility for reporting the above information is
limited to the availability, timeliness, and accuracy of the information set
forth in the related Pooled Certificate Distribution Date Statements and any
additional written information requested by the Trustee with respect to the
Pooled Certificates. If the Trustee receives any such additional information
after preparing a statement required by this Section, the Trustee shall report
the related adjustments in the statement prepared after receipt of such
information.
In addition, the Trustee promptly will furnish to the Depositor and,
upon the written request of a Certificateholder, to such Certificateholder,
copies of any notices, statements, reports or other communications including,
without limitation, the Pooled Certificate Distribution Date Statement, received
by the Trustee in its capacity as a holder of Pooled Certificates, with respect
to the Pooled Certificates related to the Certificates held by such
Certificateholder. The Trustee shall furnish copies of all Pooled Certificate
Distribution Date Statements to the Rating Agency promptly after its receipt of
same. The Trustee may fulfill its obligations hereunder with respect to the
distribution of the Pooled Certificate Distribution Date Statements by mailing
the same together with the statements to Certificateholders required pursuant to
the first paragraph of this Section 3.06.
On or before March 31st of each calendar year, commencing in 1998, the
Trustee shall prepare and deliver by first class mail to the Depositor and to
each Person who at any time during the prior calendar year was a
Certificateholder of record a statement containing the information required to
be contained in the regular monthly report to Certificateholders, as set forth
in clauses (ii) above aggregated for such prior calendar year or in the case of
a Certificateholder, the applicable portion thereof during which such Person was
a Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code and regulations
thereunder as from time to time are in force.
The Trustee shall be responsible for preparing, at its own expense,
signing and filing, on behalf of the Trust Fund, federal income tax and
information returns with the Internal Revenue Service ("IRS") and Minnesota
income tax returns and/or the returns of any other state taxing authority the
necessity of filing of which shall have been confirmed to the Trustee in writing
either by the delivery of an Opinion of Counsel to such effect or by the
delivery to the Trustee of a written notification to such effect by the taxing
authority of any such state. The Depositor shall provide the Trustee within 10
days of the Closing Date all information deemed necessary by the Trustee to
fulfill its obligations under this paragraph. The Trustee shall furnish to each
Certificateholder at the time required by law such information reports or
returns as are required by applicable federal, state or local law with respect
to the Trust Fund to enable Certificateholders to prepare their tax returns and
will furnish comparable information to the IRS and other taxing authorities as
and when required by law to do so.
Section 3.07. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION.
The Trustee shall provide to the Depositor access to all reports,
documents and records maintained by the Trustee in respect of its duties
hereunder, such access being afforded without charge but only upon three
Business Days' written request and during normal business hours at offices
designated by the Trustee.
Section 3.08. CALCULATION OF AMOUNTS TO BE DISTRIBUTED.
All calculations of the amounts to be distributed on any Distribution
Date and of the amount of any transfers from the Prepayment Interest Shortfall
Account or the Interest Account to the applicable subaccount or subaccounts of
the Certificate Account will be made by the Trustee in reliance on the
information provided to it in the applicable Pooled Certificate Distribution
Date Statements and any additional written information requested by the Trustee
with respect to the Pooled Certificates. The Trustee shall promptly communicate
the results of its calculations to the Depositor and the Certificateholders
(which obligation may be satisfied through the distribution of the statements
required under Section 3.06).
Section 3.09. REMIC-RELATED COVENANTS. For as long as REMIC Trust
shall exist, the Trustee shall act in accordance herewith to assure continuing
treatment of the REMIC Trust as a REMIC. In particular, the Trustee shall not
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.
ARTICLE IV
THE CERTIFICATES
Section 4.01. THE CERTIFICATES.
(a) The Depository, the Depositor and the Trustee have entered into a
Depository Agreement dated as of March 27, 1997 (the "Depository Agreement").
Except with respect to the Class R Certificates and as provided in Subsection
4.01(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 the Certificate Owners 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.
Except, with respect to the Class R Certificates, all transfers by
Certificate Owners of 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 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 Depositor 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 Depositor is unable to
locate a qualified successor within 30 days or (ii) the Depositor 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 Depositor 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 Certificates shall have the following designations,
initial principal amounts and Pass- Through Rates:
Initial Pass-Through
Designations Principal Amounts Rate
------------ ----------------- ----
A-1 $16,125,845 6.750%
A-2 $16,629,916 6.500%
A-3 $17,681,374 6.750%
A-4 $16,668,278 6.500%
A-5 $15,195,964 6.875%
R $100 6.500%
(d) With respect to each Distribution Date, each Class of 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 above and the
Class Balance of such Class applicable to such Distribution Date.
(e) The Certificates shall be substantially in the forms set forth in
Exhibit A through Exhibit F hereto. The Certificates shall be executed by manual
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized officer. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Trustee shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. The Class R
Certificates shall be issued in fully-registered form in the denomination of
$100.00 each.
Pending the preparation of Definitive Certificates, the Trustee may
sign and the Certificate Registrar may authenticate temporary Certificates that
are printed, lithographed or typewritten, in authorized denominations for
Certificates, 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 Depositor 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 the Certificate Registrar shall authenticate and deliver
in exchange therefor a like aggregate principal amount, in authorized
denominations, of Definitive Certificates. Until so exchanged, such temporary
Certificates shall in all respects be entitled to the same benefits as
Definitive Certificates.
(f) Each Class of Certificates, except the Class R Certificates, will
be registered as a single Certificate held by a nominee of the Depository, 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 Class may be issued in a
different amount so that the sum of the denominations of all outstanding
Certificates shall equal the related Original Class Balance. The Class R
Certificates will be issued as a single certificate in fully registered
certificated form in the denomination of $100.
(g) 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.
(h) 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.
(i) 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.
(j) The latest possible maturity date for each Class of Certificates
is the Distribution Date in February 2024.
Section 4.02. REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of a registrar (the "Certificate Registrar") a register
(the "Certificate Register") in which, subject to such reasonable regulations as
the Certificate Registrar may prescribe, the Certificate Registrar shall provide
for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee is initially appointed (and hereby
agrees to act in accordance with the terms hereof) as Certificate Registrar for
the purpose of registering Certificates and transfers and exchanges of
Certificates as herein provided. For so long as the Trustee acts as Certificate
Registrar, its Corporate Trust Office shall constitute the offices of the
Certificate Registrar maintained for such purposes. The Certificate Registrar
may appoint, by a written instrument delivered to the Depositor, any other bank
or trust company in New York to act as Certificate Registrar under such
conditions as the predecessor Certificate Registrar may prescribe, provided that
the predecessor Certificate Registrar shall not be relieved of any of its duties
or responsibilities hereunder by reason of such appointment. If the Trustee
resigns or is removed in accordance with the terms hereof, the successor trustee
shall immediately succeed to its predecessor's duties as Certificate Registrar.
The Depositor and, if it is no longer the Certificate Registrar, the Trustee
shall have the right to inspect the Certificate Register or to obtain a copy
thereof at all reasonable times, and to rely conclusively upon a certificate of
the Certificate Registrar as to the information set forth in the Certificate
Register.
Every Certificateholder agrees with the Certificate Registrar and the
Trustee that neither the Certificate Registrar nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
(b) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at the offices of the Certificate
Registrar maintained for such purpose, the Trustee shall execute and the
Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of a like
Class and aggregate Percentage Interest.
(c) At the option of any Holder, its Certificates may be exchanged for
other Certificates of the same Class of authorized denominations of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver the
Certificates which the Certifi cateholder making the exchange is entitled to
receive.
(d) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Trustee) be duly endorsed by, or be
accompanied by a written instrument of transfer in the form satisfactory to the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing.
(e) 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.
(f) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar without liability on its part.
Section 4.03. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Trustee and the Certificate Registrar receive evidence to
their satisfaction of the destruction, loss or theft of any Certificate, and
(ii) (except in the case of a mutilated Certificate) there is delivered to the
Trustee and the Certificate Registrar such agreement, security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Trustee shall execute and the
Certificate Registrar shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like Class, tenor and Percentage Interest but bearing a number not
contemporaneously outstanding. Upon the issuance of any new Certificate under
this Section, the Trustee may require the payment by the Certificateholder of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto. Any duplicate Certificate issued pursuant to this Section
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 4.04. PERSONS DEEMED OWNERS.
Prior to due presentment of a Certificate for registration of
transfer, the Depositor, the Trustee, the Certificate Registrar and any agent of
the Depositor, the Trustee or the Certificate Registrar 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 3.05 and for all
other purposes whatsoever, and neither the Depositor, the Trustee, the
Certificate Registrar nor any agent of the Depositor, the Trustee or the
Certificate Registrar shall be affected by notice to the contrary.
Section 4.05. 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 4.06(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 4.06(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 purchaser thereof) delivers to the Tax Matters
Person and the Trustee an affidavit in the form attached hereto as Annex 1
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 instru
mentality 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 the Federal Home
Loan Mortgage Corporation) 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 4.06(b), then the
prior Holder thereof shall, upon discovery that the transfer of such Residual
Certificate was not in fact permitted by this Subsection 4.06(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 4.06(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 4.06(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 4.06(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 a "United States person,"
as such term is defined in Section 7701(a)(30) of the Code (a "U.S.-person").
ARTICLE V
THE TRUSTEE
Section 5.01. DUTIES OF TRUSTEE.
(a) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they are in
the form required by this Agreement and the Underlying Agreements; provided,
however, that the Trustee shall not be responsible to determine, confirm or
recalculate the accuracy or content of any such resolution, certificate or other
instrument furnished to it pursuant to this Agreement including, without
limitation, the Pooled Certificate Distribution Date Statements. The Trustee
shall notify the Certificateholders and the Rating Agency of any such documents
which do not materially conform to the requirements of this Agreement in the
event that the Trustee, after so requesting of the party required to deliver the
same, does not receive satisfactorily corrected documents or a satisfactory
explanation regarding any such nonconformities.
The Trustee shall forward or cause to be forwarded in a timely fashion
the notices, reports and statements required to be forwarded by the Trustee
pursuant to Sections 3.01, 3.02, 3.06 and 7.01.
(b) 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) 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 by the Depositor to the Trustee
and which on their face, do not contradict the requirements of this
Agreement;
(ii) The Trustee shall not be personally 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 personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith,
in accordance with the direction of the Majority Certificateholders
(or if such action or inaction relates to less than all of the Classes
of Certificates then in accordance with the direction of the Majority
Class Certificateholders of the applicable Class or Classes) in
accordance with the terms of this Agreement, as to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement;
(iv) No provision in this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur any personal financial
liability in the performance of any of its duties as Trustee
hereunder, or in the exercise of any of its rights or powers, if the
Trustee shall have reasonable grounds for believing that repayment of
funds or adequate indemnity against such risk or liability is not
reasonably assured to it; provided that this provision shall not be
deemed to abrogate the responsibilities undertaken by the Trustee
hereunder to perform routine administrative duties in accordance with
the terms hereof; and
(v) The Trustee shall not be deemed to have notice of any
Underlying Event of Default or other fact or circumstance upon the
occurrence of which it may be required to take action hereunder unless
a Responsible Officer of the Trustee has actual knowledge of such
event, fact or circumstance or unless written notice of any such event
is received by the Trustee at its Corporate Trust Office.
Section 5.02. 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, 1997 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 or calculations contained in the Pooled Certificate Distribution
Date Statements. The Trustee is hereby designated as the "Tax Matters Person"
(within the meaning of Treas. Reg. ' 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 the Residual Certificate to sign such returns or act as tax matters person.
Each Holder of the Residual Certificate shall be bound by this Section.
(c) The Trustee shall provide upon request such information as is
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.
Section 5.03. CERTAIN MATTERS AFFECTING THE TRUSTEE.
Except as otherwise provided in Section 5.01:
(i) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably 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 in
respect of 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 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;
(iv) 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, direction,
consent, order or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to the extent reasonable under the circumstances to examine
the books, records and premises of such Person, personally or by agent
or attorney;
(v) The Trustee shall not be personally 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; and
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and shall not be liable for the default or
misconduct of any such agents or attorneys if selected with reasonable
care.
Section 5.04. TRUSTEE NOT LIABLE FOR CERTIFICATES OR POOLED
CERTIFICATES.
The recitals contained herein and in the Certificates (other than the
statements attributed to, and the representations and warranties of, the Trustee
in Article II and the signature of the Trustee on each Certificate) shall be
taken as the statements of the Depositor, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Agreement (other than as specifically set
forth in Section 2.03(b)) or of the Certificates (other than that the
Certificates shall be duly and validly executed by it as Trustee and
authenticated by it as Certificate Registrar) or of the Pooled Certificates or
any related document. Except as otherwise provided herein, the Trustee shall not
be accountable for the use or application by the Depositor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor in respect of the assignment and
delivery of the Pooled Certificates.
Section 5.05. TRUSTEE MAY OWN CERTIFICATES.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights it would have if it were
not Trustee.
Section 5.06. TRUSTEE'S FEES; INDEMNIFICATION OF THE TRUSTEE.
(a) The Trustee shall withdraw the Trustee Fee, as compensation, from
the Trustee Fee Account, as provided in Section 3.03(e) hereof.
(b) Subject to the provisions of this paragraph, the Trustee and any
director, officer, employee or agent of the Trustee shall be entitled to be
indemnified and held harmless by the Trust Fund against any loss, liability or
expense (including, without limitation, costs and expenses of litigation, and of
investigation, counsel fees and expenses, damages, judgments, amounts paid in
settlement and out-of-pocket expenses) arising out of, or incurred in connection
with, the exercise and performance of any of the powers and duties of the
Trustee hereunder; provided that neither the Trustee nor any of the other above
specified Persons shall be entitled to indemnification pursuant to this Section
5.06(b) for (i) allocable overhead, (ii) expenses or disbursements incurred or
made by or on behalf of the Trustee in the normal course of the Trustee's
performing routine administrative duties in accordance with any of the
provisions hereof, (iii) any expense or liability specifically required to be
borne thereby pursuant to the terms hereof, or (iv) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of the Trustee's obligations and duties hereunder, or by reason
of reckless disregard of such obligations or duties, or as may arise from a
breach of any representation, warranty or covenant of the Trustee made herein.
The provisions of this Section 5.06(b) shall survive any resignation
or removal of the Trustee and appointment of a successor trustee.
Section 5.07. ELIGIBILITY REQUIREMENTS FOR TRUSTEE.
The Trustee hereunder shall at all times be a trust company or banking
institution organized and doing business under the laws of the United States of
America or any State thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital, surplus and undivided profits of at
least $50,000,000 (or shall be a member of a bank holding system, the combined
capital and surplus of which is at least $50,000,000) and subject to supervision
or examination by federal or state authority. If such trust company or banking
institution 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 the combined capital, surplus and undivided
profits of such trust company or banking institution shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. The Trustee shall at all times meet the requirements of Section
26(a)(1) of the Investment Company Act and shall in no event be an Affiliate of
the Depositor or of any Person involved in the organization or operation of the
Depositor. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 5.08.
Section 5.08. RESIGNATION AND REMOVAL OF THE TRUSTEE.
(a) The Trustee may upon 30 days' notice resign and be discharged from
the trusts hereby created by giving written notice thereof to the Depositor and
the Certificateholders. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Trustee and one
copy to 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 5.07 and shall fail to resign after
written request therefor by the Depositor, the Majority Certificateholders or if
at any time the Trustee shall become incapable of acting, or shall be adjudged
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 Depositor may remove the Trustee and appoint a successor
trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee.
(c) The Majority Certificateholders 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 the Depositor, one
complete set to the Trustee so removed and one complete set to the successor so
appointed. All reasonable out-of-pocket costs and expenses incurred in
connection with such removal and replacement of the Trustee, including without
limitation, reasonable attorneys fees and expenses, shall be borne by the party
requesting such action.
(d) Notwithstanding anything to the contrary contained herein, (i) any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section shall become effective only
upon acceptance of appointment by the successor trustee as provided in Section
5.09 and (ii) no entity may be appointed as a successor trustee if such
appointment would result in a withdrawal or downgrading of any then current
rating assigned to the Certificates by the Rating Agency.
Section 5.09. SUCCESSOR TRUSTEE.
(a) Any successor trustee appointed as provided in Section 5.08 shall
execute, acknowledge and deliver to the Depositor, the Certificateholders and to
its predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become
effective and the appointment of such successor trustee shall 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 the like effect as if originally named as trustee
herein. The predecessor trustee shall deliver to the successor trustee the
Pooled Certificates and related documents and statements held by it hereunder,
and the Depositor, the Trustee and the predecessor trustee shall execute and
deliver such instruments and do such other things as may 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 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 5.07.
(c) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Depositor shall mail notice of the succession of such
trustee hereunder to all Certificateholders at their addresses as shown in the
Certificate Register. If the Depositor fails to mail such notice within 10 days
after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Depositor.
Section 5.10. MERGER OR CONSOLIDATION OF TRUSTEE.
Any trust company or banking institution into which the Trustee may be
merged or converted or with which it may be consolidated or any trust company or
banking institution resulting from any merger, conversion or consolidation to
which the Trustee shall be a party, or any trust company or banking institution
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such trust
company or banking institution shall be eligible under the provisions of Section
5.07, 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. The Trustee shall mail notice of any such merger or
consolidation to the Depositor and to the Certificateholders at their address as
shown in the Certificate Register.
Section 5.11. 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 Fund or property securing the same may at the time be located, the
Trustee shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Trustee 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 Fund, and to vest in such Person or Persons, in
such capacity, such title to the Trust Fund, or any part thereof, and, subject
to the other provisions of this Section 5.11, such powers, duties, obligations,
rights and trusts as the Trustee may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 5.07 hereunder; provided, that
if the co-trustee or separate trustee does not meet such eligibility standards,
the Trustee shall remain liable for its actions hereunder, and no notice to
Certificateholders of the appointment of co-trustee(s) or separate trustee(s)
shall be required under Section 5.09 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 5.11 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed jointly by the Trustee and such separate trustee or
co-trustee, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed, 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 Fund 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.
(c) 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 V. 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.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of 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.
ARTICLE VI
THE DEPOSITOR
Section 6.01. LIABILITY OF THE DEPOSITOR.
The Depositor shall be liable in accordance herewith only to the
extent of the respective obligations specifically imposed upon and undertaken by
the Depositor herein.
Section 6.02. MERGER, CONSOLIDATION OR CONVERSION OF THE DEPOSITOR.
Subject to the following paragraph, the Depositor will keep in full
effect its existence, rights and franchises as a corporation under the laws of
the jurisdiction of its incorpora tion, 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 and the Certificates and to perform its duties
under this Agreement.
The Depositor may be merged or consolidated with or into any Person,
or transfer all or substantially all of its assets to any Person, in which case
any Person resulting from any merger or consolidation to which the Depositor
shall be a party, or any Person succeeding to the business of the Depositor,
shall be the successor of the Depositor hereunder, 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 6.03. LIMITATION ON LIABILITY OF THE DEPOSITOR AND OTHERS.
Neither the Depositor nor any of the directors, officers, employees or
agents of the Depositor shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor or any
such other Person against any breach of a representation or warranty made
herein, or against any expense or liability specifically required to be borne
thereby pursuant to the terms hereof, or against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of obligations or duties hereunder, or by reason of reckless
disregard of such obligations and duties. The Depositor and any director,
officer, employee or agent of the Depositor may rely in good faith on any
document of any kind which, prima facie, is properly executed and submitted by
any Person respecting any matters arising hereunder. Provided that such action
is not related to its representations made in or its duties under this
Agreement, the Depositor shall not be under any obligation to appear in,
prosecute or defend any action or proceeding unless such action in its opinion
does not involve it in any expense or liability.
ARTICLE VII
TERMINATION
Section 7.01. TERMINATION.
(a) The respective obligations and responsibilities of the Depositor
and the Trustee created hereby with respect to the Certificates (other than the
obligation to make certain payments and to send certain notices to
Certificateholders as hereinafter set forth) shall terminate upon the payment
(or provision for payment) to the Certificateholders of all amounts held by or
on behalf of the Trustee and required to be paid to them hereunder on the Final
Distribution Date following receipt of the final distribution to be made on the
Pooled Certificates; provided, however, that in no event shall the trust created
hereby continue beyond the expiration of twenty-one 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's, living on the date hereof.
(b) The Trustee shall, in accordance with Section 8.05, give a Notice
of Final Distribution to the applicable Certificateholders, the Depositor and
the Rating Agencies as soon as practicable of the Distribution Date on which the
Trustee anticipates that the final distribution will be made on the applicable
Class of Certificates, which notice shall:
(i) specify the Distribution Date on which the final distribution
is anticipated to be made to such Certificateholders;
(ii) specify the amount of any such final distribution, if known;
and
(iii) state that the final distribution to such
Certificateholders will be made only upon presentment and surrender of
the applicable Certificates at the office of the Trustee therein
specified.
If the Final Distribution with respect to a Class is not made or if
the Trust Fund is not terminated on the anticipated Distribution Date for any
reason, the Trustee shall promptly mail notice thereof to each
Certificateholder, the Depositor and to the Rating Agencies.
(c) Upon presentment and surrender of the Certificates by the
Certificateholders of each Class on the applicable Final Distribution Date, the
Trustee shall distribute to the Certificateholders the amounts otherwise
distributable on such Distribution Date pursuant to Section 3.05(a). Any funds
not distributed on the Final Distribution Date because of the failure of any
Certificateholders to tender their Certificates shall be set aside and held in
trust for the account of the ap propriate non-tendering Certificateholders. The
Trust Fund shall terminate upon the Final Distribution Date with respect to the
last Class of Certificates outstanding. If any Certificates of a Class as to
which Notice of Final Distribution has been given pursuant to this Section 7.01
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining Certificateholders of such Class, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any such Certificate shall not have
been surrendered for cancellation, the Trustee shall directly or through an
agent, take reasonable steps to contact the remaining such Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining such funds and of contacting Certificateholders shall be paid out of
the assets which remain held. If within two years after the second notice any
such Certificates shall not have been surrendered for cancellation, the Trustee
shall segregate all amounts distributable to the Holders thereof and shall
thereafter hold such amounts for the benefit of such Holders. No interest shall
accrue or be payable to any Certificateholder on any amount held as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 7.01.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. AMENDMENT.
(a) This Agreement may be amended from time to time by the Depositor
and the Trustee, without the prior consent of any Certificateholder:
(i) to cure any ambiguity;
(ii) to correct or supplement any provisions herein, which may be
inconsistent with any other provisions herein;
(iii) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the existing provisions of this Agreement; and
(iv) to make such modifications as may be permitted or required
hereunder in connection with a repurchase or substitution of a Pooled
Certificate pursuant to Section 2.03(c) or 2.04 hereof.
provided that such amendment shall not, as evidenced by an Opinion of Counsel
delivered to the Trustee (the expense of which shall be paid for by the
Depositor), adversely affect in any material respect the interests of any
Certificateholder.
(b) This Agreement may also be amended from time to time by the
Depositor and the Trustee with the prior written consent of the Majority
Certificateholders (or if less than all the Classes are affected thereby, by the
Majority Class Certificateholders of the Class or Classes affected thereby) 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 which are required to be distributed on any Certificate
without the consent of the Holder of such Certificate;
(ii) modify the provisions of this Section 8.01 without the
consent of the Holders of all Certificates; or
(iii) be made unless and until the Trustee shall have received an
Opinion of Counsel (at the expense of the party seeking such amendment
but in no event at the expense of the Trust Fund) to the effect that
such amendment shall not cause the REMIC Trust to fail to qualify as a
REMIC for federal income tax purposes.
(c) Promptly after the execution of any such amendment the Trustee
shall furnish written notification of the substance of such amendment to each
Certificateholder. It shall not be necessary for the consent of
Certificateholders under this Section 8.01 to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Section 8.02. 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 8.03. LIMITATION ON RIGHTS OF CERTIFICATE HOLDERS.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, 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 Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, 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 constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party 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 or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee and the Depositor a written
notice of default hereunder, and of the continuance thereof, as herein before
provided, and unless also the Majority Certificateholders (or in the event that
such action or proceeding relates to less than all of the Classes, the Majority
Class Certificateholders of the related Class or Classes) 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, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 30 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. For the
prosecution and enforcement of the rights granted under this Section, each and
every Certificateholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
Section 8.04. GOVERNING LAW.
THIS AGREEMENT AND THE CERTIFICATES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SAID STATE (WITHOUT REFERENCE TO THE CONFLICTS OF LAW PROVISIONS OF
SUCH STATE), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 8.05. NOTICES.
All communications provided for or permitted hereunder shall be in
writing and shall be deemed to have been duly given when delivered to: (a) in
the case of the Depositor, Bear Stearns Mortgage Securities Inc., 245 Park
Avenue, New York, New York 10167, Attention: Mortgage Department, or such other
address as may hereafter be furnished to the Trustee in writing by the
Depositor; (b) in the case of the Trustee, First Trust National Association 180
East Fifth Street, St. Paul, Minnesota 55101, Attention: Structured Finance, or
such other address as may hereafter be furnished to the Depositor in writing by
the Trustee; (c) in the case of Fitch, Fitch Investor Services, One State Street
Plaza, New York, New York 10004, Attention: Residential Mortgage Group; and (d)
in the case of Moody's Investors Service, Inc., 99 Church Street, New York, New
York 10007, Attention: Residential Mortgage Pass-Through Group, 4th Floor.
Section 8.06. 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, provi sions 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 or of the Certificates or the rights of the Holders thereof.
Section 8.07. 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, and
all such provisions shall inure to the benefit of the Certificateholders.
Section 8.08. ARTICLE AND SECTION HEADINGS.
The article and section headings herein are for conve nience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 8.09. NOTICES TO RATING AGENCIES.
The Trustee shall notify the Rating Agencies at such time as it is
otherwise required pursuant to this Agreement to give notice of the occurrence
of any of the events described in clauses (a), (b), (d) or (f) below or provide
a copy to the Rating Agency at such time as otherwise required to be delivered
pursuant to this Agreement of each of the statements described in clauses (c)
and (e) below:
(a) a material change or amendment to this Agreement,
(b) the termination or appointment of a successor Trustee or a change
in the majority ownership of the Trustee,
(c) the monthly distribution statement required to be delivered to
the Certificateholders pursuant to Section 3.06,
(d) the non-conformance of any documents pursuant to Section 5.01(a),
(e) the Notice of Final Distribution required to be delivered
pursuant to Section 7.01(b), and
(f) a change in the location of the Accounts.
The Depositor shall notify the Rating Agencies of any change in its identity.
Section 8.10. 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.
<PAGE>
IN WITNESS WHEREOF, the Depositor and the Trustee have caused their
names to be signed hereto by their respective duly authorized officers, all as
of the day and year first above written.
BEAR STEARNS MORTGAGE SECURITIES
INC., as Depositor
By: /S/ JOSEPH T. JURKOWSKI, JR.
Name: Joseph T. Jurkowski, Jr.
Title: Vice President
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By: /S/ S. CHRISTOPHERSON
Name: S. Christopherson
Title: Vice President
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the 31st day of March, 1997 before me, a notary public in and for
said State, personally appeared before me Joseph T. Jurkowski, Jr., known to me
to be the 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/ MARIA K. MONTGOMERY
Notary Public
[Notarial Seal] Commission Expires:
<PAGE>
STATE OF MINNESOTA )
) ss:
COUNTY OF RAMSEY )
On the 31st day of March, 1997 before me, a notary public in and for
said State, personally appeared S. Christopherson, known to me to be a Vice
President of First Trust National Association, the national banking association
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said national banking association, and acknowledged to
me that such national banking association 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/ S. DIGNAN
Notary Public
[Notarial Seal] Commission Expires: 1/31/2000
<PAGE>
ANNEX 1
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 the date of acquisition of the Residual
Certificates (as defined below); (ii) it is not acquiring the Bear Stearns
Mortgage Securities Inc. Mortgage Pass-Through Certificates, Series 1997-2,
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>
SCHEDULE A
POOLED CERTIFICATES
FULL NAME OF SERIES ABBREVIATION CLASS %
USED HEREIN IN TRUST
GROUP A-1 POOLED CERTIFICATES
Chase Mortgage Finance Corporation, CHASE 1994-F 100%
Multi-Class Mortgage Pass-Through
Certificates, Series 1994 F, Class A-15
Chase Mortgage Finance Corporation, CHASE 1994-F 100%
Multi-Class Mortgage Pass-Through
Certificates, Series 1994 F, Clas A-16
Chase Mortgage Finance Corporation, CHASE 1994-F 100%
Multi-Class Mortgage Pass-Through
Certificates, Series 1994 F, Clas A-17
GROUP A-2 POOLED CERTIFICATES
GE Capital Mortgage Services, Inc., REMIC GECAP 1994-11 100%
Multi-Class Pass-Through Certificates,
Series 1994-11, Class A 7
GE Capital Mortgage Services, Inc., REMIC GECAP 1994-11 100%
Multi-Class Pass Through Certificates,
Series 1994-11, Class A 8
GROUP A-3 POOLED CERTIFICATES
The Prudential Home Mortgage Securities PHMSC 1993-29 50.27%
Company, Inc., Mortgage Pass-Through
Certificates, Series 1993-29, Class A-14
The Prudential Home Mortgage Securities PHMSC 1993-29 50.27%
Company, Inc., Mortgage Pass-Through
Certificates, Series 1993-29, Class A-15
The Prudential Home Mortgage Securities PHMSC 1993-29 50.27%
Company, Inc., Mortgage Pass-Through
Certificates, Series 1993-29, Class A-16
GROUP A-4 POOLED CERTIFICATES
The Prudential Home Mortgage Securities PHMSC 1994-7 100
Company, Inc., Mortgage Pass-Through
Certificates, Series 1994-7, Class A-7
The Prudential Home Mortgage Securities PHMSC 1994-7 100%
GROUP A-5 POOLED CERTIFICATES
PNC Mortgage Securities Corp., Mortgage PNC 1993-12 92.51%
Pass-Through Certificates, Series 1993-
12, Class F-1
PNC Mortgage Securities Corp., Mortgage PNC 1993-12 92.51%
Pass-Through Certificates, Series 1993-
12, Class S-1
<PAGE>
Exhibits
[Forms of Certificates]
<PAGE>
EXHIBIT A
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST
IN, BEAR STEARNS MORTGAGE SECURITIES INC. OR THE TRUSTEE REFERRED TO BELOW OR
ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR INSURED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THE 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").
THIS CERTIFICATE WAS ISSUED ON MARCH 31, 1997.
THE CURRENT PRINCIPAL BALANCE 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 BALANCE 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.
PASS-THROUGH CERTIFICATES,
NO. A-1-1 SERIES 1997-2
EVIDENCING A BENEFICIAL INTEREST IN A TRUST
CONSISTING PRIMARILY OF THE POOLED CERTIFICATES (AS DEFINED IN THE AGREEMENT)
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP NO. 073914 UZ 4
CLASS : A-1
FIRST DISTRIBUTION DATE : APRIL 30, 1997 INITIAL PRINCIPAL AMOUNT
ASSUMED FINAL DISTRIBUTION DATE : APRIL 30, 2025 OF THIS CERTIFICATE
("DENOMINATION")
: $ 16,125,845
APPROXIMATE ORIGINAL CLASS
PRINCIPAL AMOUNT : $16,125,845
PASS-THROUGH RATE : 6.750%
THIS CERTIFIES THAT CEDE & CO.
IS THE REGISTERED OWNER OF THE PERCENTAGE 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 A PORTION OF ALL OR
A PORTION OF 5 SEPARATE GROUPS OF MORTGAGED-BACKED PASS- THROUGH CERTIFICATES
ISSUED IN DIFFERENT SERIES (THE "POOLED CERTIFICATES") SOLD BY BEAR STEARNS
MORTGAGE SECURITIES INC. ("BSMSI").. THE TRUST WAS CREATED PURSUANT TO THE
POOLING AGREEMENT DATED AS OF MARCH 1, 1997 (THE "AGREEMENT"), BETWEEN BSMSI, AS
DEPOSITOR, AND FIRST TRUST NATIONAL ASSOCIATION, 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 each calendar month
preceding the month in which a Distribution Date (as hereinafter defined) occurs
at a per annum rate equal to the Pass-Through Rate as set forth above.
Distributions of principal and interest on the Certificates with respect to a
month will be made on the day (each, a "Distribution Date") which is the third
Business Day after the last distribution date in such month with respect to any
class of Pooled Certificates (each, a "Pooled Certificate Distribution Date").
Each Pooled Certificate Distribution Date is the 25th day of each month or if
any such day is not a business day as defined in the applicable Underlying
Agreement, then the next succeeding business day as so defined, commencing on
the First Distribution Date specified above. Distributions will be made on each
Distribution Date to holders of record as of the close of business on the last
Business Day of the calendar month preceding the month in which such
Distribution Date occurs; provided that for this purpose the Distribution Date
is deemed to occur on the 28th of each month, without regard to whether such day
is a Business Day.
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 INITIAL CERTIFICATE BALANCE
OF NOT LESS THAN $1,000,000, BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS 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.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS CERTIFICATE TO BE DULY
EXECUTED.
DATED: MARCH 31, 1997 FIRST TRUST NATIONAL ASSOCIATION,
Not in its individual capacity but solely as Trustee
By:-----------------------------------------
Name:
Title: Vice President
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
AGREEMENT.
FIRST TRUST NATIONAL ASSOCIATION, AS CERTIFICATE REGISTRAR
By: ---------------------------
Name:
Title:
<PAGE>
BEAR STEARNS MORTGAGE SECURITIES INC.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1997-2
THIS CERTIFICATE IS ONE OF A DULY AUTHORIZED ISSUE OF CERTIFICATES
DESIGNATED AS SET FORTH ON THE FACE HEREOF (THE "CERTIFICATES"). 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 OF THE CERTIFICATEHOLDERS
UNDER THE AGREEMENT FROM TIME TO TIME BY THE DEPOSITOR AND THE TRUSTEE WITH THE
CONSENT OF THE HOLDERS OF CERTIFICATES EVIDENCING MORE THAN 50% OF THE AGGREGATE
CLASS BALANCE OF THE CERTIFICATES. 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 ST. PAUL, STATE OF MINNESOTA,
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 PRINCIPAL AMOUNT WILL
BE ISSUED TO THE DESIGNATED TRANSFEREE.
THE CERTIFICATES ARE ISSUABLE ONLY AS REGISTERED CERTIFICATES WITHOUT
COUPONS IN 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 OF THE SAME CLASS
AND EVIDENCING THE SAME AGGREGATE PERCENTAGE 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 CERTIFICATE REGISTRAR AND 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 CERTIFICATE REGISTRAR, THE
TRUSTEE NOR ANY SUCH AGENT SHALL BE AFFECTED BY NOTICE TO THE CONTRARY.
BEGINNING ON THE DISTRIBUTION DATE IN JANUARY 1998, HOLDERS OF A MINIMUM OF
10% OF THE OUTSTANDING PRINCIPAL AMOUNT OF THE CERTIFICATES WILL BE ENTITLED TO
EXCHANGE SUCH CERTIFICATES FOR A PRO RATA PORTION OF EACH OF THE POOLED
CERTIFICATES. HOLDERS OF CERTIFICATES TO BE EXCHANGED WILL BE CHARGED AN
EXCHANGE FEE BY THE TRUSTEE EQUAL TO THE GREATER OF (I) $500 AND (II) .02% OF
THE OUTSTANDING PRINCIPAL AMOUNT OF SUCH CERTIFICATES. HOLDERS WILL BE REQUIRED
TO PROVIDE THE TRUSTEE WITH IRREVOCABLE WRITTEN NOTICE AS PROVIDED IN THE
AGREEMENT, ACCOMPANIED BY THE EXCHANGE FEE, OF ANY PROPOSED EXCHANGE OF
CERTIFICATES AT LEAST FIVE BUSINESS DAYS PRIOR TO THE PROPOSED DATE OF SUCH
EXCHANGE, WHICH MUST BE A BUSINESS DAY.
THE OBLIGATIONS CREATED BY THE AGREEMENT AND THE TRUST CREATED THEREBY
(OTHER THAN THE OBLIGATIONS TO MAKE CERTAIN PAYMENTS AND SEND CERTAIN NOTICES TO
CERTIFICATEHOLDERS WITH RESPECT TO THE TERMINATION OF THE AGREEMENT) SHALL
TERMINATE UPON THE EARLIER OF (I) THE REPURCHASE BY OR AT THE DIRECTION OF THE
DEPOSITOR OF ALL POOLED CERTIFICATES; IF ANY, (II) THE PAYMENT (OR PROVISION FOR
PAYMENT) TO THE CERTIFICATEHOLDERS OF ALL AMOUNTS HELD BY OR ON BEHALF OF THE
TRUSTEE AND REQUIRED TO BE PAID TO THEM UNDER THE AGREEMENT ON THE FINAL
DISTRIBUTION DATE FOLLOWING RECEIPT OF THE FINAL DISTRIBUTION TO BE MADE ON THE
POOLED CERTIFICATES; OR (III) ONLY ONE OF THE POOLED CERTIFICATES REMAINS
ENTITLED TO PAYMENTS OF PRINCIPAL AND/OR INTEREST. 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 typewriter 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:
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 ----------------------------------------------------------
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
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC. OR THE TRUSTEE REFERRED TO BELOW OR ANY OF
THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
THE 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").
THIS CERTIFICATE WAS ISSUED ON MARCH 31, 1997.
THE CURRENT PRINCIPAL BALANCE 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 BALANCE 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.
PASS-THROUGH CERTIFICATES,
NO. A-2-1 SERIES 1997-2
EVIDENCING A BENEFICIAL INTEREST IN A TRUST
CONSISTING PRIMARILY OF THE POOLED CERTIFICATES (AS DEFINED IN THE AGREEMENT)
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP NO. 073914 VA 8
CLASS : A-2
FIRST DISTRIBUTION DATE : APRIL 30, 1997 INITIAL PRINCIPAL AMOUNT
ASSUMED FINAL DISTRIBUTION DATE : APRIL 30, 2024 OF THIS CERTIFICATE
("DENOMINATION")
: $ 16,629,916
APPROXIMATE ORIGINAL CLASS
PRINCIPAL AMOUNT : $16,629,916
PASS-THROUGH RATE : 6.500%
THIS CERTIFIES THAT CEDE & CO.
IS THE REGISTERED OWNER OF THE PERCENTAGE 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 A PORTION OF ALL OR
A PORTION OF 5 SEPARATE GROUPS OF MORTGAGED-BACKED PASS- THROUGH CERTIFICATES
ISSUED IN DIFFERENT SERIES (THE "POOLED CERTIFICATES") SOLD BY BEAR STEARNS
MORTGAGE SECURITIES INC. ("BSMSI").. THE TRUST WAS CREATED PURSUANT TO THE
POOLING AGREEMENT DATED AS OF MARCH 1, 1997 (THE "AGREEMENT"), BETWEEN BSMSI, AS
DEPOSITOR, AND FIRST TRUST NATIONAL ASSOCIATION, 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 each calendar month
preceding the month in which a Distribution Date (as hereinafter defined) occurs
at a per annum rate equal to the Pass-Through Rate as set forth above.
Distributions of principal and interest on the Certificates with respect to a
month will be made on the day (each, a "Distribution Date") which is the third
Business Day after the last distribution date in such month with respect to any
class of Pooled Certificates (each, a "Pooled Certificate Distribution Date").
Each Pooled Certificate Distribution Date is the 25th day of each month or if
any such day is not a business day as defined in the applicable Underlying
Agreement, then the next succeeding business day as so defined, commencing on
the First Distribution Date specified above. Distributions will be made on each
Distribution Date to holders of record as of the close of business on the last
Business Day of the calendar month preceding the month in which such
Distribution Date occurs; provided that for this purpose the Distribution Date
is deemed to occur on the 28th of each month, without regard to whether such day
is a Business Day.
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 INITIAL CERTIFICATE BALANCE
OF NOT LESS THAN $1,000,000, BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS 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.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS CERTIFICATE TO BE DULY
EXECUTED.
DATED: MARCH 31, 1997 FIRST TRUST NATIONAL ASSOCIATION,
Not in its individual capacity but solely as Trustee
By:---------------------------------------------
Name:
Title: Vice President
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
AGREEMENT.
FIRST TRUST NATIONAL ASSOCIATION, AS CERTIFICATE REGISTRAR
By: --------------------------------
Name:
Title:
<PAGE>
BEAR STEARNS MORTGAGE SECURITIES INC.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1997-2
THIS CERTIFICATE IS ONE OF A DULY AUTHORIZED ISSUE OF CERTIFICATES
DESIGNATED AS SET FORTH ON THE FACE HEREOF (THE "CERTIFICATES"). 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 OF THE CERTIFICATEHOLDERS
UNDER THE AGREEMENT FROM TIME TO TIME BY THE DEPOSITOR AND THE TRUSTEE WITH THE
CONSENT OF THE HOLDERS OF CERTIFICATES EVIDENCING MORE THAN 50% OF THE AGGREGATE
CLASS BALANCE OF THE CERTIFICATES. 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 ST. PAUL, STATE OF MINNESOTA,
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 PRINCIPAL AMOUNT WILL
BE ISSUED TO THE DESIGNATED TRANSFEREE.
THE CERTIFICATES ARE ISSUABLE ONLY AS REGISTERED CERTIFICATES WITHOUT
COUPONS IN 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 OF THE SAME CLASS
AND EVIDENCING THE SAME AGGREGATE PERCENTAGE 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 CERTIFICATE REGISTRAR AND 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 CERTIFICATE REGISTRAR, THE
TRUSTEE NOR ANY SUCH AGENT SHALL BE AFFECTED BY NOTICE TO THE CONTRARY.
BEGINNING ON THE DISTRIBUTION DATE IN JANUARY 1998, HOLDERS OF A MINIMUM OF
10% OF THE OUTSTANDING PRINCIPAL AMOUNT OF THE CERTIFICATES WILL BE ENTITLED TO
EXCHANGE SUCH CERTIFICATES FOR A PRO RATA PORTION OF EACH OF THE POOLED
CERTIFICATES. HOLDERS OF CERTIFICATES TO BE EXCHANGED WILL BE CHARGED AN
EXCHANGE FEE BY THE TRUSTEE EQUAL TO THE GREATER OF (I) $500 AND (II) .02% OF
THE OUTSTANDING PRINCIPAL AMOUNT OF SUCH CERTIFICATES. HOLDERS WILL BE REQUIRED
TO PROVIDE THE TRUSTEE WITH IRREVOCABLE WRITTEN NOTICE AS PROVIDED IN THE
AGREEMENT, ACCOMPANIED BY THE EXCHANGE FEE, OF ANY PROPOSED EXCHANGE OF
CERTIFICATES AT LEAST FIVE BUSINESS DAYS PRIOR TO THE PROPOSED DATE OF SUCH
EXCHANGE, WHICH MUST BE A BUSINESS DAY.
THE OBLIGATIONS CREATED BY THE AGREEMENT AND THE TRUST CREATED THEREBY
(OTHER THAN THE OBLIGATIONS TO MAKE CERTAIN PAYMENTS AND SEND CERTAIN NOTICES TO
CERTIFICATEHOLDERS WITH RESPECT TO THE TERMINATION OF THE AGREEMENT) SHALL
TERMINATE UPON THE EARLIER OF (I) THE REPURCHASE BY OR AT THE DIRECTION OF THE
DEPOSITOR OF ALL POOLED CERTIFICATES; IF ANY, (II) THE PAYMENT (OR PROVISION FOR
PAYMENT) TO THE CERTIFICATEHOLDERS OF ALL AMOUNTS HELD BY OR ON BEHALF OF THE
TRUSTEE AND REQUIRED TO BE PAID TO THEM UNDER THE AGREEMENT ON THE FINAL
DISTRIBUTION DATE FOLLOWING RECEIPT OF THE FINAL DISTRIBUTION TO BE MADE ON THE
POOLED CERTIFICATES; OR (III) ONLY ONE OF THE POOLED CERTIFICATES REMAINS
ENTITLED TO PAYMENTS OF PRINCIPAL AND/OR INTEREST. 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 typewriter 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:
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 ----------------------------------------------------------
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 C
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST
IN, BEAR STEARNS MORTGAGE SECURITIES INC. OR THE TRUSTEE REFERRED TO BELOW OR
ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR INSURED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THE 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").
THIS CERTIFICATE WAS ISSUED ON MARCH 31, 1997.
THE CURRENT PRINCIPAL BALANCE 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 BALANCE 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.
PASS-THROUGH CERTIFICATES,
NO. A-3-1 SERIES 1997-2
EVIDENCING A BENEFICIAL INTEREST IN A TRUST
CONSISTING PRIMARILY OF THE POOLED CERTIFICATES (AS DEFINED IN THE AGREEMENT)
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP NO. 073914 VB 6
CLASS : A-3
FIRST DISTRIBUTION DATE : APRIL 30, 1997 INITIAL PRINCIPAL AMOUNT
ASSUMED FINAL DISTRIBUTION DATE : AUGUST 28, 2008 OF THIS CERTIFICATE
("DENOMINATION")
: $ 17,681,374
APPROXIMATE ORIGINAL CLASS
PRINCIPAL AMOUNT : $17,681,374
PASS-THROUGH RATE : 6.750%
THIS CERTIFIES THAT CEDE & CO.
IS THE REGISTERED OWNER OF THE PERCENTAGE 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 A PORTION OF ALL OR
A PORTION OF 5 SEPARATE GROUPS OF MORTGAGED-BACKED PASS- THROUGH CERTIFICATES
ISSUED IN DIFFERENT SERIES (THE "POOLED CERTIFICATES") SOLD BY BEAR STEARNS
MORTGAGE SECURITIES INC. ("BSMSI").. THE TRUST WAS CREATED PURSUANT TO THE
POOLING AGREEMENT DATED AS OF MARCH 1, 1997 (THE "AGREEMENT"), BETWEEN BSMSI, AS
DEPOSITOR, AND FIRST TRUST NATIONAL ASSOCIATION, 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 each calendar month
preceding the month in which a Distribution Date (as hereinafter defined) occurs
at a per annum rate equal to the Pass-Through Rate as set forth above.
Distributions of principal and interest on the Certificates with respect to a
month will be made on the day (each, a "Distribution Date") which is the third
Business Day after the last distribution date in such month with respect to any
class of Pooled Certificates (each, a "Pooled Certificate Distribution Date").
Each Pooled Certificate Distribution Date is the 25th day of each month or if
any such day is not a business day as defined in the applicable Underlying
Agreement, then the next succeeding business day as so defined, commencing on
the First Distribution Date specified above. Distributions will be made on each
Distribution Date to holders of record as of the close of business on the last
Business Day of the calendar month preceding the month in which such
Distribution Date occurs; provided that for this purpose the Distribution Date
is deemed to occur on the 28th of each month, without regard to whether such day
is a Business Day.
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 INITIAL CERTIFICATE BALANCE
OF NOT LESS THAN $1,000,000, BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS 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.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS CERTIFICATE TO BE DULY
EXECUTED.
DATED: MARCH 31, 1997 FIRST TRUST NATIONAL ASSOCIATION,
Not in its individual capacity
but solely as Trustee
By:
---------------------------------
Name:
Title: Vice President
THIS IS ONE OF THE CLASS A-3 CERTIFICATES
REFERRED TO IN THE WITHIN-MENTIONED AGREEMENT.
FIRST TRUST NATIONAL ASSOCIATION, AS CERTIFICATE REGISTRAR
By:
-------------------------------------------------------
Name:
Title:
<PAGE>
BEAR STEARNS MORTGAGE SECURITIES INC.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1997-2
THIS CERTIFICATE IS ONE OF A DULY AUTHORIZED ISSUE OF CERTIFICATES
DESIGNATED AS SET FORTH ON THE FACE HEREOF (THE "CERTIFICATES"). 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 OF THE CERTIFICATEHOLDERS
UNDER THE AGREEMENT FROM TIME TO TIME BY THE DEPOSITOR AND THE TRUSTEE WITH THE
CONSENT OF THE HOLDERS OF CERTIFICATES EVIDENCING MORE THAN 50% OF THE AGGREGATE
CLASS BALANCE OF THE CERTIFICATES. 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 ST. PAUL, STATE OF
MINNESOTA, 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 PRINCIPAL
AMOUNT WILL BE ISSUED TO THE DESIGNATED TRANSFEREE.
THE CERTIFICATES ARE ISSUABLE ONLY AS REGISTERED CERTIFICATES WITHOUT
COUPONS IN 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 OF THE SAME CLASS
AND EVIDENCING THE SAME AGGREGATE PERCENTAGE 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 CERTIFICATE REGISTRAR AND 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 CERTIFICATE REGISTRAR, THE
TRUSTEE NOR ANY SUCH AGENT SHALL BE AFFECTED BY NOTICE TO THE CONTRARY.
BEGINNING ON THE DISTRIBUTION DATE IN JANUARY 1998, HOLDERS OF A
MINIMUM OF 10% OF THE OUTSTANDING PRINCIPAL AMOUNT OF THE CERTIFICATES WILL BE
ENTITLED TO EXCHANGE SUCH CERTIFICATES FOR A PRO RATA PORTION OF EACH OF THE
POOLED CERTIFICATES. HOLDERS OF CERTIFICATES TO BE EXCHANGED WILL BE CHARGED AN
EXCHANGE FEE BY THE TRUSTEE EQUAL TO THE GREATER OF (I) $500 AND (II) .02% OF
THE OUTSTANDING PRINCIPAL AMOUNT OF SUCH CERTIFICATES. HOLDERS WILL BE REQUIRED
TO PROVIDE THE TRUSTEE WITH IRREVOCABLE WRITTEN NOTICE AS PROVIDED IN THE
AGREEMENT, ACCOMPANIED BY THE EXCHANGE FEE, OF ANY PROPOSED EXCHANGE OF
CERTIFICATES AT LEAST FIVE BUSINESS DAYS PRIOR TO THE PROPOSED DATE OF SUCH
EXCHANGE, WHICH MUST BE A BUSINESS DAY.
THE OBLIGATIONS CREATED BY THE AGREEMENT AND THE TRUST CREATED THEREBY
(OTHER THAN THE OBLIGATIONS TO MAKE CERTAIN PAYMENTS AND SEND CERTAIN NOTICES TO
CERTIFICATEHOLDERS WITH RESPECT TO THE TERMINATION OF THE AGREEMENT) SHALL
TERMINATE UPON THE EARLIER OF (I) THE REPURCHASE BY OR AT THE DIRECTION OF THE
DEPOSITOR OF ALL POOLED CERTIFICATES; IF ANY, (II) THE PAYMENT (OR PROVISION FOR
PAYMENT) TO THE CERTIFICATEHOLDERS OF ALL AMOUNTS HELD BY OR ON BEHALF OF THE
TRUSTEE AND REQUIRED TO BE PAID TO THEM UNDER THE AGREEMENT ON THE FINAL
DISTRIBUTION DATE FOLLOWING RECEIPT OF THE FINAL DISTRIBUTION TO BE MADE ON THE
POOLED CERTIFICATES; OR (III) ONLY ONE OF THE POOLED CERTIFICATES REMAINS
ENTITLED TO PAYMENTS OF PRINCIPAL AND/OR INTEREST. 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 typewriter 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:
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 ----------------------------------------------------------
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 D
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST
IN, BEAR STEARNS MORTGAGE SECURITIES INC. OR THE TRUSTEE REFERRED TO BELOW OR
ANY OF THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR INSURED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THE 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").
THIS CERTIFICATE WAS ISSUED ON MARCH 31, 1997.
THE CURRENT PRINCIPAL BALANCE 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 BALANCE 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.
PASS-THROUGH CERTIFICATES,
NO. A-4-1 SERIES 1997-2
EVIDENCING A BENEFICIAL INTEREST IN A TRUST
CONSISTING PRIMARILY OF THE POOLED CERTIFICATES (AS DEFINED IN THE AGREEMENT)
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP NO. 073914 VC 4
CLASS : A-4
FIRST DISTRIBUTION
DATE : APRIL 30, 1997 INITIAL PRINCIPAL AMOUNT
ASSUMED FINAL
DISTRIBUTION DATE : MARCH 30, 2009 OF THIS CERTIFICATE
("DENOMINATION") : $ 16,668,278
APPROXIMATE
ORIGINAL CLASS
PRINCIPAL AMOUNT : $16,668,278
PASS-THROUGH RATE : 6.500%
THIS CERTIFIES THAT
CEDE & CO.
IS THE REGISTERED OWNER OF THE PERCENTAGE 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 A PORTION OF ALL OR
A PORTION OF 5 SEPARATE GROUPS OF MORTGAGED-BACKED PASS-THROUGH CERTIFICATES
ISSUED IN DIFFERENT SERIES (THE "POOLED CERTIFICATES") SOLD BY BEAR STEARNS
MORTGAGE SECURITIES INC. ("BSMSI").. THE TRUST WAS CREATED PURSUANT TO THE
POOLING AGREEMENT DATED AS OF MARCH 1, 1997 (THE "AGREEMENT"), BETWEEN BSMSI, AS
DEPOSITOR, AND FIRST TRUST NATIONAL ASSOCIATION, 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 each calendar month
preceding the month in which a Distribution Date (as hereinafter defined) occurs
at a per annum rate equal to the Pass-Through Rate as set forth above.
Distributions of principal and interest on the Certificates with respect to a
month will be made on the day (each, a "Distribution Date") which is the third
Business Day after the last distribution date in such month with respect to any
class of Pooled Certificates (each, a "Pooled Certificate Distribution Date").
Each Pooled Certificate Distribution Date is the 25th day of each month or if
any such day is not a business day as defined in the applicable Underlying
Agreement, then the next succeeding business day as so defined, commencing on
the First Distribution Date specified above. Distributions will be made on each
Distribution Date to holders of record as of the close of business on the last
Business Day of the calendar month preceding the month in which such
Distribution Date occurs; provided that for this purpose the Distribution Date
is deemed to occur on the 28th of each month, without regard to whether such day
is a Business Day.
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 INITIAL CERTIFICATE BALANCE
OF NOT LESS THAN $1,000,000, BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS 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.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS CERTIFICATE TO BE DULY
EXECUTED.
DATED: MARCH 31, 1997 FIRST TRUST NATIONAL ASSOCIATION,
Not in its individual capacity but solely as Trustee
By:
------------------------------------------------
Name:
Title: Vice President
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED
TO IN THE WITHIN-MENTIONED AGREEMENT.
FIRST TRUST NATIONAL ASSOCIATION, AS CERTIFICATE REGISTRAR
By:
---------------------------------------
Name:
Title:
<PAGE>
BEAR STEARNS MORTGAGE SECURITIES INC.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1997-2
THIS CERTIFICATE IS ONE OF A DULY AUTHORIZED ISSUE OF CERTIFICATES
DESIGNATED AS SET FORTH ON THE FACE HEREOF (THE "CERTIFICATES"). 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 OF THE CERTIFICATEHOLDERS
UNDER THE AGREEMENT FROM TIME TO TIME BY THE DEPOSITOR AND THE TRUSTEE WITH THE
CONSENT OF THE HOLDERS OF CERTIFICATES EVIDENCING MORE THAN 50% OF THE AGGREGATE
CLASS BALANCE OF THE CERTIFICATES. 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 ST. PAUL, STATE OF MINNESOTA,
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 PRINCIPAL AMOUNT WILL
BE ISSUED TO THE DESIGNATED TRANSFEREE.
THE CERTIFICATES ARE ISSUABLE ONLY AS REGISTERED CERTIFICATES WITHOUT
COUPONS IN 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 OF THE SAME CLASS
AND EVIDENCING THE SAME AGGREGATE PERCENTAGE 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 CERTIFICATE REGISTRAR AND 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 CERTIFICATE REGISTRAR, THE
TRUSTEE NOR ANY SUCH AGENT SHALL BE AFFECTED BY NOTICE TO THE CONTRARY.
BEGINNING ON THE DISTRIBUTION DATE IN JANUARY 1998, HOLDERS OF A MINIMUM OF
10% OF THE OUTSTANDING PRINCIPAL AMOUNT OF THE CERTIFICATES WILL BE ENTITLED TO
EXCHANGE SUCH CERTIFICATES FOR A PRO RATA PORTION OF EACH OF THE POOLED
CERTIFICATES. HOLDERS OF CERTIFICATES TO BE EXCHANGED WILL BE CHARGED AN
EXCHANGE FEE BY THE TRUSTEE EQUAL TO THE GREATER OF (I) $500 AND (II) .02% OF
THE OUTSTANDING PRINCIPAL AMOUNT OF SUCH CERTIFICATES. HOLDERS WILL BE REQUIRED
TO PROVIDE THE TRUSTEE WITH IRREVOCABLE WRITTEN NOTICE AS PROVIDED IN THE
AGREEMENT, ACCOMPANIED BY THE EXCHANGE FEE, OF ANY PROPOSED EXCHANGE OF
CERTIFICATES AT LEAST FIVE BUSINESS DAYS PRIOR TO THE PROPOSED DATE OF SUCH
EXCHANGE, WHICH MUST BE A BUSINESS DAY.
THE OBLIGATIONS CREATED BY THE AGREEMENT AND THE TRUST CREATED THEREBY
(OTHER THAN THE OBLIGATIONS TO MAKE CERTAIN PAYMENTS AND SEND CERTAIN NOTICES TO
CERTIFICATEHOLDERS WITH RESPECT TO THE TERMINATION OF THE AGREEMENT) SHALL
TERMINATE UPON THE EARLIER OF (I) THE REPURCHASE BY OR AT THE DIRECTION OF THE
DEPOSITOR OF ALL POOLED CERTIFICATES; IF ANY, (II) THE PAYMENT (OR PROVISION FOR
PAYMENT) TO THE CERTIFICATEHOLDERS OF ALL AMOUNTS HELD BY OR ON BEHALF OF THE
TRUSTEE AND REQUIRED TO BE PAID TO THEM UNDER THE AGREEMENT ON THE FINAL
DISTRIBUTION DATE FOLLOWING RECEIPT OF THE FINAL DISTRIBUTION TO BE MADE ON THE
POOLED CERTIFICATES; OR (III) ONLY ONE OF THE POOLED CERTIFICATES REMAINS
ENTITLED TO PAYMENTS OF PRINCIPAL AND/OR INTEREST. 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 typewriter 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:
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 ----------------------------------------------------------
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 E
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC. OR THE TRUSTEE REFERRED TO BELOW OR ANY OF
THEIR RESPECTIVE AFFILIATES AND IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
THE 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").
THIS CERTIFICATE WAS ISSUED ON MARCH 31, 1997.
THE CURRENT PRINCIPAL BALANCE 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 BALANCE 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.
PASS-THROUGH CERTIFICATES,
NO. A-5-1 SERIES 1997-2
EVIDENCING A BENEFICIAL INTEREST IN A TRUST
CONSISTING PRIMARILY OF THE POOLED CERTIFICATES (AS DEFINED IN THE AGREEMENT)
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP NO. 073914 VD 2
CLASS : A-5
FIRST DISTRIBUTION
DATE : APRIL 30, 1997 INITIAL PRINCIPAL AMOUNT
ASSUMED FINAL OF THIS CERTIFICATE
DISTRIBUTION ("DENOMINATION")
DATE : JANUARY 30, 2024
: $ 15,195,964
APPROXIMATE
ORIGINAL CLASS
PRINCIPAL AMOUNT : $15,195,694
PASS-THROUGH RATE : 6.875%
THIS CERTIFIES THAT CEDE & CO.
IS THE REGISTERED OWNER OF THE PERCENTAGE 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 A PORTION OF ALL OR
A PORTION OF 5 SEPARATE GROUPS OF MORTGAGED-BACKED PASS- THROUGH CERTIFICATES
ISSUED IN DIFFERENT SERIES (THE "POOLED CERTIFICATES") SOLD BY BEAR STEARNS
MORTGAGE SECURITIES INC. ("BSMSI").. THE TRUST WAS CREATED PURSUANT TO THE
POOLING AGREEMENT DATED AS OF MARCH 1, 1997 (THE "AGREEMENT"), BETWEEN BSMSI, AS
DEPOSITOR, AND FIRST TRUST NATIONAL ASSOCIATION, 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 each calendar month
preceding the month in which a Distribution Date (as hereinafter defined) occurs
at a per annum rate equal to the Pass-Through Rate as set forth above.
Distributions of principal and interest on the Certificates with respect to a
month will be made on the day (each, a "Distribution Date") which is the third
Business Day after the last distribution date in such month with respect to any
class of Pooled Certificates (each, a "Pooled Certificate Distribution Date").
Each Pooled Certificate Distribution Date is the 25th day of each month or if
any such day is not a business day as defined in the applicable Underlying
Agreement, then the next succeeding business day as so defined, commencing on
the First Distribution Date specified above. Distributions will be made on each
Distribution Date to holders of record as of the close of business on the last
Business Day of the calendar month preceding the month in which such
Distribution Date occurs; provided that for this purpose the Distribution Date
is deemed to occur on the 28th of each month, without regard to whether such day
is a Business Day.
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 INITIAL CERTIFICATE BALANCE
OF NOT LESS THAN $1,000,000, BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS 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.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS CERTIFICATE TO BE DULY
EXECUTED.
DATED: MARCH 31, 1997 FIRST TRUST NATIONAL ASSOCIATION,
Not in its individual capacity but solely
as Trustee
By:
--------------------------------------
Name:
Title: Vice President
THIS IS ONE OF THE CLASS A-5 CERTIFICATES
REFERRED TO IN THE WITHIN-MENTIONED
AGREEMENT.
FIRST TRUST NATIONAL ASSOCIATION, AS CERTIFICATE REGISTRAR
By:
--------------------------------------------
Name:
Title:
<PAGE>
BEAR STEARNS MORTGAGE SECURITIES INC.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1997-2
THIS CERTIFICATE IS ONE OF A DULY AUTHORIZED ISSUE OF CERTIFICATES
DESIGNATED AS SET FORTH ON THE FACE HEREOF (THE "CERTIFICATES"). 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 OF THE CERTIFICATEHOLDERS
UNDER THE AGREEMENT FROM TIME TO TIME BY THE DEPOSITOR AND THE TRUSTEE WITH THE
CONSENT OF THE HOLDERS OF CERTIFICATES EVIDENCING MORE THAN 50% OF THE AGGREGATE
CLASS BALANCE OF THE CERTIFICATES. 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 ST. PAUL, STATE OF MINNESOTA,
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 PRINCIPAL AMOUNT WILL
BE ISSUED TO THE DESIGNATED TRANSFEREE.
THE CERTIFICATES ARE ISSUABLE ONLY AS REGISTERED CERTIFICATES WITHOUT
COUPONS IN 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 OF THE SAME CLASS
AND EVIDENCING THE SAME AGGREGATE PERCENTAGE 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 CERTIFICATE REGISTRAR AND 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 CERTIFICATE REGISTRAR, THE
TRUSTEE NOR ANY SUCH AGENT SHALL BE AFFECTED BY NOTICE TO THE CONTRARY.
BEGINNING ON THE DISTRIBUTION DATE IN JANUARY 1998, HOLDERS OF A MINIMUM OF
10% OF THE OUTSTANDING PRINCIPAL AMOUNT OF THE CERTIFICATES WILL BE ENTITLED TO
EXCHANGE SUCH CERTIFICATES FOR A PRO RATA PORTION OF EACH OF THE POOLED
CERTIFICATES. HOLDERS OF CERTIFICATES TO BE EXCHANGED WILL BE CHARGED AN
EXCHANGE FEE BY THE TRUSTEE EQUAL TO THE GREATER OF (I) $500 AND (II) .02% OF
THE OUTSTANDING PRINCIPAL AMOUNT OF SUCH CERTIFICATES. HOLDERS WILL BE REQUIRED
TO PROVIDE THE TRUSTEE WITH IRREVOCABLE WRITTEN NOTICE AS PROVIDED IN THE
AGREEMENT, ACCOMPANIED BY THE EXCHANGE FEE, OF ANY PROPOSED EXCHANGE OF
CERTIFICATES AT LEAST FIVE BUSINESS DAYS PRIOR TO THE PROPOSED DATE OF SUCH
EXCHANGE, WHICH MUST BE A BUSINESS DAY.
THE OBLIGATIONS CREATED BY THE AGREEMENT AND THE TRUST CREATED THEREBY
(OTHER THAN THE OBLIGATIONS TO MAKE CERTAIN PAYMENTS AND SEND CERTAIN NOTICES TO
CERTIFICATEHOLDERS WITH RESPECT TO THE TERMINATION OF THE AGREEMENT) SHALL
TERMINATE UPON THE EARLIER OF (I) THE REPURCHASE BY OR AT THE DIRECTION OF THE
DEPOSITOR OF ALL POOLED CERTIFICATES; IF ANY, (II) THE PAYMENT (OR PROVISION FOR
PAYMENT) TO THE CERTIFICATEHOLDERS OF ALL AMOUNTS HELD BY OR ON BEHALF OF THE
TRUSTEE AND REQUIRED TO BE PAID TO THEM UNDER THE AGREEMENT ON THE FINAL
DISTRIBUTION DATE FOLLOWING RECEIPT OF THE FINAL DISTRIBUTION TO BE MADE ON THE
POOLED CERTIFICATES; OR (III) ONLY ONE OF THE POOLED CERTIFICATES REMAINS
ENTITLED TO PAYMENTS OF PRINCIPAL AND/OR INTEREST. 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 typewriter 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:
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 ----------------------------------------------------------
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 F
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR STEARNS MORTGAGE SECURITIES INC. 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 "REMIC I" 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 FIRST TRUST
NATIONAL ASSOCIATION, 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.
PASS-THROUGH CERTIFICATE,
NO. R-1 SERIES 1997-2
EVIDENCING A BENEFICIAL INTEREST IN A TRUST
CONSISTING PRIMARILY OF THE POOLED CERTIFICATES
(AS DEFINED IN THE AGREEMENT) SOLD BY
BEAR STEARNS MORTGAGE SECURITIES INC.
CUSIP NO. 073914 SK 0
CLASS : R-1
FIRST DISTRIBUTION DATE : APRIL 30, 1997 INITIAL PRINCIPAL AMOUNT
ASSUMED FINAL OF THIS CERTIFICATE
DISTRIBUTION DATE : APRIL 30, 2025 ("DENOMINATION") : $100.00
APPROXIMATE ORIGINAL
CLASS
PRINCIPAL AMOUNT : $100.00
PASS-THROUGH RATE : 6.50%
THIS CERTIFIES THAT
BEAR STEARNS SECURITIES CORP.
is the registered owner of the Percentage 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 all or a portion of
5 separate groups of mortgaged-backed pass-through certificates issued in
different series (the "Pooled Certificates") sold by Bear Stearns Mortgage
Securities Inc. ("BSMSI"). The Trust was created pursuant to the Pooling
Agreement dated as of March 1, 1997 (the "Agreement"), between BSMSI, as
depositor, and First Trust National Association, as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth
hereinafter. 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 each calendar month
preceding the month in which a Distribution Date (as hereinafter defined) occurs
at a per annum rate equal to the Pass-Through Rate as set forth above.
Distributions of principal and interest on the Certificates with respect to a
month will be made on the day (each, a "Distribution Date") which is the third
Business Day after the last distribution date in such month with respect to any
class of Pooled Certificates (each, a "Pooled Certificate Distribution Date").
Each Pooled Certificate Distribution Date is the 25th day of each month or if
any such day is not a business day as defined in the applicable Underlying
Agreement, then the next succeeding business day as so defined, commencing on
the First Distribution Date specified above. Distributions will be made on each
Distribution Date to holders of record as of the close of business on the last
Business Day of the calendar month preceding the month in which such
Distribution Date occurs; provided that for this purpose the Distribution Date
is deemed to occur on the 28th of each month, without regard to whether such day
is a Business Day. Following payment in full of a Class of Certificates (other
than the Class R Certificates), any amounts remaining in the related sub-account
of the Certificate Account (other than investment income) shall be paid to the
Class R Certificateholders.
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 initial Class Balance of not
less than $1,000,000, by wire transfer in immediately available funds 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.
IN WITNESS WHEREOF, THE TRUSTEE HAS CAUSED THIS CERTIFICATE TO BE DULY
EXECUTED.
DATED: MARCH 31, 1997 FIRST TRUST NATIONAL ASSOCIATION,
Not in its individual capacity but solely
as Trustee
By:
----------------------------------------
Name:
Title: Vice President
THIS IS ONE OF THE CLASS R CERTIFICATES
REFERRED TO IN THE WITHIN-MENTIONED AGREEMENT.
FIRST TRUST NATIONAL ASSOCIATION, AS CERTIFICATE REGISTRAR
By:
----------------------------------------
Name:
Title:
<PAGE>
BEAR STEARNS MORTGAGE SECURITIES INC.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1997-2
THIS CERTIFICATE IS ONE OF A DULY AUTHORIZED ISSUE OF CERTIFICATES
DESIGNATED AS SET FORTH ON THE FACE HEREOF (THE "CERTIFICATES"). 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 OF THE CERTIFICATEHOLDERS
UNDER THE AGREEMENT FROM TIME TO TIME BY THE DEPOSITOR AND THE TRUSTEE WITH THE
CONSENT OF THE HOLDERS OF CERTIFICATES EVIDENCING MORE THAN 50% OF THE AGGREGATE
CLASS BALANCE OF THE CERTIFICATES. 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 ST. PAUL, STATE OF MINNESOTA,
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 PRINCIPAL AMOUNT WILL
BE ISSUED TO THE DESIGNATED TRANSFEREE.
THE CERTIFICATES ARE ISSUABLE ONLY AS REGISTERED CERTIFICATES WITHOUT
COUPONS IN 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 OF THE SAME CLASS
AND EVIDENCING THE SAME AGGREGATE PERCENTAGE 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 CERTIFICATE REGISTRAR AND 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 CERTIFICATE REGISTRAR, THE
TRUSTEE NOR ANY SUCH AGENT SHALL BE AFFECTED BY NOTICE TO THE CONTRARY.
BEGINNING ON THE DISTRIBUTION DATE IN JANUARY 1998, HOLDERS OF A MINIMUM OF
10% OF THE OUTSTANDING PRINCIPAL AMOUNT OF THE CERTIFICATES WILL BE ENTITLED TO
EXCHANGE SUCH CERTIFICATES FOR A PRO RATA PORTION OF EACH OF THE POOLED
CERTIFICATES. HOLDERS OF CERTIFICATES TO BE EXCHANGED WILL BE CHARGED AN
EXCHANGE FEE BY THE TRUSTEE EQUAL TO THE GREATER OF (I) $500 AND (II) .02% OF
THE OUTSTANDING PRINCIPAL AMOUNT OF SUCH CERTIFICATES. HOLDERS WILL BE REQUIRED
TO PROVIDE THE TRUSTEE WITH IRREVOCABLE WRITTEN NOTICE AS PROVIDED IN THE
AGREEMENT, ACCOMPANIED BY THE EXCHANGE FEE, OF ANY PROPOSED EXCHANGE OF
CERTIFICATES AT LEAST FIVE BUSINESS DAYS PRIOR TO THE PROPOSED DATE OF SUCH
EXCHANGE, WHICH MUST BE A BUSINESS DAY.
THE OBLIGATIONS CREATED BY THE AGREEMENT AND THE TRUST CREATED THEREBY
(OTHER THAN THE OBLIGATIONS TO MAKE CERTAIN PAYMENTS AND SEND CERTAIN NOTICES TO
CERTIFICATEHOLDERS WITH RESPECT TO THE TERMINATION OF THE AGREEMENT) SHALL
TERMINATE UPON THE EARLIER OF (I) THE REPURCHASE BY OR AT THE DIRECTION OF THE
DEPOSITOR OF ALL POOLED CERTIFICATES; IF ANY, (II) THE PAYMENT (OR PROVISION FOR
PAYMENT) TO THE CERTIFICATEHOLDERS OF ALL AMOUNTS HELD BY OR ON BEHALF OF THE
TRUSTEE AND REQUIRED TO BE PAID TO THEM UNDER THE AGREEMENT ON THE FINAL
DISTRIBUTION DATE FOLLOWING RECEIPT OF THE FINAL DISTRIBUTION TO BE MADE ON THE
POOLED CERTIFICATES; OR (III) ONLY ONE OF THE POOLED CERTIFICATES REMAINS
ENTITLED TO PAYMENTS OF PRINCIPAL AND/OR INTEREST. 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 typewriter 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:
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 ----------------------------------------------------------
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.
