EXHIBIT 4.1
Execution Copy
BEAR XXXXXXX MORTGAGE SECURITIES INC.,
Seller
and
THE BANK OF NEW YORK,
Trustee
--------------------------------
POOLING AGREEMENT
Dated as of March 1, 1998
--------------------------------
$515,964,267.00
Bear Xxxxxxx Mortgage Securities Inc.
Pass-Through Certificates
Series 1998-2
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.................................................1
ARTICLE II
CONVEYANCE OF THE POOLED SECURITIES; 18
Section 2.01. Conveyance of the Pooled Securities..........................18
Section 2.02. Acceptance of Trust by Trustee; Initial Issuance of
Certificates ................................................20
Section 2.03. Representations and Warranties of the Seller and
the Trustee .................................................21
Section 2.03A. Assignment of Interest in Transfer Agreement; Cure or
Repurchase Obligations ......................................23
Section 2.04. Substitution of Pooled Securities............................24
ARTICLE III
ADMINISTRATION OF THE POOLED SECURITIES;
PAYMENTS AND REPORTS TO
CERTIFICATEHOLDERS
Section 3.01. Administration of the Trust and the Pooled Securities........25
Section 3.02. Collection of Monies.........................................25
Section 3.03. Establishment of the Accounts; Deposits Therein..............26
Section 3.04. Permitted Withdrawals From the Accounts......................27
Section 3.05. Distributions................................................28
Section 3.06. Statements to Certificateholders.............................31
Section 3.07. Access to Certain Documentation and Information..............34
Section 3.08. Calculation of Amounts to be Distributed.....................35
Section 3.09. REMIC-Related Covenants......................................35
Section 3.10. Allocation of Realized Losses................................35
ARTICLE IV
THE CERTIFICATES
Section 4.01. The Certificates.............................................35
Section 4.02. Registration of Transfer and Exchange of Certificates........40
Section 4.03. Mutilated, Destroyed, Lost or Stolen Certificates............45
Section 4.04. Persons Deemed Owners........................................45
Section 4.05. Transfer Restrictions on Residual Certificates...............45
Section 4.06. Restrictions on Transferability of Private Certificates......47
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Section 4.07. ERISA Restrictions...........................................47
Section 4.08. Rule 144A Information........................................48
ARTICLE V
THE TRUSTEE
Section 5.01. Duties of Trustee............................................49
Section 5.02. Federal Information Returns and Reports to
Certificateholders ..........................................50
Section 5.03. Certain Matters Affecting the Trustee........................51
Section 5.04. Trustee Not Liable for Certificates or Pooled Securities.....52
Section 5.05. Trustee May Own Certificates.................................52
Section 5.06. Trustee's Fees; Indemnification of the Trustee...............53
Section 5.07. Eligibility Requirements for Trustee.........................53
Section 5.08. Resignation and Removal of the Trustee.......................54
Section 5.09. Successor Trustee............................................54
Section 5.10. Merger or Consolidation of Trustee...........................55
Section 5.11. Appointment of Co-Trustee or Separate Trustee................55
ARTICLE VI
THE SELLER
Section 6.01. Liability of the Seller......................................56
Section 6.02. Merger, Consolidation or Conversion of the Seller............56
Section 6.03. Limitation on Liability of the Seller and Others.............57
ARTICLE VII
TERMINATION
Section 7.01. Termination..................................................57
Section 7.02. Additional Termination Requirements..........................59
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment....................................................60
Section 8.02. Counterparts.................................................62
Section 8.03. Limitation on Rights of Certificateholders...................62
Section 8.04. Governing Law................................................62
Section 8.05. Notices......................................................63
Section 8.06. Severability of Provisions...................................63
Section 8.07. Successors and Assigns.......................................63
Section 8.08. Article and Section Headings.................................63
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Section 8.09. Notices to Rating Agency.....................................63
Section 8.10. Intent of Parties............................................64
Section 8.11. Acts of Certificateholders...................................64
Schedule A - Pooled Securities
Exhibit A - Form of Class A Certificate
Exhibit B - Form of Class B Certificate
Exhibit C - Form of Class C Certificate
Exhibit D - Form of Class D Certificate
Exhibit E - Form of Class E Certificate
Exhibit F - Form of Class F Certificate
Exhibit G - Form of Class G Certificate
Exhibit H - Form of Class H Certificate
Exhibit I - Form of Class PO Certificate
Exhibit J - Form of Class X Certificate
Exhibit K - Form of Class R-1 Certificate
Exhibit L - Form of Class R-2 Certificate
Exhibit M - Form of Class R-1 or Class R-2 Purchaser Affidavit
Exhibit N-1 - Form of Investment Letter
Exhibit N-2 - Form of Rule 144A Certificate
Exhibit O - Representations and Warranties of the Companies
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POOLING AGREEMENT, dated as of March 1, 1998 by and between Bear
Xxxxxxx Mortgage Securities Inc., as seller (the "Seller"), and The Bank of New
York, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Seller intends to cause the issuance of and to sell its
Pass-Through Certificates, Series 1998-2 (the "Certificates") representing in
the aggregate the entire beneficial ownership of a trust fund (the "Trust"), the
primary assets of which are the Pooled Securities (defined
herein).
All things necessary to make this Agreement a valid declaration of
trust by the Seller in accordance with its terms have been done.
An election will be made to treat the assets constituting REMIC II
as a "real estate mortgage investment conduit" ("REMIC") for federal income tax
purposes. On March 30, 1998 (the "Startup Day"), each Class of REMIC II Regular
Certificates will be designated a "regular interest" in a REMIC and the Class
R-2 Certificate will represent the "residual interest" in REMIC II.
An election will be made to treat the assets constituting REMIC I to
be treated as a REMIC for federal income tax purposes. On the Startup Date, all
classes of Certificates (other than the Class R-1 and Class R-2 Certificates)
will be designated "regular interests" in REMIC I. The Class R-1 Certificate
will be designated the "residual interest" in REMIC I.
In consideration of the premises and the mutual agreements herein
contained, the Seller 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, the Accrued Interest Account and
the Payment Reserve Account.
Accrued Interest 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(c). Funds deposited
in the Accrued Interest Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in Article III hereof.
Accrued Interest Reimbursement Amount: With respect to the May 4,
1998 Distribution Date, an amount equal to the sum of (i) with respect to each
Class of Certificates other than the Class X and Class PO Certificates, the
excess of (x) 26 days of interest at 6.75% per annum on the Original Certificate
Principal Balance thereof over (y) 26 days of interest at the Certificate Rate
for such Classes of Certificates in effect for the May 4, 1998 Distribution Date
on the Certificate Principal Balance of such Classes of Certificates following
the April 1, 1998 Distribution Date, or if there is one, the April 8, 1998
Supplemental Distribution Date and (ii) with respect to the Class X
Certificates, the excess of (x) 26 days of interest at 0.49% per annum on the
original Notional Amount thereof over (y) 26 days of interest at the Certificate
Rate for such Class of Certificates in effect for the May 4, 1998 Distribution
Date on the Notional Amount of such Class of Certificates following the April 1,
1998 Distribution Date, or if there is one, the April 8, 1998 Supplemental
Distribution Date.
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 Securityholder, and the other holders
of the related Underlying Series, all in accordance with the related Underlying
Agreements.
Additional Principal: With respect to any Distribution Date or
Supplemental Distribution Date, an amount equal to the Loss Amount for such
Distribution Date or Supplemental Distribution Date, as applicable.
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 or Supplemental
Distribution Date, the sum of (i) the aggregate amount on deposit in the
Certificate Account for which the Pooled Security distribution and the related
Pooled Security Distribution Date Information have been received by the Trustee
by the related Determination Time, (ii) with respect to the May 4, 1998
Distribution Date, the Accrued Interest Reimbursement Amount, (iii) with respect
to the April 1, 1998 and May 4, 1998 Distribution Dates and any related
Supplemental Distribution Date, the applicable Payment Transfer Amount and (iv)
investment income earned on amounts on deposit in the Accounts through the
Distribution Date or Supplemental Distribution Date, as applicable.
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Book-Entry Certificate: Initially each Certificate other than a
Class H, Class PO, Class R-1 or Class R-2 Certificate.
Business Day: Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, 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 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 L, 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 the portion of the investment income thereon constituting
the Trustee Fee).
Certificate Owner: Any Person who is the beneficial owner of a
Certificate registered in the name of the Depository or its nominee.
Certificate Principal Balance: With respect to any Class of
Certificates (other than the Class X Certificates), the aggregate principal
amount of Certificates of such Class outstanding as of any date of
determination, which is equal to the Original Certificate Principal 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)
other than with respect to the Class PO Certificates, any Loss Amounts allocated
to such Class of Certificates on or prior to the immediately preceding
Distribution Date or Supplemental Distribution Date, as applicable.
Notwithstanding the foregoing, solely for purposes of giving consents,
directions, waivers, approvals, requests and notices, each Class of Residual
Certificates after the Distribution Date or Supplemental Distribution Date, as
applicable on which it receives the distribution of the last dollar of its
original principal amount shall be deemed to have a Certificate Principal
Balance equal to its Certificate Principal Balance on the day immediately
preceding such Distribution Date or Supplemental Distribution Date, as
applicable.
Certificate Rate: As to each Class of Certificates, the rate of
interest set forth in Section 4.01(d). Any monthly calculations of interest at a
stated rate shall be based upon annual interest at such rate divided by 12.
Certificate Registrar and Certificate Register: Shall each have the
meanings provided in Section 4.02.
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Certificateholder or Holder: As to the Certificates, the person in
whose name a Certificate is registered in the Certificate Register, except that,
subject to subsections 8.01(b) and 8.11(e), solely for the purpose of giving any
consent, approval or waiver pursuant to this Agreement, any Certificate
registered in the name of the Seller 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 Deferred Principal: For each Class of Certificates, other than
the Class X and Class PO Certificates, immediately following any Distribution
Date or Supplemental Distribution Date, as applicable, an amount equal to the
excess of (i) the applicable Class Optimal Principal for such Distribution Date
or Supplemental Distribution Date for such Class of Certificates over (ii) the
principal paid to such Class of Certificates on such Distribution Date or
Supplemental Distribution Date.
Class Optimal Principal: With respect to each Class of Certificates,
other than the Class X and Class PO Certificates, and a Distribution Date or
Supplemental Distribution Date, an amount equal to the sum of (i) the applicable
Class Percentage Principal, (ii) Additional Principal, if any, to be paid to
such Class and (iii) the applicable Class Deferred Principal immediately
following the prior Distribution Date (or in the case of the first Distribution
Date, the Closing Date) or Supplemental Distribution Date, if any, as
applicable.
Class Percentage Principal: With respect to each Class of
Certificates (other than the Class X and Class PO Certificates) and each
Distribution Date or Supplemental Distribution Date, as applicable, such Class'
pro rata share based upon its respective Certificate Principal Balance
immediately prior to the applicable Distribution Date, of the lesser of (i)
principal collections on the Pooled Securities for which both the Pooled
Security distribution (including for this purpose for the April 1, 1998 and May
4, 1998 Distribution Dates and related Supplemental Distribution Dates, if any,
any Payment Transfer Amounts) and the related Pooled Security Distribution Date
Information have been received by the Trustee by the applicable Determination
Time and (ii) the excess of (x) the aggregate Pooled Security Principal Balance
of such Pooled Securities immediately following the second preceding Pooled
Security Distribution Dates over (y) the aggregate Pooled Security Principal
Balance of such Pooled Securities immediately following the immediately
preceding Pooled Security Distribution Dates exclusive in the case of clause
(ii) and a Supplemental Distribution Date of any Pooled Securities, the
distributions on which were included in the distribution made on the immediately
preceding related Distribution Date; provided that if either the Pooled Security
distribution or the related Pooled Security Distribution Date Information have
not been received by the immediately following Supplemental Distribution Date,
the amount in clause (x) will be as of immediately following the third preceding
Pooled Security Distribution Date for such Pooled Security.
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Class PO Principal Distribution: With respect to each Distribution
Date or Supplemental Distribution Date, an amount equal to (i) principal
collections on the Pooled Securities for which both the Pooled Security
distribution (including for this purpose for the April 1, 1998 and May 4, 1998
Distribution Dates and related Supplemental Distribution Dates, if any, any
Payment Transfer Amounts) and the related Pooled Security Distribution Date
Information have been received by the Trustee by the applicable Determination
Time minus (ii) the Principal Distribution Amount for such Distribution Date or
Supplemental Distribution Date, as applicable; provided that, if there may be a
Supplemental Distribution Date, the Class PO Principal Distribution on the
related Distribution Date shall be zero and the Class PO Principal Distribution
on the related Supplemental Distribution Date shall be calculated on an
aggregate basis, taking account of principal collections and the Principal
Distribution Amounts with respect to both the Distribution Date and the
Supplemental Distribution Date, irrespective of when the Pooled Security
distributions or Pooled Security Distribution Date Information was received.
Closing Date: March 30, 1998.
Code: The Internal Revenue Code of 1986, as amended.
Companies: SunAmerica Inc., SunAmerica Life Insurance Company,
Anchor National Life Insurance Company and CalAmerica Life Insurance Company,
the entities which sold the Pooled Securities to the Seller pursuant to the
Transfer Agreement.
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 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Mortgage Backed Securities, telephone no. (000) 000-0000, facsimile
no. (000) 000-0000.
Deleted Pooled Security: A Pooled Security replaced by a Substitute
Pooled Security.
Deliver or Delivery: When used with respect to a Pooled Security or
Substitute Pooled Security means:
(a) with respect to a certificated security delivery thereof in
registered form to the Trustee and:
(i) endorsed to the Trustee or in blank by effective
endorsement; or
(ii) registered in the name of the Trustee;
(b) with respect to an uncertificated security:
(i) the delivery of the uncertificated security to the
Trustee; or
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(ii) the issuer has agreed that it will comply with
instructions originated by the Trustee without further consent by
the registered owner;
(c) with respect to any security issued by the U.S. Treasury, FHLMC
or FNMA that is a book-entry security held through the Federal Reserve System
pursuant to Federal book-entry regulations:
(i) a Federal Reserve Bank by book entry credits the
book-entry security to the securities account (as defined in 31 CFR
Part 357) of a participant (as defined in 31 CFR Part 357) which is
also a securities intermediary; and
(ii) the participant indicates by book entry that the
book-entry security has been credited to the Trustee's securities
account;
(d) with respect to a security entitlement:
(i) the Trustee becomes the entitlement holder; or
(ii) the securities intermediary has agreed that it will
comply with entitlement orders originated by the Trustee without
further consent by the entitlement holder;
(e) for the purpose of clauses (a) and (b) hereof "delivery" means:
(i) with respect to a certificated security:
(A) the Trustee acquires possession thereof;
(B) another person (other than a securities
intermediary) either acquires possession thereof on behalf of the
Trustee or, having previously acquired possession thereof,
acknowledges that it holds for the Trustee; or
(C) a securities intermediary acting on behalf of the
Trustee acquires possession thereof, only if the certificate is in
registered form and has been specially endorsed to the Trustee by an
effective endorsement;
(ii) with respect to an uncertificated security:
(A) the issuer registers the Trustee as the registered
owner, upon original issue or registration of transfer; or
(B) another person (other than a securities
intermediary) either becomes the registered owner thereof on behalf
of the Trustee or, having previously become the registered owner,
acknowledges that it holds for the Trustee;
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(f) for purposes of this definition, except as otherwise indicated,
the following terms shall have the meaning assigned to each such term in the
UCC:
(i) "certificated security"
(ii) "effective endorsement"
(iii) "entitlement holder"
(iv) "securities account"
(v) "securities entitlement"
(vi) "securities intermediary"
(vii) "uncertificated security"
(g) in each case of Delivery contemplated herein, the Trustee shall
make appropriate notations on its records, and shall cause the same to be made
on the records of its nominees, indicating that securities are held in trust
pursuant to and as provided in this Agreement.
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 Security, 3:00 p.m. on
the Business Day preceding a Distribution Date or Supplemental Distribution
Date, as applicable.
Distribution Date: With respect to any month, the Distribution Date
shall be the fifth Business Day after the 25th day (or if the 25th is not a
Business Day, the following Business Day) of each month, commencing April 1,
1998. Notwithstanding the foregoing, for certain purposes as provided herein,
each Distribution Date shall be deemed to occur in the same month as the
immediately preceding Pooled Security Distribution Date (assuming for purposes
of calculating the immediately preceding Pooled Security Distribution Date that
all calendar days are business days).
DTC: The Depository Trust Company.
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DTC Custodian: The Bank of New York, or its successors in interest
as custodian for the Depository.
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 P-1 by Moody's (or
comparable rating if Xxxxx'x is not the 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 ss.
9.10(b).
ERISA: The Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder.
FHLMC: Xxxxxxx Mac or its successors.
Final Distribution Date: With respect to the Pooled Securities or a
Class of Certificates or all of the Certificates, as applicable, the Pooled
Security Distribution Date or the Distribution Date (or Supplemental
Distribution Date), as applicable, on which the final distribution on the Pooled
Securities 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.
FNMA: The Federal National Mortgage Association and its successors.
Global Certificate: Any Private Certificate registered in the name
of the Depository or its nominee, beneficial interests in which are reflected on
the books of the Depository or on the books of a Person maintaining on account
with such Depository (directly or as an indirect participant in accordance with
the rules of such Depository). As of the Closing Date there will no Global
Certificates.
GNMA: The Government National Mortgage Association and its
successors.
Independent: When used with respect to any specified Person, such a
Person who (i) is in fact independent of the Seller and any Affiliate of the
Seller, (ii) does not have any direct financial interest in the Seller or in any
Affiliate of the Seller, and (iii) is not connected with the Seller or any
Affiliate of the Seller as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Individual Certificate: Any Private Certificate registered in the
name of a Holder other than the Depository or its nominee.
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Institutional Accredited Investor: Any Person meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act (or any entity in which all the equity holders come within such
paragraphs).
Interest Accrual Period: With respect to each Distribution Date, the
month preceding the month in which a Distribution Date is deemed to occur
pursuant to the definition of Distribution Date.
Investment Company Act: The Investment Company Act of 1940, as
amended from time to time, and the rules and regulations promulgated thereunder.
Investment Letter: The letter to be furnished by each Institutional
Accredited Investor which purchases Private Certificates in connection with such
purchase, substantially in the form set forth as Exhibit M-1 hereto.
Loss Amount: With respect to a Distribution Date or a Supplemental
Distribution Date, an amount equal to the greater of (a) zero and (b) an amount
equal to (i) the excess of (x) the aggregate Pooled Security Principal Balance
of such Pooled Securities immediately following the second preceding Pooled
Security Distribution Dates over (y) the aggregate Pooled Security Principal
Balance of such Pooled Securities immediately following the immediately
preceding Pooled Security Distribution Dates minus (ii) principal collections on
the Pooled Securities for which both the Pooled Security distribution (including
for this purpose for the April 1, 1998 and May 4, 1998 Distribution Dates and
related Supplemental Distribution Dates, if any, any Payment Transfer Amounts)
and the related Pooled Security Distribution Date Information have been received
by the Trustee by the applicable Determination Time exclusive in the case of
clause (i) and a Supplemental Distribution Date of any Pooled Securities, the
distributions on which were included in the distribution made on the immediately
preceding related Distribution Date; provided that if either the Pooled Security
distribution or the related Pooled Security Distribution Date Information have
not been received by the immediately following Supplemental Distribution Date,
the amount in clause (i) (x) will be as of immediately following the third
preceding Pooled Security Distribution Date for such Pooled Security.
Majority Certificateholders: The Holders of Certificates evidencing
in the aggregate greater than 50% of the aggregate Percentage Interests of all
the Certificates.
Majority Class Certificateholders: For any Class, the Holders of
Certificates evidencing in the aggregate greater than 50% of the aggregate
Percentage Interests of all the Certificates of such Class.
Moody's: Xxxxx'x Investors Service, Inc.
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.
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Mortgage Loans: One- to four-family, conventional, fixed-rate, first
and second lien mortgage loans or cooperative loans secured by shares in
cooperative corporations.
Mortgage Loan Information Date: February 1, 1998.
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 Securities,
any notice provided pursuant to the related Underlying Agreement to the effect
that final distribution on a Pooled Security 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(c) to the effect that final distribution on
such Class of Certificates shall be made only upon presentment and surrender
thereof.
Notional Amount: With respect to any Distribution Date or
Supplemental Distribution Date and the Class X Certificates, the sum of the
Pooled Security Principal Balances of all the Pooled Securities immediately
preceding such Distribution Date or Supplemental Distribution Date.
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 Seller or the Trustee, as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Seller, which opinion is addressed to the Trustee and is reasonably
acceptable to the Trustee.
Original Certificate Principal Balance: The aggregate principal
balance of any Class of Certificates as of the Closing Date as set forth in
Section 4.01(d).
Other Pooled Security Distribution Date Information: With respect to
a Pooled Security Distribution Date and the related Pooled Security for which a
Pooled Security Distribution Date Statement has not been received by the
Trustee, information obtained by the Trustee by such means as the Trustee deems
reliable, including by telephone, fax or other electronic means, constituting
all information with respect to such Pooled Security necessary to calculate the
distribution to be made on the Certificates with respect to such Pooled
Security.
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Payment Reserve 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(d). Funds deposited
in the Payment Reserve Account shall be held in trust for the Certificateholders
for the uses and purposes set forth in Article III hereof.
Payment Transfer Amount: With respect to each Distribution Date and
Supplemental Distribution Date to but not including the June 2, 1998
Distribution Date, an amount equal to the sum of the excess, with respect to
each Pooled Security as to which an amount is deposited in the Payment Reserve
Account as indicated on Schedule A hereto, of (i) the sum of the amounts
indicated in the Pooled Security Distribution Date Information acquired by the
Trustee subsequent to the Determination Time with respect to the preceding
Distribution Date or Supplemental Distribution Date (or in the case of the April
1, 1998 Distribution Date, on or after March 25, 1998) and prior to the
Determination Time with respect to the related Distribution Date or Supplemental
Distribution Date over (ii) the amounts of Pooled Security distributions
received by the Trustee subsequent to the Determination Time with respect to the
preceding Distribution Date or Supplemental Distribution Date (or in the case of
the April 1, 1998 Distribution Date, on or after March 25, 1998) and prior to
the Determination Time with respect to the related Distribution Date or
Supplemental Distribution Date.
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
Certificate Principal 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 annual of such Certificate as of the Closing Date
as specified on the face thereof, and the denominator of which to the sum of the
Original Certificate Principal 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
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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 "P-1" from the Rating Agency;
(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 the Rating Agency,
at the time of such investment or contractual commitment providing for
such investment; provided, however, that securities issued by any
particular corporation will not be Permitted Investments to the extent
that investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held as part of the Trust to
exceed 10% of the sum of the aggregate outstanding principal balance of
all Pooled Securities 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
the 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 the Rating Agency 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 the Rating
Agency (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.
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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.
Physical Certificates: The Class H, Class PO, Class R-1 and Class
R-2 Certificates; provided that as set forth in Section 4.01(a), if either Class
H or Class PO Certificates have become Global Certificates, then with respect to
such Class or Classes, only to the extent provided in Section 4.02.
Pooled Security: The 96 mortgage-backed securities sold by the
Seller 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 set forth on Schedule
A attached hereto as it may be amended from time to time (excluding from and
after the respective date of substitution or repurchase any Deleted Pool
Securities and including from and after the date of substitution any Substituted
Pooled Securities).
Pooled Security Credit Support: With respect to each Pooled Security
the amount of credit support for such Pooled Security, expressed as the
percentage that such credit support, if any, represents of the aggregate
scheduled principal balances of the Underlying Mortgage Loans.
Pooled Security Distribution Date: With respect to each of the
Pooled Securities, the 25th day (or if such day is not a business day, as
defined in the relevant Underlying Agreement, the following business day) of
each month or in the case of one Resecuritization Pooled Security, the 29th day
(or, if in February, the last day) of such month (or if such day is not a
business day as defined in the relevant Underlying Agreement, the following
business day), in the case of one Resecuritization Pooled Security two business
days and in the case of eight Resecuritization Pooled Securities three business
days following the 25th day of such month (or if such day is not a business day,
the following business day) as indicated on Schedule A hereto.
Pooled Security Distribution Date Information: With respect to any
Pooled Security for which the related Pooled Security Distribution Date
Statement is available, such Pooled Security Distribution Date Statement, and
with respect to any Pooled Security for which the related Pooled Security
Distribution Date Statement is not available, the related Other Pooled Security
Distribution Date Information.
Pooled Security Distribution Date Statement: Each report provided
monthly to holders of Pooled Securities in connection with each Pooled Security
Distribution Date pursuant to the related Underlying Agreement.
Pooled Security Information Date: With respect to each Pooled
Security, the related February 1998 Pooled Security Distribution Date.
Pooled Security Interest Rate: The stated interest rate payable on
each Pooled Security, as indicated in the related Pooled Security Distribution
Date Information.
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Pooled Security Principal Balance: The amount or percentage
calculated based on the aggregate outstanding Pooled Security principal balance,
as reported by the Underlying Trustee or Underlying Servicer of such Pooled
Securities following the Pooled Security Distribution Dates relating to the
February 1998 Pooled Security Distribution Date Statements, after giving effect
to distributions made on the Pooled Securities on or prior to such dates.
Pooled Securityholder: With respect to Pooled Securities in physical
form, the registered holder of the Pooled Securities, 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 Securities in book-entry form, the Trustee or its Depository
Participant for the benefit of the Certificateholders.
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.
Principal Distribution Amount: With respect to a Distribution Date
or Supplemental Distribution Date, the sum of the Class Percentage Principal for
all Classes of Certificates (other than the Class X and the Class PO
Certificates).
Private Certificate: Any Class H and Class PO Certificate.
QIB: Qualified Institutional Buyer as defined in Rule 144A
promulgated under the Securities Act.
Rating Agency: Moody's or its successors. If such agency or its
successor is 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 Seller, notice of which designation shall be given to
the Trustee and the Seller, and specific ratings of Moody's shall be deemed to
refer to the equivalent ratings of the party so designated.
Realized Loss: A Loss incurred on a defaulted Underlying Mortgage
Loan, as reported on the related Pooled Security Distribution Date Statement.
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 30th (the 28th or 29th day of February) of each month, without
regard to whether such day is a Business Day.
REMIC: A real estate mortgage investment conduit, as defined in the
Code.
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REMIC I: That group of assets contained in the Trust designated as a
REMIC consisting of the REMIC II Regular Certificates.
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 either REMIC I or REMIC II to fail to
qualify as a REMIC while any regular interest in either REMIC I or REMIC II 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 Residual Certificates.
REMIC II: That group of assets contained in the Trust designated as
a REMIC consisting of (i) the Pooled Securities, (ii) the Certificate Account,
and (iii) any proceeds of the foregoing. Expenses and fees of the Trust shall be
paid by REMIC II.
REMIC II Certificates: The REMIC II Regular Certificates and Class
R-2 Certificates.
REMIC II Regular Certificates: As defined in Section 4.01(c).
Repurchase Price: In connection with the repurchase of a Pooled
Security pursuant to Section 2.03(c) or 7.01(a)(i), a price equal to the
outstanding principal balance of the Pooled Security as of the date of
repurchase, plus interest thereon at the applicable Pooled Security Interest
Rate through the next succeeding Pooled Security Distribution Date unless the
repurchase is made on a Pooled Security Distribution Date, then interest through
such date, net of interest received by the Trust on such Pooled Securities on
such Date.
Resecuritized Certificates: The 52 mortgage-backed certificates
representing interests in 48 trusts or trust estates, backing payment on the
Resecuritization Pooled Securities, as identified on Schedule A hereto, the
assets of which consist primarily of Mortgage Loans.
Resecuritization Pooled Securities: The Pooled Securities which are
backed by Resecuritized Certificates as identified on Schedule A attached
hereto.
Residual Certificates: The Class R-1 and Class R-2 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
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whom a particular matter is referred by the Trustee because of such officer's
knowledge of and familiarity with the particular subject.
Rule 144A Certificate: The certificate to be furnished by each
purchaser of a Private Certificate which is a QIB substantially in the form set
forth as Exhibit M-2 hereto.
Securities Act: The Securities Act of 1933, as amended.
Securities Legend: THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE. THE HOLDER HEREOF,
BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES
ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"),
PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB,
WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR"
WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) OR (7) (OR ANY ENTITY IN
WHICH ALL OF THE EQUITY HOLDERS COME WITHIN SUCH PARAGRAPHS) OF REGULATION D
UNDER THE SECURITIES ACT PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) IF REQUESTED BY THE
TRUSTEE AN OPINION OF COUNSEL AS TO COMPLIANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE UNITED STATES.
Seller: Bear Xxxxxxx Mortgage Securities Inc., a Delaware
Corporation, or its successor in interest.
Single Certificate: A Certificate with an original Certificate
Balance of $1,000.
Substitute Pooled Securities: One or more pass-through mortgage
related securities tendered to the Trustee pursuant to Section 2.04, issued by
the same Seller as the Deleted Pooled Security or by GNMA, FNMA or FHLMC, which
meet the following criteria, (i) the Substitute Pooled Security has a fixed
interest rate no lower than the Pooled Security Interest Rate of the Deleted
Pooled Security being substituted for, (ii) the sum of the outstanding principal
amounts of the Substitute Pooled Securities equals the sum of the outstanding
principal amounts of the Deleted Pooled Securities being substituted for and
(iii) for any Pooled Security being substituted for, the Substitute Pooled
Security (a) as of the date of substitution, has Underlying
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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 Security, (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 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
a nationally recognized statistical rating agency, (d) the inclusion of which in
the Trust will not result in a withdrawal or downgrading in the rating assigned
to the Certificates by the Rating Agency, written confirmation of which shall be
provided by the Rating Agency to the Trustee and (e) will not cause either REMIC
I or REMIC II 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: If the Trustee has not received a
distribution on or the Pooled Security Distribution Date Information with
respect to, a Pooled Security by the Determination Time with respect to a
Distribution Date (including for this purpose for the April 1, 1998 and May 4,
1998 Distribution Dates any Payment Transfer Amounts), the distribution
allocable to such Pooled Security will not be made on the immediately following
Distribution Date, but, if such distribution and such Pooled Security
Distribution Date Statement are received by 3:00 p.m. on the fifth Business Day
after such Determination Time, the Trustee will make the distribution on the
sixth Business Day after the Determination Time. Each such date is referred to
as a Supplemental Distribution Date.
Supplemental Distribution Date Interest Distribution: With respect
to any Supplemental Distribution Date, and for (i) each Class of Certificates
(other than the Class X and Class PO Certificates), up to an amount, which when
added to the interest distributed on each Class of Certificates on the
immediately prior Distribution Date equals the amount of interest for the
applicable Class that would have accrued at a Certificate Rate equal to the
lesser of (x) 6.75% per annum and (y) the weighted average of the Pooled
Security Interest Rates, during the Interest Accrual Period preceding the
immediately prior Distribution Date on its Certificate Principal Balance,
immediately prior to such Distribution Date and (ii) the Class X Certificates an
amount equal to the excess of (x) all interest collections constituting
Available Funds over (y) the amount of interest distributed pursuant to clause
(i) above.
Tax Matters Person: The meaning specified in Section 5.02(b) and,
initially, the holder of each Residual Certificate.
Transfer Agreement: The Pooled Security Transfer Agreement dated as
of March 26, 1998 among the Companies and the Seller relating to the Pooled
Securities.
Trustee: The Bank of New York, in its capacity as trustee, or its
successor in interest.
Trustee Fee: With respect to each month, a fee equal to 80% of all
reinvestment income on amounts deposited into the Certificate Account from the
25th day of such month
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through the related Distribution Date or if there is to be a related
Supplemental Distribution Date, through such Supplemental Distribution Date.
Trust: 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 Securities;
(ii) all amounts payable on the Pooled Securities following the
Pooled Security Information Date pursuant to the Underlying
Agreements;
(iii) the Accounts and such funds or assets as are from time to time
deposited therein;
(iv) the Seller's rights under the Transfer Agreement; and
(v) the income, payments and proceeds of each of the foregoing.
Underlying Agreements: The agreements pursuant to which the related
Pooled Securities were issued, as in effect on the Closing Date.
Underlying Mortgage Loans: The Mortgage Loans in which a Pooled
Security or Resecuritized Certificate evidences a beneficial ownership interest.
Underlying Series: Each series of securities which includes one or
more classes of Pooled Securities, 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 SECURITIES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of the Pooled Securities.
(a) The Seller, 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 Seller in and to (i) the
Pooled Securities, (ii) the Transfer Agreement to the extent provided in Section
2.03A and (iii) all other assets constituting the Trust. Such assignment
includes, without limitation, all amounts payable on the Pooled Securities
pursuant to the Underlying Agreements
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following the Pooled Security Information Date or, with respect to Substitute
Pooled Securities, following the date of substitution; provided that, to the
extent an amount is withdrawn from the Payment Reserve Account and deposited in
the Certificate Account to cover a payment with respect to a Pooled Security,
the applicable Company shall be entitled to retain an equal amount from the
amount received by it as record holder of such Pooled Security.
(b) In connection with such transfer and assignment, and
concurrently with its execution and delivery of this Agreement, or, with respect
to Substitute Pooled Securities, on the date of substitution, the Seller shall
Deliver the Pooled Securities to the Trustee, as trustee. To the extent
available, the Seller also shall provide the Trustee no later than the Closing
Date or, with respect to Substitute Pooled Securities, on the date of
substitution, the offering documents with respect to each Pooled Security and
the most recent Pooled Security Distribution Date Statement received by the
Seller.
(c) The transfer of the Pooled Securities and all other assets
constituting the Trust is absolute and is intended by the parties hereto as a
sale.
(d) It is intended that the conveyances by the Seller to the Trustee
of the Pooled Securities as provided for in this Section 2.01 be construed as a
sale by the Seller to the Trustee of the Pooled Securities for the benefit of
the Certificateholders. Further, it is not intended that any such conveyance be
deemed to be a pledge of the Pooled Securities by the Seller to the Trustee to
secure a debt or other obligation of the Seller. However, in the event that the
Pooled Securities are held to be property of the Seller, or if for any reason
this Agreement is held or deemed to create a security interest in the Pooled
Securities, 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 Seller to the Trustee of a security interest in all of the
Seller's right (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired, in and to (1) the Pooled
Securities, (2) all amounts payable pursuant to the Pooled Securities in
accordance with the terms thereof, (3) the rights of the Seller under the
Transfer Agreement being transferred to the Trustee and (4) 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," 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 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.
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(e) The Seller and the Trustee, at the direction of the Seller or
the Majority Certificateholders, and at the expense of the Companies, 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 Securities, 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.
(f) The Companies agree to provide to the Trustee promptly following
receipt copies of each Pooled Security Distribution Date Statement received by
them as the prior record holders of the Pooled Securities.
Section 2.02. Acceptance of Trust by Trustee; Initial Issuance of
Certificates
The Trustee acknowledges (i) the receipt by it of the Pooled
Securities, in good faith and without notice of any adverse claim, (ii) the
receipt by it of $5,115.31 for deposit into the Accrued Interest Account and
$7,437,256.11 for deposit into the Payment Reserve Account, and (iii) the
assignment to it of all other assets included in the Trust and declares that it
holds and will hold the Pooled Securities and all other assets included in the
Trust in trust for the exclusive use and benefit of all present and future
Certificateholders (except also for its benefit in the case of the portion of
investment income on funds in the Certificate Account to which it is entitled
hereunder as the Trustee Fee) 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 Seller executed by an officer
of the Seller, the Trustee has executed and caused to be countersigned and
delivered to or upon the order of the Seller, the Certificates in authorized
denominations evidencing the entire beneficial ownership of the Trust. The
Seller agrees to promptly provide to the Trustee copies of the offering
documents with respect to the Pooled Securities and the February 1998 and to the
extent available, March 1998 Pooled Security Distribution Date Statements.
The Trustee shall, within three Business Days of the Closing Date
or, with respect to Substitute Pooled Securities, 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 Security delivered
to it in physical form along with all documents required to effect a transfer to
the Trustee.
Until the Trust 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 Securities or any other asset constituting
the Trust or permit the Pooled Securities or any other asset constituting the
Trust 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.
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Section 2.03. Representations and Warranties of the Seller and the
Trustee.
(a) The Seller hereby represents and warrants to the Trustee and for
the benefit of the Certificateholders, that:
(i) The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, and the Seller is qualified and in good standing as a
foreign corporation to do business in each jurisdiction where such
qualification is necessary, except where the failure so to qualify
would not reasonably be expected to have a material adverse effect
on the Seller's business as presently conducted or on the Seller's
ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(ii) The execution and delivery of this Agreement by the
Seller, and the performance and compliance with the terms of this
Agreement by the Seller, will not violate the Seller'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 Seller 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
Securities 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 Seller, enforceable against the Seller 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 Seller 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 Seller to perform its
obligations under this Agreement or the financial condition of the
Seller;
(vi) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which, if determined
adversely to the Seller, would prohibit the Seller from entering
into this Agreement or is likely to materially and
-21-
adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the
Seller;
(vii) The Seller was, immediately prior to the transfer of the
Pooled Securities to the Trustee, the sole owner thereof free and
clear of any lien, pledge, charge or encumbrance of any kind created
by the Seller (except any lien created by this Agreement);
(viii) The Seller acquired the Pooled Securities 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 Seller has not assigned any interest in the Pooled
Securities or any distributions thereon, except as contemplated
herein; and
(x) The Trustee, in its capacity as a Pooled Securityholder,
will be entitled to distributions under the Underlying Agreements
equal to all distributions of interest and principal made on the
Pooled Securities on or after March 25, 1998.
(b) The Trustee hereby represents and warrants to the Seller and for
the benefit of the Certificateholders, as of the Closing Date, that:
(i) The Trustee is a banking corporation, duly organized and
validly existing under the laws of the State of New York;
(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
organizational certificate 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 Seller, 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;
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(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, New York State or New York City
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; and
(vii) The Pooled Securities in physical form are or will be
registered in the name of the Trustee as trustee hereunder, the
Trustee having all required documentation to cause the record
transfer to its name of any such Pooled Securities which have not as
yet been transferred of record; the Pooled Securities in book entry
form are recorded on the books of The Bank of New York as financial
intermediary on behalf of the Trustee; the information relating to
the Pooled Securities set forth on Schedule A hereto conforms to
information set forth on the face of the Pooled Securities and the
most recent Pooled Security Distribution Date Statements, as
applicable; the Trustee has acquired the Pooled Securities on behalf
of the Certificateholders from the Seller 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 Securities and
will hold such Pooled Securities 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
Securities.
Section 2.03A. Assignment of Interest in Transfer Agreement; Cure or
Repurchase Obligations.
(a) The Seller hereby assigns to the Trustee, on behalf of the
Trust, all of its right, title and interest in the Transfer Agreement (but none
of its obligations) insofar as such contract relates to the obligation of the
Companies to make additional deposits to the Payment Reserve Account under
certain circumstances, the representations and warranties set forth in Exhibit N
hereto and the remedies for breach thereof (including the substitution and
repurchase obligations of the Companies); provided that the obligations of the
Companies to cure, substitute for, or repurchase a Pooled Security shall be the
Trustee's and the Certificateholder's sole remedy for any breach thereof. At the
request of the Trustee and at the expense of the Trust, the Seller shall take
such actions as may be necessary to enforce the above right, title and interest
on behalf of the
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Trustee and the Certificateholders or shall execute such further documents as
the Trustee may reasonably require in order to enable the Trustee to carry out
such enforcement.
(b) Upon discovery by either party hereto of a breach of any of the
representations and warranties set forth in Exhibit N hereto or Section 4 of the
Transfer Agreement which materially and adversely affects the interests of the
Certificateholders the party discovering such breach will give prompt written
notice thereof to the other party hereto and to the applicable Company. Within
thirty (30) days of the earlier of either discovery by or notice to the
applicable Company of any breach of a representation or warranty contained in
Exhibit N hereto or Section 4 of the Transfer Agreement that materially and
adversely affects the interests of the Certificateholders the Seller shall use
its best efforts promptly to cause the applicable Company to cure such breach in
all material respects and, if such breach cannot be cured, the applicable
Company shall repurchase each Pooled Security affected by the breach, at the
Repurchase Price; provided that the applicable Company shall alternatively at
its option substitute one or more Substitute Pooled Securities for the Pooled
Security affected by the breach pursuant to Section 2.04. If a Company is to
repurchase Pooled Securities, the Trustee shall promptly determine the
Repurchase Price in accordance with the definition thereof. Repurchase of any of
the Pooled Securities pursuant to the foregoing provisions of this Section
2.03A(b) 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 Securities.
Section 2.04. Substitution of Pooled Securities. Notwithstanding
anything to the contrary in this Agreement, in lieu of repurchasing a Pooled
Security pursuant to Section 2.03A(b), the applicable Company may, no later than
the date by which such repurchase would otherwise be required, tender to the
Trustee one or more Substitute Pooled Securities accompanied by a certificate of
an officer of the applicable Company that each of such Substitute Pooled
Securities conforms to the requirements set forth in the definition of
"Substitute Pooled Security;" 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 Security, which shall thereafter be
deemed to be a Pooled Security hereunder. In the event of such a substitution,
payments received on the Substitute Pooled Security for the month in which the
substitution occurs shall be the property of the applicable Company and payments
received on the Deleted Pooled Securities during such month shall be the
property of the Trust. Upon acceptance of any Substitute Pooled Security, the
Trustee shall release to the applicable Company 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 applicable Company title to and rights
under the related Deleted Pooled Security released pursuant to this Section
2.04. The applicable Company shall deliver the documents related to any
Substitute Pooled Security in accordance with the provisions of Section 2.01.
The representations and warranties set forth in Exhibit N concerning the Pooled
Securities shall be deemed to have been made by the applicable Company with
respect to each Substitute Pooled Security as of the date of acceptance of such
Substitute Pooled Security 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 Seller and
the Rating Agency.
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ARTICLE III
ADMINISTRATION OF THE POOLED SECURITIES;
PAYMENTS AND REPORTS TO CERTIFICATEHOLDERS
Section 3.01. Administration of the Trust and the Pooled Securities.
(a) If at any time the Trustee, as a holder of a Pooled Security, 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 Seller and all of the holders of the
Certificates of such request and shall, in its capacity as a holder of Pooled
Securities, 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 Certificateholders shall direct in writing. The
Trustee shall promptly furnish to the Seller and, upon the written request and
at the expense of a Certificateholder, such Certificateholder, and will make
available to each Certificateholder, all notices, statements, reports or other
information that it receives as holder of the Pooled Securities, 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
Securities on any Pooled Security Distribution Date (or such later date on which
the Trustee shall receive the related Pooled Security Distribution Date
Statement), the Trustee shall review each related Pooled Security 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
Seller of such occurrence and such parties shall proceed in accordance with the
terms and conditions of Section 3.01.
(b) If a Responsible Officer of the Trustee receives a Notice of
Final Distribution in respect of any of the Pooled Securities, the Trustee shall
present and surrender any related Pooled Securities 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 Securities for distribution in
accordance with Section 3.05 hereof on the next succeeding Distribution Date.
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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
"The Bank of New York, as trustee for the registered holders of Bear Xxxxxxx
Mortgage Securities Inc. Pass-Through Certificates, Series 1998-2," held in
trust by the Trustee for the benefit of the Certificateholders. The Trustee
shall cause all distributions received on the Pooled Securities by the Trustee
in its capacity as holder of the Pooled Securities, from whatever source, and
all amounts received by it representing payment of a Repurchase Price pursuant
to Section 2.03(c) or 7.01(a)(i), subsequent to the Closing Date to be deposited
directly into the Certificate Account. The Certificate Account is initially
located at the Trustee. The Trustee shall give notice to the Seller 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 Securities
are received by the Trustee prior to the related Distribution Date, the Trustee
shall 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, that portion of investment income earned on such Permitted
Investments that constitutes the Trustee Fee. The holder of the Class R-2
Certificate shall receive, on each Distribution Date and Supplemental
Distribution Date, the remaining investment income. Notwithstanding the
foregoing, no such Permitted Investment may mature later than the day before
such related Distribution Date and Supplemental 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 Certificateholders, shall
establish and maintain one or more non-interest bearing accounts (collectively,
the "Accrued Interest Account"), each of which shall be an Eligible Account,
entitled "The Bank of New York, as trustee for the registered holders of Bear
Xxxxxxx Mortgage Securities Inc. Pass-Through Certificates, Series 1998-2," held
in trust by the Trustee for the benefit of the Certificateholders. The Accrued
Interest Account is initially located at the Trustee. The Trustee shall give
notice to the Seller and to Certificateholders of any new location of the
Accrued Interest Account prior to any change thereof. On the Closing Date, the
Seller shall cause the Companies to provide to the Trustee for deposit in the
Accrued Interest Account $5,115.31. The Accrued Interest Account shall be held
by the Trustee as an outside reserve fund and shall not be an asset of REMIC I
or REMIC II.
(d) The Trustee, for the benefit of the Certificateholders, shall
establish and maintain one or more non-interest bearing accounts (collectively,
the "Payment Reserve Account"), each of which shall be an Eligible Account,
entitled "The Bank of New York, as trustee for the registered holders of Bear
Xxxxxxx Mortgage Securities Inc. Pass-Through Certificates, Series 1998-2," held
in trust by the Trustee for the benefit of the Certificateholders. The Payment
Reserve Account is initially located at the Trustee. The Trustee shall give
notice to the Seller and to Certificateholders of any new location of the
Payment Reserve Account prior to
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any change thereof. On the Closing Date, the Seller shall cause the Companies to
provide to the Trustee for deposit in the Payment Reserve Account $7,437,256.11.
The Payment Reserve Account shall be held by the Trustee as an outside reserve
fund and shall not be an asset of REMIC I or REMIC II.
(e) The Trustee shall invest funds deposited in the Accrued Interest
Reimbursement Account and the Payment Reserve Account in one or more Permitted
Investments held in the name of the Trustee at the direction of SunAmerica Inc.
Notwithstanding the foregoing, no such Permitted Investment may mature later
than the day before a Distribution Date or Supplemental Distribution Date and no
such investment shall be sold prior to its maturity date.
(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. ss. 92a(e), if applicable, or any applicable comparable state
statute applicable to state chartered banking corporations.
Section 3.04. Permitted Withdrawals From the Accounts
(a) 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; and
(iii) to clear and terminate the Certificate Account upon the
termination of this Agreement.
(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.
(c) The Trustee shall withdraw funds from the Accrued Interest
Account for the following purposes:
(i) on the May 4, 1998 Distribution Date, to deposit the
Accrued Interest Reimbursement Amount in the Certificate Account;
and
(ii) following the May 4, 1998 Distribution Date, to transfer
the funds remaining in the Accrued Interest Account, in immediately
available funds, to an account designated by SunAmerica Inc. and to
clear and terminate the Accrued Interest Account.
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(d) The Trustee shall withdraw funds from the Payment Reserve
Account for the following purposes:
(i) on each of the April 1, 1998 Distribution Date and the May
4, 1998 Distribution Date and, if applicable, the related
Supplemental Distribution Date to deposit the applicable Payment
Transfer Amount in the Certificate Account; and
(ii) following the May 4, 1998 Distribution Date or, if there
is one, the related Supplemental Distribution Date, to transfer the
funds remaining in the Payment Reserve Account, in immediately
available funds, to an account designated by SunAmerica Inc. and to
clear and terminate the Payment Reserve Account.
Section 3.05. Distributions.
(a) (i) On each Distribution Date, the Trustee shall apply the
Available Funds on deposit in the Certificate Account as of such
Distribution Date in the following manner and order of priority:
(A) from investment income, the Trustee Fee to the Trustee
as its fee pursuant to the Agreement, and the remaining
investment income to the Holder of the Class R-2
Certificate;
(B) On the May 4, 1998 Distribution Date, from the Accrued
Interest Reimbursement Amount, to the holders of each
Class of Certificates, the pro rata portion of the
Accrued Interest Reimbursement Amount on its Certificate
Principal Balance or Notional Amount, as applicable,
immediately prior to such Distribution Date;
(C) from amounts with respect to interest received on the
Pooled Securities, to the Holders of each Class of
Certificates as distributions of interest, an amount
equal to interest for the applicable Class accrued at
the applicable per annum Certificate Rate during the
Interest Accrual Period preceding such Distribution Date
on its Certificate Principal Balance or Notional Amount,
as applicable, immediately prior to such Distribution
Date;
(D) if there will not be a Supplemental Distribution Date,
from amounts with respect to principal received on the
Pooled Securities, any Class PO Principal Distribution
to the Holders of the Class PO Certificates, until its
Certificate Principal Balance
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has been reduced to zero and then to the Holder of the
Class R-2 Certificate;
(E) from amounts with respect to principal received on the
Pooled Securities, first to the Class R-1 and the Class
R-2 Certificateholders, pro rata, until their respective
Certificate Principal Balances have been reduced to zero
and then to the holders of each remaining Class of
Certificates other than the Class X and Class PO
Certificates (in alphabetical order commencing with the
Class A Certificates) as distributions of principal, an
amount equal to the applicable Class Optimal Principal
until the Certificate Principal Balance of the
respective Class has been reduced to zero; and
(F) on the Distribution Date on which all Classes of
Certificates, other than the Residual Certificates, have
been paid in full, Available Funds, if any, remaining in
the Certificate Account (other than investment income
payable to the Trustee) after payment of interest and
principal, as described above to Certificateholders of
all such Classes will be distributed to the Holder of
the Class R-2 Certificate.
(ii) On each Supplemental Distribution Date, the Trustee shall
apply the Available Funds on deposit in the Certificate
Account as of such Supplemental Distribution Date in the
following manner and order of priority:
(A) from investment income, the Trustee Fee to the Trustee
as its fee pursuant to the Agreement, and the remaining
investment income to the holder of the Class R-2
Certificate;
(B) from amounts with respect to interest received on the
Pooled Securities, to the Holders of each Class of
Certificates as distributions of interest, the
applicable Supplemental Distribution Date Interest
Distribution;
(C) from amounts with respect to principal received on the
Pooled Securities, any Class PO Principal Distribution,
to the Holders of the Class PO Certificates, until its
Certificate Principal Balance has been reduced to zero
and then to the Holder of the Class R-2 Certificate; and
(D) from amounts with respect to principal received on the
Pooled Securities, to the Holders of each remaining
Class of Certificates other than the Class X and Class
PO Certificates (in alphabetical
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order commencing with the Class A Certificates) as
distributions of principal, an amount equal to the
applicable Class Optimal Principal until the Certificate
Principal Balance of the respective Class has been
reduced to zero; and
(E) on the Supplemental Distribution Date on which all
Classes of Certificates, other than the Residual
Certificates, have been paid in full, Available Funds,
if any, remaining in the Certificate Account (other than
investment income payable to the Trustee) after payment
of interest and principal, as described above to
Certificateholders of all such Class will be distributed
to the Holder of the Class R-2 Certificate.
If the Trustee has not received a distribution on, or the Pooled Security
Distribution Date Information with respect to, the Pooled Securities by the
Determination Time with respect to a Supplemental Distribution Date, such
distribution will be made on the next succeeding Distribution Date, and no
additional interest will be paid thereon. Similarly, if a distribution is made
on a Supplemental Distribution Date rather than on a Distribution Date, no
additional interest will be paid thereon.
(b) All distributions made to Certificateholders of a Class pursuant
to Section 3.05(a) on each Distribution Date or 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 Principal 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.
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(d) The Trustee may conclusively rely on the information set forth
in the Pooled Security Distribution Date Information 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 Security
Distribution Date Information 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 Securities 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 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
(a) On each Distribution Date, the Trustee shall prepare, and shall
forward by mail, a statement to each Certificateholder, the Seller and the
Rating Agency stating:
(i) the Available Funds for such Distribution Date separately
stating available interest, and available principal;
(ii) the amount of interest being distributed on each Class of
Certificates for such Distribution Date and the Certificate Rates
constituted thereby;
(iii) the amount of reimbursement income distributed to the
Class R-2 Certificate;
(iv) the amount of principal being distributed on each Class
of Certificates (other than the Class X Certificates) for such
Distribution Date separately listing the amount of Additional
Principal paid to the most senior Class or Classes;
(v) the amount added to or subtracted from the Class Deferred
Principal with respect to each Class of Certificates on such
Distribution Date and the Class Deferred Principal with respect to
each Class of Certificates immediately following such Distribution
Date;
(vi) the Loss Amounts allocated to the most junior Class or
Classes of Certificates on such Distribution Date and since the
Closing Date;
(vii) the Certificate Principal Balances for each Class of
Certificates before and after applying payments and allocating the
Loss Amount on such Distribution Date;
(viii) the aggregate Pooled Security Principal Balances
immediately following the second preceding Pooled Security
Distribution Dates; and
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(ix) the aggregate Pooled Security Principal Balance
immediately following the immediately preceding Pooled Security
Distribution Dates.
In the case of the information furnished pursuant to clauses (ii)
and (iv) 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 Security Distribution Date
Statements and any additional written information requested by the Trustee with
respect to the Pooled Securities. 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.
On each Supplemental Distribution Date, the Trustee will prepare,
and will forward by mail, a statement to each Certificateholder, the Rating
Agency and to the Seller stating (i) the same information provided with respect
to Distribution Dates described above but with respect to the Supplemental
Distribution Date and (ii) the aggregate of each such amount for both the
Supplemental Distribution Date and the immediately preceding Distribution Date
including the new Certificate Rates constituted by the amount of interest being
distributed on each Class of Certificates for such Supplemental Distribution
Date and the immediately preceding Distribution Date.
(b) The Trustee shall prepare and deliver to Certificateholders, the
Rating Agency and the Seller, based on and to the extent of the information so
furnished to it in the Pooled Security Distribution Date Information, no later
than five Business Days following each Distribution Date or if there will be a
Supplemental Distribution Date following the Distribution Date, no later than
three Business Days following the Supplemental Distribution Date, the following
information:
(i) For each Pooled Security with an amount of monthly
distribution to be included in the payment on the Certificates on
the related Distribution Date or the Supplemental Distribution Date,
and to the extent reported in the related Pooled Security
Distribution Date Information:
(A) the Pooled Security Principal Balance of such Pooled
Security before and after the related Pooled Security
Distribution Date, which date shall be specified;
(B) the Pooled Security Interest Rate and interest
shortfalls net of compensating interest expressed as a
per annum rate borne by such Pooled Security with
respect to the related Pooled Security Distribution
Date;
(C) the amount of interest distributed on such Pooled
Security on the related Pooled Security Distribution
Date, as well as any amount by which the amount of
interest scheduled to be distributed on such
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Pooled Security on such Pooled Security Distribution
Date exceeded the amount of interest actually
distributed thereon;
(D) all Realized Losses incurred on the Underlying Mortgage
Loans on the related Pooled Security Distribution Date,
since the date of issuance of such Pooled Security and
since the Mortgage Loan Information Date;
(E) all Realized Losses allocated to the Pooled Security on
the related Pooled Security Distribution Date since the
Mortgage Loan Information Date;
(F) the amount, aggregate principal balance and percentage
of the Underlying Mortgage Loans that were (i) more than
30 but fewer than 60 days delinquent, (ii) more than 60
but fewer than 90 days delinquent, (iii) 90 days or more
delinquent, (iv) in foreclosure, and (v) REO property,
each as of the end of the reporting period to which the
Pooled Security Distribution Date Statement delivered
with respect to such Pooled Security as of the related
Pooled Security Distribution Date;
(G) the amount of principal distributed on such Pooled
Security on the related Pooled Security Distribution
Date;
(H) the total amount distributed on such Pooled Security on
the related Pooled Security Distribution Date; and
(I) the amount of any Pooled Security Credit Support
remaining with respect to each Pooled Security on the
related Pooled Security Distribution Date;
(ii) For all Underlying Mortgage Loans, an aggregate statement
of delinquency statistics reporting all of the information specified
in clause (i)(F) above in the aggregate for the related Pooled
Security Distribution Date and each of the eleven prior reporting
periods;
(iii) The number and aggregate Pooled Security Principal
Balance of all of the Pooled Securities as of the respective related
Pooled Security Distribution Date; and
(iv) The aggregate outstanding principal balance of the
Underlying Mortgage Loans as reported on the related Pooled Security
Distribution Date Statements.
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(c) The Trustee shall promptly notify the Seller of the receipt
following a Distribution Date or Supplemental Distribution Date, as applicable,
of any corrected Pooled Security Distribution Date Information with respect to a
Pooled Security which results in a change in excess of $1,000. The Trustee shall
consult with the Seller concerning such change and the Seller and the Trustee
shall mutually agree on a course of action with respect thereto.
(d) The Trustee promptly will furnish to the Seller, SunAmerica Inc.
and upon the written request and at the expense of a Certificateholder, such
Certificateholder and will make available to each Certificateholder, copies of
any notices, statements, reports or other communications including, without
limitation, the Pooled Security Distribution Date Statement, received by the
Trustee in its capacity as a holder of Pooled Securities, with respect to the
Pooled Securities related to the Certificates held by such Certificateholder.
The Trustee shall furnish copies of all Pooled Security 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 Security Distribution Date Statements by mailing the same together with
the statements to Certificateholders required pursuant to the first paragraph of
this Section 3.06.
(e) On or before March 31st of each calendar year, commencing in
1999, the Trustee shall prepare and deliver by first class mail to the Seller
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.
(f) The Trustee shall be responsible for preparing, at its own
expense, signing and filing, on behalf of the Trust, federal income tax and
information returns with the Internal Revenue Service ("IRS") and New York
income tax returns and/or (at the expense of the Trust) the returns of any other
state taxing authority the necessity of filing of which shall have been notified
and 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
Seller 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 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 . The Trustee
shall provide to the Seller 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.
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Section 3.08. All calculations of the amounts to be distributed on
any Distribution Date or Supplemental Distribution Date will be made by the
Trustee in reliance on the information provided to it in the applicable Pooled
Security Distribution Date Information and any additional written information
requested by the Trustee with respect to the Pooled Securities. The Trustee
shall promptly communicate the results of its calculations to the Seller 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 either REMIC I
or REMIC II shall exist, the Trustee shall act in accordance herewith to assure
continuing treatment of each such REMIC 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 REMIC II after the Startup Day without receipt of a
REMIC Opinion.
Section 3.10. Allocation of Loss Amounts. On each Distribution Date
and Supplemental Distribution Date, the Trustee shall determine the Loss Amounts
and shall allocate it to the Certificates by reducing the Certificate Principal
Balance of the Classes of Certificates other than the Class X and Class PO
Certificates (in reverse alphabetical order commencing with the Class H
Certificates) until the respective Certificate Principal Balances thereof are
reduced to zero. Any Loss Amounts allocated to a Class of Certificates shall be
allocated among the Certificates of such Class in proportion to their respective
Percentage Interests.
ARTICLE IV
THE CERTIFICATES
Section 4.01. The Certificates.
(a) The Depository, the Seller and the Trustee have entered into a
Depository Agreement dated as of March 27, 1998 (the "Depository Agreement").
Except with respect to the Individual Certificates, the Residual 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.
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The Class H and Class PO Certificates are initially Physical
Certificates. If at any time the Holders of all of the Class H or Class PO
Certificates request that the Trustee cause such respective Class to become
Global Certificates, the Trustee and the Seller will take such action as may be
reasonably required to cause the Depository to accept such respective Class for
trading.
All transfers by Certificate Owners of such respective Classes of
Book-Entry Certificates and any Global Certificates shall be made in accordance
with the procedures established by the Depository Participant or brokerage firm
representing such Certificate Owners. Each Depository Participant shall only
transfer Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository's
normal procedures.
(b) If (i)(A) the Seller advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Trustee or the Seller is unable to
locate a qualified successor within 30 days or (ii) the Seller at its option
advises the Trustee in writing that it elects to terminate the book-entry system
through the Depository, the Trustee shall request that the Depository notify all
Certificate Owners of the occurrence of any such event and of the availability
of definitive, fully registered Certificates 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 definitive Certificates. Neither the Seller 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) REMIC II will be evidenced by (x) the REMIC II Regular
Certificates as described below, which will be uncertificated and
non-transferable and are hereby designated as the "regular interests" in REMIC
II and (y) the Class R-2 Certificate, which is hereby designated as the single
"residual interest" in REMIC II. Principal and interest shall be payable to, and
Realized Losses are allocable to, the REMIC II Regular Certificates in the same
order and priority as payments are to be made on, and Realized Losses are
allocable to, the Class of Certificates with the same alphabetical designation.
The Classes of REMIC II Certificates shall have the following designations,
initial principal amounts and pass-through rates:
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REMIC II
Certificate Original Certificate Certificate
Designations Principal Balance Rate
------------ ----------------- -----
II A $206,127,524.00 (1)
II B 61,399,747.00 (1)
II C 45,920,819.00 (1)
II D 74,556,836.00 (1)
II E 43,083,016.00 (1)
II F 53,402,301.00 (1)
II G 14,962,963.00 (1)
II H 16,510,861.00 (1)
II X 515,964,267.00* (2)
II PO $2,008,801 (3)
II R-1 $100.00 (1)
R-2 $100.00 (1)
----------
* Notional Amount.
(1) These classes shall have the same interest rate as described in footnote 1
to the table in Subsection 4.01(d). The Class R-2 Certificate is also
entitled to certain investment income as provided in Sections 3.05(a)(i)
and 3.05(a)(ii).
(2) This Class shall have the same interest rate as described in footnote 2 to
the table in Subsection 4.01(d).
(3) This Class shall have the same characteristics as described in footnote 3
to the table in Subsection 4.01(d).
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(d) The Classes of Certificates shall have the following
designations, Original Certificate Principal Balances and Certificate Rates:
Original Certificate Certificate
Designation Principal Balance Rate
----------- ----------------- ----
A $206,127,524.00 (4)
B 61,399,747.00 (1)
C 45,920,819.00 (1)
D 74,556,836.00 (1)
E 43,083,016.00 (1)
F 53,402,301.00 (1)
G 14,962,963.00 (1)
H 16,510,861.00 (1)
X 515,964,267.00* (5)
PO $2,008,801.00 (6)
R-1 $100.00 (1)
----------
* Notional Amount
(1) The lesser of (x) 6.75% and (y) the weighted average of the Pooled
Security Interest Rates, but in no event greater than (z) a fraction,
expressed as a percentage, the numerator of which is the interest
distribution on the Pooled Securities for which both the Pooled Security
distribution and the Pooled Security Distribution Date Information has
been received by the Trustee by the Determination Time multiplied by
twelve and the denominator of which is the aggregate Certificate Principal
Balance of all of the Certificates (other than the Class PO Certificates).
(2) A fraction, expressed as a percentage, the numerator of which is the
product of (A) the excess, if any, of (i) the interest distribution on the
Pooled Securities for which both the Pooled Security distribution and the
Pooled Security Distribution Date Information has been received by the
Trustee by the Determination Time, over (ii) the interest paid on such
Distribution Date on all interest bearing Certificates other than the
Class X Certificates and (B) twelve and the denominator of which is the
Notional Amount.
(3) The Class PO Certificates are principal only Certificates and will not
bear interest.
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(e) With respect to each Distribution Date, each Class of
Certificates shall accrue interest at the applicable Certificate Rate 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 Certificate Rate set forth above and the Certificate Principal
Balance or Notional Amount of such Class applicable to such Distribution Date.
(f) The Certificates shall be substantially in the forms set forth
in Exhibit A through Exhibit L hereto. On original issuance, the Trustee shall
sign, countersign and deliver them at the direction of the Seller. 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
execution 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 the manually executed countersignature of the Trustee or its agent,
and such countersignature upon any Certificate shall be conclusive evidence, and
the only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates issued on the Closing Date shall be dated the
Closing Date. All Certificates issued thereafter shall be dated the date of
their countersignature.
(g) Each Class of Book-Entry Certificates will be registered as a
single Certificate of such Class held by a nominee of the Depository or the DTC
Custodian, and beneficial interests will be held by investors through the
book-entry facilities of the Depository in minimum denominations of $250,000 and
in each case increments of $1.00 in excess thereof, except that one Certificate
of each such Class may be issued in a different amount so that the sum of the
denominations of all outstanding Certificates of such Class shall equal the
Original Certificate Principal Balance or Notional Amount of such Class on the
Closing Date. On the Closing Date, the Trustee shall execute and countersign
Physical Certificates all in an aggregate principal amount that shall equal the
Original Certificate Principal Balance or Notional Amount of such Class. The
Private Certificates will be issued in certificated fully-registered form in
minimum denominations of $250,000 and increments of $1.00 in excess thereof,
except that one Certificate of each such Class may be issued in a different
amount so that the sum of the denominations of all outstanding Certificates of
such Class shall equal the Original Certificate Principal Balance of such Class.
Each of the Class R-1 and Class R-2 Certificates shall be issued in certificated
fully-registered form in the denomination of $100.00. If either of the Class H
or Class PO Certificates becomes Global Certificates they shall be issued in
fully registered form in minimum dollar denominations of $250,000 and integral
multiples of $1.00 in excess thereof, except that one Certificate of each such
Class may be in a different denomination so that the sum of the denominations of
all outstanding Certificates of such Class shall equal the Original Certificate
Principal Balance of such Class. On the Closing Date, the Trustee shall execute
and countersign (i) in the case of each Class of Certificates other than the
Private Certificates, the Certificate in the entire Original Certificate
Principal Balance or Notional Amount of the Class and (ii) in the case of the
Private Certificates, Individual Certificates all in an aggregate principal
amount that shall equal the Original Certificate Principal Balance of each such
Class. The Certificates for all Classes of Book Entry
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Certificates and if at any time there are to be Global Certificates, the
Global Certificates shall be delivered by the Seller to the Depository or
pursuant to the Depository's instructions, shall be delivered by the Seller on
behalf of the Depository to and deposited with the DTC Custodian.
(h) The Closing Date is hereby designated as the "startup" day of
REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the Code.
(i) For federal income tax purposes, REMIC I and REMIC II shall each
have a tax year that is a calendar year and shall report income on an accrual
basis.
(j) The Trustee shall cause REMIC I and REMIC II each 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.
(k) The latest possible maturity date for each Class of Certificates
is the May 2, 2030 Distribution Date.
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 Seller, 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
Seller 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.
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(b) Subject to Subsection 4.01(a) and, in the case of any Global
Certificate or Physical Certificate upon the satisfaction of the conditions set
forth below, upon surrender for registration of transfer of any Certificate at
any office or agency of the Trustee maintained for such purpose, the Trustee
shall sign, countersign and deliver, in the name of the designated transferee or
transferees, a new Certificate of a like Class and aggregate Percentage
Interest, but bearing a different number.
(c) By acceptance of an Individual Certificate, whether upon
original issuance or subsequent transfer, each holder of such a Certificate
acknowledges the restrictions on the transfer of such Certificate set forth in
the Securities Legend and agrees that it will transfer such a Certificate only
as provided herein. In addition to the provisions of Subsection 4.02(h), the
following restrictions shall apply with respect to the transfer and registration
of transfer of an Individual Certificate to a transferee that takes delivery in
the form of an Individual Certificate:
(i) The Trustee shall register the transfer of an Individual
Certificate if the requested transfer is being made to a transferee
who has provided the Trustee with a Rule 144A Certificate or
comparable evidence as to its QIB status.
(ii) The Trustee shall register the transfer of any Individual
Certificate if (x) the transferor has advised the Trustee in writing
that the Certificate is being transferred to an Institutional
Accredited Investor; and (y) prior to the transfer the transferee
furnishes to the Trustee an Investment Letter (and the Trustee shall
be fully protected in so doing), provided that, if based upon an
Opinion of Counsel to the effect that the delivery of (x) and (y)
above are not sufficient to confirm that the proposed transfer is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act and
other applicable laws, the Trustee shall as a condition of the
registration of any such transfer require the transferor to furnish
such other certifications, legal opinions or other information prior
to registering the transfer of an Individual Certificate as shall be
set forth in such Opinion of Counsel.
(d) Subject to Subsection 4.02(h), so long as a Global Certificate
of such Class is outstanding and is held by or on behalf of the Depository,
transfers of beneficial interests in such Global Certificate, or transfers by
holders of Individual Certificates of such Class to transferees that take
delivery in the form of beneficial interests in the Global Certificate, may be
made only in accordance with this Subsection 4.02(d) and in accordance with the
rules of the Depository:
(i) In the case of a beneficial interest in the Global
Certificate being transferred to an Institutional Accredited
Investor, such transferee shall be required to take delivery in the
form of an Individual Certificate or Certificates
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and the Trustee shall register such transfer only upon compliance
with the provisions of Subsection 4.02(c)(ii).
(ii) In the case of a beneficial interest in a Class of Global
Certificates being transferred to a transferee that takes delivery
in the form of an Individual Certificate or Certificates of such
Class, except as set forth in clause (i) above, the Trustee shall
register such transfer only upon compliance with the provisions of
Subsection 4.02(c)(i).
(iii) In the case of an Individual Certificate of a Class
being transferred to a transferee that takes delivery in the form of
a beneficial interest in a Global Certificate of such Class, the
Trustee shall register such transfer if the transferee has provided
the Trustee with a Rule 144A Certificate or comparable evidence as
to its QIB status.
(iv) No restrictions shall apply with respect to the transfer
or registration of transfer of a beneficial interest in the Global
Certificate of a Class to a transferee that takes delivery in the
form of a beneficial interest in the Global Certificate of such
Class; provided that each such transferee shall be deemed to have
made such representations and warranties contained in the Rule 144A
Certificate as are sufficient to establish that it is a QIB.
(e) Subject to Subsection 4.02(h), an exchange of a beneficial
interest in a Global Certificate of a Class for an Individual Certificate or
Certificates of such Class, an exchange of an Individual Certificate or
Certificates of a Class for a beneficial interest in the Global Certificate of
such Class and an exchange of an Individual Certificate or Certificates of a
Class for another Individual Certificate or Certificates of such Class (in each
case, whether or not such exchange is made in anticipation of subsequent
transfer, and, in the case of the Global Certificate of such Class, so long as
such Certificate is outstanding and is held by or on behalf of the Depository)
may be made only in accordance with this Subsection 4.02(e) and in accordance
with the rules of the Depository:
(i) A holder of a beneficial interest in a Global Certificate
of a Class may at any time exchange such beneficial interest for an
Individual Certificate or Certificates of such Class.
(ii) A holder of an Individual Certificate or Certificates of
a Class may exchange such Certificate or Certificates for a
beneficial interest in the Global Certificate of such Class if such
holder furnishes to the Trustee a Rule 144A Certificate or
comparable evidence as to its QIB status.
(iii) A holder of an Individual Certificate of a Class may
exchange such Certificate for an equal aggregate principal amount of
Individual Certificates of such Class in different authorized
denominations without any certification.
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(f) (i) Upon acceptance for exchange or transfer of an Individual
Certificate of a Class for a beneficial interest in a Global
Certificate of such Class as provided herein, the Trustee shall
cancel such Individual Certificate and shall (or shall request the
Depository to) endorse on the schedule affixed to the applicable
Global Certificate (or on a continuation of such schedule affixed to
the Global Certificate and made a part thereof) or otherwise make in
its books and records an appropriate notation evidencing the date of
such exchange or transfer and an increase in the certificate balance
of the Global Certificate equal to the certificate balance of such
Individual Certificate exchanged or transferred therefor.
(ii) Upon acceptance for exchange or transfer of a beneficial
interest in a Global Certificate of a Class for an Individual
Certificate of such Class as provided herein, the Trustee shall (or
shall request the Depository to) endorse on the schedule affixed to
such Global Certificate (or on a continuation of such schedule
affixed to such Global Certificate and made a part thereof) or
otherwise make in its books and records an appropriate notation
evidencing the date of such exchange or transfer and a decrease in
the certificate balance of such Global Certificate equal to the
certificate balance of such Individual Certificate issued in
exchange therefor or upon transfer thereof.
(g) The Securities Legend shall be placed on any Individual
Certificate issued in exchange for or upon transfer of another Individual
Certificate or of a beneficial interest in a Global Certificate.
(h) Subject to the restrictions on transfer and exchange set forth
in this Section 4.02, the holder of any Individual Certificate may transfer or
exchange the same in whole or in part (in an initial certificate balance equal
to the minimum authorized denomination or any integral multiple of $1.00 in
excess thereof) by surrendering such Certificate at the Corporate Trust Office,
or at the office of any transfer agent, together with an executed instrument of
assignment and transfer satisfactory in form and substance to the Trustee in the
case of transfer and a written request for exchange in the case of exchange. The
holder of a beneficial interest in a Global Certificate may, subject to the
rules and procedures of the Depository, cause the Depository (or its nominee) to
notify the Trustee in writing of a request for transfer or exchange of such
beneficial interest for an Individual Certificate or Certificates. Following a
proper request for transfer or exchange, the Trustee shall, within five Business
Days of such request made at such Corporate Trust Office, sign, countersign and
deliver at such Corporate Trust Office, to the transferee (in the case of
transfer) or holder (in the case of exchange) or send by first class mail at the
risk of the transferee (in the case of transfer) or holder (in the case of
exchange) to such address as the transferee or holder, as applicable, may
request, an Individual Certificate or Certificates, as the case may require, for
a like aggregate Percentage Interest and in such authorized denomination or
denominations as may be requested. The presentation for transfer or exchange of
any Individual Certificate shall not be valid unless
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made at the Corporate Trust Office by the registered holder in person, or by a
duly authorized attorney-in-fact.
(i) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a like Class and
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at any such office or agency; provided, however, that no Certificate
may be exchanged for new Certificates unless the original Percentage Interest
represented by each such new Certificate (i) is at least $250,000 with respect
to the Certificates other than the Class R-1 or Class R-2 Certificates, which
shall each be $100.00, or (ii) is acceptable to the Seller as indicated to the
Trustee in writing. Whenever any Certificates are so surrendered for exchange,
the Trustee shall sign, countersign and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive.
(j) If the Trustee so requires, every Certificate presented or
surrendered for transfer or exchange shall be duly endorsed by, or be
accompanied by a written instrument of transfer, with a signature guarantee, in
form satisfactory to the Trustee, duly executed by the holder thereof or his or
her attorney duly authorized in writing.
(k) No service charge shall be made for any transfer or exchange of
Certificates, but the Trustee may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
(l) The Trustee shall cancel all Certificates surrendered for
transfer or exchange but shall retain such Certificates in accordance with its
standard retention policy or for such further time as is required by the record
retention requirements of the Securities Exchange Act of 1934, as amended, and
thereafter may destroy such Certificates.
(m) The following legend shall be placed on each Class of
Certificates, whether upon original issuance or upon issuance of any other
Certificate of any such Class in exchange therefor or upon transfer thereof:
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, A
TRANSFEREE UNLESS THE PROPOSED TRANSFEREE CERTIFIES TO THE TRUSTEE THAT IT
IS NOT ACQUIRING SUCH CERTIFICATES DIRECTLY OR INDIRECTLY FOR, ON BEHALF
OF OR WITH THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, OR IT IS AN INSURANCE COMPANY AND THE
SOURCE OF FUNDS TO BE USED BY IT TO PAY THE PURCHASE PRICE OF THE
CERTIFICATES IS FUNDS HELD BY IT IN AN "INSURANCE COMPANY GENERAL ACCOUNT"
(AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 ("PTCE 95-60") AS PUBLISHED IN 60 FED. REG. 35925 (JULY 12, 1995))
AND IT
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REASONABLY BELIEVES, AS OF THE DATE OF ACQUISITION, THE AMOUNT OF RESERVES
AND LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF
ANY PLAN (AND ANY OTHER PLAN OF THE SAME EMPLOYER OR ITS AFFILIATES (AS
DEFINED IN SECTION V(A)(1) OF PTCE 95-60)) OR BY THE SAME EMPLOYEE
ORGANIZATION) DOES NOT EXCEED 10% OF THE TOTAL RESERVE AND LIABILITIES OF
SUCH GENERAL ACCOUNT PLUS SURPLUS (SUCH DETERMINATION TO BE MADE IN
ACCORDANCE WITH SECTION I(A) OF PTCE 95-60), WHICH WILL BE DEEMED
REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE OR GLOBAL CERTIFICATE
AND WILL BE EVIDENCED BY A REPRESENTATION TO SUCH EFFECT BY OR ON BEHALF
OF A HOLDER OF A CERTIFICATE IN PHYSICAL FORM.
Section 4.03. Mutilated, Destroyed, Lost or Stolen . 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 countersign 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, 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 Seller, the Trustee, the
Certificate Registrar and any agent of the Seller, 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 Seller, the Trustee, the Certificate Registrar nor any agent of
the Seller, 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
and the Seller. As a prerequisite to such consent, the proposed transferee must
provide the Tax Matters Person, the Seller and the Trustee with an affidavit
that the proposed transferee is not a Disqualified Organization (as defined in
Subsection 4.05(b)) (and, unless the Tax Matters Person and the Seller consent
to the
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transfer to a person who is not a U.S. Person, an affidavit that it is a U.S.
Person) as provided in Subsection 4.05(b).
(b) No transfer, sale or other disposition of a Residual Certificate
(including a beneficial interest therein) may be made unless, prior to the
transfer, sale or other disposition of the Residual Certificate, the proposed
transferee (including the initial purchaser thereof) delivers to the Tax Matters
Person, the Seller and the Trustee an affidavit in the form attached hereto as
Exhibit L stating, among other things, that as of the date of such transfer (i)
such transferee is not any of (A) the United States, any state or political
subdivision thereof, any foreign government, any international organization, or
any agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation all of whose activities are subject to tax
under Chapter 1 of Subtitle A of the Code and (except in the case of FHLMC) a
majority of whose board of directors is not selected by the United States, or
any state or political subdivision thereof), (B) any organization that is exempt
from any tax imposed by Chapter 1 of Subtitle A of the Code, other than (x) a
tax-exempt farmers' cooperative within the meaning of Section 521 of the Code or
(y) an organization that is subject to the tax imposed by section 511 of the
Code on "unrelated business taxable income" or (C) a corporation operating on a
cooperative basis that is engaged in furnishing electric energy or providing
telephone service to persons in rural areas (within the meaning of Section
1381(a)(2)(C) of the Code) (any Person described in (A), (B), or (C) being
referred to herein as a "Disqualified Organization") and that (ii) such
transferee is not acquiring such Residual Certificate for the account of a
Disqualified Organization. Neither the Tax Matters Person nor the Seller shall
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 4.05(b), then the prior Holder
thereof shall, upon discovery that the transfer of such Residual Certificate was
not in fact permitted by this Subsection 4.05(b), be restored to all rights as a
Holder thereof retroactive to the date of the purported transfer. None of the
Trustee, the Seller or the Tax Matters Person shall be under any liability to
any Person for any registration or transfer of a Residual Certificate that is
not permitted by this Subsection 4.05(b) or for making payments due on such
Residual Certificate to the purported Holder thereof or taking any other action
with respect to such purported Holder under the provisions of this Agreement so
long as the written affidavit referred to above was received with respect to
such transfer, and the Tax Matters Person, the Seller 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 4.05(b) at the time it became a Holder all
payments made on such Residual Certificate. Each Holder of a Residual
Certificate, by acceptance thereof, shall be deemed for all purposes to have
consented to the provisions of this Subsection 4.05(b) and to any amendment of
this Agreement deemed necessary (whether as a result of new legislation or
otherwise) by counsel of the Tax Matters Person or the Seller to ensure that the
Residual Certificates are not transferred to a Disqualified Organization and
that any transfer of
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such Residual Certificates will not cause the imposition of a tax upon the Trust
or cause either REMIC I or REMIC II to fail to qualify as a REMIC.
(c) Unless the Tax Matters Person and the Seller shall have
consented in writing (which consent may be withheld in the Tax Matters Person's
or the Seller'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").
(d) By accepting a Residual Certificate, the purchaser thereof
agrees to be a Tax Matters Person, and appoints the Trustee to act as its agent
with respect to all matters concerning the tax obligations of the Trust. In the
event that any tax is imposed on "prohibited transactions" of the Trust as
defined in Section 860F(a)(2) of the Code, on the "net income from foreclosure
property" as defined in Section 860G(c) of the Code, on any contribution to the
Trust after the Startup Day pursuant to Section 860G(d) of the Code, or any
other tax is imposed, such tax shall be paid by the Trustee, if such tax arises
out of or results from a material breach by the Trustee of any of its
obligations under this Agreement.
Section 4.06. Restrictions on Transferability of Private
Certificates.
(a) No offer, sale, transfer or other disposition (including pledge)
of a Private Certificate shall be made by any Holder thereof unless registered
under the Securities Act, or an exemption from the registration requirements of
the Securities Act and any applicable state securities or "Blue Sky" laws is
available and the prospective transferee (other than the Seller) of such
Certificate signs and delivers to the Trustee an Investment Letter, if the
transferee is an Institutional Accredited Investor, in the form set forth as
Exhibit M-1 hereto, or a Rule 144A Certificate, if the transferee is a QIB, in
the form set forth as Exhibit M-2 hereto. In the case of a proposed transfer of
a Private Certificate to a transferee other than a QIB, the Trustee may require
an Opinion of Counsel that such transaction is exempt from the registration
requirements of the Securities Act. The cost of such opinion shall not be an
expense of the Trustee or the Trust Fund.
(b) Each Private Certificate shall bear a Securities Legend.
Section 4.07. ERISA Restrictions.
(a) No Class of Certificates may be acquired directly or indirectly
by, on behalf of or with the assets of, an employee benefit plan or other
retirement arrangement which is subject to Title I of ERISA and/or Section 4975
of the Code, ("Plan") unless such investor is an insurance company and the
source of funds to be used by the investor to pay the purchase price of the
Certificates is funds held by the investor in an "insurance company general
account" (as defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60") as published in 60 Fed. Reg. 35925 (July 12, 1995)) and the
investor reasonably believes, as of the date of acquisition, the amount of
reserves and liabilities for the general account contracts
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held by or on behalf of any Plan (and any other Plan of the same employer or its
affiliates (as defined in Section V(a)(1) of PTCE 95-60)) or by the same
employee organization) does not exceed 10% of the total reserve and liabilities
of such general account plus surplus (such determination to be made in
accordance with Section I(a) of PTCE 95-60). By acquiring a Private Certificate,
the holder will be required to represent that it meets one of the requirements
set forth in the immediately preceding sentence. Any such representation may be
relied upon by the Trustee in providing any representation, certification or
opinion of counsel required to be made to each Underlying Trustee with respect
to the acquisition of such Pooled Securities by, or with the assets of, any
Plan.
(b) Any Person acquiring an interest in a Book-Entry Certificate or
a Global Certificate by acquisition of such Certificate, shall be deemed to have
represented to the Trustee that it meets the requirements of Section 4.07(a).
(c) If any proposed transferee shall become a Holder of a
Certificate in violation of these provisions, then the last preceding permitted
transferee shall be restored, to the extent permitted by law, to all rights as
holder thereof retroactive to the date of registration of such transfer of such
Certificate. The Trustee shall be under no liability to any person for any
registration or transfer of a Certificate that is not permitted or for making
any payments due on such Certificate to the Holder or taking any other action
with respect to such Holder under this Agreement. Any proposed transferee who
becomes a Holder of a Certificate shall agree to indemnify (or, in the case of a
Book-Entry Certificate, shall be deemed to agree to indemnify) the Seller, the
Trustee, the servicers and the trustees with respect to the Pooled Securities
and the Companies' against any loss, damage or penalty incurred as a result of
the transfer of any Certificate to such purposed transferee in violation of such
restrictions.
Section 4.08. For so long as any Private Certificates are
outstanding and are "restricted securities" within the meaning of Rule 144(a)(3)
of the Securities Act, (1) the Trustee will provide or cause to be provided to
any Holder of such Certificates and any prospective purchaser thereof designated
by such a Holder, upon the request of such Holder or prospective purchaser, the
information required to be provided to such Holder or prospective purchaser by
Rule 144A(d)(4) under the Securities Act; and (2) the Trustee shall update such
information from time to time in order to prevent such information from becoming
false and misleading and will take such other actions as are necessary to ensure
that the safe harbor exemption from the registration requirements of the
Securities Act under Rule 144A is and will be available for resales of such
Certificates conducted in accordance with Rule 144A.
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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; 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 Security
Distribution Date Statements. Notwithstanding the foregoing, the Trustee shall
use reasonable efforts to procure Pooled Security Distribution Date Information
in a timely manner to permit distributions to be made on Distribution Dates. 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 proper party to the Trustee and which on their face, do not
contradict the requirements of this Agreement;
(ii) The Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
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(iii) The Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it in good faith,
in accordance with the 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; 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 for each of
REMIC I and REMIC II shall be a calendar year and the Trustee shall maintain or
cause the maintenance of the books of each of REMIC I and REMIC II 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 each of
REMIC I and REMIC II, the Trust, 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 each
of REMIC I and REMIC II (the "REMIC Reporting Agent") as required by IRS Form
8811. The Trustee shall make the elections to treat each of REMIC I and REMIC II
as a REMIC (which election shall apply to the taxable period ending December 31,
1998 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 Security
Distribution Date Statements. The Holder of the Class R-1 Certificate is hereby
designated as the "Tax Matters Person" (within the meaning of Treas. Reg.
ss.1.860F-4(d)) for REMIC I and the Holder of the
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Class R-2 Certificate is hereby designated as the Tax Matters Person for REMIC
II. The Trustee is hereby designated and appointed as the agent of each such Tax
Matters Person. Any Holder of a Class R-1 Certificate with respect to REMIC I
and any Holder of a Class R-2 Certificate with respect to REMIC II will by
acceptance thereof appoint the Trustee as agent and attorney-in-fact for the
purpose of acting as Tax Matters Person during such time as the Trustee does not
own any such respective 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 applicable Residual Certificate to
sign such returns or act as tax matters person. Each Holder of a Residual
Certificate shall be bound by this Section.
(c) The Trustee shall provide upon request such information 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 4.05(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
4.05(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 New
York State income tax returns required with respect to each of REMIC I and REMIC
II or the Trust and upon receipt of the notice and confirmation required by the
terms of Section 3.06(e) to prepare and file or cause to be filed any tax
returns required by any other states with respect to each of REMIC I and REMIC
II or the Trust.
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 of its selection and
the advice of such counsel or 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 advice or 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
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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 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
Securities.
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 Seller, 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
countersigned by it as Certificate Registrar) or of the Pooled Securities or any
related document. Except as otherwise provided herein, the Trustee shall not be
accountable for the use or application by the Seller of any of the Certificates
or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Seller in respect of the assignment and delivery of the Pooled
Securities.
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.
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Section 5.06. Trustee's Fees; Indemnification of the Trustee.
(a) The Trustee shall withdraw the Trustee Fee, as compensation,
from the Certificate Account as provided in Section 3.05 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 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 Seller or of any Person involved in the
organization or operation of the Seller. 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.
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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 Seller
and the Certificateholders. Upon receiving such notice of resignation, the
Seller 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 Seller, 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 Seller 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 Seller, 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.
(e) No co-trustee or separate Trustee hereunder shall be liable by
reason of any act or omission of the Trustee or any other such trustee
hereunder, and the Trustee shall not be liable by reason of any act or omission
of any co-trustee or separate trustee.
Section 5.09. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 5.08
shall execute, acknowledge and deliver to the Seller, 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
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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 Securities and related documents and statements held by it
hereunder, and the Seller, 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 Seller shall mail notice of the succession of such
trustee hereunder to all Certificateholders at their addresses as shown in the
Certificate Register. If the Seller 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 Seller.
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 Seller 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 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, and to vest in such Person or Persons, in such
capacity, such title to the Trust, or any part thereof, and, subject to the
other provisions of this Section 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,
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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 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 SELLER
Section 6.01. Liability of the Seller.
The Seller shall be liable in accordance herewith only to the extent
of the respective obligations specifically imposed upon and undertaken by the
Seller herein.
Section 6.02. Merger, Consolidation or Conversion of the Seller.
Subject to the following paragraph, the Seller will keep in full
effect its existence, rights and franchises as a corporation under the laws of
the jurisdiction of its incorporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each
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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 Seller 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 Seller shall be a
party, or any Person succeeding to the business of the Seller, shall be the
successor of the Seller 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 Seller and Others.
Neither the Seller nor any of the directors, officers, employees or
agents of the Seller shall be under any liability to the Trust 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 Seller 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 gross negligence in the
performance of obligations or duties hereunder, or by reason of reckless
disregard of such obligations and duties. The Seller and any director, officer,
employee or agent of the Seller 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
Seller 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) Subject to Section 7.02, the respective obligations and
responsibilities of the Seller 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: (i) the repurchase by or at the direction of the Seller or its designee of
all Pooled Securities remaining in the Trust at a price equal to the Repurchase
Price; or (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 hereunder on the Final Distribution Date following receipt of the final
distribution to be made on the Pooled Securities; provided, however, that in no
event shall the trust created hereby continue beyond the expiration of
twenty-one years from the
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death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. James's, living on the date
hereof.
(b) The right of the Seller or its designee to repurchase all Pooled
Securities pursuant to Subsection 7.01(a)(i) above shall be exercisable only if
the Seller, based upon an Opinion of Counsel, has determined that the REMIC
status of either REMIC I or REMIC II has been lost or that a substantial risk
exists that such REMIC status will be lost for the then-current taxable year. At
any time thereafter, the Seller may elect to terminate the Trust at any time,
and upon such election, the Seller or its designee shall repurchase all the
Pooled Securities.
(c) The Trustee shall, in accordance with Section 8.05, give a
Notice of Final Distribution to the Certificateholders, the Seller and the
Rating Agency 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 Trust is not terminated on the anticipated Distribution Date for any
reason, the Trustee shall promptly mail notice thereof to each
Certificateholder, the Seller and to the Rating Agency.
(d) If the option of the Seller to repurchase or cause the
repurchase of all Pooled Securities under Subsection 7.01(a)(i) above is
exercised, the Seller and/or its designee, as the case may be, shall deliver to
the Trustee for deposit in the Certificate Account, by the Business Day prior to
the applicable Distribution Date, an amount equal to the Repurchase Price for
the Pooled Securities being purchased by it and all property acquired with
respect to such Pooled Securities remaining in the Trust. Upon the presentation
and surrender of the Certificates, the Trustee shall distribute an amount equal
to (i) the amount otherwise distributable to the Certificateholders (other than
the holder of the Class R-2 Certificate) on such Distribution Date but for such
repurchase, (ii) the Certificate Principal Balance and any accrued but unpaid
interest at the applicable Certificate Rate to the Certificateholders of each
Class (other than the Class PO Certificates), and (iii) the remainder to the
Class R-2 Certificateholder. If the Available Funds are not sufficient to pay
all of the related Certificates (other than the Class PO Certificates) in full,
any such deficiency will be allocated to the outstanding Class or Classes of
Certificates (other than the Class PO Certificates) in reverse alphabetical
order commencing with the Class H Certificates. Upon deposit of the required
Repurchase Price and following such final Distribution Date, the Trustee shall
promptly deliver in the same manner as provided in the definition of Deliver to
the Seller and/or its designee, as the case may be, the remaining Pooled
Securities, and the Certificate Account shall terminate,
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subject to the Trustee's obligation to hold any amounts payable to
Certificateholders in trust without interest pending final distributions
pursuant to Subsection 7.01(f).
(e) In the event that this Agreement is terminated under Subsection
7.01(a)(ii) above, 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 appropriate non-tendering Certificateholders. The
Trust shall terminate upon the Final Distribution Date with respect to the last
Class of Certificates outstanding.
(f) 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.
Section 7.02. Additional Termination Requirements.
(a) If the option of the Seller to repurchase all the Pooled
Securities under Subsection 7.01(a)(i) above is exercised, the Trust and each of
REMIC I and REMIC II shall be terminated in accordance with the following
additional requirements, unless the Trustee has been furnished with an Opinion
of Counsel by the Seller to the effect that the failure of the Trust to comply
with the requirements of this Section 7.02 will not (i) result in the imposition
of taxes on "prohibited transactions" as defined in Section 860F of the Code on
either REMIC I or REMIC II or (ii) cause either REMIC I or REMIC II to fail to
qualify as a REMIC at any time that any Regular Certificates are outstanding:
(i) within 90 days prior to the final Distribution Date, at
the written direction of the Seller, the Trustee, as agent for the
respective Tax Matters Persons, shall adopt a plan of complete
liquidation of the Trust and each of REMIC I and II provided to it
by the Seller meeting the requirements of a "Qualified Liquidation"
under Section 860F of the Code and any regulations thereunder;
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(ii) at or after the time of adoption of such a plan of
complete liquidation and at or prior to the final Distribution Date,
the Trustee shall, at the expense of the Seller, sell for cash all
of the assets of the Trust to or at the direction of the Seller; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit from the
Certificate Account (or cause to be distributed or credited) (i) to
the Certificateholders, other than the holder of the Class R-2
Certificate, the respective Certificate Principal Balances of the
Certificates plus 30 days' interest thereon at the applicable
Certificate Rate, and (ii) to the Class R-2 Certificateholder, all
cash on hand from the Certificate Account (other than cash retained
to meet claims); and the Trust and each of REMIC I and REMIC II
shall terminate at such time.
(b) By their acceptance of the Residual Certificates, the holders
thereof hereby (i) agree to adopt such a plan of complete liquidation upon the
written request of the Seller and to take such action in connection therewith as
may be reasonably requested by the Seller and (ii) appoint the Seller as their
attorney-in-fact, with full power of substitution, for purposes of adopting such
a plan of complete liquidation. The Trustee shall adopt such plan of liquidation
by filing the appropriate statement on the final tax return of REMIC I and REMIC
II.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment.
(a) This Agreement may be amended from time to time by the Seller
and the Trustee, without the prior consent of any Certificateholder:
(i) to cure any ambiguity or mistake;
(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;
(iv) to make such modifications as may be permitted or
required hereunder in connection with a repurchase or substitution
of a Pooled Security pursuant to Section 2.03A(b) or 2.04 hereof;
and
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(v) to modify, eliminate or add any provision to such extent
as may be necessary to maintain the qualification of REMIC I or
REMIC II as a REMIC;
provided that such amendment, as evidenced by an Opinion of Counsel delivered to
the Trustee (the expense of which shall be paid for by the Seller), in the case
of Clauses (i) through (iv), shall not adversely affect in any material respect
the interests of any Certificateholder and in the case of Clause (v), shall be
necessary or helpful to maintain such qualification.
(b) This Agreement may also be amended from time to time by the
Seller 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) to the effect
that such amendment shall not cause either REMIC I or REMIC II to
fail to qualify as a REMIC for federal income tax purposes.
Notwithstanding any other provision of this Agreement, for the purposes of the
giving or withholding of consents pursuant to this Section 8.01(b), Certificates
registered in the name of or held for the benefit of the Seller or any Affiliate
thereof shall be entitled to vote their Percentage Interests with respect to
matters affecting such Certificates.
(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.
(d) In executing any amendment to this Agreement, the Trustee shall
be entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement.
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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 Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) 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, 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 Seller 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
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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 Seller, Bear Xxxxxxx Mortgage Securities Inc., 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Department, or such other address
as may hereafter be furnished to the Trustee in writing by the Seller; (b) in
the case of the Trustee, The Bank of New York, 000 Xxxxxxx Xxxxxx 00X, Xxx Xxxx,
Xxx Xxxx 00000 Attention: Mortgage Backed Securities, or such other address as
may hereafter be furnished to the Seller in writing by the Trustee; and (c) in
the case of Moody's, Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Monitoring.
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, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement 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 convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 8.09. Notices to Rating Agency.
The Trustee shall notify the Rating Agency 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,
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(b) the termination or appointment of a successor Trustee or a
change in the majority ownership of the Trustee,
(c) the monthly distribution statements required to be delivered to
the Certificateholders pursuant to Section 3.06 with respect to a Distribution
Date and a Supplemental Distribution Date,
(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 Certificate Account.
The Seller shall notify the Rating Agency of any change in its identity.
Section 8.10. Intent of Parties. The parties intend that each of
REMIC I and REMIC II 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.
8.11. Acts of Certificateholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by Certificateholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Certificateholders in person or by an agent duly appointed in writing.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is expressly required, to the Seller. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Agreement and conclusive in favor of the Trustee and the Seller,
if made in the manner provided in this Section 8.11.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing on such Certificates, except an endorsement in
accordance with Section 4.02 made on a Certificate presented in accordance with
Section 4.04) shall be proved
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by the Certificate Register, and neither the Trustee, the Seller nor any
successor to any such parties shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action of the holder of any Certificate shall bind every future
holder of the same Certificate and the holder of every Certificate issued upon
the registration of transfer or exchange thereof, if applicable, or in lieu
thereof with respect to anything done, omitted or suffered to be done by the
Trustee, the Seller or any successor to any such party in reliance thereon,
whether or not notation of such action is made upon such Certificates.
(e) In determining whether the Holders of the requisite Percentage
Interests of Certificates have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Certificates owned by the Seller
or any Affiliate thereof shall be disregarded except as otherwise provided in
Section 11.02(b) and except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Certificates which the Trustee knows to be so
owned shall be so disregarded. Certificates which have been pledged in good
faith to the Seller or any Affiliate thereof may be regarded as outstanding if
the pledgor establishes to the satisfaction of the Trustee the pledgor's right
to act with respect to such Certificates and that the pledgor is not an
Affiliate of the Seller.
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IN WITNESS WHEREOF, the Seller 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 XXXXXXX MORTGAGE SECURITIES INC., as Seller
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx
Title:
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxxxx Xxxxxx
-----------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Assistant Vice President
Acknowledged and Agreed as to Sections 2.01(e), 2.01(f), 2.03A(b), 2.04 and
3.04(c)(ii) and (d)(ii):
SUNAMERICA INC.
By: /s/ Xxxxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Authorized Agent
SUNAMERICA LIFE INSURANCE COMPANY
By: /s/ Xxxxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Authorized Agent
ANCHOR NATIONAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Authorized Agent
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CALAMERICA LIFE INSURANCE COMPANY
By: /s/ Xxxxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Authorized Agent
-00-
XXXXX XX XXX XXXX )
) ss:
COUNTY OF NEW YORK )
On the 30th day of March, 1998 before me, a notary public in and for
said State, personally appeared before me Xxxxxx X. Xxxxxxxxx, Xx., known to me
to be the Vice President of Bear Xxxxxxx 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.
-----------------------------
Notary Public
[Notarial Seal] Commission Expires:
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the 30th day of March, 1998 before me, a notary public in and for
said State, personally appeared Xxxxxxxx Xxxxxx known to me to be a Trust
Officer of The Bank of New York, 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.
-----------------------------
Notary Public
[Notarial Seal] Commission Expires:
SCHEDULE A
POOLED SECURITIES
SCHEDULE A
Pooled Securities
=================
====================================================================================================================================
Gross % Net Stated Amount Book Entry Estimated Estimated
Pooled Original Owned By Original (As of Pooled or March April
Security Shelf Series Des Company Balance SunAmerica Balance Sec. Info. Date) Physical Distribution Distribution CUSIP #
====================================================================================================================================
Exhibit A
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR XXXXXXX 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.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF
THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CURRENT CERTIFICATE 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 TRUSTEE 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.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, A
TRANSFEREE UNLESS THE PROPOSED TRANSFEREE CERTIFIES TO THE TRUSTEE THAT IT IS
NOT ACQUIRING SUCH CERTIFICATES DIRECTLY OR INDIRECTLY FOR, ON BEHALF OF OR WITH
THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
OR IS AN INSURANCE COMPANY AND THE SOURCE OF FUNDS TO BE USED BY IT TO PAY THE
PURCHASE PRICE OF THE CERTIFICATES IS FUNDS HELD BY IT IN AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 ("PTCE 95-60") AS PUBLISHED IN 60 FED. REG. 35925 (JULY 12,
1995)) AND IT REASONABLY BELIEVES, AS OF ACQUISITION, THE AMOUNT OF RESERVES AND
LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY PLAN
(AND ANY OTHER PLAN OF THE SAME EMPLOYER OR ITS AFFILIATES (AS DEFINED IN
SECTION V(A)(1) OF PTCE 95-60)) OR BY THE SAME EMPLOYEE ORGANIZATION) DOES NOT
EXCEED 10% OF THE TOTAL RESERVE AND LIABILITIES OF SUCH GENERAL ACCOUNT PLUS
SURPLUS (SUCH DETERMINATION TO BE MADE IN ACCORDANCE WITH SECTION I(A) OF PTCE
95-60), WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE
OR GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION TO SUCH EFFECT
BY OR ON BEHALF OF A HOLDER OF A CERTIFICATE IN PHYSICAL FORM.
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
No. A-
evidencing a beneficial interest in a Trust consisting primarily of the
Pooled Securities (as defined below) sold by
BEAR XXXXXXX MORTGAGE SECURITIES INC.
CUSIP No.
First Distribution Date : April 1, 1998 Class : A
Assumed Final Distribution Date : May 2, 2030 Original Certificate Principal
Balance of this Certificate
("Denomination") : $
Certificate Rate : Variable Approximate Class Original
Certificate Principal Balance : $
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"), the assets of which consist of a pool of
96 classes of mortgage backed securities (the "Pooled Securities"), the assets
of which consist primarily of (i) conventional, fixed rate, first lien mortgage
loans secured by one- to four-family residences or cooperative loans secured by
shares in cooperative corporations ("Mortgage Loans") or (ii) mortgage
certificates representing interests in 48 trusts or trust estates, the assets of
which consist primarily of Mortgage Loans sold by Bear Xxxxxxx Mortgage
Securities Inc. (the "Seller") to the Trust. The Pooled Securities were sold to
the Seller by SunAmerica Inc., a Maryland corporation, its subsidiary SunAmerica
Life Insurance Company, an Arizona corporation, and certain of the latter's
subsidiaries. The Trust was created pursuant to the Pooling Agreement dated as
of March 1, 1998 (the "Agreement"), by and between the Seller, as seller and The
Bank of New York, 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.
The Holder of this Certificate will be entitled to receive interest on its
Certificate Principal Balance on each monthly Distribution Date at a variable
per annum interest rate equal to the lesser of (x) 6.75% and (y) the weighted
average of the Pooled Security Interest Rates, but in no event greater than (z)
a fraction, expressed as a percentage, the numerator of which is the interest
distribution on the Pooled Securities for which both the Pooled Security
distribution and the related Pooled Security Distribution Date Information have
been received by the Trustee by the times described in the Agreement, multiplied
by twelve, and the denominator of which is the aggregate Certificate Principal
Balance of the Certificates. The Assumed Final Distribution Date is
approximately one month after the Pooled Security Distribution Date on which the
final scheduled distribution on the last to mature of the related Pooled
Securities is scheduled to be made. Since the rate of payment of principal on
the Underlying Mortgage Loans can be expected to exceed the rate of payments
used in calculating each such final scheduled distribution, the date of the
final distribution on each class of Certificates is expected to be earlier, and
could be substantially earlier, than the Assumed Final Distribution Date.
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 Certificate Principal
Balance of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person to the
Trustee. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose and designated in
such notice.
Unless this Certificate has been countersigned by an authorized signatory
of the Trustee by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ______________
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but
solely as Trustee
By: ________________________________
Authorized signatory of The Bank of
New York not in its individual capacity
but solely as Trustee By: _____________________________
AUTHORIZED OFFICER
BEAR XXXXXXX MORTGAGE SECURITIES INC.
PASS-THROUGH CERTIFICATES, SERIES 1998-2
This Certificate is one of a duly authorized issue of Certificates
designated as set forth on the face hereof (the "Certificates"), issued in
eleven Classes. The Certificates, in the aggregate, evidence the entire
beneficial ownership interest in the Trust formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the Trust for payment hereunder and that the Trustee is
not liable to the Certificateholders for any amount payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced hereby, and the rights, duties and
immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights of the Certificateholders
under the Agreement from time to time by the Seller and the Trustee with the
consent of the Majority Certificateholders. 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 for such purpose 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 Class and aggregate Percentage Interest will
be issued to the designated transferee.
The Certificates are issuable only as registered Certificates without
coupons in the Classes and denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, this
Certificate is exchangeable for one or more new Certificates evidencing the same
Class and in the same aggregate 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 Seller, 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 Trustee nor any such agent shall be affected by notice
to the contrary.
The obligations created by the Agreement and the Trust created thereby
(other than the obligations to make payments and to send certain notices to
Certificateholders as set forth in the Agreement) shall terminate upon (i) the
optional repurchase by the party named in the Agreement of all the Pooled
Securities in accordance with the terms of the Agreement, or (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 the final distribution to be made on the
Pooled Securities. Such optional repurchase may be made only on any Distribution
Date upon the determination, based upon an opinion of counsel, that the REMIC
status of either REMIC I or REMIC II has been lost or that a substantial risk
exists that such status will be lost for the then current year. In no event,
however, will the Trust created by the Agreement continue beyond the expiration
of 21 years after the death of certain persons identified in the Agreement.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code assignee)
the within Certificate and hereby authorizes the transfer of registration of
such interest to the assignee on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:
_____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to______________________________________________________________
________________________________________________________________________________
for the account of_____________________________________________________________
account number_____________, or, if mailed by check to__________________________
________________________________________________________________________________
Applicable statements should be mailed to ______________________________________
________________________________________________________________________________
This information is provided by_________________________________________________
the assignee named above, or____________________________________________________
as its agent.
EXHIBIT B
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN, BEAR
XXXXXXX 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.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF
THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CURRENT CERTIFICATE 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 TRUSTEE 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.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, A
TRANSFEREE UNLESS THE PROPOSED TRANSFEREE CERTIFIES TO THE TRUSTEE THAT IT IS
NOT ACQUIRING SUCH CERTIFICATES DIRECTLY OR INDIRECTLY FOR, ON BEHALF OF OR WITH
THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
OR IS AN INSURANCE COMPANY AND THE SOURCE OF FUNDS TO BE USED BY IT TO PAY THE
PURCHASE PRICE OF THE CERTIFICATES IS FUNDS HELD BY IT IN AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 ("PTCE 95-60") AS PUBLISHED IN 60 FED. REG. 35925 (JULY 12,
1995)) AND IT REASONABLY BELIEVES, AS OF ACQUISITION, THE AMOUNT OF RESERVES AND
LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY PLAN
(AND ANY OTHER PLAN OF THE SAME EMPLOYER OR ITS AFFILIATES (AS DEFINED IN
SECTION V(A)(1) OF PTCE 95-60)) OR BY THE SAME EMPLOYEE ORGANIZATION) DOES NOT
EXCEED 10% OF THE TOTAL RESERVE AND LIABILITIES OF SUCH GENERAL ACCOUNT PLUS
SURPLUS (SUCH DETERMINATION TO BE MADE IN ACCORDANCE WITH SECTION I(A) OF PTCE
95-60), WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE
OR GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION TO SUCH EFFECT
BY OR ON BEHALF OF A HOLDER OF A CERTIFICATE IN PHYSICAL FORM.
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
No. B-
evidencing a beneficial interest in a Trust consisting primarily of the
Pooled Securities (as defined below) sold by
BEAR XXXXXXX MORTGAGE SECURITIES INC.
CUSIP No.
First Distribution Date : April 1, 1998 Class : B
Assumed Final Distribution Date : May 2, 2030 Original Certificate Principal
Balance of this Certificate
("Denomination") : $
Certificate Rate : Variable Approximate Class Original
Certificate Principal Balance : $
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"), the assets of which consist of a pool of
96 classes of mortgage backed securities (the "Pooled Securities"), the assets
of which consist primarily of (i) conventional, fixed rate, first lien mortgage
loans secured by one- to four-family residences or cooperative loans secured by
shares in cooperative corporations ("Mortgage Loans") or (ii) mortgage
certificates representing interests in 48 trusts or trust estates, the assets of
which consist primarily of Mortgage Loans sold by Bear Xxxxxxx Mortgage
Securities Inc. (the "Seller") to the Trust. The Pooled Securities were sold to
the Seller by SunAmerica Inc., a Maryland corporation, its subsidiary SunAmerica
Life Insurance Company, an Arizona corporation, and certain of the latter's
subsidiaries. The Trust was created pursuant to the Pooling Agreement dated as
of March 1, 1998 (the "Agreement"), by and between the Seller, as seller and The
Bank of New York, 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.
The Holder of this Certificate will be entitled to receive interest on its
Certificate Principal Balance on each monthly Distribution Date at a variable
per annum interest rate equal to the lesser of (x) 6.75% and (y) the weighted
average of the Pooled Security Interest Rates, but in no event greater than (z)
a fraction, expressed as a percentage, the numerator of which is the interest
distribution on the Pooled Securities for which both the Pooled Security
distribution and the related Pooled Security Distribution Date Information have
been received by the Trustee by the times described in the Agreement, multiplied
by twelve, and the denominator of which is the aggregate Certificate Principal
Balance of the Certificates. The Assumed Final Distribution Date is
approximately one month after the Pooled Security Distribution Date on which the
final scheduled distribution on the last to mature of the related Pooled
Securities is scheduled to be made. Since the rate of payment of principal on
the Underlying Mortgage Loans can be expected to exceed the rate of payments
used in calculating each such final scheduled distribution, the date of the
final distribution on each class of Certificates is expected to be earlier, and
could be substantially earlier, than the Assumed Final Distribution Date.
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 Certificate Principal
Balance of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person to the
Trustee. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose and designated in
such notice.
Unless this Certificate has been countersigned by an authorized signatory
of the Trustee by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ______________
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but
solely as Trustee
By: ________________________________
Authorized signatory of The Bank of
New York not in its individual capacity
but solely as Trustee By: _____________________________
AUTHORIZED OFFICER
EXHIBIT C
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR XXXXXXX 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.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF
THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CURRENT CERTIFICATE 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 TRUSTEE 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.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, A
TRANSFEREE UNLESS THE PROPOSED TRANSFEREE CERTIFIES TO THE TRUSTEE THAT IT IS
NOT ACQUIRING SUCH CERTIFICATES DIRECTLY OR INDIRECTLY FOR, ON BEHALF OF OR WITH
THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
OR IS AN INSURANCE COMPANY AND THE SOURCE OF FUNDS TO BE USED BY IT TO PAY THE
PURCHASE PRICE OF THE CERTIFICATES IS FUNDS HELD BY IT IN AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 ("PTCE 95-60") AS PUBLISHED IN 60 FED. REG. 35925 (JULY 12,
1995)) AND IT REASONABLY BELIEVES, AS OF ACQUISITION, THE AMOUNT OF RESERVES AND
LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY PLAN
(AND ANY OTHER PLAN OF THE SAME EMPLOYER OR ITS AFFILIATES (AS DEFINED IN
SECTION V(A)(1) OF PTCE 95-60)) OR BY THE SAME EMPLOYEE ORGANIZATION) DOES NOT
EXCEED 10% OF THE TOTAL RESERVE AND LIABILITIES OF SUCH GENERAL ACCOUNT PLUS
SURPLUS (SUCH DETERMINATION TO BE MADE IN ACCORDANCE WITH SECTION I(A) OF PTCE
95-60), WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE
OR GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION TO SUCH EFFECT
BY OR ON BEHALF OF A HOLDER OF A CERTIFICATE IN PHYSICAL FORM.
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
No. C-
evidencing a beneficial interest in a Trust consisting primarily of the
Pooled Securities (as defined below) sold by
BEAR XXXXXXX MORTGAGE SECURITIES INC.
CUSIP No.
First Distribution Date : April 1, 1998 Class : C
Assumed Final Distribution Date : May 2, 2030 Original Certificate Principal
Balance of this Certificate
("Denomination") : $
Certificate Rate : Variable Approximate Class Original
Certificate Principal Balance : $
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"), the assets of which consist of a pool of
96 classes of mortgage backed securities (the "Pooled Securities"), the assets
of which consist primarily of (i) conventional, fixed rate, first lien mortgage
loans secured by one- to four-family residences or cooperative loans secured by
shares in cooperative corporations ("Mortgage Loans") or (ii) mortgage
certificates representing interests in 48 trusts or trust estates, the assets of
which consist primarily of Mortgage Loans sold by Bear Xxxxxxx Mortgage
Securities Inc. (the "Seller") to the Trust. The Pooled Securities were sold to
the Seller by SunAmerica Inc., a Maryland corporation, its subsidiary SunAmerica
Life Insurance Company, an Arizona corporation, and certain of the latter's
subsidiaries. The Trust was created pursuant to the Pooling Agreement dated as
of March 1, 1998 (the "Agreement"), by and between the Seller, as seller and The
Bank of New York, 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.
The Holder of this Certificate will be entitled to receive interest on its
Certificate Principal Balance on each monthly Distribution Date at a variable
per annum interest rate equal to the lesser of (x) 6.75% and (y) the weighted
average of the Pooled Security Interest Rates, but in no event greater than (z)
a fraction, expressed as a percentage, the numerator of which is the interest
distribution on the Pooled Securities for which both the Pooled Security
distribution and the related Pooled Security Distribution Date Information have
been received by the Trustee by the times described in the Agreement, multiplied
by twelve, and the denominator of which is the aggregate Certificate Principal
Balance of the Certificates. The Assumed Final Distribution Date is
approximately one month after the Pooled Security Distribution Date on which the
final scheduled distribution on the last to mature of the related Pooled
Securities is scheduled to be made. Since the rate of payment of principal on
the Underlying Mortgage Loans can be expected to exceed the rate of payments
used in calculating each such final scheduled distribution, the date of the
final distribution on each class of Certificates is expected to be earlier, and
could be substantially earlier, than the Assumed Final Distribution Date.
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 Certificate Principal
Balance of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person to the
Trustee. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose and designated in
such notice.
Unless this Certificate has been countersigned by an authorized signatory
of the Trustee by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ______________
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but
solely as Trustee
By: ________________________________
Authorized signatory of The Bank of
New York not in its individual capacity
but solely as Trustee By: _____________________________
AUTHORIZED OFFICER
Exhibit D
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR XXXXXXX 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.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF
THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CURRENT CERTIFICATE 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 TRUSTEE 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.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, A
TRANSFEREE UNLESS THE PROPOSED TRANSFEREE CERTIFIES TO THE TRUSTEE THAT IT IS
NOT ACQUIRING SUCH CERTIFICATES DIRECTLY OR INDIRECTLY FOR, ON BEHALF OF OR WITH
THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
OR IS AN INSURANCE COMPANY AND THE SOURCE OF FUNDS TO BE USED BY IT TO PAY THE
PURCHASE PRICE OF THE CERTIFICATES IS FUNDS HELD BY IT IN AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 ("PTCE 95-60") AS PUBLISHED IN 60 FED. REG. 35925 (JULY 12,
1995)) AND IT REASONABLY BELIEVES, AS OF ACQUISITION, THE AMOUNT OF RESERVES AND
LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY PLAN
(AND ANY OTHER PLAN OF THE SAME EMPLOYER OR ITS AFFILIATES (AS DEFINED IN
SECTION V(A)(1) OF PTCE 95-60)) OR BY THE SAME EMPLOYEE ORGANIZATION) DOES NOT
EXCEED 10% OF THE TOTAL RESERVE AND LIABILITIES OF SUCH GENERAL ACCOUNT PLUS
SURPLUS (SUCH DETERMINATION TO BE MADE IN ACCORDANCE WITH SECTION I(A) OF PTCE
95-60), WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE
OR GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION TO SUCH EFFECT
BY OR ON BEHALF OF A HOLDER OF A CERTIFICATE IN PHYSICAL FORM.
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
No. D-
evidencing a beneficial interest in a Trust consisting primarily of the
Pooled Securities (as defined below) sold by
BEAR XXXXXXX MORTGAGE SECURITIES INC.
CUSIP No.
First Distribution Date : April 1, 1998 Class : D
Assumed Final Distribution Date : May 2, 2030 Original Certificate Principal
Balance of this Certificate
("Denomination") : $
Certificate Rate : Variable Approximate Class Original
Certificate Principal Balance : $
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"), the assets of which consist of a pool of
96 classes of mortgage backed securities (the "Pooled Securities"), the assets
of which consist primarily of (i) conventional, fixed rate, first lien mortgage
loans secured by one- to four-family residences or cooperative loans secured by
shares in cooperative corporations ("Mortgage Loans") or (ii) mortgage
certificates representing interests in 48 trusts or trust estates, the assets of
which consist primarily of Mortgage Loans sold by Bear Xxxxxxx Mortgage
Securities Inc. (the "Seller") to the Trust. The Pooled Securities were sold to
the Seller by SunAmerica Inc., a Maryland corporation, its subsidiary SunAmerica
Life Insurance Company, an Arizona corporation, and certain of the latter's
subsidiaries. The Trust was created pursuant to the Pooling Agreement dated as
of March 1, 1998 (the "Agreement"), by and between the Seller, as seller and The
Bank of New York, 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.
The Holder of this Certificate will be entitled to receive interest on its
Certificate Principal Balance on each monthly Distribution Date at a variable
per annum interest rate equal to the lesser of (x) 6.75% and (y) the weighted
average of the Pooled Security Interest Rates, but in no event greater than (z)
a fraction, expressed as a percentage, the numerator of which is the interest
distribution on the Pooled Securities for which both the Pooled Security
distribution and the related Pooled Security Distribution Date Information have
been received by the Trustee by the times described in the Agreement, multiplied
by twelve, and the denominator of which is the aggregate Certificate Principal
Balance of the Certificates. The Assumed Final Distribution Date is
approximately one month after the Pooled Security Distribution Date on which the
final scheduled distribution on the last to mature of the related Pooled
Securities is scheduled to be made. Since the rate of payment of principal on
the Underlying Mortgage Loans can be expected to exceed the rate of payments
used in calculating each such final scheduled distribution, the date of the
final distribution on each class of Certificates is expected to be earlier, and
could be substantially earlier, than the Assumed Final Distribution Date.
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 Certificate Principal
Balance of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person to the
Trustee. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose and designated in
such notice.
Unless this Certificate has been countersigned by an authorized signatory
of the Trustee by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ______________
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but
solely as Trustee
By: ________________________________
Authorized signatory of The Bank of
New York not in its individual capacity
but solely as Trustee By: _____________________________
AUTHORIZED OFFICER
Exhibit E
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR XXXXXXX 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.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF
THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CURRENT CERTIFICATE 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 TRUSTEE 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.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, A
TRANSFEREE UNLESS THE PROPOSED TRANSFEREE CERTIFIES TO THE TRUSTEE THAT IT IS
NOT ACQUIRING SUCH CERTIFICATES DIRECTLY OR INDIRECTLY FOR, ON BEHALF OF OR WITH
THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
OR IS AN INSURANCE COMPANY AND THE SOURCE OF FUNDS TO BE USED BY IT TO PAY THE
PURCHASE PRICE OF THE CERTIFICATES IS FUNDS HELD BY IT IN AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 ("PTCE 95-60") AS PUBLISHED IN 60 FED. REG. 35925 (JULY 12,
1995)) AND IT REASONABLY BELIEVES, AS OF ACQUISITION, THE AMOUNT OF RESERVES AND
LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY PLAN
(AND ANY OTHER PLAN OF THE SAME EMPLOYER OR ITS AFFILIATES (AS DEFINED IN
SECTION V(A)(1) OF PTCE 95-60)) OR BY THE SAME EMPLOYEE ORGANIZATION) DOES NOT
EXCEED 10% OF THE TOTAL RESERVE AND LIABILITIES OF SUCH GENERAL ACCOUNT PLUS
SURPLUS (SUCH DETERMINATION TO BE MADE IN ACCORDANCE WITH SECTION I(A) OF PTCE
95-60), WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE
OR GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION TO SUCH EFFECT
BY OR ON BEHALF OF A HOLDER OF A CERTIFICATE IN PHYSICAL FORM.
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
No. E-
evidencing a beneficial interest in a Trust consisting primarily of the
Pooled Securities (as defined below) sold by
BEAR XXXXXXX MORTGAGE SECURITIES INC.
CUSIP No.
First Distribution Date : April 1, 1998 Class : E
Assumed Final Distribution Date : May 2, 2030 Original Certificate Principal
Balance of this Certificate
("Denomination") : $
Certificate Rate : Variable Approximate Class Original
Certificate Principal Balance : $
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"), the assets of which consist of a pool of
96 classes of mortgage backed securities (the "Pooled Securities"), the assets
of which consist primarily of (i) conventional, fixed rate, first lien mortgage
loans secured by one- to four-family residences or cooperative loans secured by
shares in cooperative corporations ("Mortgage Loans") or (ii) mortgage
certificates representing interests in 48 trusts or trust estates, the assets of
which consist primarily of Mortgage Loans sold by Bear Xxxxxxx Mortgage
Securities Inc. (the "Seller") to the Trust. The Pooled Securities were sold to
the Seller by SunAmerica Inc., a Maryland corporation, its subsidiary SunAmerica
Life Insurance Company, an Arizona corporation, and certain of the latter's
subsidiaries. The Trust was created pursuant to the Pooling Agreement dated as
of March 1, 1998 (the "Agreement"), by and between the Seller, as seller and The
Bank of New York, 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.
The Holder of this Certificate will be entitled to receive interest on its
Certificate Principal Balance on each monthly Distribution Date at a variable
per annum interest rate equal to the lesser of (x) 6.75% and (y) the weighted
average of the Pooled Security Interest Rates, but in no event greater than (z)
a fraction, expressed as a percentage, the numerator of which is the interest
distribution on the Pooled Securities for which both the Pooled Security
distribution and the related Pooled Security Distribution Date Information have
been received by the Trustee by the times described in the Agreement, multiplied
by twelve, and the denominator of which is the aggregate Certificate Principal
Balance of the Certificates. The Assumed Final Distribution Date is
approximately one month after the Pooled Security Distribution Date on which the
final scheduled distribution on the last to mature of the related Pooled
Securities is scheduled to be made. Since the rate of payment of principal on
the Underlying Mortgage Loans can be expected to exceed the rate of payments
used in calculating each such final scheduled distribution, the date of the
final distribution on each class of Certificates is expected to be earlier, and
could be substantially earlier, than the Assumed Final Distribution Date.
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 Certificate Principal
Balance of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person to the
Trustee. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose and designated in
such notice.
Unless this Certificate has been countersigned by an authorized signatory
of the Trustee by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ______________
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but
solely as Trustee
By: ________________________________
Authorized signatory of The Bank of
New York not in its individual capacity
but solely as Trustee By: _____________________________
AUTHORIZED OFFICER
Exhibit F
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR XXXXXXX 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.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF
THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CURRENT CERTIFICATE 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 TRUSTEE 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.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, A
TRANSFEREE UNLESS THE PROPOSED TRANSFEREE CERTIFIES TO THE TRUSTEE THAT IT IS
NOT ACQUIRING SUCH CERTIFICATES DIRECTLY OR INDIRECTLY FOR, ON BEHALF OF OR WITH
THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
OR IS AN INSURANCE COMPANY AND THE SOURCE OF FUNDS TO BE USED BY IT TO PAY THE
PURCHASE PRICE OF THE CERTIFICATES IS FUNDS HELD BY IT IN AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 ("PTCE 95-60") AS PUBLISHED IN 60 FED. REG. 35925 (JULY 12,
1995)) AND IT REASONABLY BELIEVES, AS OF ACQUISITION, THE AMOUNT OF RESERVES AND
LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY PLAN
(AND ANY OTHER PLAN OF THE SAME EMPLOYER OR ITS AFFILIATES (AS DEFINED IN
SECTION V(A)(1) OF PTCE 95-60)) OR BY THE SAME EMPLOYEE ORGANIZATION) DOES NOT
EXCEED 10% OF THE TOTAL RESERVE AND LIABILITIES OF SUCH GENERAL ACCOUNT PLUS
SURPLUS (SUCH DETERMINATION TO BE MADE IN ACCORDANCE WITH SECTION I(A) OF PTCE
95-60), WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE
OR GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION TO SUCH EFFECT
BY OR ON BEHALF OF A HOLDER OF A CERTIFICATE IN PHYSICAL FORM.
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
No. F-
evidencing a beneficial interest in a Trust consisting primarily of the
Pooled Securities (as defined below) sold by
BEAR XXXXXXX MORTGAGE SECURITIES INC.
CUSIP No.
First Distribution Date : April 1, 1998 Class : F
Assumed Final Distribution Date : May 2, 2030 Original Certificate Principal
Balance of this Certificate
("Denomination") : $
Certificate Rate : Variable Approximate Class Original
Certificate Principal Balance : $
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"), the assets of which consist of a pool of
96 classes of mortgage backed securities (the "Pooled Securities"), the assets
of which consist primarily of (i) conventional, fixed rate, first lien mortgage
loans secured by one- to four-family residences or cooperative loans secured by
shares in cooperative corporations ("Mortgage Loans") or (ii) mortgage
certificates representing interests in 48 trusts or trust estates, the assets of
which consist primarily of Mortgage Loans sold by Bear Xxxxxxx Mortgage
Securities Inc. (the "Seller") to the Trust. The Pooled Securities were sold to
the Seller by SunAmerica Inc., a Maryland corporation, its subsidiary SunAmerica
Life Insurance Company, an Arizona corporation, and certain of the latter's
subsidiaries. The Trust was created pursuant to the Pooling Agreement dated as
of March 1, 1998 (the "Agreement"), by and between the Seller, as seller and The
Bank of New York, 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.
The Holder of this Certificate will be entitled to receive interest on its
Certificate Principal Balance on each monthly Distribution Date at a variable
per annum interest rate equal to the lesser of (x) 6.75% and (y) the weighted
average of the Pooled Security Interest Rates, but in no event greater than (z)
a fraction, expressed as a percentage, the numerator of which is the interest
distribution on the Pooled Securities for which both the Pooled Security
distribution and the related Pooled Security Distribution Date Information have
been received by the Trustee by the times described in the Agreement, multiplied
by twelve, and the denominator of which is the aggregate Certificate Principal
Balance of the Certificates. The Assumed Final Distribution Date is
approximately one month after the Pooled Security Distribution Date on which the
final scheduled distribution on the last to mature of the related Pooled
Securities is scheduled to be made. Since the rate of payment of principal on
the Underlying Mortgage Loans can be expected to exceed the rate of payments
used in calculating each such final scheduled distribution, the date of the
final distribution on each class of Certificates is expected to be earlier, and
could be substantially earlier, than the Assumed Final Distribution Date.
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 Certificate Principal
Balance of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person to the
Trustee. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose and designated in
such notice.
Unless this Certificate has been countersigned by an authorized signatory
of the Trustee by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ______________
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but
solely as Trustee
By: ________________________________
Authorized signatory of The Bank of
New York not in its individual capacity
but solely as Trustee By: _____________________________
AUTHORIZED OFFICER
Exhibit G
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR XXXXXXX 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.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF
THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CURRENT CERTIFICATE 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 TRUSTEE 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.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, A
TRANSFEREE UNLESS THE PROPOSED TRANSFEREE CERTIFIES TO THE TRUSTEE THAT IT IS
NOT ACQUIRING SUCH CERTIFICATES DIRECTLY OR INDIRECTLY FOR, ON BEHALF OF OR WITH
THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
OR IS AN INSURANCE COMPANY AND THE SOURCE OF FUNDS TO BE USED BY IT TO PAY THE
PURCHASE PRICE OF THE CERTIFICATES IS FUNDS HELD BY IT IN AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 ("PTCE 95-60") AS PUBLISHED IN 60 FED. REG. 35925 (JULY 12,
1995)) AND IT REASONABLY BELIEVES, AS OF ACQUISITION, THE AMOUNT OF RESERVES AND
LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY PLAN
(AND ANY OTHER PLAN OF THE SAME EMPLOYER OR ITS AFFILIATES (AS DEFINED IN
SECTION V(A)(1) OF PTCE 95-60)) OR BY THE SAME EMPLOYEE ORGANIZATION) DOES NOT
EXCEED 10% OF THE TOTAL RESERVE AND LIABILITIES OF SUCH GENERAL ACCOUNT PLUS
SURPLUS (SUCH DETERMINATION TO BE MADE IN ACCORDANCE WITH SECTION I(A) OF PTCE
95-60), WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE
OR GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION TO SUCH EFFECT
BY OR ON BEHALF OF A HOLDER OF A CERTIFICATE IN PHYSICAL FORM.
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
No. G-
evidencing a beneficial interest in a Trust consisting primarily of the
Pooled Securities (as defined below) sold by
BEAR XXXXXXX MORTGAGE SECURITIES INC.
CUSIP No.
First Distribution Date : April 1, 1998 Class : G
Assumed Final Distribution Date : May 2, 2030 Original Certificate Principal
Balance of this Certificate
("Denomination") : $
Certificate Rate : Variable Approximate Class Original
Certificate Principal Balance : $
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"), the assets of which consist of a pool of
96 classes of mortgage backed securities (the "Pooled Securities"), the assets
of which consist primarily of (i) conventional, fixed rate, first lien mortgage
loans secured by one- to four-family residences or cooperative loans secured by
shares in cooperative corporations ("Mortgage Loans") or (ii) mortgage
certificates representing interests in 48 trusts or trust estates, the assets of
which consist primarily of Mortgage Loans sold by Bear Xxxxxxx Mortgage
Securities Inc. (the "Seller") to the Trust. The Pooled Securities were sold to
the Seller by SunAmerica Inc., a Maryland corporation, its subsidiary SunAmerica
Life Insurance Company, an Arizona corporation, and certain of the latter's
subsidiaries. The Trust was created pursuant to the Pooling Agreement dated as
of March 1, 1998 (the "Agreement"), by and between the Seller, as seller and The
Bank of New York, 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.
The Holder of this Certificate will be entitled to receive interest on its
Certificate Principal Balance on each monthly Distribution Date at a variable
per annum interest rate equal to the lesser of (x) 6.75% and (y) the weighted
average of the Pooled Security Interest Rates, but in no event greater than (z)
a fraction, expressed as a percentage, the numerator of which is the interest
distribution on the Pooled Securities for which both the Pooled Security
distribution and the related Pooled Security Distribution Date Information have
been received by the Trustee by the times described in the Agreement, multiplied
by twelve, and the denominator of which is the aggregate Certificate Principal
Balance of the Certificates. The Assumed Final Distribution Date is
approximately one month after the Pooled Security Distribution Date on which the
final scheduled distribution on the last to mature of the related Pooled
Securities is scheduled to be made. Since the rate of payment of principal on
the Underlying Mortgage Loans can be expected to exceed the rate of payments
used in calculating each such final scheduled distribution, the date of the
final distribution on each class of Certificates is expected to be earlier, and
could be substantially earlier, than the Assumed Final Distribution Date.
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 Certificate Principal
Balance of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person to the
Trustee. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose and designated in
such notice.
Unless this Certificate has been countersigned by an authorized signatory
of the Trustee by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ______________
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but
solely as Trustee
By: ________________________________
Authorized signatory of The Bank of
New York not in its individual capacity
but solely as Trustee By: _____________________________
AUTHORIZED OFFICER
Exhibit H
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN, BEAR
XXXXXXX 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.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF
THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE
TRUSTEE NAMED HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAW OF ANY STATE. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER
HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (3)
IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE
MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) (OR ANY ENTITY IN WHICH ALL
OF THE EQUITY HOLDERS COME WITHIN SUCH PARAGRAPHS) OF REGULATION D UNDER THE
SECURITIES ACT PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE
FORM PROVIDED IN THE AGREEMENT AND (B) IF REQUESTED BY THE TRUSTEE AN OPINION OF
COUNSEL AS TO COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED
STATES.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, A
TRANSFEREE UNLESS THE PROPOSED TRANSFEREE CERTIFIES TO THE TRUSTEE THAT IT IS
NOT ACQUIRING SUCH CERTIFICATES DIRECTLY OR INDIRECTLY FOR, ON BEHALF OF OR WITH
THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
OR IS AN INSURANCE COMPANY AND THE SOURCE OF FUNDS TO BE USED BY IT TO PAY THE
PURCHASE PRICE OF THE CERTIFICATES IS FUNDS HELD BY IT IN AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 ("PTCE 95-60") AS PUBLISHED IN 60 FED. REG. 35925 (JULY 12,
1995)) AND IT REASONABLY BELIEVES, AS OF ACQUISITION, THE AMOUNT OF RESERVES AND
LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY PLAN
(AND ANY OTHER PLAN OF THE SAME EMPLOYER OR ITS AFFILIATES (AS DEFINED IN
SECTION V(A)(1) OF PTCE 95-60)) OR BY THE SAME EMPLOYEE ORGANIZATION) DOES NOT
EXCEED 10% OF THE TOTAL RESERVE AND LIABILITIES OF SUCH GENERAL ACCOUNT PLUS
SURPLUS (SUCH DETERMINATION TO BE MADE IN ACCORDANCE WITH SECTION I(A) OF PTCE
95-60), WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE
OR GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION TO SUCH EFFECT
BY OR ON BEHALF OF A HOLDER OF A CERTIFICATE IN PHYSICAL FORM.
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
No. H-
evidencing a beneficial interest in a Trust consisting primarily of the
Pooled Securities (as defined below) sold by
BEAR XXXXXXX MORTGAGE SECURITIES INC.
CUSIP No.
First Distribution Date : April 1, 1998 Class : H
Assumed Final Distribution Date : May 2, 2030 Original Certificate Principal
Balance of this Certificate
("Denomination") : $
Certificate Rate : Variable Approximate Class Original
Certificate Principal Balance : $
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. International Limited
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"), the assets of which consist of a pool of
96 classes of mortgage backed securities (the "Pooled Securities"), the assets
of which consist primarily of (i) conventional, fixed rate, first lien mortgage
loans secured by one- to four-family residences or cooperative loans secured by
shares in cooperative corporations ("Mortgage Loans") or (ii) mortgage
certificates representing interests in 48 trusts or trust estates, the assets of
which consist primarily of Mortgage Loans sold by Bear Xxxxxxx Mortgage
Securities Inc. (the "Seller") to the Trust. The Pooled Securities were sold to
the Seller by SunAmerica Inc., a Maryland corporation, its subsidiary SunAmerica
Life Insurance Company, an Arizona corporation, and certain of the latter's
subsidiaries. The Trust was created pursuant to the Pooling Agreement dated as
of March 1, 1998 (the "Agreement"), by and between the Seller, as seller and The
Bank of New York, 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.
The Holder of this Certificate will be entitled to receive interest on its
Certificate Principal Balance on each monthly Distribution Date at a variable
per annum interest rate equal to the lesser of (x) 6.75% and (y) the weighted
average of the Pooled Security Interest Rates, but in no event greater than (z)
a fraction, expressed as a percentage, the numerator of which is the interest
distribution on the Pooled Securities for which both the Pooled Security
distribution and the related Pooled Security Distribution Date Information have
been received by the Trustee by the times described in the Agreement, multiplied
by twelve, and the denominator of which is the aggregate Certificate Principal
Balance of the Certificates. The Assumed Final Distribution Date is
approximately one month after the Pooled Security Distribution Date on which the
final scheduled distribution on the last to mature of the related Pooled
Securities is scheduled to be made. Since the rate of payment of principal on
the Underlying Mortgage Loans can be expected to exceed the rate of payments
used in calculating each such final scheduled distribution, the date of the
final distribution on each class of Certificates is expected to be earlier, and
could be substantially earlier, than the Assumed Final Distribution Date.
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 Certificate Principal
Balance of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person to the
Trustee. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose and designated in
such notice.
Unless this Certificate has been countersigned by an authorized signatory
of the Trustee by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ______________
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but
solely as Trustee
By: ________________________________
Authorized signatory of The Bank of
New York not in its individual capacity
but solely as Trustee By: _____________________________
AUTHORIZED OFFICER
Exhibit I
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR XXXXXXX 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.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, A
TRANSFEREE UNLESS THE PROPOSED TRANSFEREE CERTIFIES TO THE TRUSTEE THAT IT IS
NOT ACQUIRING SUCH CERTIFICATES DIRECTLY OR INDIRECTLY FOR, ON BEHALF OF OR WITH
THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
OR IS AN INSURANCE COMPANY AND THE SOURCE OF FUNDS TO BE USED BY IT TO PAY THE
PURCHASE PRICE OF THE CERTIFICATES IS FUNDS HELD BY IT IN AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 ("PTCE 95-60") AS PUBLISHED IN 60 FED. REG. 35925 (JULY 12,
1995)) AND IT REASONABLY BELIEVES, AS OF ACQUISITION, THE AMOUNT OF RESERVES AND
LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY PLAN
(AND ANY OTHER PLAN OF THE SAME EMPLOYER OR ITS AFFILIATES (AS DEFINED IN
SECTION V(A)(1) OF PTCE 95-60)) OR BY THE SAME EMPLOYEE ORGANIZATION) DOES NOT
EXCEED 10% OF THE TOTAL RESERVE AND LIABILITIES OF SUCH GENERAL ACCOUNT PLUS
SURPLUS (SUCH DETERMINATION TO BE MADE IN ACCORDANCE WITH SECTION I(A) OF PTCE
95-60), WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE
OR GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION TO SUCH EFFECT
BY OR ON BEHALF OF A HOLDER OF A CERTIFICATE IN PHYSICAL FORM.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAW OF ANY STATE. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER
HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (3)
IN CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE
MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) (OR ANY ENTITY IN WHICH ALL
OF THE EQUITY HOLDERS COME WITHIN SUCH PARAGRAPHS) OF REGULATION D UNDER THE
SECURITIES ACT PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE
FORM PROVIDED IN THE AGREEMENT AND (B) IF REQUESTED BY THE TRUSTEE AN OPINION OF
COUNSEL AS TO COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED
STATES.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL DECREASE BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS THEN CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE
TRUSTEE NAMED HEREIN.
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
No. PO-
evidencing a beneficial interest in a Trust consisting primarily of the
Pooled Securities (as defined below) sold by
BEAR XXXXXXX MORTGAGE SECURITIES INC.
CUSIP No.
First Distribution Date : April 1, 1998 Class : PO
Assumed Final Distribution Date : May 2, 2030 Original Certificate Principal
Balance of this Certificate
("Denomination") : $
Certificate Rate : None Approximate Class Original
Certificate Principal Balance : $
THIS CERTIFIES THAT
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"), the assets of which consist of a pool of
96 classes of mortgage backed securities (the "Pooled Securities"), the assets
of which consist primarily of (i) conventional, fixed rate, first lien mortgage
loans secured by one- to four-family residences or cooperative loans secured by
shares in cooperative corporations ("Mortgage Loans") or (ii) mortgage
certificates representing interests in 48 trusts or trust estates, the assets of
which consist primarily of Mortgage Loans sold by Bear Xxxxxxx Mortgage
Securities Inc. (the "Seller") to the Trust. The Pooled Securities were sold to
the Seller by SunAmerica Inc., a Maryland corporation, its subsidiary SunAmerica
Life Insurance Company, an Arizona corporation, and certain of the latter's
subsidiaries. The Trust was created pursuant to the Pooling Agreement dated as
of March 1, 1998 (the "Agreement"), by and between the Seller, as seller and The
Bank of New York, 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.
The Class PO Certificates are entitled to receive the Class PO Principal
Distribution on each Distribution Date or Supplemental Distribution Date, as
applicable; provided that, if there may be a Supplemental Distribution Date,
such payments on the Class PO Certificates will be made only on such
Supplemental Distribution Date and calculated on an aggregate basis.
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 Certificate Principal
Balance of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person to the
Trustee. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose and designated in
such notice.
Unless this Certificate has been countersigned by an authorized signatory
of the Trustee by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ______________
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but
solely as Trustee
By: ________________________________
Authorized signatory of The Bank of
New York not in its individual capacity
but solely as Trustee By: _____________________________
AUTHORIZED OFFICER
EXHIBIT J
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR XXXXXXX 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.
THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT" (A "REMIC"), AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE").
THE NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED AS THE POOLED
SECURITY PRINCIPAL BALANCE OF THE POOLED SECURITIES DECREASES. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE NOTIONAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY
OF THE TRUSTEE NAMED HEREIN.
THE YIELD TO THE HOLDER OF THIS CERTIFICATE WILL BE EXTREMELY SENSITIVE TO
THE RATE OF PRINCIPAL PAYMENTS ON THE POOLED SECURITIES.
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.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, A
TRANSFEREE UNLESS THE PROPOSED TRANSFEREE CERTIFIES TO THE TRUSTEE THAT IT IS
NOT ACQUIRING SUCH CERTIFICATES DIRECTLY OR INDIRECTLY FOR, ON BEHALF OF OR WITH
THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
OR IS AN INSURANCE COMPANY AND THE SOURCE OF FUNDS TO BE USED BY IT TO PAY THE
PURCHASE PRICE OF THE CERTIFICATES IS FUNDS HELD BY IT IN AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 ("PTCE 95-60") AS PUBLISHED IN 60 FED. REG. 35925 (JULY 12,
1995)) AND IT REASONABLY BELIEVES, AS OF ACQUISITION, THE AMOUNT OF RESERVES AND
LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY PLAN
(AND ANY OTHER PLAN OF THE SAME EMPLOYER OR ITS AFFILIATES (AS DEFINED IN
SECTION V(A)(1) OF PTCE 95-60)) OR BY THE SAME EMPLOYEE ORGANIZATION) DOES NOT
EXCEED 10% OF THE TOTAL RESERVE AND LIABILITIES OF SUCH GENERAL ACCOUNT PLUS
SURPLUS (SUCH DETERMINATION TO BE MADE IN ACCORDANCE WITH SECTION I(A) OF PTCE
95-60), WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE
OR GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION TO SUCH EFFECT
BY OR ON BEHALF OF A HOLDER OF A CERTIFICATE IN PHYSICAL FORM.
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
No. X-
evidencing a beneficial interest in a Trust consisting primarily of
Pooled Securities (as defined below) sold by
BEAR XXXXXXX MORTGAGE SECURITIES INC.
CUSIP No.
First Distribution Date : April 1, 1998 Class : X
Assumed Final Distribution Date : May 2, 2030 Original Notional Amount
of this Certificate
("Denomination") : $
Certificate Rate : Variable Approximate Class Original
Notional Amount : $
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"), the assets of which consist of a pool of
96 classes of mortgage backed securities (the "Pooled Securities"), the assets
of which consist primarily of (i) conventional, fixed rate, first lien mortgage
loans secured by one- to four-family residences or cooperative loans secured by
shares in cooperative corporations ("Mortgage Loans") or (ii) mortgage
certificates representing interests in 48 trusts or trust estates, the assets of
which consist primarily of Mortgage Loans sold by Bear Xxxxxxx Mortgage
Securities Inc. (the "Seller") to the Trust. The Pooled Securities were sold to
the Seller by SunAmerica Inc., a Maryland corporation, its subsidiary SunAmerica
Life Insurance Company, an Arizona corporation, and certain of the latter's
subsidiaries. The Trust was created pursuant to the Pooling Agreement dated as
of March 1, 1998 (the "Agreement"), by and between the Seller, as seller and The
Bank of New York, 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.
The Class X Certificates are interest only securities and are not entitled
to distributions of principal. The Class X Certificates will be deemed to have a
"Notional Amount" equal to the sum of the Pooled Security Principal Balances of
all of the Pooled Securities and will be entitled to receive interest thereon on
each monthly Distribution Date at the per annum rate equal to a fraction,
expressed as a percentage, the numerator of which is the product of (A) the
excess, if any, of (i) the interest distribution on the Pooled Securities for
which both the Pooled Security distribution and the related Pooled Security
Distribution Date Information have been received by the Trustee by the times
described herein, exclusive of any Excess Amounts received over (ii) the
interest paid on such Distribution Date on all Certificates other than the Class
X Certificates, and (B) twelve and the denominator of which is the Notional
Amount. The Assumed Final Distribution Date is approximately one month after the
Pooled Security Distribution Date on which the final scheduled distribution on
the last to mature of the related Pooled Securities is scheduled to be made.
Since the rate of payment of principal on the Underlying Mortgage Loans can be
expected to exceed the rate of payments used in calculating each such final
scheduled distribution, the date of the final distribution on each class of
Certificates is expected to be earlier, and could be substantially earlier, than
the Assumed Final Distribution Date.
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 Certificate Principal
Balance and/or initial aggregate Notional Amount of not less than $1,000,000, in
immediately available funds (by wire transfer or otherwise) to the account
specified in writing by such Person to the Trustee. Notwithstanding the above,
the final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose and designated in such notice.
Unless this Certificate has been countersigned by an authorized signatory
of the Trustee by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ______________
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but
solely as Trustee
By: ________________________________
Authorized signatory of The Bank of
New York not in its individual capacity
but solely as Trustee By: _____________________________
AUTHORIZED OFFICER
EXHIBIT K
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN,
BEAR XXXXXXX 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 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 XXXXXXX MORTGAGE SECURITIES INC. SHALL, WITHOUT FURTHER ACTION ON
THE PART OF THE HOLDER OF THE RESIDUAL CERTIFICATE BE EMPOWERED, TO THE FULLEST
EXTENT POSSIBLE AND AS IF IT 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 4.05(c) OF THE
AGREEMENT REFERRED TO BELOW WITHOUT THE PRIOR WRITTEN CONSENT OF THE BANK OF NEW
YORK, ACTING FOR THE TAX MATTERS PERSON.
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF
THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE
TRUSTEE NAMED HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, A
TRANSFEREE UNLESS THE PROPOSED TRANSFEREE CERTIFIES TO THE TRUSTEE THAT IT IS
NOT ACQUIRING SUCH CERTIFICATES DIRECTLY OR INDIRECTLY FOR, ON BEHALF OF OR WITH
THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
OR IS AN INSURANCE COMPANY AND THE SOURCE OF FUNDS TO BE USED BY IT TO PAY THE
PURCHASE PRICE OF THE CERTIFICATES IS FUNDS HELD BY IT IN AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 ("PTCE 95-60") AS PUBLISHED IN 60 FED. REG. 35925 (JULY 12,
1995)) AND IT REASONABLY BELIEVES, AS OF ACQUISITION, THE AMOUNT OF RESERVES AND
LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY PLAN
(AND ANY OTHER PLAN OF THE SAME EMPLOYER OR ITS AFFILIATES (AS DEFINED IN
SECTION V(A)(1) OF PTCE 95-60)) OR BY THE SAME EMPLOYEE ORGANIZATION) DOES NOT
EXCEED 10% OF THE TOTAL RESERVE AND LIABILITIES OF SUCH GENERAL ACCOUNT PLUS
SURPLUS (SUCH DETERMINATION TO BE MADE IN ACCORDANCE WITH SECTION I(A) OF PTCE
95-60). WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE
OR GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION TO SUCH EFFECT
BY OR ON BEHALF OF A HOLDER OF A CERTIFICATE IN PHYSICAL FORM.
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
No. R-1-
evidencing a beneficial interest in a Trust consisting primarily of the
Pooled Securities (as defined below) sold by
BEAR XXXXXXX MORTGAGE SECURITIES INC.
CUSIP No.
First Distribution Date : April 1, 1998 Class : R-1
Assumed Final Distribution Date : May 2, 2030 Original Certificate Principal
Balance of this Certificate
("Denomination") : $
Certificate Rate : Variable Approximate Class Original
Certificate Principal Balance : $
THIS CERTIFIES THAT
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"), the assets of which consist of a pool of
96 classes of mortgage backed securities (the "Pooled Securities"), the assets
of which consist primarily of (i) conventional, fixed rate, first lien mortgage
loans secured by one- to four-family residences or cooperative loans secured by
shares in cooperative corporations ("Mortgage Loans") or (ii) mortgage
certificates representing interests in 48 trusts or trust estates, the assets of
which consist primarily of Mortgage Loans sold by Bear Xxxxxxx Mortgage
Securities Inc. (the "Seller") to the Trust. The Pooled Securities were sold to
the Seller by SunAmerica Inc., a Maryland corporation, its subsidiary SunAmerica
Life Insurance Company, an Arizona corporation, and certain of the latter's
subsidiaries. The Trust was created pursuant to the Pooling Agreement dated as
of March 1, 1998 (the "Agreement"), by and between the Seller, as seller and The
Bank of New York, 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.
The Holder of this Certificate will be entitled to receive interest on its
Certificate Principal Balance on each monthly Distribution Date at a variable
per annum interest rate equal to the lesser of (x) 6.75% and (y) the weighted
average of the Pooled Security Interest Rates, but in no event greater than (z)
a fraction, expressed as a percentage, the numerator of which is the interest
distribution on the Pooled Securities for which both the Pooled Security
distribution and the related Pooled Security Distribution Date Information have
been received by the Trustee by the times described in the Agreement, multiplied
by twelve, and the denominator of which is the aggregate Certificate Principal
Balance of the Certificates. The Assumed Final Distribution Date is
approximately one month after the Pooled Security Distribution Date on which the
final scheduled distribution on the last to mature of the related Pooled
Securities is scheduled to be made. Since the rate of payment of principal on
the Underlying Mortgage Loans can be expected to exceed the rate of payments
used in calculating each such final scheduled distribution, the date of the
final distribution on each class of Certificates is expected to be earlier, and
could be substantially earlier, than the Assumed Final Distribution Date. The
holder of this Certificate is also entitled to receive any remaining assets of
the Trust after all other Classes of Certificates have been paid in full. R-2]
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 Certificate Principal
Balance of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person to the
Trustee. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose and designated in
such notice.
Unless this Certificate has been countersigned by an authorized signatory
of the Trustee by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ______________
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but
solely as Trustee
By: ________________________________
Authorized signatory of The Bank of
New York not in its individual capacity
but solely as Trustee By: _____________________________
AUTHORIZED OFFICER
EXHIBIT L
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN, BEAR
XXXXXXX 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 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 XXXXXXX MORTGAGE SECURITIES INC. SHALL, WITHOUT FURTHER ACTION ON
THE PART OF THE HOLDER OF THE RESIDUAL CERTIFICATE BE EMPOWERED, TO THE FULLEST
EXTENT POSSIBLE AND AS IF IT 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 4.05(c) OF THE
AGREEMENT REFERRED TO BELOW WITHOUT THE PRIOR WRITTEN CONSENT OF THE BANK OF NEW
YORK, ACTING FOR THE TAX MATTERS PERSON.
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF
THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CURRENT CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE
TRUSTEE NAMED HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, A
TRANSFEREE UNLESS THE PROPOSED TRANSFEREE CERTIFIES TO THE TRUSTEE THAT IT IS
NOT ACQUIRING SUCH CERTIFICATES DIRECTLY OR INDIRECTLY FOR, ON BEHALF OF OR WITH
THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
OR IS AN INSURANCE COMPANY AND THE SOURCE OF FUNDS TO BE USED BY IT TO PAY THE
PURCHASE PRICE OF THE CERTIFICATES IS FUNDS HELD BY IT IN AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 ("PTCE 95-60") AS PUBLISHED IN 60 FED. REG. 35925 (JULY 12,
1995)) AND IT REASONABLY BELIEVES, AS OF ACQUISITION, THE AMOUNT OF RESERVES AND
LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY PLAN
(AND ANY OTHER PLAN OF THE SAME EMPLOYER OR ITS AFFILIATES (AS DEFINED IN
SECTION V(A)(1) OF PTCE 95-60)) OR BY THE SAME EMPLOYEE ORGANIZATION) DOES NOT
EXCEED 10% OF THE TOTAL RESERVE AND LIABILITIES OF SUCH GENERAL ACCOUNT PLUS
SURPLUS (SUCH DETERMINATION TO BE MADE IN ACCORDANCE WITH SECTION I(A) OF PTCE
95-60), WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE
OR GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION TO SUCH EFFECT
BY OR ON BEHALF OF A HOLDER OF A CERTIFICATE IN PHYSICAL FORM.
PASS-THROUGH CERTIFICATE,
SERIES 1998-2
No. R-2-
evidencing a beneficial interest in a Trust consisting primarily of the
Pooled Securities (as defined below) sold by
BEAR XXXXXXX MORTGAGE SECURITIES INC.
CUSIP No.
First Distribution Date : April 1, 1998 Class : R-2
Assumed Final Distribution Date : May 2, 2030 Original Certificate Principal
Balance of this Certificate
("Denomination") : $100.00
Certificate Rate : Variable Approximate Class Original
Certificate Principal Balance : $100.00
THIS CERTIFIES THAT
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"), the assets of which consist of a pool of
96 classes of mortgage backed securities (the "Pooled Securities"), the assets
of which consist primarily of (i) conventional, fixed rate, first lien mortgage
loans secured by one- to four-family residences or cooperative loans secured by
shares in cooperative corporations ("Mortgage Loans") or (ii) mortgage
certificates representing interests in 48 trusts or trust estates, the assets of
which consist primarily of Mortgage Loans sold by Bear Xxxxxxx Mortgage
Securities Inc. (the "Seller") to the Trust. The Pooled Securities were sold to
the Seller by SunAmerica Inc., a Maryland corporation, its subsidiary SunAmerica
Life Insurance Company, an Arizona corporation, and certain of the latter's
subsidiaries. The Trust was created pursuant to the Pooling Agreement dated as
of March 1, 1998 (the "Agreement"), by and between the Seller, as seller and The
Bank of New York, 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.
The Holder of this Certificate will be entitled to receive interest on its
Certificate Principal Balance on each monthly Distribution Date at a variable
per annum interest rate equal to the lesser of (x) 6.75% and (y) the weighted
average of the Pooled Security Interest Rates, but in no event greater than (z)
a fraction, expressed as a percentage, the numerator of which is the interest
distribution on the Pooled Securities for which both the Pooled Security
distribution and the related Pooled Security Distribution Date Information have
been received by the Trustee by the times described in the Agreement, multiplied
by twelve, and the denominator of which is the aggregate Certificate Principal
Balance of the Certificates. The Assumed Final Distribution Date is
approximately one month after the Pooled Security Distribution Date on which the
final scheduled distribution on the last to mature of the related Pooled
Securities is scheduled to be made. Since the rate of payment of principal on
the Underlying Mortgage Loans can be expected to exceed the rate of payments
used in calculating each such final scheduled distribution, the date of the
final distribution on each class of Certificates is expected to be earlier, and
could be substantially earlier, than the Assumed Final Distribution Date. The
holder of this Certificate is also entitled to receive any remaining assets of
the Trust after all other Classes of Certificates have been paid in full. R-2]
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 Certificate Principal
Balance of not less than $1,000,000, in immediately available funds (by wire
transfer or otherwise) to the account specified in writing by such Person to the
Trustee. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trustee for that purpose and designated in
such notice.
Unless this Certificate has been countersigned by an authorized signatory
of the Trustee by manual signature, this Certificate shall not be entitled to
any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ______________
THE BANK OF NEW YORK,
Countersigned: Not in its individual capacity but
solely as Trustee
By: ________________________________
Authorized signatory of The Bank of
New York not in its individual capacity
but solely as Trustee By: _____________________________
AUTHORIZED OFFICER
EXHIBIT M
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
Certificate (as defined below); (ii) it is not acquiring the Bear Xxxxxxx
Mortgage Securities Inc. Mortgage Pass-Through Certificates, Series 1998-2,
[Class R-1][Class R-2] Certificate (the "Residual Certificate") 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 Xxxxxxx
Mortgage Securities Inc. (upon advice of counsel) to constitute a reasonable
arrangement to ensure that the Residual Certificate will not be owned directly
or indirectly by a disqualified organization; and (iv) it will not transfer such
Residual Certificate 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 Certificate is to
avoid or impede the assessment or collection of tax.
M-1
6. That the Investor understands that, as the holder of the Residual
Certificate, the Investor may incur tax liabilities in excess of any cash flows
generated by such Residual Certificate.
7. That the Investor intends to pay taxes associated with holding the
Residual Certificate 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:
M-2
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 .
M-3
EXHIBIT N-1
FORM OF INVESTMENT LETTER
[Date]
[SELLER]
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department,
ref: Bear Xxxxxxx Mortgage Securities Inc., Series 1998-2
Bear Xxxxxxx Mortgage Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Bear Xxxxxxx Mortgage Securities Inc., Pass-Through Certificates,
Series 1998-2 (the "Certificates"), including the Class H and
Class PO Certificates (the "Privately Offered Certificates")
Dear Ladies and Gentlemen:
In connection with our purchase of Privately Offered Certificates, we
confirm that:
(i) we understand that the Privately Offered Certificates are not being
registered under the Securities Act of 1933, as amended (the "Act")
or any applicable state securities or "Blue Sky" laws, and are being
sold to us in a transaction that is exempt from the registration
requirements of such laws;
(ii) any information we desired concerning the Certificates, including
the Privately Offered Certificates, the trust in which the
Certificates represent the entire beneficial ownership interest (the
"Trust") or any other matter we deemed relevant to our decision to
purchase Privately Offered Certificates has been made available to
us;
(iii) we are able to bear the economic risk of investment in Privately
Offered Certificates; we are an institutional "accredited investor"
as defined in Section 501(a)(1), (2), (3) or (7) (or an entity in
which all the equity holders come within such paragraphs) of
N-1-1
Regulation D promulgated under the Act and a sophisticated
institutional investor;
(iv) we are acquiring Privately Offered Certificates for our own account,
not as nominee for any other person, and not with a present view to
any distribution or other disposition of the Privately Offered
Certificates;
(v) we agree the Privately Offered Certificates must be held
indefinitely by us (and may not be sold, pledged, hypothecated or in
any way disposed of) unless subsequently registered under the Act
and any applicable state securities or "Blue Sky" laws or an
exemption from the registration requirements of the Act and any
applicable state securities or "Blue Sky" laws is available;
(vi) we agree that in the event that at some future time we wish to
dispose of or exchange any of the Privately Offered Certificates
(such disposition or exchange not being currently foreseen or
contemplated), we will not transfer or exchange any of the Privately
Offered Certificates unless:
(A) (1) the sale is to an Eligible Purchaser (as defined
below), (2) a letter to substantially the same effect as either this
letter or, if the Eligible Purchaser is a Qualified Institutional
Buyer as defined under Rule 144A of the Act, the Rule 144A and
Related Matters Certificate in the form attached to the Pooling and
Servicing Agreement (as defined below) is executed promptly by the
purchaser and delivered to the addressees hereof and (3) all offers
or solicitations in connection with the sale, whether directly or
through any agent acting on our behalf, are limited only to Eligible
Purchasers and are not made by means of any form of general
solicitation or general advertising whatsoever; and
(B) if the Privately Offered Certificate is not registered
under the Act (as to which we acknowledge you have no obligation),
the Privately Offered Certificate is sold in a transaction that does
not require registration under the Act and any applicable state
securities or "Blue Sky" laws and, if The Bank of New York (the
"Trustee") so requests, a satisfactory Opinion of Counsel is
furnished to such effect, which Opinion of Counsel shall be an
expense of the transferor or the transferee;
(vii) we agree to be bound by all of the terms (including those relating
to restrictions on transfer) of the Pooling Agreement (as defined
N-1-2
below), pursuant to which the Trust was formed; we have reviewed
carefully and understand the terms of the Pooling Agreement;
(viii) we are not an employee benefit plan or other retirement arrangement
which is subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended, and/or Section 4975 of the
Internal Revenue Code of 1986, as amended ("Plan"), or we are an
insurance company and the source of funds being used by us to pay
the purchase price of the Certificates is funds held by us in an
"insurance company general account" (as defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60") as
published in 60 Fed. Reg. 35925 (July 12, 1995)) and we reasonably
believe, as of the date hereof, the amount of reserves and
liabilities for the general account contracts held by or on behalf
of any Plan (and any other Plan of the same employer or its
affiliates (as defined in Section V(a)(1) of PTCE 95-60)) or by the
same employee organization ) does not exceed 10% of the total
reserve and liabilities of such general account plus surplus (such
determination to be made in accordance with Section I(a) of PTCE
95-60).
(ix) We understand that each of the Class H Certificates bears, and will
continue to bear, a legend to substantiate the following effect: THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE
SKY LAW OF ANY STATE. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY
(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON
THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN
"INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE
501(a)(1), (2), (3) or (7) (OR ANY ENTITY IN WHICH ALL OF THE EQUITY HOLDERS
COME WITHIN SUCH PARAGRAPHS) OF REGULATION D UNDER THE SECURITIES ACT PURCHASING
NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, SUBJECT TO (A) THE
RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE
AGREEMENT AND
N-1-3
(B) IF REQUESTED BY THE TRUSTEE AN OPINION OF COUNSEL AS TO COMPLIANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE UNITED STATES.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, A
TRANSFEREE UNLESS THE PROPOSED TRANSFEREE CERTIFIES TO THE TRUSTEE THAT IT IS
NOT ACQUIRING SUCH CERTIFICATES DIRECTLY OR INDIRECTLY FOR, ON BEHALF OF OR WITH
THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED, AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
OR IT IS AN INSURANCE COMPANY AND THE SOURCE OF FUNDS TO BE USED BY IT TO PAY
THE PURCHASE PRICE OF THE CERTIFICATES IS FUNDS HELD BY IT IN AN "INSURANCE
COMPANY GENERAL ACCOUNT" (AS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 ("PTCE 95-60") AS PUBLISHED IN 60 FED. REG. 35925 (JULY
12, 1995)) AND IT REASONABLY BELIEVES, AS OF THE DATE OF ACQUISITION, THE AMOUNT
OF RESERVES AND LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON
BEHALF OF ANY PLAN (AND ANY OTHER PLAN OF THE SAME EMPLOYER OR ITS AFFILIATES
(AS DEFINED IN SECTION V(A)(1) OF PTCE 95-60)) OR BY THE SAME EMPLOYEE
ORGANIZATION ) DOES NOT EXCEED 10% OF THE TOTAL RESERVE AND LIABILITIES OF SUCH
GENERAL ACCOUNT PLUS SURPLUS (SUCH DETERMINATION TO BE MADE IN ACCORDANCE WITH
SECTION I(A) OF PTCE 95-60), WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A
BOOK-ENTRY CERTIFICATE OR GLOBAL CERTIFICATE AND WILL BE EVIDENCED BY A
REPRESENTATION TO SUCH EFFECT BY OR ON BEHALF OF A HOLDER OF A CERTIFICATE IN
PHYSICAL FORM.
"Eligible Purchaser" means a corporation, partnership or other entity
which we have reasonable grounds to believe and do believe (i) can make
representations with respect to itself to substantially the same effect as the
representations set forth herein, and (ii) is either a Qualified Institutional
Buyer as defined under Rule 144A of the Act or an institutional "Accredited
Investor" as defined under Rule 501 of the Act.
Terms not otherwise defined herein shall have the meanings assigned to
them in the Pooling Agreement dated as of March 1, 1998 between Bear Xxxxxxx
Mortgage Securities Inc. and The Bank of New York as Trustee (the "Pooling
Agreement").
N-1-4
If the Purchaser proposes that its Certificates be registered in the name
of a nominee on its behalf, the Purchaser has identified such nominee below, and
has caused such nominee to complete the Nominee Acknowledgment at the end of
this letter.
Name of Nominee (if any):___________________
IN WITNESS WHEREOF, this document has been executed by the undersigned who
is duly authorized to do so on behalf of the undersigned Eligible Purchaser on
the ____ day of ________, 19__.
Very truly yours,
[PURCHASER]
By:__________________________
(Authorized Officer)
[By:__________________________
Attorney-in-fact]
N-1-5
---------------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Certificates
being registered in its name, the sole beneficial owner thereof is and shall be
the Purchaser identified above, for whom the undersigned is acting as nominee.
[NAME OF NOMINEE]
By:__________________________
(Authorized Officer)
[By:__________________________
Attorney-in-fact]
N-1-6
EXHIBIT N-2
FORM OF RULE 144A AND RELATED MATTERS CERTIFICATE
[Date]
[SELLER]
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department,
ref: Bear Xxxxxxx Mortgage Securities Inc., Series 1998-2
Bear Xxxxxxx Mortgage Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Bear Xxxxxxx Mortgage Securities Inc., Pass-Through Certificates,
Series 1998-2 (the "Certificates"), including the Class H and
Class PO Certificates (the "Privately Offered Certificates")
Dear Ladies and Gentlemen:
In connection with our purchase of Privately Offered Certificates,
the undersigned certifies to each of the parties to whom this letter is
addressed that it is a qualified institutional buyer (as defined in Rule 144A
under the Securities Act of 1933, as amended (the "Act")) as follows:
1. It owned and/or invested on a discretionary basis eligible securities
(excluding affiliate's securities, bank deposit notes and CD's, loan
participations, repurchase agreements, securities owned but subject to a
repurchase agreement and swaps), as described below:
Date: _____________, 19__ (must be on or after the close of its most
recent fiscal year)
Amount: $_________________; and
2. The dollar amount set forth above is:
a. greater than $100 million and the undersigned is one of the
following entities:
N-2-1
(1) |_| an insurance company as defined in Section
2(13) of the Act; or(1)
(2) |_| an investment company registered under the
Investment Company Act or any business development
company as defined in Section 2(a)(48) of the
Investment Company Act of 1940; or
(3) |_| a Small Business Investment Company licensed
by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business
Investment Act of 1958; or
(4) |_| a plan (i) established and maintained by a
state, its political subdivisions, or any
agency or instrumentality of a state or its
political subdivisions, the laws of which
permit the purchase of securities of this
type, for the benefit of its employees and
(ii) the governing investment guidelines of
which permit the purchase of securities of
this type; or
(5) |_| a business development company as defined in
Section 202(a)(22) of the Investment Advisers Act
of 1940; or
(6) |_| a corporation (other than a U.S. bank, savings
and loan association or equivalent foreign
institution), partnership, Massachusetts or
similar business trust, or an organization
described in Section 501(c)(3) of the Internal
Revenue Code; or
(7) |_| a U.S. bank, savings and loan association or
equivalent foreign institution, which has an
audited net worth of at least $25 million as
demonstrated in its latest annual financial
statements; or
(8) |_| an investment adviser registered under the
Investment Advisers Act; or
------------
(1) A purchase by an insurance company for one or more of its separate
accounts, as defined by Section 2(a)(37) of the Investment Company
Act of 1940, which are neither registered nor required to be
registered thereunder, shall be deemed to be a purchase for the
account of such insurance company.
N-2-2
b. |_| greater than $10 million, and the undersigned is a
broker-dealer registered with the SEC; or
c. |_| less than $10 million, and the undersigned is a
broker-dealer registered with the SEC and will only purchase
Rule 144A securities in transactions in which it acts as a
riskless principal (as defined in Rule 144A); or
d. |_| less than $100 million, and the undersigned is an
investment company registered under the Investment Company Act
of 1940, which, together with one or more registered
investment companies having the same or an affiliated
investment adviser, owns at least $100 million of eligible
securities; or
e. |_| less than $100 million, and the undersigned is an entity,
all the equity owners of which are qualified institutional
buyers.
The undersigned further certifies that it is purchasing Privately
Offered Certificates for its own account or for the account of others that
independently qualify as "Qualified Institutional Buyers" as defined in Rule
144A. It is aware that the sale of the Privately Offered Certificates is being
made in reliance on its continued compliance with Rule 144A. It is aware that
the transferor may rely on the exemption from the provisions of Section 5 of the
Act provided by Rule 144A. The undersigned understands that the Privately
Offered Certificates may be resold, pledged or transferred only to (i) a person
reasonably believed to be a Qualified Institutional Buyer that purchases for its
own account or for the account of a Qualified Institutional Buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance in Rule
144A, or (ii) an institutional "accredited investor," as such term is defined
under Rule 501(1), (2), (3) or (7) (or an entity in which all the equity holders
come within such paragraphs) of the Act in a transaction that otherwise does not
constitute a public offering.
The undersigned agrees that if at some future time it wishes to
dispose of or exchange any of the Privately Offered Certificates, it will not
transfer or exchange any of the Privately Offered Certificates to a Qualified
Institutional Buyer without first obtaining a Rule 144A and Related Matters
Certificate in the form hereof from the transferee and delivering such
certificate to the addressees hereof. Prior to making any transfer of Privately
Offered Certificates, if the proposed Transferee is an institutional "accredited
investor," the transferor shall obtain from the transferee and deliver to the
addressees hereof an Investment Letter in the form attached to the Pooling
Agreement dated as of March 1, 1998 between Bear Xxxxxxx Mortgage Securities
Inc., as Seller, and The Bank of New York, as Trustee, pursuant to which the
Certificates were issued.
The undersigned certifies that it is not an employee benefit plan or
other retirement arrangement which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended, and/or Section 4975 of the
Internal Revenue Code of 1986, as
N-2-3
amended, ("Plan") nor a trustee, fiduciary or other party acting directly or
indirectly for, on behalf of or with the assets of, any such Plan or it is an
insurance company and the source of funds to be used by it to pay the purchase
price of the Certificates is funds held by it in an "insurance company general
account" (as defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60") as published in 60 Fed. Reg. 35925 (July 12, 1995)) and it
reasonably believes, as of the date acquisition, the amount of reserves and
liabilities for the general account contracts held by or on behalf of any Plan
(and any other Plan of the same employer or its affiliates (as defined in
Section V(a)(1) of PTCE 95-60)) or by the same employee organization ) does not
exceed 10% of the total reserve and liabilities of such general account plus
surplus (such determination to be made in accordance with Section I(a) of PTCE
95-60).
If the Purchaser proposes that its Certificates be registered in the
name of a nominee on its behalf, the Purchaser has identified such nominee
below, and has caused such nominee to complete the Nominee Acknowledgment at the
end of this letter.
Name of Nominee (if any):___________________
IN WITNESS WHEREOF, this document has been executed by the undersigned who
is duly authorized to do so on behalf of the undersigned Eligible Purchaser on
the ____ day of ________, 19__.
Very truly yours,
[PURCHASER]
By:__________________________
(Authorized Officer)
[By:__________________________
Attorney-in-fact]
N-2-4
---------------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Certificates
being registered in its name, the sole beneficial owner thereof is and shall be
the Purchaser identified above, for whom the undersigned is acting as nominee.
[NAME OF NOMINEE]
By:__________________________
(Authorized Officer)
[By:__________________________
Attorney-in-fact]
N-2-5
EXHIBIT O
Representations and Warranties of the Companies
O-1
