Exhibit 1.1
BENEFICIAL MORTGAGE SERVICES, INC., DEPOSITOR
$------------
Asset Backed Securities
Series ____
UNDERWRITING AGREEMENT
[Date]
[Underwriter]
Ladies and Gentlemen:
Beneficial Mortgage Services, Inc. (the "Company"), a Delaware
corporation, with its principal place of business in Wilmington, Delaware, is a
limited-purpose finance company. The Company has authorized the issuance and
sale of asset backed securities having aggregate outstanding principal balances
of up to $________ (the "Securities"). The Securities may be issued in various
series, and, within each series, in one or more classes, and, within each class,
in one or more sub-classes, in one or more offerings on terms determined at the
time of sale (each such series, a "Series" and each such class, a "Class"). Each
Series of the Securities will be issued under a separate Pooling and Servicing
Agreement (each, a "Pooling and Servicing Agreement") with respect to such
Series among the Company, as depositor, Beneficial Mortgage Corporation, as
Master Servicer (the "Master Servicer"), and a trustee to be identified in the
prospectus supplement for each such Series (the "Trustee"), or a separate Trust
Agreement (each a "Trust Agreement") between the Company, an owner trustee (the
"Owner Trustee") to be named in the related prospectus supplement and another
entity to be named in such prospectus supplement, or an Indenture (each an
"Indenture") between the trust created by the related Trust Agreement and an
indenture trustee (the "Indenture Trustee") named in the related prospectus
supplement. If the Series of Securities are issued under a Trust Agreement or an
Indenture, the Indenture Trustee shall enter into a Servicing Agreement with the
Master Servicer (each, a "Servicing Agreement"). The Securities will be
described in the related prospectus supplement. The Securities of each Series
will evidence specified interests in, or be supported by, the assets (the
"Assets") described in the related prospectus supplement, and certain other
property held in trust with respect to such Series (each, a "Trust Fund").
The Securities are more fully described in a Prospectus and Prospectus
Supplement (hereinafter defined) which the Company has furnished to you.
Capitalized terms used but not defined herein shall have the meanings given to
them in the [Pooling and Servicing Agreement] [Trust Agreement] [Indenture]. The
term "you" as used herein, unless the context otherwise
requires, shall mean you and such persons, if any, as are named as co-managers
in the applicable Terms Agreement (defined below).
Each offering of Securities pursuant to this Agreement will be made
through you or through an underwriting syndicate managed by you. Whenever the
Company determines to make an offering of Securities it will enter into an
agreement (the "Terms Agreement") providing for the sale of such Securities to,
and the purchase and offering thereof by, you and such other underwriters, if
any, selected by you as have authorized you to enter into such Terms Agreement
on their behalf (the "Underwriters," which term shall include you whether acting
alone in the sale of Securities or as a member of an underwriting syndicate) The
Terms Agreement relating to each offering of Securities shall specify, among
other things, the principal amount or amounts of Securities to be issued, the
price or prices at which the Securities are to be purchased by the Underwriters
from the Company and the initial public offering price or prices or the method
by which the price or prices at which such Securities are to be sold will be
determined. A Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between you and the Company. Each offering of
Securities will be governed by this Agreement, as supplemented by the applicable
Terms Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon the Underwriters participating in the offering of
such Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-21511) relating
to the Securities, and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933, as amended (the "1933 Act"), and has
filed, and proposes to file, such amendments thereto as may have been required
to the date hereof and as shall be required prior to the effective date thereof
pursuant to the 1933 Act and the rules of the Commission thereunder (the
"Regulations"). Such registration statement, as amended at the time when each
amendment becomes effective under the 1933 Act and at the Representation Date
defined below, is referred to herein as the "Registration Statement". The base
prospectus relating to the sale of a particular Series of Securities by the
Company is referred to herein as the "Basic Prospectus," and a supplement to the
Prospectus contemplated by Section 3(a) hereof is referred to herein as a
"Prospectus Supplement". The Basic Prospectus and the related Prospectus
Supplement are collectively referred to as the "Prospectus".
SECTION 1. Representations and Warranties. The Company, in its capacity
as Depositor, represents and warrants to you as of the date hereof, and to the
Underwriters, if any, named in the applicable Terms Agreement, all as of the
date of such Terms Agreement (in each case, such latter date being hereinafter
referred to as the "Representation Date"), as follows:
(1) The Registration Statement, at the time the Registration
Statement became effective did, and the Registration Statement,
Prospectus and Prospectus Supplement as of the applicable
Representation Date will, comply in all material respects with the
requirements of the 1933 Act and the Regulations. The Registration
Statement, at the time it became effective did not, and as of the
applicable Representation Date will not, contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, not
misleading. The Prospectus, as amended or supplemented as of the
applicable Representation Date and at the Closing Time referred to in
Section 2, shall not include any untrue statement of
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a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this paragraph shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus or the related Prospectus Supplement made in reliance upon
and in conformity with information furnished to the Company in writing
by the Underwriters expressly for use in the Registration Statement or
the Prospectus or the related Prospectus Supplement. The conditions to
the use by the Company of a registration statement on Form S-3 under
the 1933 Act, as set forth in the General Instructions to Form S-3,
have been satisfied with respect to the Registration Statement and the
Prospectus, and there are no contracts or documents of the Company
which are required to be filed as exhibits to the Registration
Statement pursuant to the 1933 Act or the Regulations which have not
been so filed.
(2) ____________ are independent public accountants with
respect to the Company as required by the 1933 Act and the Regulations.
(3) Since the respective dates as of which information is
given in the Registration Statement, the Prospectus and the Prospectus
Supplement, except as otherwise stated therein, there has been no
material adverse change in the business, properties, financial
condition or earnings of the Company or of Beneficial Corporation and
its subsidiaries taken as a whole, whether or not arising in the
ordinary course of business.
(4) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement, the applicable [Pooling and Servicing Agreement] [Trust
Agreement]; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify would not have a material adverse
effect on the business, properties, financial condition or earnings of
the Company; and the Company and each of the Originators are duly
authorized under the statutes which regulate the business of making
loans or of financing the sale of goods (commonly called "small loan
laws", "consumer finance laws" or "sales finance laws"), or are
permitted under the general interest statutes and related laws and
court decisions, to conduct in the various jurisdictions in which the
Company and each of the Originators do business the businesses as
currently conducted therein by any of them, except where the failure to
be so authorized or permitted would not have a material adverse effect
on the business or financial condition of the Company or any of the
Originators.
(5) The direction by the Company to the Trustee to execute,
countersign, issue and deliver the Securities has been duly authorized
by the Company, and assuming the Trustee has been duly authorized to do
so, when executed, countersigned, issued and delivered by the Trustee
in accordance with the [Pooling and Servicing Agreement] [Trust
Agreement] and in the case of the Securities delivered to the
Underwriters as provided in this Agreement and the Terms Agreement, the
Securities shall be duly and validly issued
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and outstanding and shall be entitled to the benefits provided by the
[Pooling and Servicing Agreement] [Trust Agreement]. The Securities and
the [Pooling and Servicing Agreement] [Trust Agreement] conform in all
material respects to all statements relating thereto in the Prospectus.
(6) The [Pooling and Servicing Agreement] [Trust Agreement]
has been duly and validly authorized, executed and delivered by the
Company and, when executed by the other parties thereto and delivered
in accordance with the terms thereof, shall constitute the valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equitable principles;
and the execution, delivery and performance of the [Pooling and
Servicing Agreement] [Trust Agreement] and the consummation of the
transactions contemplated therein shall not conflict with or constitute
a breach of, or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease, pooling and servicing agreement or other instrument to
which the Company is a party or by which it may be bound, or to which
any of the property or assets of the Company is subject, nor shall such
action result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or any applicable law,
administrative regulation or administrative or court decree except for
conflicts, violations, breaches and defaults which would not,
individually or in the aggregate, be materially adverse to the Company
or materially adverse to the transactions contemplated by this
Agreement.
(7) This Agreement and the Terms Agreement have been duly and
validly authorized, executed and delivered by the Company and
constitute the legal, valid and binding agreements of the Company; and
the execution, delivery and performance of this Agreement and the Terms
Agreement and the consummation of the transactions contemplated herein
and therein have been duly authorized by all necessary corporate action
of the Company and shall not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease, pooling and servicing agreement or other instrument to which the
Company is a party or by which it may be bound, or to which any of the
property or assets of the Company is subject, nor shall such action
result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or any applicable law,
administrative regulation or administrative or court order or decree,
except for conflicts, violations, breaches and defaults which would
not, individually or in the aggregate, be materially adverse to the
Company or materially adverse to the transactions contemplated by this
Agreement.
(8) The Company is not in violation of its certificate of
incorporation or by-laws or of any indenture, agreement, or undertaking
mentioned or referred to in any registration statement filed by the
Company or referred to in the minutes of the meetings of the
stockholders, board of directors, or any committee of the board of
directors of the Company, to which it is a party or by which it or its
properties may be bound.
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(9) There are no legal or governmental proceedings pending in
the United States to which the Company is a party or of which any
property of the company is subject, which if determined adversely to
the company would individually or in the aggregate have a material
adverse effect on the business, properties, financial condition or
earnings of the Company, and to the best of the Company's knowledge, no
such proceedings are threatened or contemplated in the United States by
governmental authorities or threatened in the United States by others.
(10) The Company and each of the Originators possesses all
material licenses, certificates, authorities or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now operated by it and as described
in the Prospectus or otherwise to consummate the transactions
contemplated by this Agreement, the Terms Agreement, the [Pooling and
Servicing Agreement] [Trust Agreement] [Indenture], the Prospectus and
the related Prospectus Supplement, and the Company has received no
notice of proceedings relating to the revocation or modification of any
such license, certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the conduct of the
business, properties, financial condition or earnings of the Company or
any of the Originators.
(11) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body is
required in the United States for the issue and sale of the Securities,
or States for the issue and sale of the Securities, or the consummation
by the Company of the other transactions contemplated by this
Agreement, the Terms Agreement, the [Pooling and Servicing Agreement]
[Trust Agreement] and the Prospectus or the related Prospectus
Supplement, except such as may be required under the 1933 Act or the
Regulations or state securities laws.
[(12) At the time of execution and delivery of the Pooling and
Servicing Agreement, the Company (i) shall have good and marketable
title to the Home Equity Loans being transferred by it to the Trustee
pursuant thereto, free and clear of any lien, mortgage, pledge, charge,
encumbrances, adverse claim or other security interest (collectively,
"Liens"), except to the extent described in Section 2.04 of the Pooling
and Servicing Agreement, (ii) shall not have assigned to any person any
of its right, title or interest in such Home Equity Loan or in the
Pooling and Servicing Agreement and (iii) shall have the power and
authority to sell such Home Equity Loans to the Trustee and upon
execution and delivery of the Pooling and Servicing Agreement by the
Trustee, the Trustee shall have acquired beneficial ownership of all of
the Company's right, title and interest in and to such Home Equity
Loans except to the extent disclosed in the Prospectus and upon
delivery to the Underwriters of the Securities the Underwriter shall
have good and marketable title to the Securities, in each case free of
Liens except, in the case of the Home Equity Loans, to the extent
described in Section 2.04 of the Pooling and Servicing Agreement.]
[(13) As of the Cut-off Date, each of the Home Equity Loans
shall meet the eligibility criteria described in the Pooling and
Servicing Agreement.]
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(14) Neither the Company nor the Trust Fund created by the
applicable [Pooling and Servicing Agreement] [Trust Agreement] shall
conduct its operations while any of the Securities are outstanding in a
manner that would constitute the Company or the Trust Fund as an
"investment company" under the Investment Company Act of 1940, as
amended (the "1940 Act").
[(15) At Closing Time, each of the representations and
warranties of the Company set forth in the Pooling and Servicing
Agreement shall be true and correct in all material respects.]
Any certificate signed by an officer of the Company, the Insurer or
provider of Alternate Credit Enhancement and delivered to you or counsel for the
Underwriters in connection with an offering of Securities shall be deemed, a
representation and warranty as to the matters covered thereby to each person to
whom the representations and warranties in this Section 1 are made.
SECTION 2. Sale and Delivery to Underwriters; Closing. (a) On the basis
of the representations and warranties contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Company, the Securities at the price per Security
set forth in the Terms Agreement.
(b) Payment of the purchase price for, and delivery of, any Securities
to be purchased by the Underwriters shall be made at the office of
_____________________________________, or at such other place as shall be agreed
upon by you and the Company at 10 A.M. on __________, ___, or such other time
not later than ten business days after such date as shall be agreed upon by you
and the Company in the Terms Agreement (each such time and date being referred
to as a "Closing Time"). Unless otherwise specified in the applicable Terms
Agreement, payment shall be made to the Company by wire transfer of same day
funds, or in such other manner as the parties thereto may agree in writing,
payable to the account of the Company, against delivery to you of the
Securities. Such Securities shall be in such denominations and registered in
such names as you may request in writing at least one business day prior to the
applicable Closing Time. Such Securities, which may be in temporary form, will
be made available for examination and packaging by you no later than 1:00 P.M.
on the last business day prior to the applicable Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each of
you as follows with respect to Securities:
(a) Contemporaneously with the execution of each Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal amount
of Securities covered thereby, the price or prices at which the Securities are
to be purchased by the Underwriters, the initial public offering price or prices
or the method by which the price or prices by which the Securities are to be
sold will be determined, the selling concession(s) and reallowance(s), if any,
any delayed delivery arrangements, and such other information as you and the
Company deem appropriate in connection with the offering of the Securities. The
Company will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish
to the Underwriters as many copies of the Prospectus and such Prospectus
Supplement as you shall reasonably request.
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(b) If any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, the Company shall forthwith amend or supplement the
Prospectus (in form and substance satisfactory to counsel for the Company and
the Underwriters) so that, as of amended or supplemented, the Prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, and the Company shall furnish to the Underwriters a reasonable
number of copies of such amendment or supplement.
(c) The Company will give you reasonable notice of its intention to
file any amendment to the Registration Statement or any amendment or supplement
to the Prospectus, whether pursuant to the 1933 Act or otherwise, will furnish
you with copies of any such amendment or supplement or other documents proposed
to be filed a reasonable time in advance of filing, and will not file any such
amendment or supplement or other documents in a form to which you or your
counsel shall reasonably object.
(d) The Company will notify you immediately, and confirm the notice in
writing, (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the mailing or the delivery to the Commission for filing of
any supplement to the Prospectus or any document, other than quarterly and
annual reports to be filed pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or any
Prospectus Supplement, (iv) of any request by the Commission for any amendment
to the Registration Statement of any amendment or supplement to the Prospectus
or for additional information, and (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Company will deliver to you two signed copies and as many
conformed copies of the Registration Statement (as originally filed) and of each
amendment thereto including exhibits filed therewith as you may reasonably
request.
(f) The Company shall endeavor, in cooperation with the Underwriters,
to qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as you may
designate; provided, however, that the Company shall not be obligated to qualify
as a foreign corporation in any jurisdiction in which it is not so qualified. In
each jurisdiction in which the Securities have been so qualified, the Company
shall file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so long as may be
required for the distribution of the Securities.
(g) The Company and the Originators shall use the net proceeds received
by them from the sale of the Securities in the manner specified in the
Prospectus and the related Prospectus Supplement under "Use of Proceeds".
[(h) The Master Servicer shall file with the Commission such reports on
Form SR as may be required pursuant to Rule 463 under the 1933 Act.]
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(i) If required, the Master Servicer shall file with the Commission a
Report on Form 8-K within 15 days of Closing Time setting forth certain
information concerning the Securities which was not specifically set forth in
the Prospectus.
(j) During a period of 30 days from the date of the Terms Agreement,
the Company shall not, without the prior written consent of the Underwriters,
directly or indirectly, publicly sell, or offer to sell, any mortgage
pass-through certificates, mortgages pas-through notes, collateralized mortgage
obligations or asset-backed securities or similar securities representing
interests in or secured by mortgage loans or mortgage-backed securities.
[(k) So long as the Securities shall be outstanding, the Master
Servicer shall deliver to you the annual statement as to compliance delivered to
the Trustee pursuant to Section 3.09 of the Pooling and Servicing Agreement and
the annual statement of a firm of independent public accountants furnished to
the Trustee pursuant to Section 3.10 of the Pooling and Servicing Agreement, as
soon as such statements are furnished to the Trustee.]
[(l) The Master Servicer shall prepare, or cause to be prepared, and
file, or cause to be filed, a timely election to treat the Home Equity Loans as
a real estate mortgage investment conduit (a "REMIC") for federal income tax
purposes and shall file, or cause to be filed, such tax returns and take such
actions, all on a timely basis, as are required to elect and maintain such
status.]
SECTION 4. Payment of Expenses. The Company shall be obligated to pay
all expenses incident to the performance of its obligations under this Agreement
and any Terms Agreement, including without limitation, those related to (i) the
filing of the Registration Statement and all amendments thereto, (ii) the
printing and delivery to the Underwriters, in such quantities as you may
reasonably request, of copies of this Agreement, each Terms Agreement, any
agreements among Underwriters, the Prospectus and all Supplements thereto and
any selling agreements and Underwriters' questionnaires and powers of attorney,
(iii) the preparation, issuance and delivery of the Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel (not to
exceed $_________) and accountants, (v) the qualification of the Securities
under Securities and Blue Sky laws and the determination of the eligibility of
the Securities for investment in accordance with the provisions of Section 3(f)
hereof, including filing fees, and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any Blue Sky Survey and Legal Investment Survey, (vi) the printing and delivery
to the Underwriters, in such quantities as you may reasonably request,
hereinabove stated, of copies of the Registration Statement, and Prospectus and
all amendments and Supplements thereto, and of any Blue Sky Survey and Legal
Investment Survey, (vii) the printing and delivery to the Underwriter, in such
quantities as you may reasonably request, of copies of each Pooling and
Servicing Agreement, (viii) the fees charged by investment rating agencies for
rating the Securities, (ix) the fees and expenses, if any, incurred in
connection with the listing of the Securities on any national securities
exchange, and (x) the fees and expenses of the Trustee and its counsel. The cost
of the accountant's comfort letter referred to in Section 3(g) hereof will be an
expense of the Underwriter.
If a Terms Agreement is terminated by you in accordance with the
provisions of Section 5 or Section 9(i) hereof, the Company shall reimburse you
for all reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
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SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase Securities pursuant to any Terms Agreement are
subject to the accuracy of the representations and warranties of the Company
herein contained, to the performance by the Company of its obligations
hereunder, and to the following further conditions:
(a) At the applicable Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission.
(b) At the applicable Closing Time, you shall have received:
(1) The favorable opinion, dated as of the applicable Closing
Time, of ________________, counsel for the Company, in form and
substance satisfactory to such of you as may be named in the applicable
Terms Agreement, to the effect that:
(i) The direction by the Company to the Trustee to
execute, issue, countersign and deliver the Securities has
been duly authorized by the Company and, assuming that the
Trustee has been duly authorized to do so, when executed and
countersigned and delivered by the Trustee in accordance with
the [Pooling and Servicing Agreement] [Trust Agreement] and in
the case of the Securities delivered to you as provided in
this Agreement and the Terms Agreement, the Securities shall
be validly issued and outstanding and shall be entitled to the
benefits of the [Pooling and Servicing Agreement] [Trust
Agreement].
(ii) The [Pooling and Servicing Agreement] [Trust
Agreement] has been duly and validly authorized, executed and
delivered by the Company and, assuming due authorization,
execution and delivery thereof by the Trustee, the [Pooling
and Servicing Agreement] [Trust Agreement] constitutes a valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other laws
relating to or affecting creditors' rights generally or by
general equitable principles.
(iii) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(iv) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission.
(v) The Registration Statement, as of the date it
becomes effective, and the Prospectus, as of the date thereof
(other than, in each case, the financial statements and other
financial, statistical and numerical information included
therein, as to which no opinion is rendered), complied as to
form in all material respects with the requirements of the
1933 Act and the Regulations thereunder.
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(vi) The conditions to the use by the Company of a
registration statement on Form S-3 under the 1933 Act, as set
forth in the General Instructions to Form S-3, have been
satisfied with respect to the Registration Statement and the
Prospectus.
(vii) The statements in the Prospectus under the
headings "Federal Income Tax Consequences" "ERISA
Considerations", "Certain Legal Aspects of Mortgage Loans,"
and "Certain Legal Aspects of the Contracts," to the extent
that they constitute matters of law or summaries of legal
matters, documents or proceedings, or legal conclusions have
been prepared or reviewed by such counsel
and are correct in all material respects.
(viii) No authorization, approval, consent or order
of any court or governmental authority or agency is required
in connection with the consummation of transactions
contemplated by, or the fulfillment of the terms of, this
Agreement, the Terms Agreement and the [Pooling and Servicing
Agreement] [Trust Agreement] or the sale of the Securities to
the Underwriters, except such as may be required under the
1933 Act or the Regulations or state securities laws.
(ix) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended.
(x) Neither the Company nor the Trust Fund created by
the [Pooling and Servicing Agreement] [Trust Agreement] is
required to register as an "investment company" under the
Investment Company Act of 1940, as amended.
[(xi) Assuming (i) that the election required by
Section 860D(b) of the Internal Revenue Code of 1986, as
amended (the "Code") is properly made and (ii) compliance with
the Pooling and Servicing Agreement, as in effect at the
Closing Time, and with any subsequent changes in the law,
including any amendments to the Code or applicable regulations
of the U.S. Department of the Treasury thereunder, the Trust
Fund will be treated for federal income tax purposes as a
"real estate mortgage investment conduit" within the meaning
of Section 860D of the Code, the Securities shall be treated
as "regular interests" in such REMIC and the Class (__)
Certificates shall be treated as the single class of "residual
interests" in such REMIC and the statements in the Prospectus
under the heading "Federal Tax Aspects", to the extent they
constitute matters of federal law or legal conclusions with
respect thereto, have been prepared and reviewed by such
counsel and, in the opinion of such counsel, provide a fair
and accurate summary of their conclusions.]
(xii) The consummation of the transactions
contemplated by, or the fulfillment of the terms of, this
Agreement, the Terms Agreement and the [Pooling and Servicing
Agreement][Trust Agreement][Indenture] will not violate the
certificate of incorporation or by-laws of the Company, or, to
such counsel's knowledge, any indenture, agreement or
undertaking to which the Company is a party or by which it is
bound and which is mentioned or referred to in any
registration statement or other report filed by the company
with the Commission
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or in the minutes of meetings of the stockholders, Board of
Directors or any committee of the Board of the Directors of
the Company, to which the Company is a party or by which is
bound.
In rendering the foregoing opinion, such counsel may also state that
except to the extent set forth in paragraph (viii) above, they have not made any
independent investigation or verification of facts or law contained in, and do
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in, the Registration Statement and Prospectus or related
Prospectus Supplement.
You shall also have received from such counsel a letter authorizing the
Underwriters to rely upon the opinions delivered by such counsel to each Rating
Agency rating the Securities in connection with the transactions contemplated by
this Agreement and the [Pooling and Servicing Agreement] [Trust Agreement]
[Indenture].
(2) Xxxxxxx X. Xxxxx, Vice President and Assistant General
Counsel of Beneficial Management Corporation of America, or other
counsel regularly employed by the Company, shall furnish to you an
opinion to the effect that:
(A) The Company has been duly incorporated in, and is
a validly existing corporation in good standing under the laws
of, the State of Delaware.
(B) The Company has corporate power and authority (i)
to own, lease and operate its properties, (ii) to conduct its
business as described in the Registration Statement, and (iii)
to enter into an perform its obligations under this Agreement,
the Terms Agreement and the [Pooling and Servicing Agreement]
[Trust Agreement].
(C) The Company possesses all necessary licenses and
approvals from governmental authorities to conduct its
business in each of the States as currently conducted therein
by it.
(D) To the extent of matters brought to such
counsel's attention and upon the basis of information
furnished to such counsel, such counsel is not aware of (i)
any material pending legal proceedings to which the Company is
a party or of which any of its property is the subject which
would be required to be disclosed in the Registration
Statement or the Prospectus pursuant to the applicable
requirements of the 1933 Act and the rules and regulations of
the Commission thereunder, which are not so disclosed; (ii)
any other material pending legal proceedings, including
ordinary routine litigation incidental to the business of the
Company to which the Company is a party or of which any of its
property is the subject; or (iii) any legal proceedings,
pending or threatened, (A) asserting the invalidity of the
[Pooling and Servicing Agreement] [Trust Agreement] or the
Securities, (B) seeking to prevent the issuance of the
Securities or the consummation by the Company of any of the
transactions contemplated by this Agreement, the Terms
Agreement or the [Pooling and Servicing Agreement] [Trust
Agreement], or (C) which might materially and adversely affect
the
11
performance by the Company of its obligations under this
Agreement, the Terms Agreement or the [Pooling and Servicing
Agreement][Trust Agreement].
(E) To the extent of matters brought to such
counsel's attention and upon the basis of information
furnished to such counsel, such counsel is not aware of any
material contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be filed as
exhibits to the Registration Statement pursuant to the
applicable requirements of the 1933 Act and the rules and
regulations of the Commission thereunder, which are not so
filed.
(F) The statements in the Prospectus under the
heading "Description of the Securities", insofar as such
statements purport to summarize certain provisions of the
Securities and the [Pooling and Servicing Agreement] [Trust
Agreement] [Indenture] are accurate in all material respects.
(3) The favorable opinion, dated as of Closing Time, of
____________, counsel for the Trustee, in form and substance
satisfactory to counsel for the Underwriters.
(4) The favorable opinion, dated as of Closing Time, of
_____________, counsel for the Underwriters, with respect to the issue
and sale of the Securities, the Registration Statement, this Agreement,
the Terms Agreement, the Prospectus, the related Prospectus Supplement
and such other related matters as the Underwriters may require.
(5) In giving their opinions required by subsections (b)(1)
and (b)(2), respectively, of this Section, such counsel shall state
that it has participated in conferences with officers and other
representatives of the Company, your counsel, representatives of the
independent accountants for the Company and you at which the contents
of the Registration Statement and the Prospectus were discussed and,
although such counsel is not passing upon and does not assume
responsibility for, the factual accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus and has made no independent check or verification thereof
for the purpose of rendering this opinion, on the basis of the
foregoing (relying as to materiality to a large extent upon the
certificates of officers and other representatives of the Company),
nothing has come to their attention that leads such counsel to believe
that either the Registration Statement, at the time it became
effective, or the Prospectus at the time the Prospectus was delivered
to you contained or at the Closing Time, contains an untrue statement
of a material fact or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that such counsel need
express no view with respect to the financial statements, schedules and
other financial and statistical data included in or incorporated by
reference into the Registration Statement or the Prospectus.
(6) The favorable opinion of counsel to the [Owner]
[Indenture] Trustee, dated as of the applicable Closing Time, addressed
to you and in form and scope satisfactory to your counsel, to the
effect that:
12
(i) The [Owner] [Indenture] Trustee is a
___________________ with trust powers, duly organized and
validly existing in good standing under the laws of
_________________, and has all requisite power and authority
to enter into the Agreement and perform the obligations of
Trustee.
(ii) The [Pooling and Servicing Agreement] [Trust
Agreement] [Indenture] has been duly authorized, executed, and
delivered by the [Owner] [Indenture] Trustee, and constitutes
the legal, valid, and binding obligation of the [Owner]
[Indenture] Trustee enforceable against the [Owner]
[Indenture] Trustee in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy and
insolvency laws and other similar laws affecting the
enforcement of creditors' rights generally and by general
equity principles.
In rendering such opinion, such counsel may rely, as to matters of
fact, to the extent deemed proper and stated therein, on certificates of
responsible officers of the [Owner] [Indenture] Trustee or public officials.
[(7) The favorable opinion of counsel to each provider of
Credit Enhancement, if any, named in a Prospectus Supplement, dated as
of the applicable Closing Time, addressed to you and in form and scope
satisfactory to your counsel, to the effect that:
(i) Such provider of Credit Enhancement has been duly
organized and is validly existing as a corporation under the
laws of the jurisdiction of its incorporation, is duly
qualified to do business in all jurisdictions where the nature
of its operations as contemplated by the Credit Enhancement
legally requires such qualification, and has the power and
authority (corporate and other) to issue, and to take all
action required of it under, the Credit Enhancement.
(ii) The execution, delivery and performance by such
provider of Credit Enhancement of the Credit Enhancement have
been duly authorized by all necessary corporate action on the
part of the provider of Credit Enhancement, and under present
law do not and will not contravene any law or governmental
regulation or order presently binding on such provider of
Credit Enhancement or the charter of the by-laws of such
provider of Credit Enhancement or contravene any provision of
or constitute a default under any indenture, contract or other
instrument to which the provider of Credit Enhancement is a
party or by which such provider of Credit Enhancement is
bound.
(iii) The execution, delivery and performance by such
provider of Credit Enhancement of the Credit Enhancement do
not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action
in respect of any federal, state or other governmental agency
or authority which has not previously been effected.
(iv) The Credit Enhancement has been duly issued by
such provider of Credit Enhancement and constitutes the valid
and binding agreement of such provider of Credit Enhancement,
enforceable against the provider of Credit Enhancement in
accordance with its terms, subject to applicable bankruptcy,
13
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and subject as to
enforceability to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(v) The Credit Enhancement conforms in all material
respects to the description thereof in the applicable
Prospectus Supplement under the caption "Credit Enhancement."
To the extent required by applicable legal requirements, the
Credit Enhancement form has been filed with, and approved by,
all governmental authorities having jurisdiction over the
provider of Credit Enhancement in connection with such Credit
Enhancement.]
(c) At Closing Time there shall not have been, since the date hereof or
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change in the business,
properties, financial condition or earnings of the Company or of Beneficial
Corporation and its subsidiaries taken as a whole, and the Underwriters shall
have received a certificate of the President or a Vice President of the Company
and of the chief financial or chief accounting officers of the Company, dated as
of Closing Time, to the effect that (i) there has been no such material adverse
change with respect to the Company, (ii) the representations and warranties made
by the Company in Section 1 are true and correct in all material respects with
the same force and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to Closing Time and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purposes have been initiated or threatened by
the Commission.
(d) You shall have received from independent certified public
accountants acceptable to you, a letter, dated as of the date of the applicable
Terms Agreement and as of the applicable Closing Time, delivered at such times,
in the form heretofore agreed to.
[(e) At Closing Time the Underwriters shall have received from the
Trustee a certificate signed by one or more duly authorized officers of the
Trustee, dated as of Closing Time, as to the due acceptance of the [Pooling and
Servicing Agreement][Trust Agreement] by the Trustee and the due execution and
delivery of the Securities delivered by the Trustee thereunder and such other
matters as the Underwriters shall reasonably request.]
(f) At the applicable Closing Time, with respect to a Series of
Securities, the Securities shall have received the certificate rating or ratings
specified in the related Terms Agreement.
(g) At the applicable Closing Time, counsel for the Underwriters shall
have been furnished with such documents as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the Securities as
herein contemplated and related proceedings or in order to evidence the accuracy
and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to you and
counsel for the Underwriters.
14
(h) At the applicable Closing Time, the Company shall have furnished to
you such further information and documents as you may have reasonably requested.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to the
applicable Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4.
SECTION 6. Indemnification.
(a) As an inducement to the Underwriters to participate in the public
offering of the Securities, the Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all losses, liabilities, claims,
damages and expenses whatsoever arising out of or resulting
from any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or
arising out of or resulting from any untrue statement or
alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading;
(ii) against any and all losses, liabilities, claims,
damages and expenses whatsoever to the extent of the aggregate
amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency, or body, commenced
or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever
(including, subject to Section 6(c) hereof, the fees and
disbursements of counsel chosen by you) reasonably incurred in
investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of or resulting
from any untrue statement or omission or alleged untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information made in reliance upon and in conformity with written
information furnished to the Company by the Underwriters expressly for use in
the Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto).
15
(b) Each Underwriter agrees to indemnify and hold harmless the Company,
each of the Company's directors, each of the Company's officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all losses, liabilities, claims, damages and expenses described in the
indemnity contained in subsection (a) of this Section, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by the Underwriters expressly for
use in the Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it with respect to which
indemnity may be sought hereunder but failure to so notify an indemnifying party
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action. If it so elects within a
reasonable time after receipt of such notice, an indemnifying party, jointly
with any other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it and approved by the indemnified
parties defendant in such action, unless such indemnified parties reasonably
object to such assumption on the ground that representation of both the
indemnifying parties and the indemnified parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. If an
indemnifying party assumes the defense of such action, the indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action except as provided in
the preceding sentence. In no event shall the indemnifying parties be liable for
the fees and expenses of more than one counsel (in addition to any local
counsel) for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
(d) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceedings in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
SECTION 7. Contribution. (a) In order to provide for just and equitable
contributions in circumstances in which the indemnification provided for in
Section 6 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the indemnifying parties, then each indemnifying
party under such Section, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, liabilities, actions, claims, damages or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, liabilities, actions, claims, damages
or expenses as well as any other relevant equitable considerations. The relative
benefits
16
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Securities shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the
Securities (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate public offering price of the Securities. The relative fault of the
Company on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material relates to information supplied by the Company or by the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the respective principal amount of Securities they have purchased
hereunder, and not joint.
(b) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (a). The amount paid or
payable by an indemnified party as a result of the losses, liabilities, actions,
claims, damages and expenses referred to in paragraph (a) shall be deemed to
include, subject to the limitations set forth in Section 6, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigation or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 7 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified party
at law or in equity. For purposes of this Section 7, each person, if any, who
controls any of the Underwriters within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Underwriters and each director of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls the
company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribute as the Company.
SECTION 8. Representations, Warranties, and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement and the Terms Agreement, or contained in certificates of officers of
the Company submitted pursuant hereto, and the indemnity and contribution
provisions of Sections 6 and 7, shall remain operative and in full force and
effect, regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Underwriters or controlling person
thereof, or by or on behalf of the Company and (iii) acceptance of and payment
for the Securities by the Underwriters.
SECTION 9. Termination of Agreement. You may terminate the Terms
Agreement, immediately upon notice to the Company, at any time at or prior to
the applicable Closing Time
17
(i) if there has been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Registration Statement
or Prospectus any material adverse change in the business, financial condition
or earnings of the Company or of Beneficial Corporation and its subsidiaries
taken as a whole, whether or not arising in the ordinary course of business or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or any outbreak of hostilities or other calamity or crisis,
the effect of which on the financial markets of the United States is such as to
make it, in your judgment, impracticable to market such Securities or enforce
contracts for the sale of such Securities, or (iii) if trading in the common
stock of Beneficial Corporation has been suspended on any exchange, or (iv) if
trading generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by either
of said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal or New
York authorities.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters participating in an offering of Securities shall fail at the
applicable Closing Time to purchase the Securities which it or they are
obligated to purchase hereunder and under the applicable Terms Agreement (the
"Defaulted Securities"), then such of you as are named therein shall have the
right, but not the obligation, within 24 hours thereafter, to make arrangements
for one or more of the non-defaulting Underwriters, or any other Underwriters,
to purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth. If, however,
you have not completed such arrangements within such 24-hour period, then this
Agreement shall terminate without liability on the part of the non-defaulting
Underwriters.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability with respect to any default of such Underwriters
under this Agreement and the applicable Terms Agreement.
In the event of a default by any Underwriters as set forth in this
Section which does not result in a termination of this Agreement, either the
non-defaulting Underwriters or the Company shall have the right to postpone the
applicable Closing Time for a period of time not exceeding seven days in order
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you at the address set forth on the first page
hereof, Attention: Syndicate Department. Notices to the Company shall be
directed to the Company at One Xxxxxxxxx Centre, 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, Esquire.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon you and the Company and any Terms Agreement shall inure to the
benefit of and be binding upon the Company and any Underwriters and their
respective successors. Nothing expressed or mentioned in this Agreement or any
Terms Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
18
successors and the controlling person and officers and directors referred to in
Sections 6 and 7 hereof and their heirs and legal representatives any legal or
equitable right, remedy or claim under or with respect to this Agreement or any
Terms Agreement or any provision herein or therein contained. This Agreement and
any Terms Agreement and all conditions and provisions hereof or thereof are
intended to be for the sole and exclusive benefit of the parties and their
respective successors and their heirs and legal representatives (to the extent
of their rights as specified herein and therein) and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriters
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement and each Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
SECTION 14. Counterparts. This Agreement and any Terms Agreement may be
executed in counterparts, each of which shall constitute an original of any
party whose signature appears on it, and all of which shall together constitute
a single instrument.
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and the Company in accordance with its terms.
Very truly yours,
BENEFICIAL MORTGAGE SERVICES, INC., as
Depositor
By:___________________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
[Underwriter]
By:___________________________________
Name:
Title:
20
EXHIBIT A
BENEFICIAL MORTGAGE SERVICES, INC.
ASSET BACKED SECURITIES, SERIES ____
FORM OF TERMS AGREEMENT
Dated: _________________, ____
To: Beneficial Mortgage Services, Inc., as Depositor (the "Depositor") under
the Pooling and Servicing Agreement to be dated as of _______________,
____ (the "Agreement").
Re: Underwriting Agreement dated _____________, ____.
Series Designation: Beneficial Mortgage Services, Inc.,
Asset Backed Securities, Series ____.
Terms of the Securities and Underwriting Compensation:
Class (1) Original
--------- Principal Pass-Through Price to
Amount Rate Public
------ ---- ------
$________* ** ***
----------------------
(1) The Class (_) Securities are the Offered Securities. The Class (_)
Security is subordinate to the Offered Securities.
* Approximate. Subject to permitted variance of plus or minus 5%.
** Subject to the more precise formulation described in the Prospectus
(as defined below).
*** The Class (_) Securities are being offered by the Underwriter from time
to time in negotiated transactions or otherwise at varying prices to be
determined, in each case, at the time of sale.
Xxxxx'x Standard &
Security Investors Poor's Ratings
Rating Service Services
------ ------- --------
[REMIC Election:
The Depositor intends to cause the Trust Fund (exclusive of the
security interest in the Additional Collateral) to elect to be treated as a
REMIC as described in the Prospectus dated , ____ and the Prospectus Supplement
relating to the Class Securities, dated ______________, ____ (together, the
"Prospectus).]
Trust Fund:
As described in the Prospectus.
[Credit Enhancement:
Payments on the Class (_) Securities will be supported by (a limited
purpose surety bond), (a certificate insurance policy), (subordinate class(es))
and (by overcollateralization), as described in the Prospectus.]
Cut-off Date:
------------------, ----.
Distribution Date:
The __ th day of each month or, if such day is not a Business Day, the
first Business Day thereafter, commencing in ____.
Purchase Price:
The purchase price payable by the Underwriter for the Class (_)
Securities is a percentage of the principal amount of such Class, as follows:
Aggregate Original Percentage
Class Principal Amount of Principal
----- ---------------- ------------
$ %*
* The Class (_) Securities are being offered by the Underwriter from time
to time in negotiated transactions or otherwise at varying prices to be
determined, in each case, at the time of sale.
[The undersigned represents and agrees that (i) it has not offered or
sold and, prior to the expiration of the period of six months from the Closing
Date referred to below, will not offer or sell any Class Securities to persons
in the United Kingdom, except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances that
have not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulation 1995;
(ii) it has complied and will comply with all applicable provisions of the
Financial Services Xxx 0000 with respect to anything done by it in relation to
the Class Securities in, from or otherwise involving the United Kingdom; and
(iii) it
2
has only issued or passed on and will only issue or pass on in the United
Kingdom any documents received by it in connection with the issue of the Class
(_) Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 [Investment Advertisements] [Exemptions] Order 1995,
or is a person to whom such document may otherwise lawfully be issued or passed
on.]
Closing Date and Location:
___________________, ____ at the offices of _________________________
____________________.
[Underwriter]
By:__________________________________
Name:
Title:
ACCEPTED:
BENEFICIAL MORTGAGE SERVICES, INC.
By:__________________________________
Name:
Title:
3
