Exhibit 4.1
BENEFICIAL MORTGAGE SERVICES, INC.
as Depositor,
BENEFICIAL MORTGAGE CORPORATION
as Master Servicer,
and
-----------------------------------------------,
as Trustee
----------------------------
POOLING AND SERVICING AGREEMENT
Dated as of ___________, _____
____________ LOAN ASSET BACKED CERTIFICATES,
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS............................... 1
Section 1.01. Definitions.................................................... 1
Section 1.02. Interest Calculations.......................................... 19
Section 1.03. Usage of Terms................................................. 19
ARTICLE II
SALE OF ____________ LOANS; ORIGINAL ISSUANCE OF CERTIFICATES......... 20
Section 2.01. Sale of ___________ Loans...................................... 20
Section 2.02. Acceptance by Trustee; Repurchase Obligations;
Substitution of Eligible Substitute ___________
Loans......................................................... 23
Section 2.03. Representations and Warranties Regarding the Master
Servicer....................................................... 25
Section 2.04. Representations and Warranties Regarding the ___________
Loans; Repurchase of Defective ___________ Loans............... 26
Section 2.05. Execution and Authentication of Certificates; Designation of
"Regular Interests" and "Residual Interests" under
REMIC.......................................................... 29
Section 2.06. Designation of Start-up Day and Final Maturity Date............ 29
Section 2.07. Certain Activities............................................. 29
ARTICLE III
ADMINISTRATION AND SERVICING OF ____________ LOANS........... 30
Section 3.01. The Master Servicer............................................ 30
Section 3.02. Collection of Certain __________ Loan Payments; ___________
Loan Payment Record............................................ 32
Section 3.03. Permitted Debits to the __________ Loan Payment
Record......................................................... 33
Section 3.04. Maintenance of Hazard Insurance; Property Protection
Expenses....................................................... 34
Section 3.05. Assumption and Modification Agreements......................... 35
Section 3.06. Realization upon Defaulted __________ Loans................... 35
Section 3.07. Trustee to Cooperate........................................... 36
Section 3.08. Servicing Compensation; Payment of Certain Expenses by
Master Servicer................................................ 36
Section 3.09. Annual Statement as to Compliance.............................. 36
Section 3.10. Annual Independent Public Accountants' Servicing
Report......................................................... 37
Section 3.11. Access to Certain Documentation and Information Regarding the
__________ Loans............................................... 37
Section 3.12. Maintenance of Certain Servicing Policies...................... 37
- i -
ARTICLE IV
SERVICING CERTIFICATE; CERTIFICATE ACCOUNT DEPOSIT........... 30
Section 4.01. Servicing Certificate.......................................... 30
Section 4.02. Certificate Account............................................ 39
Section 4.03. Servicer LOC....................................................40
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS................ 40
Section 5.01. Distributions.................................................. 40
Section 5.02. Statements to Certificateholders............................... 41
ARTICLE VI
THE CERTIFICATES............................. 43
Section 6.01. The Certificates............................................... 43
Section 6.02. Registration of Transfer and Exchange of Certificates.......... 43
Section 6.03. Mutilated, Destroyed, Lost or Stolen Certificates.............. 45
Section 6.04. Persons Deemed Owners.......................................... 45
Section 6.05. Appointment of Paying Agent.................................... 45
Section 6.06. Restrictions on Transfer of Class (_) and
Class (_) Certificates......................................... 46
Section 6.07. Restrictions on Transfer of Class (_) Certificates............. 47
Section 6.08. Actions of Certificateholder................................... 49
ARTICLE VII
THE MASTER SERVICER........................... 50
Section 7.01. Liability of the Master Servicer............................... 50
Section 7.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Master Servicer............................ 50
Section 7.03. Limitation on Liability of the Master Servicer and Others...... 50
Section 7.04. Master Servicer Not to Resign.................................. 51
Section 7.05. Delegation of Duties........................................... 51
ARTICLE VIII
DEFAULT................................. 51
Section 8.01. Events of Default............................................. 51
Section 8.02. Trustee to Act; Appointment of Successor...................... 53
Section 8.03. Notification to Certificateholders............................ 54
Section 8.04. Waiver of Past Events of Default.............................. 54
ARTICLE IX
THE TRUSTEE............................... 54
Section 9.01. Duties of Trustee............................................. 54
Section 9.02. Certain Matters Affecting the Trustee......................... 55
Section 9.03. Trustee Not Liable for Certificates or Loan................... 56
Section 9.04. Trustee May Own Certificates.................................. 57
Section 9.05. Master Servicer to Pay Trustee's Fees and Expenses............ 57
- ii -
Page
Section 9.06. Eligibility Requirements for Trustee.......................... 58
Section 9.07. Resignation or Removal of Trustee............................. 58
Section 9.08. Successor Trustee............................................. 58
Section 9.09. Merger or Consolidation of Trustee............................ 59
Section 9.10. Appointment of Co-Trustee or Separate Trustee................. 59
Section 9.11. Tax Returns................................................... 60
Section 9.12. Trustee May Enforce Claims Without
Possession of Certificates.................................... 60
Section 9.13. Suits for Enforcement......................................... 61
ARTICLE X
TERMINATION............................... 61
Section 10.01. Termination Upon Purchase by the Master Servicer
or Liquidation of All __________ Loans........................ 61
Section 10.02. Additional Termination Requirements........................... 63
ARTICLE XI
MISCELLANEOUS PROVISIONS......................... 64
Section 11.01. Amendment..................................................... 64
Section 11.02. Recordation of Agreement...................................... 65
Section 11.03. Limitation on Rights of Certificateholders.................... 65
Section 11.04. GOVERNING LAW................................................. 66
Section 11.05. Notices....................................................... 66
Section 11.06. Severability of Provisions.................................... 66
Section 11.07. Assignment.................................................... 67
Section 11.08. Certificates Nonassessable and Fully Paid..................... 67
Section 11.09. Counterparts.................................................. 67
EXHIBIT A - Form of Class (_) Certificate ...................................A-1
EXHIBIT B - Form of Class (_) Certificate....................................B-1
EXHIBIT C - Form of Class (_) Certificate....................................C-1
EXHIBIT D - Form of Class (_) Certificate....................................D-1
EXHIBIT E - Form of Notice of Payment in Full................................E-1
EXHIBIT F - Form of File Request.............................................F-1
- iii -
This Pooling and Servicing Agreement, dated as of ___________________,
_____, between Beneficial Mortgage Services, Inc., as depositor ("Beneficial"),
Beneficial Mortgage Corporation, as master servicer (the "Master Servicer"), and
___________________________________________, as trustee (the "Trustee"),
WITNESSETH THAT:
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows.
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires,
shall have the meanings specified in this Article.
Accrual Period: As to any Distribution Date (the "current Distribution
Date"), the period beginning on the preceding Distribution Date (or the Closing
Date, in the case of the first Distribution Date) and ending on the day
preceding the current Distribution Date.
Additional Balance: As to any __________ Loan and any day, the Loan
Balance less the Trust Balance.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such Person. For purposes of this
definition, "control" means the power to direct the management and policies of a
Person, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise, and "controlling" and "controlled" shall have meanings
correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
Amount Available for Class (_) Interest: As to any Distribution Date,
the lesser of (a) Available Funds and (b) the Class (_) Interest Requirement.
Amount Available for Class (_) Principal: As to any Distribution Date,
the sum of (a) the lesser of (i) the excess, if any, of (A) Available Funds over
(B) the sum of the Amount Available for Class (_) Interest, the Amount Available
for Class (_) Interest and the Amount Available for Class (_) Interest and (ii)
the Class (_) Formula Amount and (b) as to the Class (_) Termination Date and
each Distribution Date thereafter, any Class (_) Remaining Available Funds.
Amount Available for Class (_) Interest: As to any Distribution Date,
the lesser of (a) the excess, if any, of Available Funds over the sum of (i) the
Amount Available for Class (_) Interest and (ii) the Amount Available for Class
(_) Interest and (b) the Class (_) Interest Requirement.
Amount Available for Class (_) Principal: As to any Distribution Date
prior to the Class (_) Termination Date, the lesser of (a) the Class (_)
Remaining Available Funds for such date and (b)
the Class (_) Certificate Balance, and as to the Class (_) Termination Date and
each Distribution Date thereafter, the lesser of (a) Available Funds less the
sum of (i) the Class (_) Interest Requirement and (ii) as to the Class (_)
Termination Date, any amounts distributed in respect of the Class (_)
Certificates on such date and (b) the Class (_) Formula Amount.
Amount Available for Class (_) Interest: As to any Distribution Date,
the lesser of (a) the excess, if any, of Available Funds over the Amount
Available for Class (_) Interest and (b) the Class (_) Interest Requirement.
Amount Available for Class (_) Principal: As to the Class (_)
Termination Date and each Distribution Date thereafter, the lesser of (a) Class
(_) Remaining Available Funds for such date (in the case of the Class (_)
Termination Date, net of any such amounts distributed in respect of the Class
(_) Certificates on such date), plus, on the Class A Termination Date and on
each Distribution Date thereafter, the lesser of (i) Remaining Available Funds
for such date and (ii) the Class (_) Formula Amount and (b) the Class (_)
Certificate Balance.
Appraised Value: As to any Mortgaged Property and any time referred to
herein, the appraised value of such Mortgaged Property based upon the appraisal
made by or on behalf of the related Originator in connection with the
origination of the related __________ Loan.
Available Funds: As to any Distribution Date, the sum of (a) the
aggregate of all Trust Interest received during the related Collection Period
net of the Monthly Servicing Fee, (b) the aggregate of all Trust Principal
Payments received during the related Collection Period, (c) the aggregate of all
Trust Insurance Proceeds received during the related Collection Period, (d) the
aggregate of Trust Liquidation Proceeds received as of the end of the calendar
month preceding the month of such Distribution Date; (e) the aggregate Purchase
Price of any Defective __________ Loans repurchased by the Depositor or the
Master Servicer since the preceding Distribution Date and (f) the Substitution
Adjustment Amount deposited in the Collection Account during the preceding
Collection Period.
Available Servicer LOC Amount: As of any Distribution Date upon which a
Servicer LOC is maintained pursuant to Section 3.02(c), the maximum amount of
coverage available thereunder in accordance with the terms thereof.
Beneficial: Beneficial Mortgage Services, Inc., a Delaware
corporation, and its successors in interest.
BIF: The Bank Insurance Fund, as from time to time constituted or
created under the Financial Institution, Reform, Recovery and Enhancement Act of
1989, or if at any time after the execution of this instrument the Bank
Insurance Fund is not existing and performing duties now assigned to it, the
body performing such duties on such date.
Book-Entry Certificate: Any Class (_), Class (_) or Class (_)
Certificate registered in the name of the Depository or its nominee, the
ownership of which is reflected on the books of the Depository or on the books
of a Person maintaining an account with such Depository (directly or as an
indirect participant in accordance with the rules of such Depository).
- 2 -
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the State of New York or the State of New
Jersey are required or authorized by law to be closed.
Certificate: Any Class (_), Class (_), Class (_) or Class (_)
Certificate.
Certificate Account: The custodial account or accounts created and
maintained with the Trustee pursuant to Section 4.02.
Certificate Owner: With respect to any Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 6.02.
Certificateholder or Holder: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of Beneficial or the Master Servicer or any Person actually known to a
Responsible Officer of the Trustee to be an affiliate of Beneficial or the
Master Servicer shall be deemed not to be outstanding and the Percentage
Interest evidenced thereby shall not be taken into account in determining
whether the requisite amount of Percentage Interests necessary to effect any
such consent has been obtained.
Class: All Certificates whose form is identical except for variations
in Percentage Interest.
Class (_) Certificate: Any of the Certificates signed by the Trustee
and countersigned by the Trustee or the Certificate Registrar, substantially in
the form set forth in Exhibit A hereto.
Class (_) Certificate Balance: As of any Distribution Date, the
Original Class (_) Certificate Balance less all amounts previously distributed
to Holders of the Class (_) Certificates on all previous Distribution Dates as
part of the Class (_) Formula Amount, but in no event less than zero. For
purposes of determining whether amounts calculated pursuant to the Class (_)
Formula Amount were actually distributed on any particular Distribution Date,
the distribution on any such Distribution Date to Holders of the Class (_)
Certificates shall be allocated first to the Class (_) Interest Requirement and
then to principal as calculated pursuant to the Class (_) Formula Amount.
Class (_) Distribution Amount: As to any Distribution Date, the sum of
(a) the Amount Available for Class (_) Interest and (b) Amount Available for
Class (_) Principal.
Class (_) Formula Amount: As to any Distribution Date, the sum of (a)
interest at the Class (_) Pass-Through Rate on the sum of (i) the outstanding
Class (_) Certificate Balance immediately prior to such Distribution Date and
(ii) any Class (_) Unpaid Interest Shortfall in respect of the Class (_)
Certificates, (b) if distribution of the amount of interest calculated pursuant
to clause (a) above was not made in full on a previous Distribution Date, the
difference between (i) the amount of interest calculated pursuant to clause (a)
above for such previous Distribution Date and (ii) the amount of interest
actually distributed to holders of the Class (_) Certificates on such previous
Distribution Date, (c) the Formula Principal Amount, and (d) if distribution of
the amount of
- 3 -
principal calculated pursuant to clause (c) above was not made in full on a
previous Distribution Date, the difference between (i) the amount of principal
calculated pursuant to clause (c) above for such previous Distribution Date and
(ii) the amount of principal actually distributed to holders of the Class (_)
Certificates on such previous Distribution Date, provided, however, that the
portion of the Class (_) Distribution Amount to be distributed as principal will
be limited to the Class (_) Certificate Balance immediately prior to such
Distribution Date.
Class (_) Interest Requirement: As to any Distribution Date, the sum of
(a) interest accrued during the related Accrual Period at the Class (_)
Pass-Through Rate on the Class (_) Certificate Balance, (b) interest accrued
during the related Accrual Period at the Class (_) Pass-Through Rate on any
Class (_) Unpaid Interest Shortfall and (c) any Class (_) Unpaid Interest
Shortfall.
Class (_) Interest Shortfall: As to any Distribution Date, the amount,
if any, by which distributions in respect of interest to Holders of the Class
(_) Certificates on such Distribution Date are less than the sum of (a) interest
accrued during the related Accrual Period at the Class (_) Pass-Through Rate on
the Class (_) Certificate Balance and (b) any interest due on such Distribution
Date on any Class (_) Unpaid Interest Shortfall.
Class (_) Pass-Through Rate: As to the initial Accrual Period, _______%
per annum and, as to any Accrual Period thereafter, the lesser of (a) LIBOR plus
____% and (b) the Weighted Average Net Loan Rate.
Class (_) Principal Factor: As to any Distribution Date, the
percentage, carried to seven places (rounded down), obtained by dividing the
Class (_) Certificate Balance as of such Distribution Date (after giving effect
to all payments of principal made on such Distribution Date) by the Original
Class (_) Certificate Balance.
Class (_) Principal Shortfall: As to any Distribution Date, the amount,
if any, by which distributions in respect of principal to Holders of the Class
(_) Certificates on such Distribution Date are less than the aggregate amount
specified in clause (d) of the definition of Class (_) Formula Amount.
Class (_) Termination Date: The Distribution Date on which the Class
(_) Certificate Balance has been reduced to zero.
Class (_) Unpaid Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of Class (_) Interest Shortfalls for
prior Distribution Dates exceeds the aggregate of amounts distributed in respect
of Class (_) Interest Shortfalls on prior Distribution Dates to Holders of the
Class (_) Certificates. For purposes of determining whether amounts
distributable in respect of Class (_) Unpaid Interest Shortfalls were actually
distributed on any particular Distribution Date, distributions on such
Distribution Date shall be allocated, first, to the amount specified in clause
(a) of the definition "Class (_) Interest Requirement," second, to any interest
due on any Class (_) Unpaid Interest Shortfall, and, third, to any Class (_)
Unpaid Interest Shortfall.
Class (_) Unpaid Principal Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of Class (_) Principal Shortfalls for
prior Distribution Dates exceeds the aggregate of the amounts distributed on
prior Distribution Dates in respect of Class (_) Principal
- 4 -
Shortfalls to Holders of the Class (_) Certificates. For purposes of determining
whether amounts distributable in respect of Class (_) Unpaid Principal
Shortfalls were actually distributed on any particular Distribution Date, the
distribution on such Distribution Date shall be allocated, first, to the Class
(_) Interest Requirement, second to the amounts described in clause (a) of the
definition of "Class (_) Formula Amount," and, third, to any Class (_) Unpaid
Principal Shortfall.
Class (_) Certificate: Any of the Certificates signed by the Trustee
and countersigned by the Trustee or the Certificate Registrar, substantially in
the form set forth in Exhibit C hereto.
Class (_) Certificate Balance: As to any Distribution Date, the
Original Class (_) Certificate Balance less the sum of all amounts previously
distributed to Class (_) Certificateholders on all previous Distribution Dates
in excess of the Class (_) Interest Requirement for each such Distribution Date,
but in no event less than zero.
Class (_) Distribution Amount: As to any Distribution Date to and
including the Class (_) Termination Date, the sum of (a) the Amount Available
for Class (_) Interest and (b) the Amount Available for Class (_) Principal.
Class (_) Formula Amount: As to any Distribution Date on or after the
Class (_) Termination Date, the lesser of (a) the sum of (i) the Formula
Principal Amount and (ii) any Class (_) Unpaid Principal Shortfall less (iii) as
to the Class (_) Termination Date, the aggregate amount distributed as principal
in respect of the Class (_) Certificates on such date and (b) the Class (_)
Certificate Balance.
Class (_) Interest Requirement: As to any Distribution Date, the sum of
(a) interest accrued during the related Accrual Period at the Class (_)
Pass-Through Rate on the Class (_) Certificate Balance, (b) interest accrued
during the related Accrual Period at the Class (_) Pass-Through Rate on any
Class (_) Unpaid Interest Shortfall and (c) any Class (_) Unpaid Interest
Shortfall.
Class (_) Interest Shortfall: As to any Distribution Date, any amount
by which the amount of interest distributed to Class (_) Certificateholders on
such Distribution Date is less than the sum of (a) interest accrued during the
related Accrual Period at the Class (_) Pass-Through Rate on the Class (_)
Certificate Balance and (b) any interest due on such Distribution Date on any
Class (_) Unpaid Interest Shortfall.
Class (_) Pass-Through Rate: As to the initial Accrual Period, _______%
per annum and, as to any Accrual Period thereafter, the lesser of (a) LIBOR plus
____% and (b) the Weighted Average Net Loan Rate.
Class (_) Principal Factor: As to any Distribution Date, the percentage
(carried to seven places, rounded down) obtained by dividing the Class (_)
Certificate Balance as of such Distribution Date (after giving effect to all
payments of principal made on such Distribution Date) by the Original Class (_)
Certificate Balance.
Class (_) Principal Shortfall: As to any Distribution Date, the amount,
if any, by which distributions in respect of principal to Holders of the Class
(_) Certificates on such Distribution Date are less than the amounts specified
in clause (a) of the definition of Class (_) Formula Amount.
- 5 -
Class (_) Remaining Available Funds: As to any Distribution Date prior
to the Class (_) Termination Date, the lesser of (a) Remaining Available Funds
and (b) an amount equal to the product of [____ of ___ basis points] and the
Pool Balance for such Distribution Date. As to any Distribution Date on or after
the Class (_) Termination Date, the lesser of (a) the Remaining Available Funds
less the sum of (i) the Class (_) Formula Amount and (ii) the Class (_) Formula
Amount for such date and (b) an amount equal to the product of [____ of ___
basis points] and of the Pool Balance for such Distribution Date.
Class (_) Termination Date: The Distribution Date upon which the Class
(_) Certificate Balance is reduced to zero.
Class (_) Unpaid Interest Shortfall: As to any Distribution Date, the
amount if any, by which the aggregate of Class (_) Interest Shortfalls for prior
Distribution Dates exceeds the aggregate of the amounts distributed on prior
Distribution Dates to Holders of the Class (_) Certificates in respect of Class
(_) Interest Shortfalls. For purposes of determining whether amounts
distributable in respect of Class (_) Unpaid Interest Shortfalls were actually
distributed on any particular Distribution Date, the distribution on such
Distribution Date shall be allocated, first, to the amount specified in clause
(a) of the definition of "Class (_) Interest Requirement", second, to any
interest due on any Class (_) Unpaid Interest Shortfall, and, third, to any
Class (_) Unpaid Interest Shortfall.
Class (_) Unpaid Principal Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of Class (_) Principal Shortfalls for
prior Distribution Dates exceeds the aggregate of amounts distributed on prior
Distribution Dates in respect of Class (_) Principal Shortfalls to Holders of
the Class (_) Certificates. For purposes of determining whether amounts
distributable in respect of Class (_) Unpaid Principal Shortfalls were actually
distributed on any particular Distribution Date, the distribution on such
Distribution Date shall be allocated, first, to the Class (_) Interest
Requirement, second, to the amounts described in clause (a) of the definition of
"Class (_) Formula Amount," and, third, to any Class (_) Unpaid Principal
Shortfall.
Class (_) Certificate: Any of the Certificates signed by the Trustee
and countersigned by the Trustee or the Certificate Registrar, substantially in
the form set forth in Exhibit B hereto.
Class (_) Certificate Balance: As to any Distribution Date, the
Original Class (_) Certificate Balance less the sum of all amounts previously
distributed to Class (_) Certificateholders on all previous Distribution Dates
in excess of the Class (_) Interest Requirement for each such Distribution Date,
but in no event less than zero.
Class (_) Distribution Amount: As to any Distribution Date, the sum of
(a) the Amount Available for Class (_) Interest and (b) the Amount Available for
Class (_) Principal.
Class (_) Formula Amount: As to any Distribution Date on or after the
Class (_) Termination Date, the lesser of (a) the sum of (i) the Formula
Principal Amount and (ii) any Class (_) Unpaid Principal Shortfall, less (iii)
as to the Class (_) Termination Date, the aggregate amount distributed as
principal in respect of the Class (_) Certificates on such date and (b) the
Class (_) Certificate Balance.
- 6 -
Class (_) Interest Requirement: As to any Distribution Date, the sum of
(a) interest accrued during the related Accrual Period at the Class (_)
Pass-Through Rate on the Class (_) Certificate Balance, (b) interest accrued
during the related Accrual Period at the Class (_) Pass-Through Rate on any
Class (_) Unpaid Interest Shortfall and (c) any Class (_) Unpaid Interest
Shortfall.
Class (_) Interest Shortfall: As to any Distribution Date, any amount
by which the amount of interest distributed to Class (_) Certificateholders on
such Distribution Date is less than the sum of (a) interest accrued during the
related Accrual Period at the Class (_) Pass-Through Rate on the Class (_)
Certificate Balance and (b) any interest due on such Distribution Date on any
Class (_) Unpaid Interest Shortfall.
Class (_) Pass-Through Rate: As to the initial Accrual Period, _______%
per annum and, as to any Accrual Period thereafter, the lesser of (a) LIBOR plus
____% and (b) the Weighted Average Net Loan Rate.
Class (_) Principal Factor: As to any Distribution Date, the percentage
(carried to seven places, rounded down) obtained by dividing the Class (_)
Certificate Balance as of such Distribution Date (after giving effect to all
payments of principal made on such Distribution Date) by the Original Class (_)
Certificate Balance.
Class (_) Principal Shortfall: As to any Distribution Date, the amount,
if any, by which distributions in respect of principal to Holders of the Class
(_) Certificates on such Distribution Date are less than the amounts specified
in clause (a) of the definition of Class (_) Formula Amount.
Class (_) Termination Date: The Distribution Date on which the Class
(_) Certificate Balance is reduced to zero.
Class (_) Unpaid Interest Shortfall: As to any Distribution Date, the
amount if any, by which the aggregate of Class (_) Interest Shortfalls for prior
Distribution Dates exceeds the aggregate of the amounts distributed on prior
Distribution Dates to Holders of the Class (_) Certificates in respect of Class
(_) Interest Shortfalls. For purposes of determining whether amounts
distributable in respect of Class (_) Unpaid Interest Shortfalls were actually
distributed on any particular Distribution Date, the distribution on such
Distribution Date shall be allocated, first, to the amount specified in clause
(a) of the definition of "Class (_) Interest Requirement", second, to any
interest due on any Class (_) Unpaid Interest Shortfall and, third, to any Class
(_) Unpaid Interest Shortfall.
Class (_) Unpaid Principal Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of Class (_) Principal Shortfalls for
prior Distribution Dates exceeds the aggregate of amounts distributed on prior
Distribution Dates in respect of Class (_) Principal Shortfalls to Holders of
the Class (_) Certificates. For purposes of determining whether amounts
distributable in respect of Class (_) Unpaid Principal Shortfalls were actually
distributed on any particular Distribution Date, the distribution on such
Distribution Date shall be allocated, first, to the Class (_) Interest
Requirement, second, to the amounts described in clause (a) of the definition of
"Class (_) Formula Amount," and, third, to any Class (_) Unpaid Principal
Shortfall.
Class (_) Certificate: Any of the Certificates signed by the Trustee
and countersigned by the Trustee or the Certificate Registrar, substantially in
the form set forth in Exhibit D hereto.
- 7 -
Class (_) Certificate Balance: As of any Distribution Date, the
Original Class (_) Certificate Balance less all distribution, on all previous
Distribution Dates in respect of the Class (_) Distribution Amount, but in no
event less than zero.
Class (_) Distribution Amount: As to any Distribution Date, the excess,
if any, of the Available Funds for such date over the sum of the Class (_)
Distribution Amount, the Class (_) Distribution Amount and the Class (_)
Distribution Amount for such date.
Closing Date: _____ __, _____.
Code: The Internal Revenue Code of 1986, as amended from time to time.
Collection Period: As to any _____________ Loan and any Distribution
Date, the one-month period ending on the related Cycle Date in the month
preceding the month of such Distribution Date; provided, however, that the first
such period for each __________ Loan shall commence on the Cut-off Date and end
on the Cycle Date for such __________ Loan occurring in _____ _____. When used
with respect to all the ___________ Loans and a Distribution Date, the term
"Collection Period" shall mean, collectively, the respective Collection Periods
applicable to each of the _____________ Loans that commenced in the second
preceding calendar month (or, in the case of the first Collection Period, the
Cut-off Date) and ended in the calendar month immediately preceding the month of
such Distribution Date, and shall be referred to herein as a "preceding
Collection Period" or "related Collection Period" with reference to a
Distribution Date.
Combined Loan-to-Value Ratio: As to any _____________ Loan as of any
date, the fraction, expressed as a percentage, the numerator of which is the sum
of (i) the Credit Limit and (ii) the greater of (x) the aggregate unpaid
principal balance of all loans secured by all senior or pari passu related deeds
of trust or mortgages, if any, as of such date and (y) the aggregate maximum
credit limit of such loans, and the denominator of which is the Appraised Value
of the related Mortgaged Property as of the date of execution of the related
Loan Agreement.
Corporate Trust Office: The principal office of the Trustee in New
York, New York, at which at any particular time its corporate business shall be
administered, which office at the date of the execution of this instrument is
located at __________________________________________________________________.
Credit Limit: As to any ____________ Loan, the maximum Loan Balance
permitted under the terms of the related Loan Agreement.
Cut-off Date: The close of business on ______________, _____.
Cut-off Date Pool Balance: The aggregate of the Cut-off Date Trust
Balances of the __________ Loans.
Cut-off Date Trust Balance: As to any ____________ Loan, the unpaid
principal balance thereof as of the close of business on the Cut-off Date.
- 8 -
Cycle Date: As to any __________ Loan, the day of the month on which
the related billing cycle for such __________ Loan ends.
Defective __________ Loan: Any __________ Loan with respect to which
the Depositor or the Master Servicer is required to repurchase the Trust Balance
or substitute for such Trust Balance one or more Eligible Substitute ___________
Loans pursuant to Section 2.02 or 2.04.
Definitive Certificates: As defined in Section 6.02(c).
Delinquency Amount: As of any date of determination, the sum of:
(a) the product of (i) the aggregate Trust Balance of all ___________
Loans (other than Foreclosure, Foreclosed or Liquidated __________ Loans) which
are between ___ and ___ days delinquent (on a contractual basis) and (ii)
_______%;
(b) the product of (i) the aggregate Trust Balance of all ___________
Loans (other than Foreclosure, Foreclosed or Liquidated __________ Loans) which
are delinquent between ___ and ___ days (on a contractual basis) and (ii)
_______%; and
(c) the product of (i) the aggregate Trust Balance of all ___________
Loans (other than Liquidated __________ Loans) delinquent ___ days or more, and
(ii) _______%.
Depositor: Beneficial, in its capacity as depositor hereunder.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is Cede & Co., as the registered Holder of
Book-Entry Certificates evidencing $_____________ in initial aggregate principal
amount of the Class (_) Certificates, $__________ initial aggregate principal
amount of the Class (_) Certificates and $__________ initial aggregate principal
amount of the Class (_) Certificates. The Depository shall at all times be a
"clearing corporation" as defined in Section 8-102(3) of the Uniform Commercial
Code of the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the fifth Business Day
preceding such Distribution Date.
Disqualified Organization: A disqualified organization as defined in
section 860E(e)(5) of the Code (or any successor statute thereto).
Distribution Date: The ___th day of each calendar month or, if such day
is not a Business Day, the next succeeding Business Day, beginning in
____________ _____.
Electronic Ledger: As to each Originator, the electronic master record
of home equity credit line accounts maintained by it.
- 9 -
Eligible Account: An account that is (a) maintained with a depository
institution the long-term deposits or the long-term unsecured debt obligations
of which have been rated by each Rating Agency in its highest rating category,
or (b) an account or accounts the deposits in which are fully insured by either
the BIF or the SAIF, or (c) a segregated trust account maintained with the
Trustee in its fiduciary capacity in its corporate trust department, or (d)
otherwise acceptable to each Rating Agency, as evidenced by a letter from such
Rating Agency to the Trustee.
Eligible Substitute _____________ Loan: A ____________ Loan or Loans
substituted by the Depositor or the Master Servicer for a Defective ___________
Loan, which must on the date of such substitution (a) have an outstanding Trust
Balance (or in the case of a substitution of more than one __________ Loan for
a Defective __________ Loan, an aggregate Trust Balance) not in excess of, and
not substantially less than, the Trust Balance of such Defective ___________
Loan; (b) have a Loan Rate of not less than the Loan Rate of the Defective ____
____________ and not more than __% in excess of the Loan Rate of such Defective
__________ Loan; (c) have a remaining term to maturity not more than six months
earlier or later than the remaining term of the Defective __________ Loan; (d)
comply with each representation, warranty and obligation set forth in Section
2.04 (except that each such representation and warranty shall be deemed to be
made as of the date of substitution); (e) have an original Combined
Loan-to-Value Ratio not greater than that of the Defective __________ Loan; and
(f) have a Mortgage of the same or higher level of priority as the Mortgage
relating to the Defective __________ Loan.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: As defined in Section 8.01.
Final Auction: As defined in Section 10.01(b).
Fitch: Fitch Investors Service, L.P. or its successor in interest.
Foreclosed ___________ Loan: Any ___________ Loan that is not a
Liquidated __________ Loan and as to which the related Mortgaged Property is
held by the Trust Fund upon the foreclosure or comparable conversion thereof.
Foreclosure __________ Loan: A __________ Loan with respect to which
the Master Servicer or a Subservicer has commenced foreclosure proceedings.
Formula Principal Amount: As to any Distribution Date, the sum of (a)
each Trust Principal Payment received during the preceding Collection Period,
(b) any Trust Insurance Proceeds received during the preceding Collection
Period, (c) the Trust Balance on the last day of the related Collection Period
of each Defective __________ Loan to be purchased by the Depositor or the
Master Servicer on the Business Day prior to such Distribution Date, (d) all
Substitution Adjustment Amounts received during the preceding Collection Period
and (e) the Trust Balance on the last day of the related Collection Period of
each __________ Loan that became a Liquidated __________ Loan as of the end of
the calendar month preceding the month of such Distribution Date.
- 10 -
__________ Loan Losses: For any Distribution Date, the sum of the
aggregate of Liquidated __________ Loan Losses for all __________ Loans that
became Liquidated __________ Loans as of such Distribution Date.
__________ Loan Payment Record: With respect to the Trust Fund, the
record maintained by the Master Servicer pursuant to Section 3.02(b).
__________ Loan Schedule: As of any date, the schedule of ____________
Loans included in the Trust Fund on such date. The initial schedule of ____
________Loans as of the Cut-off Date is the magnetic tape delivered to the
Trustee by the Depositor on the Closing Date setting forth as to each ____
______ Loan (a) the Cut-off Date Trust Balance, (b) the Credit Limit, (c) the
dates upon which any outstanding Loan Balance is due and payable pursuant to the
amortization schedule in effect at the Closing Date, (d) the margin over the
related index that is applicable to the setting of the Loan Rate, (e) the
applicable maximum Loan Rate and minimum Loan Rate, if any, (f) the monthly
billing cycle for such __________ Loan and (g) the billing name and address of
the Mortgagor.
__________ Loans: Such of the home equity loans the Trust Balances of
which have been sold and assigned to the Trustee pursuant to Section 2.01 as
from time to time are held as a part of the Trust Fund, the ___________ Loans
originally so held being identified in the __________ Loan Schedule. When used
in respect of any Distribution Date, the term __________ Loans shall mean all
___________ Loans (including those in respect of which the Trust Fund has
acquired the related Mortgaged Property) that (a) have not been prepaid in full
prior to the related Collection Period, (b) did not become Liquidated ____
_______ Loans prior to such related Collection Period and (c) were not
repurchased by the Depositor or the Master Servicer prior to such related
Collection Period.
Insurance Proceeds: As to any __________ Loan and Collection Period,
proceeds paid by any insurer pursuant to any insurance policy covering such ____
______ Loan (net of any component thereof covering any expenses incurred by or
on behalf of the Master Servicer) or by the Master Servicer pursuant to Section
3.04 during such Collection Period, that (a) are not Liquidation Proceeds, (b)
are not applied to the restoration or repair of the related Mortgaged Property
or released to the related Mortgagor in accordance with the normal servicing
procedures of the Master Servicer and (c) will be applied by the Master Servicer
in reduction of the Loan Balance of such __________ Loan.
LIBOR: As to any Accrual Period, the per annum rate established by the
Trustee with respect to such Accrual Period (a) based on the arithmetic mean
(rounded upwards, if necessary, to the nearest one-sixteenth of one percent) of
the offered rates for one-month United States dollar deposits that appear on the
Telerate Page 3750 as of 11:00 a.m., London time, on the related LIBOR
Determination Date, or (b) if on such date no such rate appears on the Telerate
Page 3750, based on the arithmetic mean (rounded upwards, if necessary, to the
nearest one-sixteenth of one percent) of the rates at which one-month U.S.
dollar deposits are offered at approximately 11:00 a.m., London time, on such
LIBOR Determination Date by the Reference Banks to prime banks in the London
interbank market commencing on the second LIBOR Business Day immediately
following such LIBOR Determination Date or (c) if fewer than two Reference Banks
provide such offered
- 11 -
quotations, the greater of (i) LIBOR as determined on the preceding LIBOR
Determination Date and (ii) the Reserve Interest Rate.
LIBOR Business Day: A day on which banking institutions in The City of
New York and the City of London, England are open for dealing in foreign
currency and exchange.
LIBOR Determination Date: With respect to any Accrual Period, the
second LIBOR Business Day prior to the beginning of such Accrual Period.
Liquidated __________ Loan: As to any Distribution Date, any _____
_______ Loan (other than a Defective ___________ Loan that is purchased or
substituted pursuant to Section 2.02 or 2.04) in respect of which the Master
Servicer has determined as of the end of the calendar month preceding the month
of such Distribution Date that all Liquidation Proceeds that it expects to
recover have been recovered.
Liquidated _____________ Loan Loss: As to any Liquidated ___________
Loan, the amount, if any, by which (a) the sum of (i) the Trust Balance of such
Liquidated __________ Loan and (ii) accrued and unpaid interest thereon at the
applicable Net Loan Rate from time to time applicable through the end of the
Collection Period ending in the month preceding the month of the Distribution
Date upon which such ___________ Loan became a Liquidated _____________ Loan,
exceeds (b) the Trust Liquidation Proceeds received in connection with the
liquidation thereof. For purposes hereof, a Foreclosed __________ Loan shall be
deemed to have continued to accrue interest at the Net Loan Rate that would have
been applicable from time to time to the accrual of interest on the related ____
______ Loan.
Liquidation Expenses: As to any __________ Loan, unreimbursed expenses
that are incurred by the Master Servicer in connection with the liquidation of
such ___________ Loan and not recovered under any insurance policy, such
expenses to include, without limitation, legal fees and expenses, any
unreimbursed amount expended by the Master Servicer pursuant to Section 3.06
(including, without limitation, amounts advanced to correct defaults under any
deed of trust or mortgage that is prior to such __________ Loan) in respect of
such __________ Loan and any related and unreimbursed expenditures for real
estate property taxes or for property restoration or preservation.
Liquidation Period: The period beginning on the date of adoption by
holders of the Class (_) Certificates of a plan of complete liquidation of the
Trust Fund and ending on the day that is ___ days after the date such plan is
adopted.
Liquidation Proceeds: As to any ___________ Loan, cash (other than
Insurance Proceeds and if such __________ Loan is a Defective __________ Loan,
the Purchase Price of such __________ Loan) received in connection with the
liquidation of such ___________ Loan, whether through trustee's sale,
foreclosure sale or otherwise, including without limitation rentals on acquired
Mortgaged Properties; provided, however, that in no event shall Liquidation
Proceeds with respect to any __________ Loan exceed (x) the sum described in
clause (a) of the definition of "Liquidated __________ Loan Loss" and (y) any
related Liquidation Expenses.
- 12 -
Loan Agreement: As to any __________ Loan, the related credit line
agreement executed by the Mortgagor and the related Originator and any
amendments or modifications thereto.
Loan Balance: As to any __________ Loan and any day, the principal
balance of such __________ Loan at the close of business on such day.
Loan Rate: As to any __________ Loan and any day, the per annum rate
of interest applicable to the calculation of interest on the related Loan
Balance for such day as set forth in the related Loan Agreement.
Master Servicer: Beneficial Mortgage Corporation or its successor in
interest or any successor servicer appointed as provided herein.
Monthly Servicing Fee: As to any ___________ Loan and any date, an
amount equal to one-twelfth of the product of (a) the Servicing Fee Rate and (b)
the Trust Balance of such __________ Loan.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. or its successor in interest.
Mortgage: As to any ___________ Loan, the deed of trust or other
instrument creating a first or second lien on an estate in fee simple interest
in real property securing such __________ Loan.
Mortgage File: As to any ____________ Loan, the mortgage documents
listed in Section 2.01 pertaining to such __________ Loan and any additional
documents required to be added to the Mortgage File pursuant to this Agreement,
which documents may be physical documents or, pursuant to the terms of Section
2.01, optical images or other representations thereof.
Mortgaged Property: As to any ___________ Loan, the underlying
property, including real property and any improvements thereon, securing such
__________ Loan.
Mortgagor: The obligor or obligors under a Loan Agreement.
Net Liquidation Proceeds: As to any Liquidated ___________ Loan,
Liquidation Proceeds net of Liquidation Expenses.
Net Loan Rate: As to any ____________ Loan and any day, the Loan Rate
less the Servicing Fee Rate.
Officer's Certificate: A certificate signed by the President, a Senior
Vice President or a Vice President of Beneficial or the Master Servicer, as the
case may be, and delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel delivered to the
Trustee, who may be counsel employed by the Master Servicer or the Depositor,
except that any opinion of counsel relating to the qualification of the Trust
Fund as a REMIC or compliance with or taxation pursuant to the REMIC Provisions
must be an opinion of independent counsel experienced in matters relating to the
subject of such opinion.
- 13 -
Original Class (_) Certificate Balance: $_____________.
Original Class (_) Certificate Balance: $__________.
Original Class (_) Certificate Balance: $__________.
Original Class (_) Certificate Balance: $______.
Originator: Each of _________________________ and ________________, or
their respective predecessors, as applicable.
Overdue Trust Percentage: As to any Collection Period and any payment
received in respect of a __________ Loan that was due in a previous Collection
Period, the percentage (carried to four places) obtained by dividing the average
daily Trust Balance for all consecutive prior Collection Periods from and
including the Collection Period in which such payment was due to and including
the Collection Period in which such payment was received in full by the average
daily Loan Balance for such consecutive prior Collection Periods. The Overdue
Trust Percentage shall only be applied to payments received in a Collection
Period that were due in a previous Collection Period or Periods.
Ownership Interest: With respect to any Class (_), Class (_) or Class
(_) Certificate, any ownership or security interest therein, including any
interest therein as the Holder thereof and any other interest therein, whether
direct or indirect, legal or beneficial, as owner or as pledgee.
Paying Agent: Any Person appointed by the Trustee as permitted by
Section 6.05.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made thereon, such percentage
interest being equal, in the case of a Certificate other than a Class (_)
Certificate, to the percentage obtained by dividing the original principal
denomination of such Certificate by the aggregate of the original principal
denominations of all Certificates of the same Class, and, in the case of a Class
(_) Certificate, to the percentage set forth on the face thereof.
Permitted Investments: One or more of the following:
(a) 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 when such
obligations are backed by the full faith and credit of the United
States;
(b) repurchase agreements on obligations specified
in clause (a) maturing not more than three months from the date of
acquisition thereof, provided that the unsecured short-term debt
obligations of the party agreeing to repurchase such obligations are at
the time rated by each Rating Agency in its highest unsecured
short-term rating category;
(c) certificates of deposit, time deposits and
bankers' acceptances (which, if ▇▇▇▇▇'▇ is a Rating Agency, shall each
have an original maturity of not more than ___ days and, in the case of
bankers' acceptances, shall in no event have an original maturity of
more than 365 days) of any U.S. depository institution or trust company
incorporated under the
- 14 -
laws of the United States or any State provided that either (i) such
investments are fully insured by the Federal Deposit Insurance
Corporation or (ii) the debt obligations of such depository institution
or trust company (or if Standard & Poor's is a Rating Agency in the
case of the principal depository institution in a depository
institution holding company, the unsecured short-term debt obligations
of the depository institution holding company) at the date of
acquisition thereof have been rated by each Rating Agency in its
highest unsecured short-term debt rating category;
(d) commercial paper (having original maturities of
not more than 270 days) of any corporation incorporated under the laws
of the United States or any state thereof which on the date of
acquisition has been rated by each Rating Agency in its highest
short-term rating category;
(e) money market funds rated by each Rating Agency
in its highest category;
(f) money market mutual funds, including, without
limitation, the VISTA Money Market Funds or any other fund for which
the Trustee or an Affiliate of the Trustee serves as an investment
advisor, administrator, shareholder, servicing agent and/or custodian
or subcustodian (provided that any such fund is rated in the highest
rating category by each of Standard & Poor's and Moody's),
notwithstanding that (i) the Trustee or an Affiliate of the Trustee
charges and collects fees and expenses from such funds for services
rendered, (ii) the Trustee charges and collects fees and expenses for
services rendered pursuant to this Agreement, and (iii) services
performed for such funds and pursuant to this Agreement may converge at
any time; and
(g) other obligations or securities that are
acceptable to each Rating Agency as a Permitted Investment hereunder
and will not result in a reduction, withdrawal or suspension of the
then-current rating of any Class of Certificates, as evidenced by a
letter to such effect from such Rating Agency.
With respect to clause (f) above, the Depositor and the Master Servicer
specifically authorizes the Trustee or an Affiliate of the Trustee to charge and
collect all fees and expenses from such funds for services rendered to such
funds, in addition to any fees and expenses the Trustee may charge and collect
for services rendered pursuant to this Agreement.
In no event shall an instrument be a Permitted Investment if such
instrument evidences (x) a right to receive only interest payments with respect
to the obligations underlying such instrument or (y) both principal and interest
payments derived from obligations underlying such instrument, if the interest
and principal payments with respect to such instrument provide a yield to
maturity at the date of investment of greater than ___% of the yield to maturity
at par of such underlying obligations.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Pool Balance: As to any Distribution Date, the aggregate of the Trust
Balances of all __________ Loans as of the beginning of the related Collection
Period.
Pool Purchase Price: As defined in Section 10.01(b).
- 15 -
Principal Payment: As to any ___________ Loan and any Collection
Period, all amounts (excluding Insurance Proceeds and Liquidation Proceeds)
received by the Master Servicer from or on behalf of the related Mortgagor
during such Collection Period that were applied in reduction of the Loan Balance
of such __________ Loan.
Purchase Price: With respect to any Defective __________ Loan required
to be repurchased on any date pursuant to Section 2.02 or 2.04, an amount equal
to the sum of (a) the Trust Balance thereof as of the end of the Collection
Period preceding the date of repurchase and (b) accrued and unpaid interest
thereon to the end of such Collection Period at the Net Loan Rate from time to
time applicable to such Trust Balance.
Rating Agency: Any statistical credit rating agency, or its successor,
that rated any Class of Certificates at the request of the Master Servicer at
the time of the initial issuance of the Certificates. If such agency or a
successor is no longer in existence, "Rating Agency" shall be such statistical
credit rating agency, or other comparable Person, designated by the Master
Servicer, notice of which designation shall be given to the Trustee. References
herein to the highest rating category of a Rating Agency shall mean AAA, AAAm,
AAAm-G or A-1+, in the case of Standard & Poor's, AAA, or F-1+, in the case of
Fitch, and Aaa or P-1 +, in the case of Moody's, and in the case of any other
Rating Agency shall mean an equivalent rating.
Record Date: As to any Book-Entry Certificate and any Distribution
Date, the day immediately preceding such Distribution Date or, if Definitive
Certificates are issued pursuant to Section 6.01, the last day of the calendar
month preceding the month in which such Distribution Date occurs. As to any
Class (_) Certificate and any Distribution Date, the fifth Business Day
preceding such Distribution Date.
Reference Banks: Banks designated by the Trustee (a) that are engaged
in transactions in Eurodollar deposits in the international Eurocurrency market,
(b) with an established place of business in London, and (c) that, to the
knowledge of the Trustee, do not control, are not controlled by, and are not
under common control with, the Depositor.
Remaining Available Funds: As to any Distribution Date, Available Funds
less the sum of (a) the Amount Available for Class (_) Interest, (b) the Amount
Available for Class (_) Interest, (c) the Amount Available for Class (_)
Interest and (d) the Class (_) Formula Amount.
[REMIC: As defined in Section 3.01.]
[REMIC Change of Law: Any proposed, temporary or final statute,
regulation, revenue ruling, revenue procedure or other official announcement or
interpretation relating to REMICs and the REMIC Provisions issued after the
Closing Date.]
[REMIC Provisions: Provisions of the federal income tax law relating to
REMICs, which appear at sections 860A through 860G of Subchapter M of Chapter 1
of the Code, and related provisions and regulations promulgated thereunder, as
the foregoing may be in effect from time to time.]
- 16 -
Reserve Interest Rate: With respect to any Accrual Period, the per
annum rate that the Trustee determines to be either (a) the arithmetic mean
(rounded upwards if necessary to the nearest whole multiple of one-sixteenth
percent) of the one-month U.S. dollar lending rates which at least two New York
City banks selected by the Trustee are quoting on the relevant LIBOR
Determination Date to the principal London offices of leading banks in the
London interbank market or (b) in the event that the Trustee can determine no
such arithmetic mean, the lowest one-month U.S. dollar lending rate which New
York City banks selected by the Trustee are quoting on such LIBOR Determination
Date.
Responsible Officer: When used with respect to the Trustee, any officer
within the Corporate Trust Office including any Vice President, Managing
Director, Assistant Vice President, Secretary, Assistant Secretary or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge and familiarity with the particular subject.
SAIF: The Savings Association Insurance Fund, as from time to time
constituted, created under the Financial Institutions Reform, Recovery and
Enhancement Act of 1989, or if at any time after the execution of this
instrument the Savings Association Insurance Fund is not existing or performing
duties now assigned to it, the body performing such duties on such date.
Securities Act: The Securities Act of 1933, as amended.
Servicer LOC: Any letter of credit, surety or similar agreement
obtained by the Master Servicer pursuant to Section 3.02(c).
Servicer LOC Issuer: At any time as to any Servicer LOC, the
institution that is then obligated under such Servicer LOC.
Servicing Certificate: A certificate completed by and executed on
behalf of the Master Servicer in accordance with Section 4.01.
Servicing Fee Rate: ____% per annum.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the __________ Loans whose
name appears on a list of servicing officers furnished on the Closing Date to
the Trustee by the Master Servicer, as such list may be amended from time to
time.
Standard & Poor's: Standard & Poor's Debt Ratings Group or its
successor in interest.
Subservicer: Each Originator, in its capacity as servicer of the ____
_______ Loans originated by it and sold by the Depositor to the Trustee
hereunder, and any other subservicer appointed as such by the Master Servicer.
Substitution Adjustment Amount: As defined in the fourth sentence of
Section 2.02(b).
- 17 -
Tax Matters Person Residual Interest: A ________% interest in the Class
(_) Certificates, which shall be issued to and held by the Master Servicer
throughout the term hereof.
"Telerate Page 3750" means the display designated as page 3750 on the
Telerate Service (or such other page as may replace page 3750 on that service or
such other service or services as may be nominated by the British Bankers'
Association for the purpose of displaying London interbank offered rates for
U.S. dollar deposits).
Termination Date: The Distribution Date upon which the final
distribution is made to Certificateholders.
Total Expected Losses: As of any date of determination, the sum of (a)
the aggregate amount of Liquidated __________ Loan Losses occurring on or prior
to such date and (b) the Delinquency Amount.
Transfer: Any direct or indirect transfer, sale, pledge, hypothecation
or other form of assignment of any Ownership Interest in a Class (_), Class (_)
or Class (_) Certificate.
Transferee: Any Person who is acquiring by Transfer any Ownership
Interest in a Class (_), Class (_) or Class (_) Certificate.
Trust Balance: As to any __________ Loan and any day, the Cut-off Date
Trust Balance less (a) all Trust Principal Payments received and credited
against the Trust Balance since the Cutoff Date and (b) any Trust Insurance
Proceeds received since the Cut-off Date in respect of such __________ Loan.
For purposes hereof, a Foreclosed __________ Loan shall be deemed to have a
Trust Balance equal to the Trust Balance of the related ___________ Loan
immediately prior to the foreclosure or comparable conversion, and a Liquidated
___________ Loan shall be deemed to have a Trust Balance equal to the Trust
Balance of the related __________ Loan immediately prior to the final recovery
of the related Liquidation Proceeds.
Trust Fund: The corpus of the trust created by this Agreement,
consisting of, to the extent described herein, the Trust Balance of each ____
______ Loan, such assets as shall from time to time be identified as credited to
the __________ Loan Payment Record or deposited in the Certificate Account in
accordance with this Agreement, any Insurance Proceeds, any Servicer LOC, and
any property that secured a ___________ Loan and that has been acquired by
foreclosure or deed in lieu of foreclosure.
Trust Insurance Proceeds: As to any __________ Loan and any Collection
Period, the product of (a) the Trust Percentage and (b) Insurance Proceeds with
respect to such __________ Loan received during such Collection Period.
Trust Interest: As to any payment on a __________ Loan made by or on
behalf of the related Mortgagor that is due (a) in the Collection Period in
which it is received, the product of (i) the portion of such payment allocable
to interest at the Net Loan Rate for the related Collection Period and (ii) the
Trust Percentage for the related Collection Period, or (b) in a Collection
Period prior to the Collection Period in which it was received, the product of
(i) the portion of such payment allocable to interest at the Net Loan Rate at
the beginning of the initial Collection Period in which
- 18 -
such payment was due and (ii) the Overdue Trust Percentage for the Collection
Period in which such payment is received.
Trust Liquidation Proceeds: As to any Liquidated __________ Loan, the
product of the Trust Percentage and Net Liquidation Proceeds.
Trust Percentage: As to any __________ Loan and any Collection Period,
the percentage (carried to four places) obtained by dividing the average daily
Trust Balance for the second preceding Collection Period by the average daily
Loan Balance for such second preceding Collection Period; provided, that for any
Foreclosed __________ Loan, the Trust Percentage shall be the Trust Percentage
in effect for the Collection Period in which such ___________ Loan became a
Foreclosed __________ Loan. As of the Cut-off Date, the Trust Percentage of
each __________ Loan shall be ___%.
Trust Principal Payment: As to any payment made on a __________ Loan
by or on behalf of the related Mortgagor (other than Trust Insurance Proceeds),
(a) that is either a prepayment or was due in the Collection Period in which it
was received, the product of (i) the portion of such payment applicable to the
reduction of the Loan Balance of such ___________ Loan and (ii) the Trust
Percentage for the related Collection Period, or (b) that was due in a
Collection Period prior to the Collection Period in which it was received, the
product of (x) the portion of such payment applicable to the reduction of the
Loan Balance of such __________ Loan and (y) the Overdue Trust Percentage for
the Collection Period in which such payment was received; provided, however,
that such amount shall not exceed the amount necessary to reduce the related
Trust Balance to zero.
Trustee: ____________________________________________________, or any
successor trustee appointed in accordance with this Agreement that has accepted
such appointment in accordance herewith.
Weighted Average Net Loan Rate: As to any Distribution Date, the
average of the Net Loan Rates of all the __________ Loans in effect during the
applicable monthly billing cycles ending in the calendar month preceding such
Distribution Date (adjusted to an effective rate reflecting accrued interest
calculated on the basis of the actual number of days in the related Accrual
Period and a year assumed to consist of 360 days, and weighted by the respective
Trust Balances thereof).
Section 1.02. Interest Calculations. All calculations of interest
hereunder shall be made on the basis of the actual number of days in the Accrual
Period and a year assumed to consist of 360 days. The establishment of LIBOR on
each LIBOR Determination Date by the Trustee and the Trustee's calculation of
the rate of interest applicable to the Certificates for the related Accrual
Period shall (in the absence of manifest error) be final and binding.
Section 1.03. Usage of Terms. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
typing, lithography, facsimile and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the term "including"
means "including without limitation".
- 19 -
ARTICLE II
SALE OF ____________ LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Sale of __________ Loans. The Depositor, concurrently
with the execution and delivery of this Agreement, does hereby sell, assign, set
over and otherwise convey to the Trustee, without recourse (except as provided
herein) all of its right, title and interest in and to the Trust Balance of each
__________ Loan, including the Trust Percentage or Overdue Trust Percentage, as
applicable, of all interest and principal received by the Depositor or any
Originator on or with respect to each __________ Loan after the Cut-off Date
(other than any payment of principal and interest allocable to any Additional
Balance as herein provided, any premium accompanying the prepayment of all or a
portion of a Loan Balance, and any fees, charges or amounts held for the account
of Mortgagors as described in Section 3.02(b)), together with all of its right,
title and interest in and to the proceeds of any related insurance policies (to
the extent of the related Trust Balances). In addition, the Depositor does
hereby agree to enter into the __________ Loan Payment Record on the Closing
Date the initial deposit to the Certificate Account described in Section 4.02(a)
and thereafter to effect the deposit to the Certificate Account required
pursuant to such Section.
In connection with such sale and assignment, the Depositor will as
promptly as practicable, but in no event later than ___ days following the
Closing Date, file in the appropriate office in the State in which its principal
place of business is located a UCC-1 financing statement executed by the
Depositor as debtor, naming the Trustee as secured party and listing as
collateral the __________ Loans the Trust Balances of which are conveyed by the
Depositor hereunder. The characterization of the Depositor as debtor and the
Trustee as secured party in any such financing statement is solely for
protective purposes and shall in no way be construed as being contrary to the
intent of the parties that this transaction be treated as a sale to the Trustee
of the Depositor's entire right, title and interest in the Trust Balances of the
__________ Loans. In connection with such filing, the Depositor agrees that it
shall cause to be filed all necessary continuation statements and to take or
cause to be taken such actions and to execute such documents as are necessary to
perfect and protect the Certificateholders' interests in the Trust Balance of
each such __________ Loan and the proceeds thereof allocable thereto. In the
event a Servicer LOC is obtained pursuant to Section 3.02(c), the Master
Servicer promptly shall deliver to the Trustee such Servicer LOC.
In connection with such sale and assignment by the Depositor, the
Depositor acknowledges that it is holding (or that it will cause the related
Originators to hold on the Depositor's behalf) as custodian for the Trustee the
following documents or instruments with respect to each __________ Loan the
Trust Balance of which is being so sold and assigned:
(i) The related Loan Agreement (including any
related assumption, modification and substitution agreements), and any
evidence of indebtedness executed by the related Mortgagor in
connection therewith;
(ii) any related amendments to the Loan Agreement
or Mortgage, any related modification or assumption agreement and any
related previous assignments of the __________ Loan;
- 20 -
(iii) the related Mortgage with evidence of
recording indicated thereon; and
(iv) with respect to each __________ Loan the
original Credit Limit of which was $________ or more, evidence of
title insurance;
provided, however, that as to any ___________ Loan in respect of which, as
evidenced by an Opinion of Counsel delivered to and in form and substance
satisfactory to the Trustee, (x) an optical image or other representation of the
related documents specified in clauses (i) through (iii) above are enforceable
in the relevant jurisdiction to the same extent as the original of such document
and (y) such optical image or other representation does not impair the ability
of an owner of such ___________ Loan to transfer its interest in such ______
_______ Loan, such optical image or other representation may be held by the
Depositor (or by the related Originator acting on behalf of Depositor) as
custodian in lieu of the physical documents specified above.
Except as hereinafter provided, the Depositor (or any Originator acting
on behalf of the Depositor) as custodian of the Mortgage Files, shall be
entitled to maintain possession of all of the foregoing documents and
instruments and shall not be required to deliver any of them to the Trustee. In
the event, however, that possession of any of such documents or instruments is
required by the Master Servicer or any person (including the Trustee) acting as
successor Master Servicer pursuant to Section 7.04 in order to carry out the
duties of Master Servicer hereunder, then the Master Servicer (or such
successor) shall be entitled to request that the Depositor deliver (or that the
Depositor cause the related Originator to deliver) such documents or instruments
and shall be entitled to retain such documents or instruments for as long as
necessary for servicing purposes. Any such documents or instruments shall be
returned to the Depositor or, if applicable, the related Originator (unless
returned to the related Mortgagor in connection with the payment in full of the
related __________ Loan) when possession thereof is no longer required.
The right of the Depositor (or of any Originator acting on behalf of
the Depositor) to maintain possession of the documents enumerated above shall
continue so long as (x) the Depositor (or such Originator) remains an affiliate
of Beneficial Corporation and the long-term unsecured debt of Beneficial
Corporation is assigned ratings of at least A- by Standard & Poor's and Fitch
and A3 by ▇▇▇▇▇'▇ or (y) the Depositor has not been removed as Master Servicer
following the occurrence of an Event of Default. The Master Servicer shall
notify in writing each Originator and the Trustee if the long-term unsecured
debt of Beneficial Corporation does not satisfy either of such ratings. At such
time, as promptly as practicable but in no event more than ___ days in the case
of clause (i) below and ___ days in the case of clause (ii) below following the
occurrence of such event, the Depositor at its own expense shall (or shall cause
the related Originator to) (i) either (x) submit for recording an assignment of
Mortgage in favor of the Trustee (which may be a blanket assignment, if
permitted by law in the applicable jurisdiction as evidenced by an Opinion of
Counsel delivered to the Trustee) with respect to each of the related ____
__________ Loan the appropriate real property or other records or (y) deliver to
the Trustee the fully executed and prepared assignment of mortgage in favor of
the Trustee in form for recordation, together with an Opinion of Counsel to the
effect that neither the recording of an assignment nor the taking of any other
action is required to protect the Trustee's right, title and interest in and to
the related Mortgage and the related __________ Loan or, if a court were to
recharacterize the sale of the __________ Loans as a financing, to perfect a
first priority security interest in favor of the Trustee in such Mortgage and
__________ Loan and (ii) deliver the related Mortgage Files to the Trustee to
be held by the Trustee in trust,
- 21 -
upon the terms herein set forth, for the use and benefit of all present and
future Certificateholders, and the Trustee shall retain possession thereof
except to the extent the Master Servicer or Subservicers require any Mortgage
Files for normal servicing as contemplated by Section 3.07.
The Trustee shall have no duty or obligation to review any Mortgage
File until such Mortgage File is delivered to the Trustee pursuant to clause
(ii) of the immediately preceding paragraph. Within ___ days following the first
delivery of the Mortgage Files to the Trustee pursuant to clause (ii) of the
immediately preceding paragraph, the Trustee will review each Mortgage File
delivered to it to ascertain that all required documents set forth in this
Section 2.01 have been executed and received, and that such documents relate to
the __________ Loans identified on the __________ Loan Schedule. In so doing
the Trustee may conclusively rely on the purported due execution and genuineness
of any signature thereon. If within such __-day period the Trustee finds any
document constituting a part of a Mortgage File not to have been executed or
received or to be unrelated to the ____________ Loans identified in such ____
______ Loan Schedule, the Trustee shall promptly notify the Depositor, which
shall have a period of ___ days after receipt of such notice within which to
correct or cure, or to cause the related Originator to correct or cure, any such
defect. Each original recorded assignment of Mortgage shall be delivered to the
Trustee within ___ Business Days following the date on which it is returned to
the Depositor or the related Originator by the office with which such assignment
was filed for recording and within ___ days following receipt by the Trustee of
the recorded assignment or the assignment in recordable form, as the case may
be, the Trustee shall review such assignment to confirm the information
specified above with respect to the documents constituting the Mortgage File.
Upon receipt by the Trustee of the recorded assignment or the assignment in
recordable form, as the case may be, such recorded assignment or assignment in
recordable form shall become part of the Mortgage File. The Trustee shall notify
the Depositor of any defect in such assignment based on such review. The
Depositor shall have a period of ___ days following receipt of such notice to
correct or cure, or to cause the related Originator to correct or cure, such
defect. In the event that the Depositor fails to record, or to cause the related
Originator to record, an assignment of a __________ Loan as herein provided
within such 30-day period, the Trustee shall, upon written instructions from the
Depositor, prepare and, if required hereunder, file such assignment for
recordation in the appropriate real property or other records and the Depositor
shall deliver within ___ Business Days of the Closing Date a power of attorney
of each Originator, which shall appoint the Trustee as its attorney-in-fact with
full power and authority to act in its stead for the purpose of such
preparation, execution and filing. Any expense incurred by the Trustee not
otherwise paid for by the Depositor or the related Originator as required
hereunder in connection with the preparation and filing of such assignments
shall be reimbursed to the Trustee from amounts that would otherwise be
distributable to holders of the Class (_) Certificates.
The Trustee shall have no responsibility for reviewing any Mortgage
File except as expressly provided in this Section 2.01. In reviewing any
Mortgage File pursuant to this Section, the Trustee shall have no responsibility
for determining whether any document is valid and binding, whether the text of
any assignment or endorsement is in proper or recordable form (except, if
applicable, to determine if the Trustee is the assignee or endorsee), whether
any document has been recorded in accordance with the requirements of any
applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction, but shall only be required to determine whether a
document appears to have been executed, that it appears to be what it purports
to be and, where applicable, that it purports to be recorded, but shall not be
required to determine whether any Person executing any document was authorized
to do so or whether any signature thereon is genuine.
- 22 -
The Depositor further confirms to the Trustee that the Depositor and
each Originator have caused the portions of their Electronic Ledgers relating to
the __________ Loans to be clearly and unambiguously marked to indicate that
the Trust Balance of each ____________ Loan transferred and assigned by such
Originator to the Depositor, and thereafter by the Depositor to the Trustee
hereunder, has been sold to the Trustee and constitutes part of the Trust Fund
in accordance with the terms of the trust created hereunder.
Section 2.02. Acceptance by Trustee; Repurchase Obligations;
Substitution of Eligible Substitute ___________ Loans. (a) The Trustee
acknowledges the assignment and sale of the Trust Balance of each ___________
Loan to it, and declares that the Trustee holds and will hold the Trust Fund in
trust, upon the terms herein set forth, for the use and benefit of all present
and future Certificateholders. If the time to cure any defect of which the
Trustee has notified the Master Servicer following the Trustee's review of the
Mortgage Files pursuant to Section 2.01 has expired or if any loss is suffered
by the Trustee, on behalf of the Certificateholders, in respect of any ____
______ Loan as a result of (i) a material defect in any document constituting a
part of a Mortgage File or (ii) the related Originator's retention of such
Mortgage File or an assignment of a __________ Loan not having been recorded,
the Master Servicer shall, on the Business Day preceding the Distribution Date
in the month following the Collection Period in which the time to cure such
defect expired or such loss occurred, either (i) repurchase the Trust Balance of
the related __________ Loan (including any property acquired in respect thereof
and any insurance policy or insurance proceeds with respect thereto) from the
Trust Fund at a price equal to the Purchase Price, which shall be accomplished
by deposit by the Master Servicer in the Certificate Account pursuant to Section
4.02 on such preceding Business Day, or (ii) so long as such Distribution Date
occurs within two years following the Closing Date, substitute for the Trust
Balance of such ____________ Loan one or more Eligible Substitute ___________
Loans and remit any Substitution Adjustment Amount in respect thereof to the
Certificate Account pursuant to Section 4.02 on such preceding Business Day. The
Master Servicer may first request of the related Originator that it effect the
repurchase or substitution of any Eligible Substitute __________ Loan described
in the preceding sentence, but in the event any such Originator shall not have
effected such repurchase or substitution in the time provided therefor, the
Master Servicer shall be obligated to deposit the related Purchase Price into
the Certificate Account in immediately available funds not later than such
Distribution Date and thereby be deemed to have purchased the Trust Balance of
such __________ Loan in lieu of such Originator. Such purchase by the Master
Servicer shall not relieve the related Originator of any liability to the Master
Servicer with respect to the Trust Balance of the __________ Loan so purchased,
and the Master Servicer shall be entitled to require the related Originator to
pay to the Master Servicer the related Purchase Price and thereby purchase the
Trust Balance of such __________ Loan from the Master Servicer. Upon receipt by
the Trustee of (i) in the case of a repurchase, written notification signed by a
Servicing Officer to the effect that the Purchase Price for any such Defective
__________ Loan has been so deposited in the Certificate Account or (ii) in the
case of a substitution, written notification signed by a Servicing Officer to
the effect that the Substitution Adjustment Amount, if any, has been so
deposited in the Certificate Account and, if required at such time, that the
related Mortgage File has been delivered to the Trustee and the assignment
referred to in Section 2.01 has been recorded, the Trustee shall execute and
deliver such instrument of transfer or assignment presented to it by the Master
Servicer, in each case without recourse, representation or warranty, as shall be
necessary to vest in the Master Servicer or the related Originator, as the case
may be, legal and beneficial ownership of such purchased Defective ___________
Loan (including any property acquired in respect thereof and proceeds of any
insurance
- 23 -
policy with respect thereto). It is understood and agreed that the obligation of
the Master Servicer to repurchase or substitute for any __________ Loan as to
which a material defect in a Mortgage File or any constituent document thereof
continues to exist following the cure period as described in the preceding
paragraph shall constitute the sole remedy respecting such defect available to
Certificateholders or the Trustee on behalf of Certificateholders against the
Master Servicer, and such obligation on the part of the Master Servicer shall
survive any resignation or termination of the Master Servicer hereunder. It is
further understood and agreed that any such repurchase obligation shall be
solely that of the original Master Servicer and shall survive any resignation or
termination of such Master Servicer hereunder, and the Trustee shall in no event
be obligated to repurchase any __________ Loan hereunder.
[Notwithstanding the foregoing, in the case of any repurchase or
substitution that would result in the realization of a gain by the Trust Fund,
the Master Servicer shall not be required to so repurchase or replace any ____
______ Loan unless it is a Defective __________ Loan and the Trustee shall have
received (i) in the case of a repurchase, either an Opinion of Counsel to the
effect that such repurchase shall not be subject to tax as a result of being
deemed a "prohibited transaction" under section 860F(a)(2) of the Code or an
Officer's Certificate to the effect that such repurchase shall not give rise to
net income taxable under section 860F(a)(1) of the Code and (ii) in either case,
an Opinion of Counsel that such repurchase or substitution will not be deemed a
contribution to the REMIC after the "start-up day" that would give rise to the
tax specified under section 860G(d)(1) of the Code. Any such opinion or
certificate shall be provided solely at the expense of the Master Servicer. In
the absence of such opinion or certificate, the Master Servicer shall not be
required to repurchase or replace any __________ Loan unless it is a Defective
__________ Loan and there is an actual or imminent default with respect thereto
or unless such breach adversely affects the enforceability of such ___________
Loan.]
(b) As to any Eligible Substitute __________ Loan, the Master Servicer
shall deliver, or cause the related Originator to deliver, to the Trustee an
acknowledgment that the Depositor (or the related Originator on behalf of the
Depositor) is holding as custodian for the Trustee such documents and
agreements, if any, as are permitted to be held by the Depositor (or the related
Originator) in accordance with Section 2.01. An assignment of Mortgage in favor
of the Trustee with respect to any such Eligible Substitute __________ Loan
shall be required to be recorded in the appropriate real property or other
records or delivered to the Trustee with the Opinion of Counsel referred to in
Section 2.01 under the same circumstances that all other assignments of Mortgage
are required to be recorded hereunder. For any Collection Period during which
the Master Servicer substitutes one or more Eligible Substitute ___________
Loans for one or more Defective __________ Loans, the Master Servicer shall
determine the amount, if any, by which the sum of the aggregate Trust Balances
of all such Eligible Substitute __________ Loans at the end of such Collection
Period is less than the aggregate Trust Balances at the end of such Collection
Period of the related __________ Loans being removed from the Trust Fund. The
amount of any such shortfall for a Collection Period computed by the Master
Servicer, together with any accrued and unpaid interest on the Trust Balance of
the ___________ Loan being replaced at the related Net Loan Rate (the
"Substitution Adjustment Amount"), shall be deposited by the Master Servicer in
the Certificate Account on the Business Day next preceding the Distribution Date
in the month following the Collection Period in which the circumstances giving
rise to such substitution occur. All amounts received in respect of any Eligible
Substitute ___________ Loans during the Collection Period in which the
circumstances giving rise to a substitution occur shall not be a part of the
Trust Fund and
- 24 -
shall not be credited to the __________ Loan Payment Record or deposited by the
Master Servicer in the Certificate Account. All amounts received by the Master
Servicer during the Collection Period in which the circumstances giving rise to
such substitution occur in respect of the Trust Balance of any __________ Loan
so removed from the Trust Fund shall be deposited by the Master Servicer in the
Certificate Account. The Master Servicer shall amend the ___________ Loan
Schedule to reflect the removal of the Trust Balances of any ____________ Loans
from the Trust Fund and the substitution of the Trust Balances of any Eligible
Substitute __________ Loans. Upon such substitution, the Trust Balance of any
Eligible Substitute __________ Loan shall constitute a portion of the Trust
Fund and shall be subject to the terms of this Agreement in all respects, and
the Depositor shall be deemed to have made with respect to any such Eligible
Substitute __________ Loan, as of the date of substitution, the covenants,
representations, warranties and obligations set forth in Section 2.04. The
Trustee shall upon satisfaction of the conditions set forth in Section 2.02(a)
promptly effect the reconveyance of any __________ Loan so removed from the
Trust Fund to the Master Servicer (or, if so instructed by the Master Servicer,
to the related Originator), in the manner set forth in Section 2.02(a). The
procedures applied by the Master Servicer in selecting each Eligible Substitute
____________ Loan shall not be adverse to the interests of the Trustee and the
Certificateholders and shall be comparable to the selection procedures
applicable to the __________ Loans originally conveyed hereunder.
(c) As of the Closing Date, the Trustee certifies that (i) it acquired
the Trust Balances of the ___________ Loans in good faith, for value, and
without notice or knowledge or any adverse claim, lien, change, encumbrance or
security interest (including without limitation, federal tax liens or liens
arising under ERISA), (ii) except as permitted herein, it has not and will not,
in any capacity, assert any claim or interest in the __________ Loans and (iii)
it has not encumbered or transferred its right, title or interest in the ____
______ Loans. The representation and warranty made in clause (i) above is made
by the Trustee without any independent investigation and without recourse or
warranty, except that the Trustee believes such representation to be true.
Section 2.03. Representations and Warranties Regarding the Master
Servicer. The Master Servicer represents and warrants to the Trustee and the
Certificateholders as of the Closing Date that:
(i) The Master Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has the corporate power to own its assets and to
transact the business in which it is currently engaged. The Master
Servicer is duly qualified to do business as a foreign corporation and
is in good standing in each jurisdiction in which the character of the
business transacted by it or properties owned or leased by it or the
performance of its obligations hereunder requires such qualification
and in which the failure so to qualify would have a material adverse
effect on the business, properties, assets, or condition (financial or
other) of the Master Servicer or the performance of its obligations
hereunder;
(ii) The Master Servicer has the power and authority
to make, execute, deliver and perform its obligations under this
Agreement and all of the transactions contemplated under this
Agreement, and has taken all necessary corporate action to authorize
the execution and delivery of this Agreement and the performance by it
of its obligations hereunder. When executed and delivered, this
Agreement will constitute the legal, valid and binding obligation
- 25 -
of the Master Servicer enforceable in accordance with its terms, except
as enforcement of such terms may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies;
(iii) The Master Servicer is not required to obtain
the consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement, except such as have been obtained or filed, as the case may
be, prior to the Closing Date; provided, however, that the Master
Servicer makes no representations or warranties with respect to any
requirements under the Blue Sky laws of any State;
(iv) The execution, delivery and performance of this
Agreement by the Master Servicer will not violate any provision of any
existing law or regulation or any order or decree of any court
applicable to the Master Servicer or any provision of the Certificate
of Incorporation or Bylaws of the Master Servicer, or constitute a
material breach of any mortgage, indenture, contract or other agreement
to which the Master Servicer is a party or by which the Master Servicer
may be bound; and
(v) No litigation or administrative proceeding of
or before any court, tribunal or governmental body is currently
pending, or to the knowledge of the Master Servicer threatened, against
the Master Servicer or any of its properties or with respect to this
Agreement or the Certificates which in the opinion of the Master
Servicer has a reasonable likelihood of resulting in a material adverse
effect on the transactions contemplated by this Agreement.
It is understood and agreed that the representations and warranties set forth in
this Section 2.03 shall survive the sale and assignment of the Trust Balances of
the __________ Loans to the Trustee. Upon discovery of a breach of any of the
foregoing representations and warranties which materially and adversely affects
the interests of the Certificateholders, the party discovering such breach shall
give prompt written notice to the other parties. Within 60 days of its
discovery or its receipt of notice of breach, the Master Servicer shall cure
such breach in all material respects.
Section 2.04. Representations and Warranties Regarding the ___________
Loans; Repurchase of Defective __________ Loans. The Depositor, as seller of
the Trust Balances of the __________ Loans hereunder, represents and warrants
to the Trustee and the Certificateholders as of the Closing Date (except as
otherwise expressly stated) that, as to each __________ Loan the Trust Balance
of which is conveyed to the Trust Fund by it:
(i) The information set forth on the ____________
Loan Schedule was true and correct in all material respects at the date
or dates respecting which such information is furnished;
(ii) As of the Closing Date, each Mortgage is a
valid lien on the related Mortgaged Property subject only to (a) the
lien of the related first deed of trust or mortgage, if any, (b) the
lien of current real property taxes and assessments, (c) covenants,
conditions and restrictions, rights of way, easements and other matters
of public record as of the date
- 26 -
of recording of such Mortgage, such exceptions appearing of record
being acceptable to mortgage lending institutions generally in the area
wherein the Mortgaged Property is located or specifically reflected in
the appraisal obtained in connection with the origination of the
related __________ Loan and (d) other matters to which like properties
are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by such Mortgage;
(iii) Immediately prior to the sale and assignment by
the Depositor to the Trustee, the Depositor had good title to each ____
______ Loan the Trust Balance of which was sold and assigned by it, and
the Depositor has transferred all right, title and interest in the
Trust Balance of each __________ Loan to the Trustee;
(iv) As of the last Cycle Date immediately preceding
the Cut-off Date, no payment of principal or interest on or in respect
of any __________ Loan is more than ___ days past due;
(v) The Depositor and, if applicable, the related
Originator from whom the Depositor purchased each __________ Loan, was
properly licensed or otherwise authorized, to the extent required by
applicable law, to originate or purchase such __________ Loan; each
___________ Loan at the time it was made complied in all material
respects with applicable state and federal laws, including, without
limitation, usury, equal credit opportunity and disclosure laws, and
the consummation of the transactions herein contemplated, including,
without limitation, the receipt of interest by Certificateholders, and
the ownership of the Trust Balances of the ____________ Loans by the
Trustee as trustee of the Trust Fund, will not involve the violation of
such laws;
(vi) As to each ____________ Loan having an original
Credit Limit of $________ or more, a lender's title insurance policy or
binder, foreclosure impairment insurance, or other assurance of title
customary in the relevant jurisdiction therefor, was issued on or as of
the date of the recording of the related Mortgage, and each such policy
or binder is valid and remains in full force and effect;
(vii) As of the Closing Date, the Depositor has not
received a written notice of default of any first lien loan related to
a Mortgaged Property that has not been cured by a party other than the
Depositor or the related Originator;
(viii) Each Loan Agreement is in substantially the
form previously provided to the Trustee by or on behalf of the
Depositor;
(ix) At the date of the execution of any Loan
Agreement, the Combined Loan-to-Value Ratio for the related ____
______ Loan was not in excess of ___%;
(x) No selection procedure reasonably believed by
the Depositor or the Originators to be adverse to the interests of the
Certificateholders was utilized in selecting the __________ Loans;
- 27 -
(xi) To the best of the Depositor's knowledge, an
independent interior and exterior appraisal in accordance with industry
standards was made in connection with the origination of each ____
______ Loan with a Credit Limit in excess of $_______;
[(xii) The fair market value of the "interest in real
property" as defined in Treas. Reg. ss. 1.860G-2(a)(4) and Treas. Reg.
ss. 1.856-3(c) securing each __________ Loan reduced by the amount of
any lien on the interest in real property that is senior to such ____
______ Loan, and further reduced by a proportionate amount of any lien
on the interest in real property that is in parity with such ____
______ Loan, was at least equal to ___% of the adjusted issue price of
the __________ Loan on the date of the execution of the related Loan
Agreement (provided the ____________ Loan has not been significantly
modified as defined in the REMIC Provisions) or on the Closing Date;]
and
[(xiii) Each __________ Loan is a "qualified mortgage
loan" in accordance with the REMIC Provisions.]
The representations and warranties set forth in this Section 2.04 shall
survive the sale and assignment of the respective Mortgage Files to the Trustee.
Upon discovery by the related Originator, the Master Servicer or a Responsible
Officer of the Trustee of a breach of any of the foregoing representations and
warranties, without regard to any limitation set forth in such representation or
warranty regarding the knowledge of the Depositor as to the facts stated
therein, which materially and adversely affects the interests of the
Certificateholders in the related __________ Loan, the party discovering such
breach shall give prompt written notice to the other parties. Within ___ days of
its discovery or its receipt of notice of breach, the Depositor shall use all
reasonable efforts to cure such breach in all material respects or shall, not
later than the Business Day next preceding the Distribution Date applicable to
the Collection Period in which any such cure period expired, either (i)
repurchase the Trust Balance of such __________ Loan (including any property
acquired in respect thereof and any insurance policy or insurance proceeds with
respect thereto) from the Trustee at a price equal to the Purchase Price or (ii)
remove such __________ Loan from the Trust Fund and substitute in its place one
or more Eligible Substitute __________ Loans, in the same manner and subject to
the same conditions as set forth in Section 2.02. Any such repurchase or
substitution by the Depositor shall be accomplished in the manner set forth in
Section 2.02 with respect to the repurchase or substitution of __________ Loans
under that Section. Upon making any such repurchase or substitution, the
Depositor shall be entitled to receive an instrument of assignment or transfer
from the Trustee to the same extent as set forth in Section 2.02 with respect to
the repurchase or substitution of __________ Loans under that Section. The
obligation of the Depositor to repurchase or replace any such __________ Loan
(or property acquired in respect thereof) shall constitute the sole remedy
respecting such breach available to Certificateholders or the Trustee on behalf
of Certificateholders, and such obligation on the part of the Depositor shall
survive any resignation or termination of the Depositor as Master Servicer
hereunder.
The Depositor shall be obligated either to repurchase or to replace
with one or more Eligible Substitute __________ Loans each __________ Loan as
to which any of the following conditions shall have existed as of the Closing
Date, which condition materially and adversely affects the interests of the
Certificateholders in the related __________ Loan:
- 28 -
(i) Any mechanics' lien or claim for work, labor or
material affecting the related Mortgaged Property that is or may be a
lien prior to, or equal or coordinate with, the lien of the related
Mortgage;
(ii) Any delinquent tax or assessment lien against
the related Mortgaged Property;
(iii) Any valid offset, defense or counterclaim to
any Loan Agreement or Mortgage;
(iv) Any physical damage or lack of good repair
with respect to the related Mortgaged Property; or
(v) Any related first deed of trust or mortgage
containing a future advance provision.
Any such repurchase or substitution shall be effected prior to the Distribution
Date applicable to the Collection Period at the end of which any such condition
shall have been discovered and shall be accomplished in the manner set forth in
Section 2.02 with respect to the repurchase or substitution of __________ Loans
thereunder, and such repurchase or substitution obligation shall constitute the
sole remedy respecting any of the foregoing conditions available to
Certificateholders, or the Trustee on behalf of Certificateholders, and shall
survive any resignation or termination of Beneficial as Master Servicer
hereunder. It is understood and agreed that any such repurchase or substitution
obligation shall be solely that of the Depositor, and the Trustee shall in no
event be obligated to repurchase or replace any __________ Loan hereunder.
Section 2.05. Execution and Authentication of Certificates;
[Designation of "Regular Interests" and "Residual Interests" under REMIC.] (a)
The Trustee has caused to be executed (not in its individual capacity, but
solely as Trustee), countersigned and delivered to or upon the written order of
the Depositor, in exchange for the Trust Balances of the __________ Loans,
concurrently with the sale and assignment to the Trustee of the Trust Balances
of the ___________ Loans, Certificates in authorized denominations evidencing
the entire ownership of the Trust Fund.
[(b) The Depositor hereby designates the Class (_), Class (_) and Class
(_) Certificates as "regular interests", and the Class (_) Certificates as the
"residual interests", in the Trust Fund for purposes of the REMIC Provisions.]
[Section 2.06. Designation of Start-up Day and Final Maturity Date. The
Closing Date is hereby designated as the "start-up day" of the REMIC within the
meaning of section 860G(a)(9) of the Code. The "final maturity date" for federal
income tax purposes of all interests created hereby will be the ________ ___
Distribution Date.]
Section 2.07. Certain Activities. The Trust will not: (i) issue
securities (except for the Certificates); (ii) borrow money, (iii) make loans;
(iv) invest in securities for the purpose of exercising control; (v) underwrite
securities; (vi) except as provided in this Agreement, engage in the purchase
and sale (or turnover) of investments; (vii) offer securities in exchange for
property (except
- 29 -
Certificates for the Trust Balances of the ___________ Loans); or (viii)
repurchase or otherwise reacquire its securities.
ARTICLE III
ADMINISTRATION AND SERVICING OF ____________ LOANS
Section 3.01. The Master Servicer. Beneficial is hereby appointed as
Master Servicer hereunder. [The parties intend that the Trust Fund formed
hereunder shall constitute, and that the affairs of the Trust Fund shall be
conducted and this Agreement shall be construed so as to qualify the Trust Fund
as, a "real estate mortgage investment conduit" (a "REMIC") as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Master Servicer covenants and agrees that it shall, to the extent permitted by
applicable law, act as agent (and the Master Servicer is hereby appointed to act
as agent) on behalf of the Trust Fund and in that capacity it shall: (a)
prepare, sign and file, or cause to be prepared, signed and filed, all required
federal tax returns for the REMIC using a calendar year as the taxable year for
the Trust Fund when and as required by the REMIC Provisions and other applicable
federal income tax laws; (b) cause the Trust Fund to make an election to be
treated as a REMIC on the federal partnership information tax return of the
Trust Fund for its first taxable year in accordance with the REMIC Provisions;
(c) prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders all information reports as and when required to be provided
to them in accordance with the REMIC Provisions; (d) conduct the affairs of the
Trust Fund at all times that any Certificates are outstanding so as to maintain
the status of the Trust Fund as a REMIC under the REMIC Provisions; (e) not
knowingly or intentionally take any action or omit to take any action that would
cause the termination of the REMIC status of the Trust Fund; (f) serve as tax
matters person pursuant to Treasury Regulations ss. 1.860F-4(d) and Temporary
Treasury regulation ss. 301.6231(a)(7)-1T for the Trust Fund; and (g) if not
otherwise paid from amounts available to be distributed to Holders of the Class
(_) Certificates, pay the amount of any federal income tax, including prohibited
transaction penalty taxes, imposed on the Trust Fund when and as the same shall
be due and payable (but such obligation shall not prevent the Master Servicer or
any other appropriate Person from contesting any such tax in appropriate
proceedings and shall not prevent the Master Servicer from withholding payment
of such tax, if permitted by law, pending the outcome of such proceedings).] If
the Master Servicer is not permitted, by applicable law, to fulfill any of its
duties described in this Section 3.01 (as evidenced by an Opinion of Counsel to
such effect delivered to the Trustee), the Trustee shall, at the expense of the
Master Servicer, carry out such duties pursuant to the written instructions of
the Master Servicer, in which event the Trustee shall have no liability to
Certificateholders in connection with the carrying out of such duties other than
pursuant to the standard of care set forth in Section 9.01 hereof with respect
to acts or omissions of the Trustee generally.
The Master Servicer shall, or shall cause the related Subservicer to,
service and administer the ___________ Loans and shall have full power and
authority, acting alone or through such Subservicer, to do any and all things in
connection with such servicing and administration that it may deem necessary or
desirable. Any amounts received by any Subservicer in respect of a ___________
Loan shall be deemed to have been received by the Master Servicer whether or not
actually received by it. Without limiting the generality of the foregoing, the
Master Servicer shall continue, and is hereby authorized and empowered by the
Trustee, to execute and deliver on behalf of itself, the Certificateholders and
the Trustee or any of them, any and all instruments of satisfaction or
- 30 -
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the __________ Loans and with respect
to the Mortgaged Properties. The Trustee shall, upon written request of a
Servicing Officer, furnish the Master Servicer with any powers of attorney and
other documents as are reasonably necessary or appropriate to enable the Master
Servicer to carry out its servicing and administrative duties hereunder.
In connection with the servicing and administration of the ___________
Loans, the Master Servicer shall not, and shall not permit any Subservicer to,
consent to an increase in the Credit Limit specified in any Loan Agreement
unless (i) the Master Servicer or such Subservicer and such Mortgagor execute a
new Loan Agreement providing for such increase and (ii) the Master Servicer, not
later than (x) the Business Day immediately preceding the Distribution Date
applicable to the Collection Period during which a new Loan Agreement was
executed or (y) in the event the Master Servicer is not entitled to retain and
commingle with its own funds amounts referred to in Section 3.02(c), not later
than the second Business Day following the date on which such new Loan Agreement
was executed, deposit in the Certificate Account the amount necessary (including
any accrued and unpaid interest) to prepay in full on behalf of the Mortgagor
the Trust Balance of the related __________ Loan. Upon making any such deposit
the Master Servicer shall be entitled to receive an instrument of assignment or
transfer from the Trustee to the same extent as set forth in Section 2.02. The
Master Servicer and each Subservicer may consent to the placing of a lien or
liens junior to that of the Mortgage on the related Mortgaged Property so long
as the total of the principal amounts of any first lien loan, the Credit Limit
and the combined principal balances secured by any such junior lien loan or
loans does not exceed ___%, if such Mortgage is a second deed of trust or
mortgage, and ___%, if such Mortgage is a first deed of trust or mortgage, of
the Appraised Value of the Mortgaged Property as specified in an appraisal made
by or on behalf of the Master Servicer at the time of and in connection with
such consent. The Master Servicer and each Subservicer may also consent to the
placing of a lien or liens senior to that of the Mortgage on the Mortgaged
Property so long as the Combined Loan-to-Value Ratio of such ____________
following the placement of such lien or liens is equal to or less than the
Combined Loan-to-Value Ratio of such __________ Loan at origination.
[The Master Servicer and each Subservicer may also consent to any
modification of the terms of any Loan Agreement or Mortgage not expressly
prohibited hereby if (i) the effect of any such modification will not be to
materially and adversely affect the security afforded by the Mortgaged Property
or decrease or slow (other than as permitted by clause (ii) of Section 3.02(a))
the timing of receipt of any payments required thereunder, (ii) such
modification will not cause the Trust Fund to fail to qualify as a REMIC under
the REMIC Provisions, (iii) after such modification for the Loan Agreement or
Mortgage, the related __________ Loan is a "qualified mortgage" as defined in
the REMIC Provisions, and (iv) the modification does not cause the Trust Fund to
owe additional tax to any state or federal governmental agency.]
The relationship of the Master Servicer (and of any successor to the
Master Servicer as servicer under this Agreement) to the Trustee under this
Agreement is intended by the parties to be that of an independent contractor and
not that of a joint venturer, partner or agent.
[In the event that any tax is imposed on "prohibited transactions" (as
defined in section 860F(a)(2) of the Code) of the Trust Fund, such tax shall be
charged against amounts otherwise distributable to Holders of the Class (_)
Certificates to the extent hereinafter provided. In the event
- 31 -
that any such tax shall be due and owing at a time when amounts otherwise
distributable to Holders of the Class (_) Certificates are not available and the
negligence of the Master Servicer caused the imposition of such tax, the Master
Servicer shall pay such tax from its own funds. In such event, the Master
Servicer is hereby authorized to retain from amounts otherwise distributable to
Holders of the Class (_) Certificates on any subsequent Distribution Date
sufficient funds to reimburse the Master Servicer for the payment of such tax
(to the extent that the Master Servicer has not been previously reimbursed or
indemnified therefor). The obligation of the Master Servicer to pay any such tax
from its own funds in the event amounts otherwise distributable to Holders of
the Class (_) Certificates are not sufficient shall be solely that of the Master
Servicer and shall survive any resignation or termination of the Master Servicer
hereunder; provided, however, that such obligation shall be solely that of the
original Master Servicer in the case of "prohibited transactions" caused by, or
stemming from any act or omission of, such original Master Servicer, including,
but not limited to, the repurchase of a Defective __________ Loan, and in such
case shall survive any such resignation or termination of the original Master
Servicer hereunder.]
Section 3.02. Collection of Certain __________ Loan Payments; _____
______ Loan Payment Record. (a) The Master Servicer and each Subservicer shall
follow such collection procedures as it follows from time to time with respect
to home equity loans in its servicing portfolio comparable to the ___________
Loans. Consistent with the foregoing, the Master Servicer and any such
Subservicer may in its discretion (i) waive any late payment charge or any
prepayment or other fees that may be collected in the ordinary course of
servicing such __________ Loans and (ii) if a Mortgagor is in default or about
to be in default under a ___________ Loan, arrange with such Mortgagor a
schedule for the payment of interest due and unpaid; provided such arrangement
is consistent with the Master Servicer's or such Subservicer's policies with
respect to the home equity loans it owns or services.
(b) The Master Servicer shall establish and maintain for the Trust Fund
a ___________ Loan Payment Record in which the following payments on and
collections in respect of each ____________ Loan shall be credited within ___
Business Days of receipt thereof by the Master Servicer for the account of the
Certificateholders:
(i) all Trust Interest;
(ii) Trust Principal Payments, including, without
limitation, Trust Principal Payments made by the Master Servicer on
behalf of Mortgagors in connection with the execution of a new Loan
Agreement providing for an increased Credit Limit;
(iii) the Purchase Price of any Trust Balance
repurchased by the Master Servicer or by an Originator pursuant to
Sections 2.02 and 2.04;
(iv) the Substitution Adjustment Amount in respect
of any __________ Loan replaced by an Eligible Substitute ____________
Loan pursuant to Section 2.02 or 2.04;
(v) all Trust Liquidation Proceeds; and
- 32 -
(vi) all Trust Insurance Proceeds (including, for
this purpose, any amounts required to be credited by the Master
Servicer pursuant to the penultimate sentence of Section 3.04).
The foregoing requirements respecting credits to the __________ Loan Payment
Record are exclusive, it being understood that, without limiting the generality
of the foregoing, the Master Servicer need not enter in the __________ Loan
Payment Record amounts representing fees (including annual fees), prepayment
premiums or late charge penalties payable by Mortgagors, or amounts received by
the Master Servicer for the account of Mortgagors for application towards the
payment of taxes, insurance premiums, assessments and similar items. All amounts
credited by the Master Servicer to the __________ Loan Payment Record shall be
held by the Master Servicer in trust for the Certificateholders until such
amounts are disbursed in accordance with Section 4.02 or debited in accordance
with this Section 3.03.
(c) Until the Business Day prior to each Distribution Date on which
amounts are required to be deposited in the Certificate Account pursuant to
Section 4.02, the Master Servicer may retain and commingle such amounts
(including the Initial Reserve Amount) with its own funds so long as (i) no
Event of Default shall have occurred and be continuing and (ii) either (x) the
Master Servicer remains an affiliate of Beneficial Corporation and the
short-term debt obligations of Beneficial Corporation are rated at least A-1 by
Standard & Poor's, F-1 by Fitch and P-1 by ▇▇▇▇▇'▇ (or such lower rating as each
such organization may otherwise agree to in writing) or (y) the Master Servicer
arranges for and maintains a Servicer LOC acceptable in form and substance to
each Rating Agency (which acceptability shall be confirmed in writing);
provided, however, that amounts permitted to be retained and commingled pursuant
to this subclause (y) shall not exceed the Available Servicer LOC Amount. In the
event the Master Servicer is entitled to retain and commingle the amounts
referred to in the preceding sentence, it shall be entitled to retain for its
own account any investment income thereon, and any such investment income shall
not be subject to any claim of the Trustee or Certificateholders. Any amounts
retained and commingled by the Master Servicer pursuant to this Section 3.02(c)
shall be held by the Master Servicer in constructive trust for the benefit of
the Trust Fund. In the event that the Master Servicer is not permitted to retain
and commingle such amounts with its own funds, it shall, any provisions herein
to the contrary notwithstanding, deposit such amounts not later than the second
Business Day following receipt in the Certificate Account created and maintained
pursuant to Section 4.02, subject to withdrawal to the same extent as debits to
the __________ Loan Payment Record are permitted pursuant to Section 3.03.
(d) The __________ Loan Payment Record shall be made available for
inspection during normal business hours of the Master Servicer upon request of
the Trustee, any Servicer LOC Issuer or the firm of independent accountants
acting pursuant to Section 3.10.
Section 3.03. Permitted Debits to the __________ Loan Payment Record.
The Master Servicer may, from time to time, make debits to the __________ Loan
Payment Record to reflect (i) the making of deposits into the Certificate
Account pursuant to Section 4.02 and (ii) the payment to itself of any portion
of the Monthly Servicing Fee initially deposited by it in the Certificate
Account and not retained by it pursuant to the first sentence of Section 3.08.
In addition, if the Master Servicer deposits in the Certificate Account or
credits to the ____________ Loan Payment Record any amount not required to be
deposited therein or credited thereto or any amount in respect of payments by
Mortgagors made by checks subsequently returned for insufficient funds or other
- 33 -
reason for non-payment it may at any time withdraw such amount from the
Certificate Account or debit such amount in the __________ Loan Payment Record,
any provision herein to the contrary notwithstanding.
All funds deposited or credited by the Master Servicer in the
Certificate Account or the __________ Loan Payment Record, respectively, shall
be held by the Trustee or the Master Servicer, as the case may be, in trust for
the Certificateholders until disbursed in accordance with Section 5.01 or
withdrawn or debited in accordance with this Section 3.03.
Section 3.04. Maintenance of Hazard Insurance; Property Protection
Expenses. The Master Servicer shall cause to be maintained for each Mortgaged
Property hazard insurance with an appropriate endorsement in favor of the Master
Servicer or the related Subservicer and extended coverage in an amount that is
at least equal to the lesser of (i) the maximum insurable value of the
improvements securing the related __________ Loan from time to time or (ii) the
sum of the Loan Balance of such __________ Loan and the outstanding principal
balance of any mortgage loan senior to such __________ Loan from time to time,
but in no event shall such amount be less than is necessary to prevent the
Mortgagor from becoming a coinsurer thereunder. The Master Servicer shall also
maintain on property acquired upon foreclosure, or by deed in lieu of
foreclosure, hazard insurance with an appropriate endorsement in favor of the
Master Servicer or the related Subservicer with extended coverage in an amount
which is at least equal to the lesser of (i) the maximum insurable value from
time to time of the improvements that are a part of such property or (ii) the
sum of the Loan Balance of such __________ Loan and the outstanding principal
balance of any mortgage loan senior to such __________ Loan at the time of such
foreclosure or deed in lieu of foreclosure plus accrued interest and the
good-faith estimate of the Master Servicer of related Liquidation Expenses to be
incurred in connection therewith. Amounts collected by the Master Servicer under
any such policies shall be credited to the __________ Loan Payment Record and
deposited in the Certificate Account in accordance with Section 3.02(b) to the
extent that they constitute Trust Liquidation Proceeds or Trust Insurance
Proceeds.
In cases in which any Mortgaged Property is located in a federally
designated flood area, the hazard insurance to be maintained for such Mortgaged
Property shall include flood insurance (to the extent available). All such flood
insurance shall be in such amounts as are required under applicable guidelines
of the Federal National Mortgage Association. The Master Servicer shall be under
no obligation to require that any Mortgagor maintain earthquake or other
additional insurance and shall be under no obligation itself to maintain any
such additional insurance on property acquired in respect of a __________ Loan,
other than pursuant to such applicable laws and regulations as shall at any time
be in force and as shall require such additional insurance. If the Master
Servicer shall obtain and maintain a blanket policy issued by an insurer
acceptable to the Rating Agencies insuring against hazard losses on all of the
___________ Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first sentence of this Section 3.04, it being
understood and agreed that such policy may contain a deductible clause, in which
case the Master Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property a policy complying with the first
sentence of this Section 3.04, and there shall have been a loss which would have
been covered by such policy, credit to the __________ Loan Payment Record and
deposit in the Certificate Account the applicable Trust Percentage of the amount
not otherwise payable under the blanket policy because of such deductible
clause. The Trust Percentage of any amounts paid
- 34 -
under any such policy shall be credited to the __________ Loan Payment Record
and deposited in the Certificate Account in accordance with Section 3.02(b).
Section 3.05. Assumption and Modification Agreements. In any case in
which a Mortgaged Property has been or is about to be conveyed by the Mortgagor,
the Master Servicer and each Subservicer shall exercise its right to accelerate
the maturity of the related __________ Loan and require that the Loan Balance
thereof be paid in full on or prior to such conveyance by the Mortgagor under
any "due-on-sale" clause applicable thereto. If such "due-on-sale" clause, by
its terms, is not operable or the Master Servicer is prevented, as provided in
the following paragraph of this Section 3.05, from enforcing any such clause,
the Master Servicer is authorized to take or enter into an assumption and
modification agreement from or with the Person to whom such property has been or
is about to be conveyed, pursuant to which such Person becomes liable under the
Loan Agreement and the Mortgagor remains liable thereon. In connection with any
such agreement, the provisions for the adjustment of the Loan Rate thereon shall
not be modified to increase or decrease the Loan Rate. Any such agreement shall,
for all purposes, be considered part of the related Mortgage File. Any fee
collected by the Master Servicer for entering into any such agreement will be
retained by the Master Servicer as additional servicing compensation.
Notwithstanding the foregoing paragraph of this Section 3.05 or any
other provision of this Agreement, the Master Servicer shall not be deemed to be
in default, breach or any other violation of its obligations hereunder by reason
of any assumption of a __________ Loan, or transfer of any Mortgaged Property
without the assumption thereof, by operation of law or any assumption or
transfer which the Master Servicer reasonably believes it may be restricted by
law from preventing, for any reason whatsoever.
Section 3.06. Realization upon Defaulted __________ Loans. The Master
Servicer shall, or shall cause the applicable Subservicer to, foreclose upon or
otherwise comparably convert to ownership Mortgaged Properties securing such of
the __________ Loans as come into and continue in default when, in the opinion
of the Master Servicer, no satisfactory arrangements can be made for collection
of delinquent payments pursuant to Section 3.02. In connection with such
foreclosure or other conversion, the Master Servicer or such Subservicer shall
follow such practices (including, in the case of any default on a related prior
deed of trust, the advancing of funds to correct such default) and procedures as
it shall deem necessary or advisable and as shall be normal and usual from time
to time in its general mortgage servicing activities. In determining whether to
foreclose upon or otherwise comparably convert the ownership of a Mortgaged
Property, the Master Servicer and each Subservicer shall take into account (and
shall not be required to foreclose or otherwise convert the ownership of such
Mortgaged Property in the case of) the existence of any hazardous substances,
hazardous wastes or solid wastes, as such terms are defined in the Comprehensive
Environmental Response Compensation and Liability Act, the Resource Conservation
and Recovery Act of 1976, or other federal, state or local environmental
legislation, on such Mortgaged Property. The foregoing is subject to the proviso
that neither the Master Servicer nor any Subservicer shall be required to expend
its own funds in connection with any foreclosure or other conversion or towards
the correction of any default on a related prior mortgage loan or restoration of
any property unless it shall determine that such foreclosure, correction or
restoration will increase Trust Liquidation Proceeds.
- 35 -
In the event that the Trust Fund acquires any Mortgaged Property by
foreclosure or by deed in lieu of foreclosure, such Mortgaged Property shall be
disposed of by or on behalf of the Trust Fund within two years after its
acquisition by the Trust Fund unless the Trustee shall have received an Opinion
of Counsel to the effect that the holding by the Trust Fund of such Mortgaged
Property subsequent to two years after its acquisition will not result in the
imposition of taxes on "prohibited transactions" (as defined in section 860F of
the Code) of the Trust Fund or cause the Trust Fund to fail to qualify as a
REMIC at any time that any Certificates are outstanding.
Section 3.07. Trustee to Cooperate. (a) Upon the payment in full of the
Loan Balance of any __________ Loan, the Master Servicer will promptly notify
the Trustee by a certification substantially in the form of Exhibit E hereto of
a Servicing Officer. Such notification shall be made each month at the time that
the Master Servicer delivers the Servicing Certificate to the Trustee pursuant
to Section 4.01. Upon any such payment in full, the Master Servicer is
authorized to execute, pursuant to the authorization contained in Section 3.01,
an instrument of satisfaction regarding the related Mortgage, which instrument
of satisfaction shall be recorded by the Master Servicer if required by
applicable law and be delivered to the Person entitled thereto, it being
understood and agreed that no expenses incurred in connection with such
instrument of satisfaction shall be reimbursed from amounts at the time credited
to the __________ Loan Payment Record.
(b) If the Trustee is holding the Mortgage Files, from time to time and
as appropriate for the servicing or foreclosure of any __________ Loan, the
Trustee shall, within ___ Business Days of receipt by the Trustee of a written
request substantially in the form of Exhibit F hereto transmitted by the Master
Servicer to the Trustee or made in writing signed by a Servicing Officer and
delivered to the Trustee as provided in Section 11.05, deliver the related
Mortgage File to the Master Servicer and shall execute such documents, in the
forms provided by the Master Servicer, as shall be certified by a Servicing
Officer to be necessary to the prosecution of any such proceedings. The Master
Servicer shall return the Mortgage File to the Trustee when the need therefor by
the Master Servicer no longer exists unless the ___________ Loan shall be
liquidated, in which case the Master Servicer shall deliver a certificate of a
Servicing Officer similar to that hereinabove specified, and the Master Servicer
shall be entitled to retain the Mortgage File.
Section 3.08. Servicing Compensation; Payment of Certain Expenses by
Master Servicer. The Master Servicer shall be entitled to retain, out of each
payment that is allocable to interest on the Trust Balance of a ___________
Loan, as servicing compensation for the related Collection Period, the Monthly
Servicing Fee. Additional servicing compensation in the form of late payment
charges or other receipts not required to be credited to the __________ Loan
Payment Record (or in respect to which a debit may be made pursuant to Section
3.03) shall be retained by the Master Servicer. The Master Servicer shall be
required to pay all expenses incurred by it in connection with its activities
hereunder (including payment of Trustee fees, and all other fees and expenses
not expressly stated hereunder to be for the account of the Certificateholders)
and shall not be entitled to reimbursement therefor except as specifically
provided herein.
Section 3.09. Annual Statement as to Compliance. The Master Servicer
will deliver to the Trustee, on or before March 31 of each year, beginning with
March 31, ____, an Officer's Certificate stating that (i) a review of the
activities of the Master Servicer during the preceding calendar year and of its
performance under this Agreement has been made under such officer's supervision
and (ii) to the best of such officer's knowledge, based on such review, the
Master Servicer
- 36 -
has fulfilled all its material obligations under this Agreement throughout such
year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof.
Section 3.10. Annual Independent Public Accountants' Servicing Report.
On or before March 31 of each year, beginning with March 31, ____, the
Master Servicer at its expense shall cause a firm of independent public
accountants (who may also render other services to the Master Servicer) to
furnish a report to the Trustee to the effect that such firm has examined
certain documents and records relating to the servicing of home equity loans
under this Agreement and pooling and servicing agreements substantially similar
to this Agreement, and that such examination, which has been conducted
substantially in compliance with the Uniform Single Audit Program for Mortgage
Bankers (to the extent that the procedures in such audit guide are applicable to
the servicing obligations set forth in such agreements), has disclosed no items
of noncompliance with the provisions of this Agreement which, in the opinion of
such firm, are material, except for such items of noncompliance as shall be set
forth in such report.
Section 3.11. Access to Certain Documentation and Information Regarding
the __________ Loans. (a) The Master Servicer or the Trustee, as applicable,
shall provide to Certificateholders that are federally insured savings
associations, the Office of Thrift Supervision, the Federal Deposit Insurance
Corporation and the supervisory agents and examiners of such office and such
corporation access to the documentation regarding the __________ Loans required
by applicable regulations of the Office of Thrift Supervision, such access being
afforded without charge but only upon reasonable request and during normal
business hours at the offices of the Master Servicer. Nothing in this Section
3.11 shall derogate from the obligation of the Master Servicer or the Trustee to
observe any applicable law prohibiting disclosure of information regarding the
Mortgagors and the failure of the Master Servicer or the Trustee to provide
access as provided in this Section 3.11 as a result of such obligation shall not
constitute a breach of this Section 3.11.
(b) The Master Servicer shall supply such supplemental information, in
such form as the Trustee shall reasonably request, to the Paying Agent and the
Trustee, on or before the start of the third Business Day preceding the related
Distribution Date, as is required in the Trustee's reasonable judgment to enable
the Paying Agent or the Trustee, as the case may be, to make required
distributions and to furnish the required reports to Certificateholders.
Section 3.12. Maintenance of Certain Servicing Policies. The Master
Servicer shall during the term of its service as master servicer maintain in
force (i) a policy or policies of insurance covering errors and omissions in the
performance of its obligations as master servicer hereunder and (ii) a fidelity
bond in respect of its officers, employees or agents. Each such policy or
policies and bond shall, together, comply with the requirements from time to
time of the Federal National Mortgage Association for Persons performing
servicing for mortgage loans purchased by such Association.
- 37 -
ARTICLE IV
SERVICING CERTIFICATE; CERTIFICATE ACCOUNT DEPOSIT
Section 4.01. Servicing Certificate. Not later than each Determination
Date, the Master Servicer shall deliver to the Trustee, ▇▇▇▇▇'▇, Fitch and
Standard & Poor's a Servicing Certificate identifying the related Collection
Period, the Certificates, the date of this Agreement, and the following
information (in the case of information furnished pursuant to clauses (viii) and
(ix) below, the amounts will be expressed as a dollar amount per Certificate
with a $_____ denomination) with respect to the following Distribution Date:
(i) the aggregate of all Trust Interest received
during the related Collection Period;
(ii) the aggregate of all Trust Principal Payments
received during the related Collection Period;
(iii) the aggregate of all Trust Insurance Proceeds
received during the related Collection Period;
(iv) the aggregate of the Trust Liquidation Proceeds
received during the calendar month preceding the month of such
Determination Date;
(v) the number and aggregate Trust Balance of any
__________ Loans that were identified as Defective __________ Loans
pursuant to Section 2.02 or Section 2.04 during the related Collection
Period and (A) the aggregate Purchase Price of any such Defective ____
____________ that will be repurchased by the related Originator or the
Master Servicer prior to the following Distribution Date and (B) the
Substitution Adjustment Amount, if any, to be deposited in the
Collection Account prior to such Distribution Date in respect of any
such Defective __________ Loans for which the related Originator or
the Master Servicer substituted one or more Eligible Substitute ____
______ Loans;
(vi) the Monthly Servicing Fee;
(vii) the sum of the amounts specified pursuant to
clauses (i)-(v), inclusive, above, net of the amount specified in
clause (vi) above;
(viii) the Class (_) Distribution Amount (including
the Class (_) Formula Amount and the Class (_) Interest Requirement,
stated separately) for such Distribution Date, together with the Class
(_) Pass-Through Rates applicable to such Distribution Date;
(ix) the Class (_) and Class (_) Distribution
Amounts (including the Class (_) Interest Requirement and the Class (_)
Interest Requirement and, on and after the Class (_) Termination Date
and the Class (_) Termination Date, the Class (_) Formula Amount and
the Class (_) Formula Amount, respectively, stated separately) for such
Distribution Date, together with the Class (_) and Class (_)
Pass-Through Rates applicable to such Distribution Date;
- 38 -
(x) the Amount Available for Class (_) Interest
and the Amount Available for Class (_) Interest;
(xi) the Remaining Available Funds, if any, for
such Distribution Date;
(xii) the Class (_), Class (_) and Class (_)
Remaining Available Funds, if any, for such Distribution Date;
(xiii) the Class (_) Certificate Balance, Class (_)
Certificate Balance and Class (_) Certificate Balance as well as the
Class (_) Principal Factor, Class (_) Principal Factor and Class (_)
Principal Factor, each after giving effect to the distribution to be
made on such Distribution Date;
(xiv) any Liquidated __________ Loan Losses for
such Distribution Date, including cumulative losses up to such date;
(xv) in the event the Servicer LOC is then in
effect, the Available Servicer LOC Amount after giving effect to all
drawings made under the Servicer LOC to and including the date of such
statement;
(xvi) the book value (within the meaning of 12 C.F.R.
ss. 571.13 or comparable provision) of the Trust Percentage of any real
estate acquired through foreclosure or grant of a deed in lieu of
foreclosure and held by the Trust Fund as of the last day of the
related Collection Period;
(xvii) the number and aggregate Trust Balances of ____
______ Loans delinquent (a) ___ to ___ days and (b) ___ days or more,
respectively, as of the end of the related Collection Period; and
(xviii) the Pool Balance for the following Distribution
Date.
Section 4.02. Certificate Account. (a) On or before the Closing Date,
the Master Servicer shall establish, and thereafter maintain in the name of the
Trustee, an account (the "Certificate Account"), which shall be an Eligible
Account held by the Trustee in trust for the benefit of the Certificateholders.
The Master Servicer shall deposit to the Certificate Account in same day funds
all funds received by it constituting Available Funds not later than 11:00 A.M.
New York time on (i) the Business Day preceding each Distribution Date, if the
Master Servicer is entitled to retain and commingle funds pursuant to Section
3.02 or (ii) the second Business Day following receipt of such amounts in the
event the Master Servicer is not so entitled to retain and commingle funds. In
addition, on the Closing Date, the Master Servicer shall enter into the ____
______ Loan Payment Record an initial deposit equal to [$__ million], and shall
deposit in the Certificate Account (i) if the Master Servicer is entitled to
retain and commingle funds pursuant to Section 3.02(e), not later than the
Business Day prior to the initial Distribution Date or (ii) if the Master
Servicer is not so entitled, on the second Business Day following the Closing
Date, the lesser of (x) amount by which the sum of the Class (_) Interest
Requirement, the Class (_) Formula Amount, the Class (_) Interest Requirement
and the Class (_) Interest Requirement for the initial Distribution Date and an
amount equal to the product [____ of ____ basis points] and the Pool Balance
exceeds Available Funds with
- 39 -
respect to such Distribution Date and (y) [$__ million]. If the amount described
in clause (x) of the preceding sentence is deposited into the Certificate
Account, the Master Servicer shall make a corresponding adjustment to the ____
______ Loan Payment Record. The amounts deposited in the Certificate Account
shall be net of the Monthly Servicing Fee and are subject to withdrawal to the
same extent that debits to the __________ Loan Payment Record are permitted.
(b) The Master Servicer may cause the institution maintaining the
Certificate Account to invest in the name of the Trustee any funds in the
Certificate Account, which funds shall be invested in Permitted Investments
designated in writing by the Master Servicer in its discretion and which shall
mature not later than the Business Day preceding the Distribution Date following
the date of such investment (except that any investment in an obligation of an
institution with which the Certificate Account is maintained, and which
institution is rated A-1+ by Standard & Poor's and Fitch and P-1 by ▇▇▇▇▇'▇, may
mature not later than 11:00 A.M. New York time on such Distribution Date) and
shall not be sold or disposed of prior to their maturity. All income and gain
realized from any such investment shall be for the benefit of the Master
Servicer and shall be subject to its withdrawal or order from time to time. The
amount of any losses incurred in respect of any such investments shall be
deposited in the Certificate Account by the Master Servicer out of its own funds
immediately as realized.
Section 4.03. Servicer LOC. If at any time the Master Servicer shall be
commingling with its own funds proceeds of the ____________ Loans pursuant to
Section 3.02(c) and shall fail to deposit in the Certificate Account on or
before 11:00 A.M. New York time on the Business Day prior to a Distribution Date
funds in the amount specified in clause (vii) of the related Servicing
Certificate, the Trustee shall, pursuant to the terms of the Servicer LOC, make
a proper demand under such Servicer LOC that the Servicer LOC Issuer pay as
promptly as practicable to the Trustee for deposit in the Certificate Account an
amount equal to the lesser of (i) the aggregate of all Trust Interest, Trust
Principal Payments, Trust Insurance Proceeds and Trust Liquidation Proceeds
received by the Master Servicer or any Subservicer during the related Collection
Period and (ii) any amount by which the aggregate of such Trust Interest, Trust
Principal Payments, Trust Insurance Proceeds and Trust Liquidation Proceeds
exceeds the total amount deposited by the Master Servicer to the Certificate
Account with respect to such Distribution Date (but in no event shall such
amount exceed the Available Servicer LOC Amount).
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
Section 5.01. Distributions. (a) On each Distribution Date, the Trustee
shall, based upon the information set forth in the Servicing Certificate
relating to such Distribution Date, distribute from the Certificate Account and
only from the Certificate Account to each Holder of a Class (_), Class (_),
Class (_) or Class (_) Certificate of record on the related Record Date (other
than as provided in Section 10.01 respecting the final distribution in respect
of the Certificates) by check or money order mailed to such Certificateholder at
the address appearing in the Certificate Register, or, upon written request by a
Certificateholder, by wire transfer (in the event such Certificateholder owns of
record one or more Class (_), Class (_) or Class (_) Certificates having
principal denominations aggregating at least $________, or owns a Class (_)
Certificate and has given the Trustee, at least ___ days prior to such
distribution, written instruction for making such wire
- 40 -
transfer), or by such other means of payment as a Certificateholder and the
Trustee shall agree, such Certificateholder's Percentage Interest in the Class
(_) Distribution Amount, the Class (_) Distribution Amount, the Class (_)
Distribution Amount or the Class (_) Distribution Amount, in such order of
priority, as applicable.
(b) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, which shall credit the amount of such distribution to
the accounts of its Depository Participants in accordance with its normal
procedures. Each Depository Participant shall be responsible for disbursing such
distribution to the Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the Certificate Owners that it represents. All such credits
and disbursements with respect to a Book-Entry Certificate are to be made by the
Depository and the Depository Participants in accordance with the provisions of
the Certificates. None of the Trustee, any Paying Agent, the Certificate
Registrar, the Originators or the Master Servicer shall have any responsibility
therefor except as otherwise provided by applicable law.
Section 5.02. Statements to Certificateholders. On or prior to the
Business Day preceding each Distribution Date, the Master Servicer shall forward
to the Trustee for mailing by regular mail to each Holder of a Certificate, a
statement setting forth:
(i) (a) the amount of such distribution allocable
to principal of the Class (_) Certificates, the Class (_) Certificates
and the Class (_) Certificates, (b) the amount of such distribution
allocable to any Class (_) Unpaid Principal Shortfall, Class (_) Unpaid
Principal Shortfall and Class (_) Unpaid Principal Shortfall and (c)
any remaining Class (_) Unpaid Principal Shortfall, Class (_) Unpaid
Principal Shortfall and Class (_) Unpaid Principal Shortfall after
giving effect to such distribution (separately for each Class of
Certificates, where applicable) with respect to such Distribution Date;
(ii) (a) the amount of such distribution allocable
to the Class (_) Interest Requirement, Class (_) Interest Requirement
and Class (_) Interest Requirement, (b) the amount of such distribution
allocable to Class (_) Unpaid Interest Shortfall, Class (_) Unpaid
Interest Shortfall and Class (_) Unpaid Interest Shortfall and (c) any
remaining Class (_) Unpaid Interest Shortfall, Class (_) Unpaid
Interest Shortfall and Class (_) Unpaid Interest Shortfall after giving
effect to such distribution;
(iii) the amount of any Class (_) Principal
Shortfall, Class (_) Principal Shortfall and Class (_) Principal
Shortfall;
(iv) the amount of any Class (_) Interest Shortfall,
Class (_) Interest Shortfall and Class (_) Interest Shortfall for such
Distribution Date;
(v) the Class (_) Certificate Balance, Class (_)
Certificate Balance and Class (_) Certificate Balance and the Class (_)
Principal Factor, Class (_) Principal Factor and Class (_) Principal
Factor, each after giving effect to the distribution of principal on
such Distribution Date;
- 41 -
(vi) the Pool Balance for the following Distribution
Date and the number of outstanding __________ Loans;
(vii) the number and aggregate Trust Balances of ____
______ Loans delinquent (a) ___ to ___ days and (b) ___ days or more,
respectively, as of the end of the related Collection Period;
(viii) any Liquidated __________ Loan Losses for such
Distribution Date, including cumulative losses up to such date;
(ix) the Trust Percentage of the book value (within
the meaning of 12 C.F.R. ss. 571.13 or any comparable provision) of any
real estate, and the number of Mortgaged Properties, acquired through
foreclosure or grant of a deed in lieu of foreclosure as of the last
day of the related Collection Period; and
(x) the Class (_) Pass-Through Rate, Class (_)
Pass-Through Rate and Class (_) Pass-Through Rate applicable to the
distribution on the following Distribution Date.
In the case of information furnished pursuant to clauses (i) and (ii)
above, the amounts shall be expressed as a dollar amount per Class (_), Class
(_) and Class (_) Certificate, as applicable, with a $______ denomination. Any
such statement furnished to a Class (_), Class (_) or Class (_)
Certificateholder may, if requested by the Master Servicer, omit information
pertinent only to Certificates of a Class not held by such Certificateholder.
On each Distribution Date, the Master Servicer shall forward to the
Trustee for mailing to each Holder of a Class (_) Certificate a copy of the
report or reports forwarded to the Holders of Certificates on such Distribution
Date. The Master Servicer shall also forward to the Trustee for mailing to each
such Holder, and each of the Rating Agencies a statement setting forth the
amount of the distribution to each such Holder, together with such other
information as the Master Servicer deems necessary or appropriate.
Within ___ days after the end of each calendar year, the Master
Servicer shall forward to the Trustee for mailing by regular mail to each Person
who at any time during such calendar year was a Certificateholder a statement
containing the applicable distribution information provided pursuant to clauses
(i) and (ii) of this Section 5.02, aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder.
Such obligation of the Master Servicer shall be deemed to have been satisfied to
the extent that substantially comparable information shall be provided by the
Master Servicer pursuant to any requirements of the Code. The Trustee shall have
no obligation to mail to Certificateholders any statement required to be so
mailed hereunder if the Master Servicer has not provided such statement to the
Trustee.
- 42 -
ARTICLE VI
THE CERTIFICATES
Section 6.01. The Certificates. The Class (_) Certificates shall be
substantially in the form set forth in Exhibit A, the Class (_) Certificates
shall be substantially in the form set forth in Exhibit B, the Class (_)
Certificates shall be substantially in the form set forth in Exhibit C, and the
Class (_) Certificates shall be substantially in the form set forth in Exhibit
D. Such Certificates shall, on original issue, be executed and delivered by the
Trustee to or upon the written order of the Depositor concurrently with the sale
and assignment to the Trustee of the Trust Fund. So long as the Class (_), Class
(_) and Class (_) Certificates are Book-Entry Certificates, such Certificates
shall be evidenced by (i) in the case of the Class (_) Certificates, five
Certificates each representing $___________ principal amount and a single
Certificate representing $__________ principal amount, (ii) in the case of the
Class (_) Certificates, a single Certificate representing $__________ principal
amount, and (iii) in the case of the Class (_) Certificates, a single
Certificate representing $__________ principal amount, the beneficial ownership
of such Certificates to be held through Book-Entry Certificates in minimum
dollar denominations of $______ and integral dollar multiples in excess thereof.
The Class (_) Certificates have not been and will not be registered
under the Securities Act or the securities laws of any state of the United
States. Neither the Depositor, the Master Servicer nor the Trustee is under any
obligation to register or qualify the Class (_) Certificates under the
Securities Act or any other securities laws or to take any action not otherwise
required under this Agreement to permit the transfer of any Class (_)
Certificate without registration or qualification.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trust Fund by a Responsible Officer of the Trustee under the seal
of the Trustee imprinted thereon. Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures were
affixed, authorized to sign on behalf of the Trustee shall bind the Trust Fund,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of such Certificate. No Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless such Certificate shall have been manually countersigned by the Trustee
substantially in the form provided for herein, and such countersignature upon
any Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their countersignature.
Section 6.02. Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at the Corporate Trust Office a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The Trustee shall
initially serve as Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate at any
office or agency of the Trustee maintained for such purpose pursuant to the
foregoing paragraph and upon satisfaction of the conditions set forth below, the
Trustee shall execute, countersign and deliver, in the name of the
- 43 -
designated transferee or transferees, one or more new Certificates representing
the applicable aggregate Percentage Interest.
At the option of the Certificateholders, Certificates may be exchanged
for other Certificates of a like Class in authorized denominations (in the case
of the Class (_), Class (_) and Class (_) Certificates) or aggregate Percentage
Interests (in the case of the Class (_) Certificates), upon surrender of the
Certificates to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute,
countersign and deliver the Certificates that the Certificateholder making the
exchange is entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall (if so required by the Trustee or the
Certificate Registrar) be duly endorsed by, or be accompanied by a written
instrument of transfer satisfactory to the Trustee and the Certificate Registrar
duly executed by, the Holder thereof or such Holder's attorney duly authorized
in writing.
(b) Except as provided in paragraph (c) below, the Book-Entry
Certificates shall at all times remain registered in the name of the Depository
or its nominee and at all times: (i) registration of the Book-Entry Certificates
may not be transferred by the Trustee except to another Depository; (ii) the
Depository shall maintain book-entry records with respect to the Certificate
Owners and with respect to ownership and transfers of such Book-Entry
Certificates; (iii) registration of ownership and transfers of the Book-Entry
Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository; (iv) the Depository may collect its usual
and customary fees, charges and expenses from its Depository Participants; (v)
the Trustee shall deal with the Depository, Depository Participants and indirect
participating firms as representatives of the Certificate Owners of the
Book-Entry Certificates for purposes of exercising the rights of Holders under
this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (vi) the Trustee may rely and shall
be fully protected in relying upon information furnished by the Depository with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and Persons shown on
the books of such indirect participating firms as direct or indirect Certificate
Owners.
All transfers by Certificate Owners of Book-Entry 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.
(c) If (i)(A) the Master Servicer advises the Trustee in writing that
the Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Master Servicer is unable to locate a
qualified successor, (ii) the Master Servicer at its option advises the Trustee
in writing that it elects to terminate the book-entry system through the
Depository or (iii) after the occurrence of an Event of Default, Certificate
Owners representing Percentage Interests aggregating not less than 51% of the
aggregate Percentage Interests of each outstanding Class of Book-Entry
Certificates advise the Trustee and the Depository through the Depository
Participants in writing that the continuation of a book-entry system through the
Depository is no longer desired by the Certificate Owners, the Trustee shall
notify all Certificate Owners, through the Depository, of the occurrence of any
such event and of the availability of definitive, fully registered
- 44 -
Certificates (the "Definitive Certificates") to Certificate Owners requesting
the same. Upon surrender to the Trustee of the Book-Entry Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration, the Trustee shall issue the Definitive Certificates. Neither the
Master Servicer nor the Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Certificates the
Trustee shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Trustee may require payment of a sum by the
Holders of such Certificates sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Certificates.
All Certificates surrendered for registration of transfer and exchange
shall be destroyed by the Trustee.
(d) So long as Definitive Certificates have not been issued, the
Depositor, the Master Servicer and the Trustee shall not have any liability for
any aspect of the records relating to or payment on account of Certificate
Owners, for monitoring or restricting any transfer of beneficial ownership in a
Book-Entry Certificate or for maintaining, supervising or reviewing any records
relating to Certificate Owners.
Section 6.03. Mutilated, Destroyed, Lost or Stolen Certificates. If (i)
any mutilated Certificate is surrendered to the Trustee or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Trustee, the Master Servicer and
the Certificate Registrar such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of written notice to the
Trustee or the Certificate Registrar that such Certificate has been acquired by
a bona fide purchaser, the Trustee shall execute, countersign and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and Percentage Interest. Upon the
issuance of any new Certificate under this Section 6.03, the Trustee may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee and the Certificate Registrar) connected
therewith. Any duplicate Certificate issued pursuant to this Section 6.03 shall
constitute complete and indefeasible evidence of ownership in the Trust Fund, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 6.04. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Master Servicer, the Trustee, the
Certificate Registrar and any agent of the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name any Certificate is
registered in the Certificate Register as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 5.01 and for all other
purposes whatsoever, and none of the Master Servicer, the Trustee, the
Certificate Registrar or any agent of any of them shall be affected by notice to
the contrary.
Section 6.05. Appointment of Paying Agent. The Trustee is empowered
to appoint a Paying Agent meeting the eligibility requirements set forth under
Section 9.06 for the purpose of
- 45 -
making distributions to Certificateholders pursuant to Section 5.01; provided
that prior to any such appointment (other than the appointment of the Trustee as
Paying Agent) the Trustee shall first have received a letter from each Rating
Agency to the effect that the appointment of such Paying Agent will not result
in the reduction, suspension or withdrawal of the rating given the Class (_),
Class (_) or Class (_) Certificates by such Rating Agency. The Trustee hereby
initially appoints itself as Paying Agent. In the event of any appointment by
the Trustee of a Person other than itself as Paying Agent, on or prior to the
Business Day prior to the related Distribution Date, the Master Servicer, as
agent of the Trustee, shall, to the extent received by the Master Servicer,
deposit or cause to be deposited with such Paying Agent a sum sufficient to make
the payments to Certificateholders in the amounts and in the manner provided for
in Section 5.01, such sum to be held in trust for the benefit of
Certificateholders.
The Trustee shall cause any Paying Agent other than itself to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee that such Paying Agent will hold all sums held by it for the
payment to Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders or
withheld pursuant to the Code.
Section 6.06. Restrictions on Transfer of Class (_) and Class (_)
Certificates. (a) The Class (_) and Class (_) Certificates shall be assigned or
transferred only in accordance with this Section 6.06. Each Person who has or
who acquires any Ownership Interest in a Class (_) or Class (_) Certificate that
is a Book-Entry Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have made the representation set forth in clause (b)
below and otherwise to have agreed to be bound by the provisions of this Section
6.06. Any assignment and Transfer shall be made directly to the Person that is
the principal in the transaction and not to a nominee or agent for such
principal.
(b) Each of Class (_) and Class (_) Certificates that is a Definitive
Certificate shall state that the Transferee thereof is deemed by the acceptance
or acquisition of such Certificate to represent that such Transferee is not an
employee benefit plan or a collective investment fund or insurance company
account which is treated as holding "plan assets" subject to ERISA, or section
4975 of the Code, or a trustee or any other Person acting on behalf of any such
plan.
(c) Any attempted or purported Transfer of any Ownership Interest in a
Class (_) or Class (_) Certificate in violation of the provisions of this
Section 6.06 shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported Transferee shall become a Holder of a
Class (_) or Class (_) Certificate in violation of the provisions of this
Section 6.06, then, upon discovery by or due notification of the Trustee that
the registration of Transfer of such Ownership Interest in a Class (_) or Class
(_) Certificate was not in fact permitted by this Section 6.06, the last
preceding Holder that is a permitted Holder shall be restored to all rights as
Holder thereof retroactive to the date of registration of Transfer of such
Ownership Interest in the related Class (_) or Class (_) Certificate. Absent
negligence or willful misconduct, the Trustee shall be under no liability to any
Person for any registration of Transfer of an Ownership Interest in a Class (_)
or Class (_) Certificate that is in fact not permitted by this Section 6.06 or
for making any distributions in respect of such Class (_) or Class (_)
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement.
- 46 -
Section 6.07. Restrictions on Transfer of Class (_) Certificates. (a)
The Class (_) Certificates shall be assigned or transferred only in accordance
with this Section 6.07. Such assignment and Transfer shall be made directly to
the Person that is the principal in the transaction and not to a nominee or
agent for such principal.
(b) No registration of Transfer of a Class (_) Certificate shall be
made unless such Transfer is exempt from the registration requirements of the
Securities Act and any applicable state securities laws or is made in accordance
with the Securities Act and such laws. In the event registration of such a
Transfer is to be made within three years from the date of the initial issuance
of Certificates pursuant hereto, (i) the Trustee or the Master Servicer may
require a written Opinion of Counsel acceptable to and in form and substance
satisfactory to the Master Servicer that such Transfer may be made pursuant to
an exemption, describing the applicable exemption and the basis therefor, from
the Securities Act and state securities laws or is being made pursuant to the
Securities Act and such laws, which Opinion of Counsel shall not be an expense
of the Trustee or the Master Servicer, and (ii) the Trustee shall require the
Transferee to execute an investment letter acceptable to and in form and
substance satisfactory to the Master Servicer certifying to the Trustee and the
Master Servicer the facts surrounding such Transfer, which investment letter
shall not be an expense of the Trustee or the Master Servicer. The Holder of a
Class (_) Certificate desiring to effect such registration of Transfer shall,
and does hereby agree to, indemnify the Trustee and the Master Servicer against
any liability that may result if the Transfer is not so exempt or is not made in
accordance with such federal and state laws.
(c) No registration of Transfer of a Class (_) Certificate shall be
made unless the Trustee shall have received either (i) a representation letter
from the Transferee of such Class (_) Certificate, acceptable to and in form and
substance satisfactory to the Master Servicer, to the effect that such
Transferee is not an employee benefit plan subject to ERISA or section 4975 of
the Code, or a trustee or any other Person acting on behalf of any such plan,
which representation letter shall not be an expense of the Trustee or the Master
Servicer, or (ii) in the case of any such Class (_) Certificate presented for
registration in the name of an employee benefit plan subject to ERISA or section
4975 of the Code (or comparable provisions of any subsequent enactments), or a
trustee or any other Person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Master Servicer to the effect that the purchase or
holding of such Class (_) Certificate will not result in the assets of the Trust
Fund being deemed to be "plan assets" and subject to the prohibited transaction
provisions as well as the fiduciary provisions of ERISA and the Code and will
not subject the Trustee or the Master Servicer to any obligation in addition to
those undertaken in this Agreement, which representation letter or Opinion of
Counsel shall not be an expense of the Trustee or the Master Servicer.
(d) Each Person who has or who acquires any Ownership Interest in a
Class (_) Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably appointed the Master Servicer or its designee as its
attorney-in-fact to negotiate the terms of any mandatory sale under clause (vi)
below and to execute all instruments of Transfer and to do all other things
necessary in connection with any such sale, and the rights of each Person
acquiring any Ownership Interest in a Class (_) Certificate are expressly
subject to the following provisions:
- 47 -
(i) Each Person holding or acquiring any Ownership
Interest in a Class (_) Certificate shall not be a Disqualified
Organization and shall promptly notify the Master Servicer and the
Trustee of any change or impending change in its status.
(ii) No Ownership Interest in a Class (_)
Certificate may be transferred without the express written consent of
the Trustee. In connection with any proposed registration of Transfer
of any Ownership Interest in a Class (_) Certificate, the Trustee
shall, as a condition to such consent, require delivery to it, in form
and substance satisfactory to it, each of the following:
A. an affidavit from the proposed Transferee to
the effect that such Transferee is not a Disqualified
Organization and that it is not acquiring its Ownership
Interest in a Class (_) Certificate that is the subject of
the proposed Transfer as a nominee, trustee or agent for
any Person who is a Disqualified Organization; and
B. a covenant of the proposed Transferee to the
effect that the proposed Transferee agrees to be bound
and to abide by the Transfer restrictions applicable
to a Class (_) Certificate.
(iii) Notwithstanding the delivery of the items
described in clause (ii) above, if a Responsible Officer of the Trustee
has actual knowledge that the proposed Transferee is a Disqualified
Organization, no registration of Transfer of any Ownership Interest in
a Class (_) Certificate to such proposed Transferee shall be effected;
provided that the Trustee shall have no obligation to determine whether
any proposed Transferee is a Disqualified Organization.
(iv) Each Person holding or acquiring any Ownership
Interest in a Class (_) Certificate shall agree (A) to require delivery
of the items described in clause (ii) above from any other Person to
whom such Person attempts to transfer any Ownership Interest in a Class
(_) Certificate and (B) not to transfer any Ownership Interest in a
Class (_) Certificate or to cause the Transfer of any Ownership
Interest in a Class (_) Certificate to any other Person if it has
actual knowledge that such Person is a Disqualified Organization.
(v) Any attempted or purported Transfer of any
Ownership Interest in a Class (_) Certificate in violation of the
provisions of this Section 6.07 shall be absolutely null and void and
shall vest no rights in the purported Transferee. If any purported
Transferee shall become a Holder of a Class (_) Certificate in
violation of the provisions of this Section 6.07, then, upon discovery
by or due notification of the Trustee that the registration of Transfer
of such Ownership Interest in a Class (_) Certificate was not in fact
permitted by this Section 6.07, the last preceding Holder that is not a
Disqualified Organization shall be restored to all rights as Holder
thereof retroactive to the date of registration of Transfer of such
Ownership Interest in the related Class (_) Certificate. The Trustee
shall be under no liability to any Person for any registration of
Transfer of an Ownership Interest in a Class (_) Certificate that is in
fact not permitted by this Section 6.07 or for making any distributions
in respect of such Class (_) Certificate to the Holder thereof or
taking any other action with respect to such Holder under the
provisions of this Agreement absent negligence or willful misconduct.
The
- 48 -
Trustee shall be entitled to recover from any Holder of a Class (_)
Certificate that was in fact a Disqualified Organization at the time it
became Holder all distributions made in respect of such Class (_)
Certificate. Any such distributions so recovered by the Trustee shall
be distributed and delivered by the Trustee to the last preceding
Holder of such Class (_) Certificate that is not a Disqualified
Organization.
(vi) If any Disqualified Organization acquires any
Ownership Interest in a Class (_) Certificate in violation of the
restrictions in this Section 6.07, then the Master Servicer shall have
the right, without notice to the Holder of such Class (_) Certificate
or any other Person having an Ownership Interest therein, to sell such
Class (_) Certificate to a purchaser selected by the Master Servicer on
such terms as the Master Servicer may choose. Such purchaser may be the
Master Servicer itself or any affiliate of the Master Servicer that is
not a Disqualified Organization. The proceeds of such sale, net of
commissions (which may include commissions payable to the Master
Servicer or its affiliates), expenses and taxes due, if any, will be
remitted by the Trustee to the last preceding Holder of such Class (_)
Certificate that is not a Disqualified Organization, except that in the
event that the Trustee determines that the Holder of such Class (_)
Certificate may be liable for any amount due under this Section 6.07 or
any other provisions of this Agreement, the Master Servicer may
withhold a corresponding amount from such remittance as security for
such claim. The terms and conditions of any sale under this clause (vi)
shall be determined in the sole discretion of the Master Servicer, and
it shall not be liable to any Person having an Ownership Interest in
such Class (_) Certificate as a result of its exercise of such
discretion.
Section 6.08. Actions 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 agent duly appointed in writing; and
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
when required, to the Depositor or the Master Servicer. 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, the Depositor and the Master Servicer, if made in the manner provided
in this Section.
(b) The fact and date of the execution by any Certificateholder of any
such instrument or writing may be proved in any reasonable manner that the
Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Certificateholder shall bind every Holder of every
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, or omitted to be done,
by the Trustee, the Depositor or the Master Servicer in reliance thereon,
whether or not notation of such action is made upon such Certificate.
(d) The Trustee may require such additional proof of any matter
referred to in this Section 6.08 as it shall deem necessary.
- 49 -
ARTICLE VII
THE MASTER SERVICER
Section 7.01. Liability of the Master Servicer. The Master Servicer
shall be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by the Master Servicer herein.
Section 7.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Master Servicer. Any corporation into which the Master
Servicer may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Master Servicer shall be a
party, or any corporation succeeding to the business of the Master Servicer,
shall be the successor of the Master Servicer hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
Section 7.03. Limitation on Liability of the Master Servicer and
Others. Neither the Master Servicer nor any of the directors or officers or
employees or agents of the Master Servicer shall be under any liability to the
Trust Fund or the Certificateholders for any action taken or for refraining from
the taking of any action by the Master Servicer in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Master Servicer or any such Person against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties of the Master Servicer or by
reason of reckless disregard of obligations and duties of the Master Servicer
hereunder. The Master Servicer and any director or officer or employee or agent
of the Master Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. Subject to the second succeeding sentence, the Master
Servicer and any director or officer or employee or agent of the Master Servicer
shall be indemnified by the Trust Fund and held harmless against any loss,
liability or expense incurred in connection with any legal action relating to
this Agreement or the Certificates, other than any loss, liability or expense
related to any specific __________ Loan or ____________ Loans (except as any
such loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement) and any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. The Master Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to duties to
service the __________ Loans in accordance with this Agreement, and which in
its opinion may involve it in any expense or liability; provided, however, that
the Master Servicer may in its sole discretion undertake any such action which
it may deem necessary or desirable in respect of this Agreement, and the rights
and duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, any loss, liability or expense incurred in connection
with any such action shall be losses, liabilities and expenses of the Trust Fund
and the Master Servicer shall be entitled to be reimbursed therefor only from
amounts otherwise distributable to Holders of the Class (_) Certificates on any
subsequent Distribution Date (to the extent the Master Servicer has not
previously been reimbursed or indemnified therefor). The Master Servicer's right
to indemnity or reimbursement pursuant to this Section 7.03 shall survive any
resignation or termination of the Master Servicer with respect to any losses,
liabilities or expenses
- 50 -
arising prior to such resignation or termination (or arising from events that
occurred prior to such resignation or termination).
Section 7.04. Master Servicer Not to Resign. Subject to the provisions
of Section 7.02, the Master Servicer shall not resign from the obligations and
duties hereby imposed on it except (i) upon determination that the performance
of its obligations or duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it or its subsidiaries or Affiliates, the other
activities of the Master Servicer so causing such a conflict being of a type and
nature carried on by the Master Servicer or its subsidiaries or Affiliates at
the date of this Agreement or (ii) upon satisfaction of the following
conditions; (a) the Master Servicer has proposed a successor master servicer to
the Trustee in writing and such proposed successor servicer is reasonably
acceptable to the Trustee; (b) each Rating Agency shall have delivered a letter
to the Trustee stating that the appointment of such proposed successor master
servicer as Master Servicer hereunder will not result in the reduction or
withdrawal of the then-current rating of any rated Class of Certificates; and
such proposed successor master servicer has agreed in writing to assume the
obligations of Master Servicer hereunder and the Master Servicer has delivered
to the Trustee an Opinion of Counsel to the effect that all conditions precedent
to the resignation of the Master Servicer and the appointment of and acceptance
by the proposed successor master servicer have been satisfied; provided,
however, that in the case of clause (i) above no such resignation shall become
effective until the Trustee or a successor Master Servicer shall have assumed
the Master Servicer's responsibilities and obligations hereunder in accordance
with Section 8.02. Any such resignation shall not relieve the Master Servicer of
responsibility for any of the obligations specified in Sections 8.01 and 8.02 as
obligations that survive the resignation or termination of the Master Servicer.
Any such determination permitting the resignation of the Master Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
Section 7.05. Delegation of Duties. In the ordinary course of business,
the Master Servicer at any time may delegate any of its duties hereunder to any
Person, including any of its Affiliates, who agrees to conduct such duties in
accordance with standards comparable to those with which the Master Servicer
complies pursuant to Section 3.01. Such delegation shall not relieve the Master
Servicer of its liabilities and responsibilities with respect to such duties and
shall not constitute a resignation within the meaning of Section 7.04. The
Master Servicer shall provide each Rating Agency and the Trustee with written
notice prior to the delegation of any of its duties to any Person other than any
of the Master Servicer's Affiliates or their respective successors and assigns.
ARTICLE VIII
DEFAULT
Section 8.01. Events of Default. If any one of the following events
("Events of Default") shall occur and be continuing:
(i) any failure by the Master Servicer to deposit
in the Certificate Account any deposit or enter any amount to the ____
______ Loan Payment Record required to be made under the terms of this
Agreement which continues unremedied for a period of ___ Business Days
after the date upon which written notice of such failure shall have
been given to the Master Servicer by the Trustee, or to the Master
Servicer and the Trustee by Holders of
- 51 -
Certificates of any Class affected thereby, evidencing, as to such
Class, Percentage Interests aggregating not less than 51%; or
(ii) failure on the part of the Master Servicer duly
to observe or perform in any material respect any other covenants or
agreements of the Master Servicer set forth in the Certificates or in
this Agreement, which failure (x) materially and adversely affect the
rights of Certificateholders and (y) continues unremedied for a period
of ___ days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master
Servicer by the Trustee, or to the Master Servicer and the Trustee by
the Holders of Certificates of any Class affected thereby, evidencing,
as to such Class, Percentage Interests aggregating not less than 51%;
or
(iii) the entry against the Master Servicer of a
decree or order by a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator,
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for
the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of ___
consecutive days; or
(iv) the consent by the Master Servicer to the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings of or relating to the Master Servicer or of or
relating to substantially all of its property, or the Master Servicer
shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(v) Total Expected Losses exceed ____% of the
Cut-Off Date Pool Balance on or prior to the fifth anniversary of the
Cut-Off or _____% of the Cut-Off Date Pool Balance on or prior to the
tenth anniversary of the Cut-Off Date;
then, and in each and every such case, so long as an Event of Default shall not
have been remedied by the Master Servicer, either the Trustee or the Holders of
Certificates of any Class affected thereby, evidencing, as to such Class,
Percentage Interests aggregating not less than 51%, by notice then given in
writing to the Master Servicer (and to the Trustee if given by the Holders of
Certificates) may terminate all of the rights and obligations of the Master
Servicer as master servicer under this Agreement, on or after the receipt by the
Master Servicer of such written notice, all authority and power of the Master
Servicer under this Agreement, whether with respect to the Certificates or the
Trust Percentage of the __________ Loans or otherwise, shall pass to and be
vested in the Trustee pursuant to and under this Section 8.01; and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Trust
Balance of each __________ Loan and related documents, or otherwise. The Master
Servicer agrees to cooperate with the Trustee in effecting the termination of
the responsibilities and rights of the Master Servicer hereunder, including,
without limitation, the transfer to the Trustee for the administration by it of
all necessary
- 52 -
documentation and all cash amounts that shall at the time be held by the Master
Servicer and credited by it to the __________ Loan Payment Record, or that have
been deposited by the Master Servicer in the Certificate Account or thereafter
received by the Master Servicer with respect to the ____________ Loans. All
reasonable costs and expenses (including attorneys' fees) incurred in connection
with transferring the Mortgage Files to the successor Master Servicer and
amending this Agreement to reflect such succession as Master Servicer pursuant
to this Section 8.01 shall be paid by the predecessor Master Servicer upon
presentation of reasonable documentation of such costs and expenses.
Section 8.02. Trustee to Act; Appointment of Successor. (a) On and
after the time the Master Servicer receives a notice of termination pursuant to
Section 8.01 or gives notice of its resignation under clause (i) of Section
7.04, the Trustee shall be the successor in all respects to the Master Servicer
in its capacity as master servicer under this Agreement and the transactions set
forth or provided for herein and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on the Master Servicer by the
terms and provisions hereof; and provided, however, that the responsibilities
and duties of the Master Servicer pursuant to Sections 2.02 and 2.04 shall not
terminate; provided, further, that any liability of the Trustee in its capacity
as successor master servicer shall be limited to the extent such liability
results from an inability to fulfill its responsibilities and duties as
successor master servicer due to any failure on the part of the original Master
Servicer to deliver the documentation and cash amounts referred to in Section
8.01 or otherwise fulfill its obligations hereunder. As compensation therefor,
the Trustee shall be entitled to such compensation as the Master Servicer would
have been entitled to hereunder if no such notice of termination had been given,
including, without limitation, any investment earnings on any Permitted
Investments hereunder to which the Master Servicer would have been entitled.
Notwithstanding the above, the Trustee may, if it shall be unwilling so to act,
or shall, if it is legally unable so to act, appoint, or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution that is then servicing a home equity loan portfolio and having all
licenses, permits and approvals required by applicable law, and a net worth of
not less than $________ as the successor to the Master Servicer hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer hereunder. Pending appointment of a successor to the Master
Servicer hereunder, unless the Trustee is prohibited by law from so acting, the
Trustee shall act in such capacity as hereinabove provided. In connection with
such appointment and assumption, the successor shall be entitled to receive
compensation out of payments on ___________ Loans in an amount equal to the
compensation which the Master Servicer would otherwise have received pursuant to
Section 3.08 (or such lesser compensation as the Trustee and such successor
shall agree). The Trustee and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
The appointment of a successor Master Servicer, including the Trustee, shall not
affect any liability of a predecessor Master Servicer that may have arisen under
this Agreement prior to its termination as Master Servicer (including, without
limitation, any deductible under an insurance policy pursuant to Section 3.04),
nor shall any successor Master Servicer, including the Trustee, be liable for
any acts or omissions of any predecessor Master Servicer or for any breach by
such predecessor Master Servicer or the Depositor of any of their
representations or warranties contained herein or in any related document or
agreement.
(b) Any successor to the Master Servicer as master servicer, including
the Trustee, shall, during the term of its service as master servicer (i)
continue to service and administer the ___________ Loans for the benefit of
Certificateholders, and, retain any amounts representing prepayment
- 53 -
premiums, fees or late charge penalties or for application towards taxes,
insurance premiums, assessments and similar items, and payments representing
interest in excess of interest at the Net Loan Rate, for the benefit of such
successor master servicer and (ii) maintain in force (x) a policy or policies of
insurance covering errors and omissions in the performance of its obligations as
master servicer hereunder and (y) a fidelity bond in respect of its officers,
employees and agents to the same extent as the Master Servicer is so required
pursuant to Section 3.12.
Section 8.03. Notification to Certificateholders. Upon any termination
or appointment of a successor to the Master Servicer pursuant to this Article
VIII or Section 7.04, the Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register and to each Rating Agency at the respective address provided to the
Trustee in writing.
Section 8.04. Waiver of Past Events of Default. The Holders of
Certificates evidencing not less than 51% of the aggregate Percentage Interests
may, on behalf of all Holders of Certificates, waive any default by the Master
Servicer in the performance of its obligations hereunder and its consequences,
except a default in making any required deposits to or payments from the
Certificate Account in accordance with this Agreement. Upon any such waiver of a
past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
ARTICLE IX
THE TRUSTEE
Section 9.01. Duties of Trustee. The Trustee, prior to the occurrence
of an Event of Default and after the curing of all Events of Default which may
have occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If an Event of Default has occurred
(which has not been cured) and is actually known to a Responsible Officer, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
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 to the Trustee pursuant
to any provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) prior to the occurrence of an Event of Default
of which a Responsible Officer of the Trustee shall have actual
knowledge, and after the curing of all such Events of Default which may
have occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be liable
- 54 -
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement;
(ii) the Trustee shall not be liable for an error of
judgment made in good faith by a Responsible Officer of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to
any action taken, suffered or omitted to be taken by it in good faith
in accordance with the direction of the Holders of Certificates of any
Class affected thereby, evidencing, as to such Class, Percentage
Interests aggregating not less than 51% relating 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; and
(iv) the Trustee shall not be charged with knowledge
of any failure by the Master Servicer to comply with the obligations of
the Master Servicer referred to in clauses (i) and (ii) of Section 8.01
unless a Responsible Officer of the Trustee at the Corporate Trust
Office obtains actual knowledge of such failure or the Trustee receives
written notice of such failure from the Master Servicer or the Holders
of Certificates of any Class affected thereby, evidencing, as to such
Class, Percentage Interests aggregating not less than 51%.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
of the obligations of the Master Servicer under this Agreement, except during
such time, if any, as the Trustee shall be the successor to, and be vested with
the rights, duties, powers and privileges of, the Master Servicer in accordance
with the terms of this Agreement.
Section 9.02. Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 9.01:
(i) the Trustee may request and conclusively rely
upon, and shall be protected in acting or refraining from acting upon,
any resolution, Officer's Certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) the Trustee may consult with counsel and any
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in reliance thereon;
(iii) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement
(except its obligation to act as successor Master
- 55 -
Servicer pursuant to Section 8.02), or to institute, conduct or defend
any litigation hereunder or in relation hereto, at the request, order
or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or
thereby; the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or bad
faith in the performance of any such act; nothing contained herein
shall, however, relieve the Trustee of its obligations, upon the
occurrence of an Event of Default (which has not been cured), to
exercise such of the rights and powers vested in it by this Agreement,
and to use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the
conduct of his own affairs;
(iv) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(v) prior to the occurrence of an Event of Default
and after the curing of all Events of Default which may have occurred,
the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or documents, unless requested in writing to do so
by Holders of Certificates of any Class affected thereby, evidencing,
as to such Class, Percentage Interests aggregating not less than 51%;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such cost, expense or liability as a
condition to such proceeding. The reasonable expense of every such
examination shall be paid by the Master Servicer or, if paid by the
Trustee, shall be reimbursed by the Master Servicer upon demand.
Nothing in this clause (v) shall derogate from the obligation of the
Master Servicer to observe any applicable law prohibiting disclosure of
information regarding the Mortgagors;
(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 or a custodian; and
(vii) for purposes of this Agreement, the Trustee
shall not be deemed to have knowledge or notice of any event or fact
until such time as a Responsible Officer of the Trustee has actual
knowledge of such event or fact or the Trustee receives written notice
of such event or fact from the Master Servicer or the Holders of
Certificates of any Class affected thereby, evidencing, as to such
Class, Percentage Interests aggregating not less than 51%.
Section 9.03. Trustee Not Liable for Certificates or __________ Loans.
The recitals contained herein and in the Certificates (other than the signature
and countersignature of the Trustee on the Certificates) shall be taken as the
statements of the Master Servicer, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Agreement or of the Certificates (other than the
signature and countersignature of the Trustee on the Certificates) or of any
__________ Loan or related
- 56 -
document. The Trustee shall not be accountable for the use or application by the
Master Servicer of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Master
Servicer or any Originator in respect of the __________ Loans or deposited in
or withdrawn from the Certificate Account by the Master Servicer. The Trustee
shall at no time have any responsibility or liability for or with respect to the
legality, validity and enforceability of any Mortgage or any __________ Loan,
or the perfection and priority of any Mortgage or the maintenance of any such
perfection or priority, or for or with respect to the sufficiency of the Trust
Fund or its ability to generate the payments to be distributed to
Certificateholders under this Agreement, including, without limitation, the
existence, condition and ownership of any Mortgaged Property; the existence and
enforceability of any hazard insurance thereon (other than if the Trustee shall
assume the duties of the Master Servicer pursuant to Section 8.02); the
existence and content of any __________ Loan on any computer or other record
thereof (other than if the Trustee shall assume the duties of the Master
Servicer pursuant to Section 8.02); the validity of the assignment of any ____
______ Loan to the Trust Fund or of any intervening assignment; the completeness
of any __________ Loan; the performance or enforcement of any __________ Loan
(other than if the Trustee shall assume the duties of the Master Servicer
pursuant to Section 8.02); the compliance by the Depositor or the Master
Servicer with any warranty or representation made under this Agreement or in any
related document or the accuracy of any such warranty or representation prior to
the Trustee's receipt of notice or other discovery of any non-compliance
therewith or any breach thereof; any investment of monies by or at the direction
of the Master Servicer or any loss resulting therefrom, it being understood that
the Trustee shall remain responsible for any Trust Fund property that it may
hold in its individual capacity; the acts or omissions of the Depositor, the
Master Servicer (other than if the Trustee shall assume the duties of the Master
Servicer pursuant to Section 8.02), any Subservicer or any Mortgagor; any action
of the Master Servicer (other than if the Trustee shall assume the duties of the
master Servicer pursuant to Section 8.02), any Subservicer, or any custodian of
the Mortgage Files taken in the name of the Trustee; the failure of the Master
Servicer, any Subservicer, or any custodian of the Mortgage Files to act or
perform any duties required of it as agent of the Trustee hereunder; or any
action by the Trustee taken at the instruction of the Master Servicer (other
than if the Trustee shall assume the duties of the Master Servicer pursuant to
Section 8.02); provided, however, that the foregoing shall not relieve the
Trustee of its obligation to perform its duties under this Agreement or from any
liability for its failure to so perform. The Trustee shall not be liable or
accountable for the acts, omissions, misconduct or negligence of any Originator
acting in its capacity as custodian of any Mortgage Files hereunder. The Trustee
shall have no responsibility for filing any financing or continuation statement
in any public office at any time or otherwise to perfect or maintain the
perfection of any security interest or lien granted to it hereunder (unless the
Trustee shall have become the successor Master Servicer) or to prepare or file
any Securities and Exchange Commission filing for the Trust Fund or to record
this Agreement.
Section 9.04. Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
and transact banking and trust business with the Master Servicer, the
Originators and any of their affiliates, with the same rights as it would have
if it were not Trustee.
Section 9.05. Master Servicer to Pay Trustee's Fees and Expenses. The
Master Servicer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) for all services rendered by it in the execution of the trusts
hereby created and in the exercise and performance of any of its powers and
duties hereunder,
- 57 -
and the Master Servicer will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Agreement (including
the reasonable compensation and the expenses and disbursements of its counsel,
agents and of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith or which
is the responsibility of Certificateholders hereunder. In addition, the Master
Servicer and the Depositor, jointly and severally, covenant and agree to
indemnify the Trustee, its officers, agents and employees, from, and hold it
harmless against, any and all losses, liabilities, damages, claims or expenses,
including the costs and expenses of defending itself against any claim or
liability, arising in connection with its performance hereunder other than those
resulting from the negligence or bad faith of the Trustee.
Section 9.06. Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a Person having its principal office in New York
or in the same state as that in which the initial Trustee under this Agreement
has its principal office and organized and doing business under the laws of such
State or the United States of America, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$____________ and subject to supervision or examination by federal or state
authority. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 9.06, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section 9.06, the Trustee shall resign in the manner and with the effect
specified in Section 9.07.
Section 9.07. Resignation or Removal of Trustee. The Trustee may at any
time resign and be discharged from the trusts hereby created by giving written
notice thereof to the Master Servicer and each Rating Agency. Upon receiving
such notice of resignation, the Master Servicer 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
having accepted appointment within ___ 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.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.06 and shall fail to resign after written
request therefor by the Master Servicer, or if at any time the Trustee shall be
legally unable to act, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Master Servicer may remove the Trustee. If the Master Servicer removes the
Trustee under the authority of the immediately preceding sentence, the Master
Servicer shall promptly 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.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 9.07 shall
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 9.08.
Section 9.08. Successor Trustee. Any successor Trustee appointed as
provided in Section 9.07 shall execute, acknowledge and deliver to the Master
Servicer and to its predecessor Trustee an
- 58 -
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee. The Master
Servicer, the predecessor Trustee and the successor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Trustee all such
rights, powers, duties and obligations.
Each successor Trustee shall be entitled to receive from the Master
Servicer reasonable compensation for services rendered, and payment and
reimbursement for reasonable expenses, disbursements and advances, as more
specifically set forth in Section 9.05 hereof and according to the same standard
as provided in Section 9.05.
No successor Trustee shall accept appointment as provided in this
Section 9.08 unless at the time of such acceptance such successor Trustee shall
be eligible under the provisions of Section 9.06.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 9.08, the Master Servicer shall mail notice of the succession of
such Trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register. If the Master Servicer fails to mail such
notice within ___ days after acceptance of appointment by the successor Trustee,
the successor Trustee shall cause such notice to be mailed at the expense of the
Master Servicer.
Section 9.09. Merger or Consolidation of Trustee. Any Person into which
the Trustee may be merged or converted or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such Person shall be eligible under the provisions
of Section 9.06, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 9.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or any Mortgaged Property may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund, or any part thereof, and,
subject to the other provisions of this Section 9.10, such powers, duties,
obligations, rights and trusts as the Master Servicer and the Trustee may
consider necessary or desirable. The Master Servicer shall not unreasonably
refrain from joining with the Trustee in executing and delivering such
instruments, and if the Master Servicer shall not have joined in such
appointment within ___ days after the receipt by it of a request so to do, or in
case an Event of Default shall have occurred and be continuing, the Trustee
alone shall have the power to make such appointment. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 9.06 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 9.08. The Trustee shall notify ▇▇▇▇▇'▇ of any appointment of a
co-trustee or separate trustee hereunder. The Trustee shall remain liable
hereunder for any actions delegated
- 59 -
to a co-trustee or separate trustee despite such delegation. The Master Servicer
shall be responsible for the fees of any co-trustee or separate trustee
appointed hereunder.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Trust Fund or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Trustee;
(ii) no trustee hereunder shall be held personally
liable by reason of any act or omission of any other trustee hereunder;
and
(iii) the Master Servicer and the Trustee acting
jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee, except that following the occurrence of
an Event of Default that has not been cured, the Trustee acting alone
may accept the resignation of or remove any co-trustee or separate
trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Master Servicer.
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.
Section 9.11. Tax Returns. The Trustee, upon request, will furnish the
Master Servicer with all such information as may be in the possession of the
Trustee and reasonably required in connection with the preparation of all tax
returns of the Trust Fund, and shall, if required by law, upon request, execute
such returns.
Section 9.12. Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the
- 60 -
Trustee without the possession of any of the Certificates or the production
thereof in any proceeding relating thereto. Any such proceeding instituted by
the Trustee shall be brought in its own name or in its capacity as Trustee. Any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Certificateholders in respect of
which such judgment has been recovered.
Section 9.13. Suits for Enforcement. In case an Event of Default or
other default by the Master Servicer or the Depositor hereunder shall occur and
be continuing, the Trustee, in its discretion, may proceed to protect and
enforce its right and the rights of the Certificateholders under this Agreement
by a suit, action or proceeding in equity or at law or otherwise, whether for
the specific performance of any covenant or agreement contained in this
Agreement or in aid of the execution of any power granted in this Agreement or
for the enforcement of any other legal, equitable or other remedy, as the
Trustee, being advised by counsel, shall deem most effectual to protect and
enforce any of the rights of the Trustee or the Certificateholders.
ARTICLE X
TERMINATION
Section 10.01. Termination Upon Purchase by the Master Servicer or
Liquidation of All ___________ Loans. (a) Subject to Section 10.02, the
respective obligations and responsibilities of the Master Servicer and the
Trustee created hereby (other than the obligation of the Trustee to make certain
payments to Certificateholders after the final Distribution Date and the
obligations of the Master Servicer under Section 9.05 and to send certain
notices as hereinafter set forth) shall terminate upon the last action required
to be taken by the Trustee on the final Distribution Date pursuant to this
Article X following the earliest of (i) the purchase by the Master Servicer of
all ____________ Loans and all property acquired in respect of any ___________
Loan remaining in the Trust Fund, as described below, (ii) the sale of the
assets of the Trust Fund as described below or (iii) the final payment or other
liquidation of the last ___________ Loan remaining in the Trust Fund or the
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any __________ Loan; provided, however, that in no event shall
the trust created hereby continue beyond the expiration of 21 years from the
death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late
ambassador of the United States to the Court of St. ▇▇▇▇▇, living on the date
hereof.
(b) The Master Servicer (i) may at its option purchase all ___________
Loans pursuant to clause (i) of Section 10.01(a) on any Distribution Date upon
which the Pool Balance immediately prior to such Distribution Date shall be
equal to or less than _____ percent (___%) of the Cut-off Date Pool Balance and
(ii) should the Trust Balances of any __________ Loans remain outstanding on
the Distribution Date in _____ 20__ shall purchase all such Trust Balances on
such Distribution Date, in each case at a price equal to the greatest of (x) the
aggregate of the Loan Balances of the __________ Loans as of the first day of
the Collection Period applicable to such final Distribution Date, plus one
month's interest at the applicable Net Loan Rate on the Loan Balance of each
__________ Loan (including any Foreclosed __________ Loans), (y) the aggregate
fair market value (as determined by the Master Servicer as of the close of
business on the third Business Day next preceding the date upon which notice of
any such termination is furnished to Certificateholders pursuant to clause (c)
of this Section 10.01) of all of the assets of the Trust Fund, and (z) the sum
of (1) the Class (_) Certificate Balance together with any Class (_) Unpaid
Interest Shortfall and
- 61 -
interest accrued during the related Accrual Period thereon at the Class (_)
Pass-Through Rate, (2) the Class (_) Certificate Balance together with any Class
(_) Unpaid Interest Shortfall and interest accrued during the related Accrual
Period thereon at the Class (_) Pass-Through Rate and (3) the Class (_)
Certificate Balance together with any Class (_) Unpaid Interest Shortfall and
interest accrued during the related Accrual Period thereon at the Class (_)
Pass-Through Rate (the greatest of (x), (y) and (z) being referred to herein as
the "Pool Purchase Price"). In connection with such purchase, the Master
Servicer shall provide to the Trustee the certification required by Section 3.07
and the Trustee shall, promptly following payment of the Pool Purchase Price,
execute proper instruments acknowledging termination and discharge of this
Agreement. Any obligation of the Master Servicer to so purchase each ___________
Loan as provided herein shall be solely that of the original Master Servicer and
shall survive any resignation or termination of the original Master Servicer
hereunder.
If for any reason the Master Servicer fails to make the purchase
required by clause (ii) of Section 10.01(b), then in accordance with such
procedures as the Trustee in its sole judgment shall deem appropriate, the
Trustee shall conduct an auction (the "Final Auction") of the assets of the
Trust Fund (other than amounts on deposit in the Certificate Account) in order
to effect a termination of the Trust Fund promptly thereafter. The Master
Servicer or any Affiliate thereof may bid at such Final Auction but shall not be
required to do so. The Trustee shall sell and transfer the assets of the Trust
Fund, without recourse, to the highest bidder therefor at the Final Auction and
shall deposit the purchase price therefor, less all expenses of the Final
Auction, including all reasonable fees and expenses of any third parties engaged
by the Trustee to assist in the Final Auction process, in the Certificate
Account.
(c) Notice of any termination, specifying the Distribution Date (which
shall be a date that would otherwise be a Distribution Date) upon which the
Certificateholders may surrender their Certificates to the Trustee for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee (upon receipt of written directions from the Master Servicer, if the
Master Servicer is purchasing the assets of the Trust Fund, which direction
shall be received not later than the first day of the month preceding the month
of such final distribution date) by letter to Certificateholders mailed not
earlier than the 15th day and not later than the ___th day of the month next
preceding the month of such final distribution specifying (i) the Distribution
Date upon which final distribution of the Certificates will be made upon
presentation and surrender of Certificates at the office or agency of the
Trustee therein designated, (ii) the amount of any such final distribution and
(iii) that the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of the
Certificates at the office or agency of the Trustee therein specified. In the
event written directions are delivered by the Master Servicer to the Trustee as
described in the preceding sentence, the Master Servicer shall deposit in the
Certificate Account on or before the Distribution Date for such final
distribution in immediately available funds an amount which, when added to the
amount on deposit in the Certificate Account, will be equal to the purchase
price for the assets of the Trust Fund computed as above provided. Such deposit
shall be in lieu of the deposit otherwise required to be made in respect of such
Distribution Date pursuant to Section 4.02.
(d) Upon presentation and surrender of the Certificates, the Trustee
shall, to the extent of funds available in the Certificate Account cause to be
distributed to Certificateholders on the Distribution Date for such final
distribution in proportion to their respective Percentage Interests
- 62 -
an amount equal to (i) in the case of Holders of the Class (_) Certificates, the
Class (_) Certificate Balance together with any Class (_) Unpaid Interest
Shortfall plus interest accrued during the related Accrual Period at the Class
(_) Pass-Through Rate on such amounts, (ii) in the case of the Class (_)
Certificates, the Class (_) Certificate Balance together with any Class (_)
Unpaid Interest Shortfall plus interest accrued during the related Accrual
Period at the Class (_) Pass-Through Rate on such amounts and (iii) in the case
of Holders of the Class (_) Certificates, the Class (_) Certificate Balance
together with any Class (_) Unpaid Interest Shortfall plus interest accrued
during the related Accrual Period at the Class (_) Pass-Through Rate on such
amounts. Upon such termination, any amounts remaining on deposit in the
Certificate Account (other than the amounts retained to meet claims) after
application pursuant to the preceding sentence shall be distributed to Holders
of the Class (_) Certificates in proportion to their respective Percentage
Interests therein. The distribution on such final Distribution Date shall be in
lieu of the distribution otherwise required to be made on such Distribution Date
in respect of each Class of Certificates.
(e) In the event that all of the Certificateholders shall not surrender
their Certificates for final payment and cancellation on or before such final
Distribution Date, the Trustee shall on such date cause all funds in the
Certificate Account not distributed in final distribution to Certificateholders
to be withdrawn therefrom and credited to the remaining Certificateholders by
depositing such funds in a separate escrow account (which shall be an Eligible
Account) for the benefit of such Certificateholders and the Master Servicer (if
the Master Servicer has exercised its right to repurchase the assets of the
Trust Fund), or the Trustee (in any other case) and shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If, within
the period then specified in the escheat laws of the State of New York after
such notice, such amount remains unclaimed, the Holders of the Class (_)
Certificates shall be entitled to all unclaimed funds and other assets which
remain subject hereto and the Trustee upon transfer of such funds shall be
discharged of any responsibility for such funds, and the Certificateholders
shall look to the Holder of the Class (_) Certificates for payment.
Section 10.02. Additional Termination Requirements. (a) In the event of
a purchase by the Master Servicer or sale of the ____________ Loans as provided
in Section 10.01(b), the Trust Fund shall be terminated in accordance with the
following additional requirements, [unless the Trustee has received an Opinion
of Counsel to the effect that the failure of the Trust Fund to comply with the
requirements of this Section 10.02 will not (i) result in the imposition of
taxes on "prohibited transactions" of the Trust Fund as defined in section 860F
of the Code, or (ii) cause the Trust Fund to fail to qualify as a REMIC at any
time that any Certificates are outstanding:]
(i) within ___ days prior to the final Distribution
Date, Holders of the Class (_) Certificates shall adopt a plan of
complete liquidation of the Trust Fund; and
(ii) at or after the time of adoption of such a plan
of complete liquidation and at or prior to the final Distribution Date,
the Trustee shall sell all of the assets of the Trust Fund to the
Master Servicer for cash in an amount equal to the Pool Purchase Price;
provided, however, that in the event that a calendar quarter ends after
the time of adoption of such a plan of complete liquidation but prior
to such final Distribution Date, the Trustee shall not sell any of the
assets of the Trust Fund prior to the close of that calendar quarter.
- 63 -
(b) By its acceptance of a Class (_) Certificate, a Holder thereof
hereby agrees to adopt such a plan of complete liquidation upon the written
request of the Master Servicer and to take such other action in connection
therewith as may be reasonably requested by the Master Servicer.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment. This Agreement may be amended from time to
time by the Master Servicer and the Trustee, with the consent of any Servicer
LOC Issuer if its rights are materially and adversely affected, but without the
consent of any of the Certificateholders, to cure any ambiguity, to correct or
supplement any provisions herein or therein which may be inconsistent with any
other provisions herein or therein, as the case may be, or to add any other
provisions with respect to matters or questions arising under this Agreement,
including provisions relating to the issuance of Definitive Certificates to
Certificate Owners in the event that book-entry registration of the Certificates
is no longer permitted, which shall not be inconsistent with the provisions of
this Agreement; provided, however, that such action shall not, as evidenced by
an Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder or a letter from each Rating Agency stating that such
action will not result in a downgrading of the rating of any rated Class of
Certificates.
[This Agreement may also be amended from time to time by the Master
Servicer and the Trustee, but without the consent of any of the
Certificateholders, to modify, eliminate or add to the provisions of this
Agreement to such extent as shall be necessary to (i) maintain the qualification
of the Trust Fund as a REMIC under the Code or avoid, or minimize the risk of,
the imposition of any tax on the Trust Fund under the Code that would be a claim
against the Trust Fund's assets, provided that there shall have been delivered
an Opinion of Counsel addressed to the Trustee to the effect that such action is
necessary or appropriate to maintain such qualification or avoid any such tax or
minimize the risk of its imposition, or (ii) prevent the Trust Fund from
entering into any "prohibited transaction" as defined in section 860F of the
Code provided that there shall have been delivered an Opinion of Counsel
addressed to the Trustee to the effect that such action is necessary or
appropriate to prevent the Trust Fund from entering into such prohibited
transaction.]
This Agreement may also be amended from time to time by the Master
Servicer and the Trustee, with the consent of (x) any Servicer LOC Issuer if its
rights are materially and adversely affected and (y) Holders of the Certificates
of each Class affected thereby, evidencing, as to such Class, Percentage
Interests aggregating not less than 51%, 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, collections of payments on
___________ Loans or distributions which are required to be made on any
Certificate without the consent of the Holder of such Certificate or (ii) reduce
the aforesaid percentage required to consent to any such amendment, without the
consent of the Holders of all Certificates then outstanding.
At least ___ Business Days prior to the execution of any such amendment
requiring the consent of the Certificateholders, the Master Servicer shall
furnish written notification of the
- 64 -
substance of such amendment to the Rating Agencies. Promptly after the execution
of any such amendment made with the consent of the Certificateholders, the
Master Servicer shall furnish written notification of the substance of such
amendment to each Certificateholder and fully executed original counterparts of
the instruments effecting any such amendment to the Rating Agencies and any
Servicer LOC Issuer.
It shall not be necessary for the consent of Certificateholders under
this Section 11.01 to approve the particular form of any proposed amendment or
consent, 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 requirements as the Trustee may prescribe. The Master Servicer
is authorized to establish a record date for the purpose of identifying the
Certificateholders eligible to consent to any proposed amendment hereunder.
Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and conclusively rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent to the execution and delivery of
such amendment have been satisfied. The Trustee may, but shall not be obligated
to, enter into any such amendment that affects the Trustee's own rights, duties
or immunities under this Agreement.
Section 11.02. Recordation of Agreement. This Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public recording
office or elsewhere, such recordation to be effected by the Master Servicer and
at its expense if such recordation materially and beneficially affects the
interests of Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, 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 11.03. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust
Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
in Sections 8.01, 9.01, 9.02, 11.01, 11.07 and this Section 11.03) or in any
manner otherwise control the operation and management of the Trust Fund, or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
- 65 -
No Certificateholder of any Class shall have any right by virtue or by
availing itself of any provisions 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 a
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of Certificates of such Class, evidencing,
as to such Class, Percentage Interests aggregating not less than 51% 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 ___ 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; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of the Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Agreement, except
in the manner herein provided and for the equal, ratable and common benefit of
all Certificateholders. For the protection and enforcement of the provisions of
this Section 11.03, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.04. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 11.05. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by certified mail, return receipt requested,
to (a) in the case of the Depositor, to Beneficial Mortgage Services, Inc. at
One ▇▇▇▇▇▇▇▇▇ Centre, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: President, with a copy to the Corporate Secretary, (b) in the case of
the Master Servicer, to Beneficial Mortgage Corporation at One ▇▇▇▇▇▇▇▇▇ Centre,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President, with
a copy to the Corporate Secretary and (c) in the case of the Trustee, at the
Corporate Trust Office, or as to each party, at such other address as shall be
designated by such party in a written notice to each other party. Any notice
required or permitted to be mailed to a Certificateholder shall be given by
first class mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register, and to each Rating Agency in the same manner at the
respective address provided to the Trustee in writing. Any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not the Certificateholder receives such notice.
Section 11.06. 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.
- 66 -
Section 11.07. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 7.02 and 7.04, this Agreement
may not be assigned by the Master Servicer without the prior written consent of
Holders of Certificates of any Class affected thereby, evidencing, as to such
Class, Percentage Interests aggregating not less than 66%.
Section 11.08. Certificates Nonassessable and Fully Paid. The parties
agree that the Certificateholders shall not be personally liable for obligations
of the Trust Fund, that the beneficial ownership interests represented by the
Certificates shall be nonassessable for any losses or expenses of the Trust Fund
or for any reason whatsoever, and that the Certificates upon execution,
countersignature and delivery thereof by the Trustee pursuant to Section 2.04
are and shall be deemed fully paid.
Section 11.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
- 67 -
IN WITNESS WHEREOF, Beneficial, the Master Servicer and the Trustee
have caused this Agreement to be duly executed by their respective officers all
as of the day and year first above written.
BENEFICIAL MORTGAGE SERVICES, INC.,
as Depositor
By:__________________________________
Name:
Title:
BENEFICIAL MORTGAGE CORPORATION,
as Master Servicer,
By:__________________________________
Name:
Title:
_____________________________________
as Trustee
By:__________________________________
Name:
Title:
- 68 -
State of New York )
) ss.:
County of New York )
On the ____ day of _______, _____ before me, a notary public in and for
the state of New York, personally appeared
_________________________________________, known to me who, being by me duly
sworn, did depose and say that he is the __________________________________ of
Beneficial Mortgage Services, Inc., a corporation formed under the laws of the
State of Delaware, being among the parties that executed the foregoing
instrument; and that he signed his name thereto by order of the Board of
Directors of such corporation.
----------------------------------------
Notary Public
[Notarial Seal]
State of New York )
) ss.:
County of New York )
On the ____ day of _______, _____ before me, a notary public in and for
the state of New York, personally appeared
_________________________________________, known to me who, being by me duly
sworn, did depose and say that he is the __________________________________ of
Beneficial Mortgage Corporation, a corporation formed under the laws of the
State of Delaware, being among the parties that executed the foregoing
instrument; and that he signed his name thereto by order of the Board of
Directors of such corporation.
----------------------------------------
Notary Public
[Notarial Seal]
State of New York )
) ss.:
County of New York )
On the ____ day of __________, _____ before me, a notary public in and
for the state of New York, personally appeared
_________________________________________, known to me who, being by me duly
sworn, did depose and say that he is the _________________ of [Trustee], one of
the parties that executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of said bank.
----------------------------------------
Notary Public
[Notarial Seal]
EXHIBIT A
[FORM OF CLASS (_) CERTIFICATE]
[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 THEREIN.]
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
Cut-off Date: ________, _____ Denomination: $__________________
First Distribution Date: ______, _____ Original Class (_) Certificates
Balance: $_____________
Certificate No. ______ CUSIP No. __________________
____________ LOAN ASSET BACKED CERTIFICATES,
CLASS (_) CERTIFICATE
evidencing a Percentage Interest in the distributions
allocable to the Class (_) Certificates with respect to a
pool of ____________________________________________________
loans originated by certain subsidiaries of Beneficial
Corporation (the "Originators"), including Beneficial
Mortgage Services, Inc., which has acquired the ___________
Loans from such other Originators, has sold the Trust
Balances of the __________ Loans to the Trust Fund.
This Certificate does not represent an obligation of or interest in
Beneficial Mortgage Services, Inc. or the Trustee referred to below or any of
their affiliates. Neither this Certificate nor the underlying __________ Loans
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that _____________________ is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the Original Class (_)
Certificate Balance) in certain monthly distributions with respect to a pool of
________________________________________________________ loans (the "___________
Loans"), the Trust Balances
A-1
of which have been sold by Beneficial Mortgage Services, Inc. to the Trust Fund
and with respect to which Beneficial Mortgage Corporation shall act as master
servicer (the "Master Servicer," which term includes any successor Master
Servicer under the Agreement referred to below). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of _____________, _____
(the "Agreement") between Beneficial Mortgage Services, Inc. as depositor,
Beneficial Mortgage Corporation, as master servicer, and
_______________________________________________, as trustee (the "Trustee,"
which term shall include any successor Trustee under the Agreement), a
description of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, capitalized terms used herein have
the meanings assigned 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 the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the ___th day of each calendar month or, if such day is not a Business Day, the
next succeeding Business Day (each, a "Distribution Date"), commencing on
______________, _____, to the Person in whose name this Certificate is
registered at the close of business on the Business Day immediately preceding
such Distribution Date (or, if the Certificates all shall be held in the form of
Definitive Certificates, the last day of the calendar month preceding the month
of such Distribution Date) (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the Class
(_) Distribution Amount required to be distributed to Holders of Class (_)
Certificates on such Distribution Date.
Distributions on this Certificate will be made by the Trustee by check
or money order mailed to the Person entitled thereto at the address appearing in
the Certificate Register, or upon written request by the Certificateholder, by
wire transfer (in the case of any Holder of Certificates entitled to such form
of payment as provided in the Agreement) or by such other means of payment as
such Person and the Trustee shall agree. Except as otherwise provided in the
Agreement, the final distribution on this Certificate will be made in the
applicable manner described above, 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 maintained for that purpose by the Trustee
in the City and State of New York.
This Certificate is one of a duly authorized issue of Certificates
designated as Beneficial __________ Loan Asset Backed Certificates, issued in
______ classes (Class (_), Class (_), Class (_) and Class (_), herein called the
"Certificates"), and representing a beneficial ownership interest in (i) the
Trust Balances of the ____________ Loans and the proceeds thereof, (ii) such
assets as shall from time to time be identified as credited to the ___________
Loan Payment Record or deposited in the Certificate Account in accordance with
the Agreement, (iii) property which secured a __________ Loan and which has
been acquired by the Trust Fund through foreclosure or deed in lieu of
foreclosure and (iv) any Servicer LOC.
The Certificates are limited in right of payment to certain payments on
and collections in respect of the Trust Balances of the __________ Loans, all
as more specifically set forth in the Agreement. The Certificateholder, by its
acceptance of this Certificate, agrees that it will look solely to the Trust
Fund for payment hereunder and that the Trustee in its individual capacity is
not personally 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.
A-2
This Certificate does not purport to summarize the Agreement, and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Master Servicer and the rights of the Certificateholders under the Agreement, at
any time by the Master Servicer and the Trustee with the consent of (x) any
Servicer LOC Issuer if its rights are materially and adversely affected and (y)
Holders of Certificates of each Class affected thereby, evidencing, as to such
Class, Percentage Interests aggregating not less than 51%. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the registration of transfer hereof or in exchange therefor 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 in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the City and State
of New York, accompanied by a written instrument of transfer in form
satisfactory to the Master Servicer, the Trustee and the Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized denominations,
if applicable, and evidencing the same aggregate fractional undivided interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of a like Class in authorized denominations
(in the case of the Certificates) and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment by the Holder of this Certificate
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Master Servicer, the Trustee and the Certificate Registrar and any
agent of the Master Servicer, the Trustee or the Certificate Registrar may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Master Servicer, the Trustee, the Certificate
Registrar or any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust Fund created thereby shall terminate upon payment to the
Certificateholders, or provision therefor, in accordance with the Agreement upon
(i) the purchase by the Master Servicer or the sale by the Trustee of the Trust
Balance of each ___________ Loan and all property acquired in respect of any
__________ Loan remaining in the Trust Fund at a price determined as provided
in the Agreement or (ii) the later of the final payment or other liquidation of
the last __________ Loan remaining in the Trust Fund or the disposition of all
property acquired upon foreclosure or by deed in lieu of foreclosure of any ____
_______ Loan. The Master Servicer (i) may, at its option, purchase the Trust
Balance of each __________ Loan and property in respect of any __________ Loan
on any Distribution Date as of which the Pool Balance is equal to or less than
_____ percent (___%) of the Cut-off Date
A-3
Pool Balance and (ii) should the Trust Balances of any __________ Loans remain
outstanding on the Distribution Date in __________, shall purchase all such
Trust Balances pursuant to the Agreement, which purchase will result in
retirement of the Certificates. If the Master Servicer fails for any reason to
purchase the Trust Balances of the ___________ Loans on the ____________
Distribution Date, then the Trustee shall conduct an auction of the assets of
the Trust Fund (other than amounts on deposit in the Certificate Account) in
order to effect a termination of the Trust Fund promptly thereafter.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its official seal.
Dated:
----------------------------------
_________________________, not in its
individual capacity but solely as Trustee
[SEAL]
By _____________________________________
Authorized Officer
Countersigned:
By: _____________________________________
Authorized Officer of
----------------------------------
____________, not in its individual
capacity but solely as Trustee
A-4
EXHIBIT B
[FORM OF CLASS (_) CERTIFICATE]
[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 THEREIN.]
THE RIGHTS OF THE HOLDERS OF THE CLASS (_) CERTIFICATES TO RECEIVE DISTRIBUTIONS
ON THEIR CLASS (_) CERTIFICATES ARE SUBORDINATED TO THE RIGHTS OF THE HOLDERS OF
THE CLASS (_) CERTIFICATES TO RECEIVE SUCH DISTRIBUTIONS, AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
Cut-off Date: ______________, _____ Denomination: $___________
First Distribution Date: _________, _____ Original Class (_) Certificate
Balance: $_________
Certificate No. _____ CUSIP No. __________________
____________ LOAN ASSET BACKED CERTIFICATES,
CLASS (_) CERTIFICATE
evidencing a Percentage Interest in the distributions
allocable to the Class (_) Certificates with respect to a
Trust Fund consisting of a pool of _______________________
_______________________________ loans originated by certain
subsidiaries of Beneficial Corporation (the "Originators"),
including Beneficial Mortgage Services, Inc., which has
acquired the __________ Loans from such other Originators,
has sold the Trust Balances of the __________ Loans to the
Trust Fund.
B-1
This Certificate does not represent an obligation of or interest in
Beneficial Mortgage Services, Inc. or the Trustee referred to below or any of
their affiliates. Neither this Certificate nor the underlying __________ Loans
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that ___________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the Original Class (_) Certificate Balance)
in certain monthly distributions with respect to a Trust Fund consisting of a
pool of _______________________________________________________ loans (the "____
_______ Loans"), the Trust Balances of which have been sold by Beneficial
Mortgage Services, Inc. to the Trust Fund and with respect to which Beneficial
Mortgage Corporation shall act as master servicer (in such capacity, the "Master
Servicer," which term includes any successor Master Servicer under the Agreement
referred to below). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of ___________, _____ (the "Agreement") between
Beneficial Mortgage Services, Inc., as depositor, Beneficial Mortgage
Corporation, as master servicer, and __________________________________________,
as trustee (the "Trustee," which term shall include any successor Trustee under
the Agreement), a description of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, capitalized terms used
herein have the meanings assigned 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 the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the ___th day of each calendar month or, if such day is not a Business Day, the
next succeeding Business Day (each, a "Distribution Date"), commencing on
____________, _____, to the Person in whose name this Certificate is registered
at the close of business on the Business Day immediately preceding such
Distribution Date (or, if the Certificates all shall be held in the form of
Definitive Certificates, the last day of the calendar month preceding the month
of such Distribution Date) (the "Record Date"), in an amount equal the product
of the Percentage Interest evidenced by this Certificate and the Class (_)
Distribution Amount required to be distributed to Holders of the Class (_)
Certificates on such Distribution Date. The rights of the Holders of the Class
(_) Certificates to receive distributions with respect to principal are
subordinated to the rights of the Holders of the Class (_) Certificates, as
described in the Agreement.
Distributions on this Certificate will be made by the Trustee by check
or money order mailed to the Person entitled thereto at the address appearing in
the Certificate Register, or upon written request by the Certificateholder, by
wire transfer (in the case of any Holder of Certificates entitled to such form
of payment as provided in the Agreement) or by such other means of payment as
such Person and the Trustee shall agree. Except as otherwise provided in the
Agreement, the final distribution on this Certificate will be made in the
applicable manner described above, 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 maintained for that purpose by the Trustee
in the City and State of New York.
This Certificate is one of a duly authorized issue of Certificates
designated as __________ Loan Asset Backed Certificates, issued in ____ classes
(Class (_), Class (_), Class (_) and Class (_), herein called the
"Certificates"), and representing a beneficial ownership interest in (i) the
Trust
B-2
Balances of the __________ Loans and the proceeds thereof, (ii) such assets as
shall from time to time be identified as credited to the ___________ Loan
Payment Record or deposited in the Certificate Account in accordance with the
Agreement, (iii) property which secured a __________ Loan and which has been
acquired by the Trust Fund through foreclosure or deed in lieu of foreclosure
and (iv) any Servicer LOC.
The Certificates are limited in right of payment to certain payments on
and collections in respect of the Trust Balances of the __________ Loans, all
as more specifically set forth in the Agreement. The Certificateholder, by its
acceptance of this Certificate, agrees that it will look solely to the Trust
Fund for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Master Servicer, and the rights of the Certificateholders under the Agreement,
at any time by the Master Servicer and the Trustee with the consent of (x) any
Servicer LOC Issuer if its rights are materially and adversely affected and (y)
Holders of Certificates of each Class affected thereby, evidencing, as to such
Class, Percentage Interests aggregating not less than 51%. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor 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.
The Transferee of this Certificate is hereby deemed by the acceptance
or acquisition hereof to represent that such Transferee is not an employee
benefit plan or a collective investment fund or insurance company account which
is treated as holding "plan assets" (a "Plan") subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code"), or a trustee or any
other Person acting on behalf of any such Plan. Any purported Transfer of a
Class (_) Certificate in violation of this restriction on Transfer will be null
and void and vest no rights in the purported Transferee.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of a like Class in authorized denominations
(in the case of the Certificates) and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment by the Holder of this Certificate
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
B-3
The Master Servicer, the Trustee and the Certificate Registrar and any
agent of the Master Servicer, Trustee or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Master Servicer, the Trustee, the Certificate
Registrar or any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust Fund created thereby shall terminate upon payment to the
Certificateholders, or provision therefor, in accordance with the Agreement upon
(i) the purchase by the Master Servicer or the sale by the Trustee of the Trust
Balance of each ___________ Loan and all property acquired in respect of any
__________ Loan remaining in the Trust Fund at a price determined as provided
in the Agreement or (ii) the later of the final payment or other liquidation of
the last __________ Loan remaining in the Trust Fund or the disposition of all
property acquired upon foreclosure or by deed in lieu of foreclosure of any ____
_______ Loan. The Master Servicer (i) may, at its option, purchase the Trust
Balance of each __________ Loan and property in respect of any __________ Loan
on any Distribution Date as of which the Pool Balance is equal to or less than
______ percent (___%) of the Cut-off Date Pool Balance and (ii) should the Trust
Balances of any __________ Loans remain outstanding on the Distribution Date in
__________, shall purchase all such Trust Balances pursuant to the Agreement,
which purchase will result in retirement of the Certificates. If the Master
Servicer fails for any reason to purchase the Trust Balances of the ___________
Loans on the ____________ Distribution Date, then the Trustee shall conduct an
auction of the assets of the Trust Fund (other than amounts on deposit in the
Certificate Account) in order to effect a termination of the Trust Fund promptly
thereafter.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by any
authorized officer of the Trustee.
B-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its official seal.
Dated:
__________________________________ , not
in its individual capacity but solely as
Trustee
[SEAL]
By _____________________________________
Authorized Officer
Countersigned:
By: _______________________________
Authorized Officer of
------------------------
______________________, not in
its individual capacity
but solely as Trustee
B-5
EXHIBIT C
[FORM OF CLASS (_) CERTIFICATE]
[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 THEREIN.]
THE RIGHTS OF THE HOLDERS OF THE CLASS (_) CERTIFICATES TO RECEIVE DISTRIBUTIONS
ON THEIR CLASS (_) CERTIFICATES ARE SUBORDINATED TO THE RIGHTS OF THE HOLDERS OF
THE CLASS (_) AND CLASS (_) CERTIFICATES TO RECEIVE SUCH DISTRIBUTIONS, AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
Cut-off Date: ________, _____ Denomination: $___________
First Distribution Date: ____, _____ Original Class (_) Certificate Balance:
$----------
Certificate No. _____ CUSIP No. __________________
____________ LOAN ASSET BACKED CERTIFICATES,
CLASS (_) CERTIFICATE
evidencing a Percentage Interest in the distributions
allocable to the Class (_) Certificates with respect to a
Trust Fund consisting of a pool of _______________________
_______________________________ loans originated by certain
subsidiaries of Beneficial Corporation (the "Originators"),
including Beneficial Mortgage Services, Inc., which has
acquired the __________ Loans from such other Originators,
has sold the Trust Balances of the __________ Loans to the
Trust Fund.
C-1
This Certificate does not represent an obligation of or interest in
Beneficial Mortgage Services, Inc. or the Trustee referred to below or any of
their affiliates. Neither this Certificate nor the underlying __________ Loans
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that ___________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the Original Class (_) Certificate Balance)
in certain monthly distributions with respect to a Trust Fund consisting of a
pool of _______________________________________________________ loans (the "____
_______ Loans"), the Trust Balances of which have been sold by Beneficial
Mortgage Services, Inc. to the Trust Fund and with respect to which Beneficial
Mortgage Corporation shall act as master servicer (in such capacity, the "Master
Servicer," which term includes any successor Master Servicer under the Agreement
referred to below). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of _______, _____ (the "Agreement") between
Beneficial Mortgage Services, Inc., as depositor, Beneficial Mortgage
Corporation, as master servicer, and __________________________________________,
as trustee (the "Trustee," which term shall include any successor Trustee under
the Agreement), a description of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, capitalized terms used
herein have the meanings assigned 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 the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the ___th day of each calendar month or, if such day is not a Business Day, the
next succeeding Business Day (each, a "Distribution Date"), commencing on
_________, _____, to the Person in whose name this Certificate is registered at
the close of business on the Business Day immediately preceding such
Distribution Date (or, if the Certificates all shall be held in the form of
Definitive Certificates, the last day of the calendar month preceding the month
of such Distribution Date) (the "Record Date"), in an amount equal the product
of the Percentage Interest evidenced by this Certificate and the Class (_)
Distribution Amount required to be distributed to Holders of the Class (_)
Certificates on such Distribution Date. The rights of the Holders of the Class
(_) Certificates to receive distributions with respect to principal are
subordinated to the rights of the Holders of the Class (_) and Class (_)
Certificates, as described in the Agreement.
Distributions on this Certificate will be made by the Trustee by check
or money order mailed to the Person entitled thereto at the address appearing in
the Certificate Register, or upon written request by the Certificateholder, by
wire transfer (in the case of any Holder of Certificates entitled to such form
of payment as provided in the Agreement) or by such other means of payment as
such Person and the Trustee shall agree. Except as otherwise provided in the
Agreement, the final distribution on this Certificate will be made in the
applicable manner described above, 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 maintained for that purpose by the Trustee
in the City and State of New York.
This Certificate is one of a duly authorized issue of Certificates
designated as ____________ Loan Asset Backed Certificates, issued in _______
classes (Class (_), Class (_), Class (_) and Class (_), herein called the
"Certificates"), and representing a beneficial ownership interest in (i) the
Trust
C-2
Balances of the __________ Loans and the proceeds thereof, (ii) such assets as
shall from time to time be identified as credited to the ___________ Loan
Payment Record or deposited in the Certificate Account in accordance with the
Agreement, (iii) property which secured a __________ Loan and which has been
acquired by the Trust Fund through foreclosure or deed in lieu of foreclosure
and (iv) any Servicer LOC.
The Certificates are limited in right of payment to certain payments on
and collections in respect of the Trust Balances of the __________ Loans, all
as more specifically set forth in the Agreement. The Certificateholder, by its
acceptance of this Certificate, agrees that it will look solely to the Trust
Fund for payment hereunder and that the Trustee in its individual capacity is
not personally liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Master Servicer, and the rights of the Certificateholders under the Agreement,
at any time by the Master Servicer and the Trustee with the consent of (x) any
Servicer LOC Issuer if its rights are materially and adversely affected and (y)
Holders of Certificates of each Class affected thereby, evidencing, as to such
Class, Percentage Interests aggregating not less than 51%. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor 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.
The Transferee of this Certificate is hereby deemed by the acceptance
or acquisition hereof to represent that such Transferee is not an employee
benefit plan or a collective investment fund or insurance company account which
is treated as holding "plan assets" (a "Plan") subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code"), or a trustee or any
other Person acting on behalf of any such Plan. Any purported Transfer of a
Class (_) Certificate in violation of this restriction on Transfer will be null
and void and vest no rights in the purported Transferee.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of a like Class in authorized denominations
(in the case of the Certificates) and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment by the Holder of this Certificate
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
C-3
The Master Servicer, the Trustee and the Certificate Registrar and any
agent of the Master Servicer, Trustee or the Certificate Registrar may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Master Servicer, the Trustee, the Certificate
Registrar or any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust Fund created thereby shall terminate upon payment to the
Certificateholders, or provision therefor, in accordance with the Agreement upon
(i) the purchase by the Master Servicer or the sale by the Trustee of the Trust
Balance of each ___________ Loan and all property acquired in respect of any
__________ Loan remaining in the Trust Fund at a price determined as provided
in the Agreement or (ii) the later of the final payment or other liquidation of
the last __________ Loan remaining in the Trust Fund or the disposition of all
property acquired upon foreclosure or by deed in lieu of foreclosure of any ____
_______ Loan. The Master Servicer (i) may, at its option, purchase the Trust
Balance of each __________ Loan and property in respect of any __________ Loan
on any Distribution Date as of which the Pool Balance is equal to or less than
______ percent (___%) of the Cut-off Date Pool Balance and (ii) should the Trust
Balances of any __________ Loans remain outstanding on the Distribution Date in
________________, shall purchase all such Trust Balances pursuant to the
Agreement, which purchase will result in retirement of the Certificates. If the
Master Servicer fails for any reason to purchase the Trust Balances of the ____
______ Loans on the __________________ Distribution Date, then the Trustee shall
conduct an auction of the assets of the Trust Fund (other than amounts on
deposit in the Certificate Account) in order to effect a termination of the
Trust Fund promptly thereafter.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by any
authorized officer of the Trustee.
C-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its official seal.
Dated:
----------------------------------
____________, not in its individual capacity but
solely as Trustee
[SEAL]
By _______________________________________
Authorized Officer
Countersigned:
By: _______________________________
Authorized Officer of
------------------------
______________________, not in
its individual capacity
but solely as Trustee
C-5
EXHIBIT D
[FORM OF CLASS (_) CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS (_), CLASS (_)
AND CLASS (_) CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO
THE SECURITIES ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE
EXEMPT FROM REGISTRATION UNDER SUCH THE SECURITIES AND UNDER APPLICABLE STATE
LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 6.02 AND
6.07 OF THE AGREEMENT REFERRED TO HEREIN.
THIS CLASS (_) CERTIFICATE HAS BEEN DESIGNATED BY THE COMPANY REFERRED TO BELOW
AS A "RESIDUAL INTEREST" IN THE TRUST FUND CREATED BY THE POOLING AND SERVICING
AGREEMENT PURSUANT TO PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE").
[THIS CERTIFICATE REPRESENTS THE "TAX MATTERS PERSON RESIDUAL INTEREST" ISSUED
UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW AND MAY NOT BE
TRANSFERRED TO ANY PERSON EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE
TRANSFEREE OF THE DUTIES OF THE MASTER SERVICER UNDER SUCH AGREEMENT.]
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO A "DISQUALIFIED ORGANIZATION" AS
DEFINED IN SECTION 860E(e)(5) OF THE CODE. SUCH TERM INCLUDES THE UNITED STATES,
ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN CERTAIN TAXABLE INSTRUMENTALITIES), ANY COOPERATIVE
ORGANIZATION FURNISHING ELECTRIC ENERGY OR PROVIDING TELEPHONE SERVICE TO
PERSONS IN RURAL AREAS, OR ANY ORGANIZATION (OTHER THAN A ▇▇▇▇▇▇'▇ COOPERATIVE)
THAT IS EXEMPT FROM FEDERAL INCOME TAX UNLESS SUCH ORGANIZATION IS SUBJECT TO
THE TAX ON UNRELATED BUSINESS INCOME. NO TRANSFER OF THIS CERTIFICATE WILL BE
REGISTERED BY THE CERTIFICATE REGISTRAR UNLESS THE PROPOSED TRANSFEREE HAS
DELIVERED (1) AN AFFIDAVIT AFFIRMING THAT THE PROPOSED TRANSFEREE IS NOT A
DISQUALIFIED ORGANIZATION AND IS NOT ACQUIRING THIS CERTIFICATE AS A NOMINEE,
TRUSTEE OR AGENT FOR ANY PERSON WHO IS A DISQUALIFIED ORGANIZATION, AND (2) A
COVENANT OF THE PROPOSED TRANSFEREE TO THE EFFECT THAT THE PROPOSED TRANSFEREE
AGREES TO BE BOUND BY AND TO ABIDE BY THE TRANSFER RESTRICTIONS APPLICABLE TO
THIS CERTIFICATE.
D-1
A TRANSFER IN VIOLATION OF THE APPLICABLE RESTRICTIONS MAY GIVE RISE TO A
SUBSTANTIAL TAX UPON THE TRANSFEROR OR, IN CERTAIN CASES, UPON AN AGENT ACTING
FOR THE TRANSFEREE. A PASS-THRU ENTITY THAT HOLDS THIS CERTIFICATE AND THAT HAS
A DISQUALIFIED ORGANIZATION AS A RECORD OWNER IN ANY TAXABLE YEAR GENERALLY WILL
BE SUBJECT TO A TAX FOR EACH SUCH YEAR EQUAL TO THE PRODUCT OF (A) THE AMOUNT OF
EXCESS INCLUSIONS WITH RESPECT TO THE PORTION OF THIS CERTIFICATE OWNED THROUGH
SUCH PASS-THRU ENTITY BY SUCH DISQUALIFIED ORGANIZATION, AND (B) THE HIGHEST
MARGINAL FEDERAL TAX RATE ON CORPORATIONS. FOR PURPOSES OF THE PRECEDING
SENTENCE, THE TERM "PASS-THRU ENTITY" INCLUDES REGULATED INVESTMENT COMPANIES,
REAL ESTATE INVESTMENT TRUSTS, COMMON TRUST FUNDS, PARTNERSHIPS, TRUSTS,
ESTATES, COOPERATIVES TO WHICH PART I OF SUBCHAPTER 1T OF THE CODE APPLIES AND,
EXCEPT AS PROVIDED IN REGULATIONS, NOMINEES.
Class (_) _____% Percentage Interest
Subordinate
Cut-off Date: ______________, _____
First Distribution Date: ___________________, _____
____________ LOAN ASSET BACKED CERTIFICATES,
CLASS (_) CERTIFICATE
evidencing a percentage interest in any distributions
allocable to the Class (_) Certificates with respect to a
Trust Fund consisting of a pool of _______________________
_______________________________ loans originated by certain
subsidiaries of Beneficial Corporation (the "Originators"),
including Beneficial Mortgage Services, Inc., which has
acquired the __________ Loans from such other Originators,
has sold the Trust Balances of the __________ Loans to the
Trust Fund.
D-2
This Certificate does not represent an obligation of or interest in
Beneficial Mortgage Services, Inc. or the Trustee referred to below or any of
their affiliates. Neither this Certificate nor the underlying __________ Loans
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that ________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in certain distributions with
respect to a Trust Fund consisting of a pool of _______________________________
______________________ loans (the "____________ Loans"), the Trust Balances of
which have been sold by Beneficial Mortgage Services, Inc. to the Trust Fund and
with respect to which Beneficial Mortgage Corporation shall act as master
servicer (in such capacity, the "Master Servicer," which term includes any
successor Master Servicer under the Agreement referred to below). The Trust Fund
was created pursuant to a Pooling and Servicing Agreement dated as of
_________________, _____ (the "Agreement") between Beneficial Mortgage Services,
Inc., as sponsor, Beneficial Mortgage Corporation, as master servicer, and
__________________________________, as trustee (the "Trustee," which term shall
include any successor Trustee under the Agreement), a description of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, capitalized terms used herein have the meanings assigned 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 the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the ___th day of each calendar month or, if such day is not a Business Day, the
next succeeding Business Day (each, a "Distribution Date"), commencing on
___________________, _____, to the Person in whose name this Certificate is
registered at the close of business on the fifth Business Day preceding such
Distribution Date (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and, subject to the prior
rights of Holders of the Class (_), Class (_) and Class (_) Certificates, and
any amount required to be distributed to Holders of Class (_) Certificates on
such 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 by such other means of payment as
such Person and the Trustee shall agree. Notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Master
Servicer 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 in the City and State of New York.
This Certificate is one of a duly authorized issue of Certificates
designated as ____________ Loan Asset Backed Certificates, issued in _______
Classes (Class (_), Class (_), Class (_) and Class (_) Certificates, herein
collectively called the "Certificates") and representing a beneficial ownership
interest in (i) the Trust Balances of the ___________ Loans and the proceeds
thereof, (ii) such assets as shall from time to time be identified as credited
to the __________ Loan Payment Record or deposited in the Certificate Account
in accordance with the Agreement, (iii) property which secured a ___________
Loan and which has been acquired by foreclosure or deed in lieu of foreclosure
and (iv) any Servicer LOC.
D-3
The Certificates are limited in right of payment to certain payments on
and collections in respect of the Trust Balances of the __________ Loans, all
as more specifically set forth in the Agreement. The Certificateholder, by its
acceptance of this Certificate, agrees that it will look solely to the funds on
deposit in the Certificate Account for payment hereunder and that the Trustee in
its individual capacity is not personally liable to the Certificateholders for
any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Master Servicer, and the rights of the Certificateholders under the Agreement,
at any time by the Master Servicer and the Trustee with the consent of any
Servicer LOC Issuer if its rights are materially and adversely affected and
Holders of Certificates of each Class affected thereby, evidencing, as to such
Class, Percentage Interests aggregating not less than 51%. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the Transfer hereof or in exchange herefor 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.
The Holder of this Certificate hereby consents to any amendment of the
Agreement which, based on an Opinion of Counsel delivered to the Trustee, is
reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Class (_) Certificate is not transferred, directly or
indirectly, to a Disqualified Organization and (b) to provide for a means to
compel the Transfer of a Class (_) Certificate which is held by a Disqualified
Organization to a Holder that is not a disqualified Organization.
No Transfer of a Class (_) Certificate shall be made unless such
Transfer is exempt from the registration requirements of the Securities Act and
any applicable state securities laws or is made in accordance with the
Securities Act and laws. In the event that such a Transfer is to be made within
three years from the date of initial issuance of the Certificates pursuant to
the Agreement, (i) the Trustee or the Master Servicer may require an Opinion of
Counsel acceptable to and in form and substance satisfactory to the Trustee and
the Master Servicer that such Transfer is exempt (describing the applicable
exemption and the basis therefor) from or is being made pursuant to the
registration requirements of the Securities Act and of any applicable state
statute, which Opinion of Counsel shall not be an expense of the Trustee or the
Master Servicer, and (ii) the Trustee shall require the Transferee to execute an
investment letter in form and substance satisfactory to the Trustee and the
Master Servicer certifying the facts surrounding such Transfer, which investment
letter shall not be an expense of the Trustee or the Master Servicer. The Holder
hereof desiring to effect such Transfer shall, and does hereby agree to,
indemnify the Trustee and the Master Servicer and any Paying Agent acting on
behalf of the Trustee against any liability that may result if the Transfer is
not so exempt or is not made in accordance with such federal and state laws.
D-4
No Transfer of a Class (_) Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the Transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee and the Master Servicer, to the effect that such Transferee is not an
employee benefit plan subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or section 4975 of the Code, nor a trustee or any
other Person acting on behalf of any such plan, which representation letter
shall not be an expense of the Trustee or the Master Servicer, or (ii) in the
case of such Certificate being presented for registration in the name of an
employee benefit plan subject to ERISA or section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee or any other
Person acting on behalf of any such plan, an Opinion of Counsel satisfactory to
the Trustee and the Master Servicer to the effect that the purchase or holding
of such Certificate will not result in the assets of the Trust Fund being deemed
to be "plan assets" and subject to the prohibited transaction provisions as well
as the fiduciary provisions of ERISA and the Code and will not subject the
Trustee or the Master Servicer to any obligation in addition to those undertaken
in the Agreement, which representation letter or Opinion of Counsel shall not be
an expense of the Trustee or the Master Servicer.
Any purported Transfer of a Class (_) Certificate in violation of the
restriction on Transfer will be null and void and vest no rights in the
purported Transferee.
No service charge will be made for any such registration of Transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Master Servicer, the Trustee and the Certificate Registrar and any
agent of the Master Servicer, the Trustee or the Certificate Registrar may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Master Servicer, the Trustee, the Certificate
Registrar or any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust Fund created thereby shall terminate upon payment to the
Certificateholders, or provision therefor, in accordance with the Agreement upon
(i) the purchase by the Master Servicer or the sale by the Trustee of the Trust
Balance of each ___________ Loan and all property acquired in respect of any
__________ Loan remaining in the Trust Fund at a price determined as provided
in the Agreement or (ii) the later of the final payment or other liquidation of
the Loan Balance of the last __________ Loan remaining in the Trust Fund or the
disposition of all property acquired upon foreclosure or by deed in lieu of
foreclosure of any __________ Loan. The Master Servicer (i) may, at its option,
purchase the Trust Balance of each __________ Loan and property in respect of
any __________ Loan on any Distribution Date of which the Pool Balance is equal
to or less than _____ percent (___%) of the Cut-off Date Pool Balance and (ii)
should the Trust Balances of any ____________ Loans remain outstanding on the
Distribution Date in _______________, ____, shall purchase all such Trust
Balances pursuant to the Agreement, which purchase will result in retirement of
the Certificates. If the Master Servicer fails for any reason to purchase the
Trust Balances of the ___________ Loans on the ______________________, ____
Distribution Date, then the Trustee shall conduct an auction of the assets of
the Trust Fund (other than amounts on deposit in the Certificate Account) in
order to effect a termination of the Trust promptly thereafter.
D-5
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by any
authorized officer of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under its official seal.
Dated: ________________________
______________________, not in its
individual capacity but solely as Trustee
[SEAL]
By _______________________________________
Authorized Officer
Countersigned:
By: _______________________________
Authorized Officer of
------------------------
______________________, not in
its individual capacity
but solely as Trustee
D-6
EXHIBIT E
Notice of Payment in Full
of Trust Balance of __________ Loan
=========================
=========================
Attention: _________________________
Re: __________ Loan Asset Backed Certificates
Ladies and Gentlemen:
Reference is made to Section 3.07(b) of the Pooling and Servicing
Agreement dated as of __________________, _____ (the "Agreement") between
Beneficial Mortgage Services, Inc., as depositor and master servicer, and
_______________________________________________, as trustee. All capitalized
terms used but not defined herein shall have the meanings given to such terms in
the
Agreement.
The undersigned hereby certifies that the Trust Balance of the ____
_______ Loan(s) listed in Schedule A annexed hereto has been paid in full and
that all amounts received in connection with the payment of such ___________
Loan(s) that were required to be deposited in the Collection Account pursuant to
Section 3.02 of the Agreement have been so deposited.
The undersigned further certifies that he/she is a Servicing Officer of
the Master Servicer holding the office set forth beneath his/her signature and
that he/she is duly authorized to execute this certificate on behalf of the
Master Servicer.
BENEFICIAL MORTGAGE SERVICES, INC.
By:________________________________
Name: _________________________
Title: Servicing Officer
E-1
EXHIBIT F
FORM OF FILE REQUEST
[DATE]
___________________________, as Trustee
___________________________
___________________________
___________________________
Attention: ________________________
Re: __________ Loan Asset Backed Certificates
Gentlemen:
In connection with the administration of the __________ Loans held by
you as Trustee under the Pooling and Servicing Agreement dated as of
___________, _____ (the "Agreement") between Beneficial Mortgage Services, Inc.,
as sponsor and master servicer, and
_______________________________________________, as trustee, we hereby request a
release of the Mortgage File held by you as trustee with respect to the
following described __________ Loan for the reason indicated below.
Loan No.: ________________
Reason for requesting file:
1. ___________ Loan paid in full. (The Master
Servicer hereby certifies that all amounts
received in connection with the payment in full
of the Trust Balance of the __________ Loan that
are required to be deposited in the Certificate
Account pursuant to Section 4.02 of the Agreement
have been so deposited).
2. __________ Loan repurchased. (The Master Servicer hereby
certifies that the Purchase Price of the __________ Loan
has been deposited in the Certificate Account pursuant to
the Agreement).
3. The __________ Loan is being foreclosed.
4. Other (Describe).
F-1
The undersigned acknowledges that the above Mortgage File will be held
by the undersigned in accordance with the provisions of the Agreement and will
promptly be returned to the Trustee when the need therefor by the Master
Servicer no longer exists unless the ___________ Loan has been liquidated.
Capitalized terms used herein shall have the meanings assigned to them in the
Agreement.
BENEFICIAL MORTGAGE SERVICES, INC.
By: ______________________________________
Name:
Title: Servicing Officer
F-2