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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
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FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999
COMMISSION FILE NO. 1-12109
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DELTA FINANCIAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 11-3336165
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1000 WOODBURY ROAD, SUITE 200,
WOODBURY, NEW YORK 11797
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE:(516) 364-8500
------------------------
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
COMMON STOCK, PAR VALUE $.01 PER SHARE NEW YORK STOCK EXCHANGE
(TITLE OF EACH CLASS) (NAME OF EACH EXCHANGE ON WHICH REGISTERED)
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT: NONE
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [_]
As of March 15, 2000, the aggregate market value of the voting stock held by
non-affiliates of the Registrant, based on the closing price of $2.75, was
approximately $13,362,628.
As of March 30, 2000, the Registrant had 15,883,749 shares of Common Stock
outstanding.
DOCUMENTS INCORPORATED BY REFERENCE:
Part III, Items 10, 11, 12 and 13 are incorporated by reference from Delta
Financial Corporation's definitive proxy statement to stockholders which will be
filed with the Securities and Exchange Commission no later than 120 days after
December 31, 1999.
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<PAGE>
PART I
ITEM 1. BUSINESS
BUSINESS OVERVIEW
Delta Financial Corporation (together with its subsidiaries, the "Company" or
"Delta") is a Delaware corporation that was organized in August 1996. On October
31, 1996, in connection with its initial public offering, the Company acquired
all of the outstanding common stock of Delta Funding Corporation ("Delta
Funding"), a New York corporation that had been organized on January 8, 1982 to
originate, sell, service and invest in residential first and second mortgages.
On November 1, 1996, the Company completed an initial public offering of
4,600,000 shares of common stock, par value $.01 per share.
Delta, through its subsidiaries, is a specialty consumer finance company that
has engaged in originating, acquiring, selling and servicing non-conforming home
equity loans since 1982. Throughout its operating history, Delta has focused on
lending to individuals who generally do not qualify for conforming credit.
Management believes that these borrowers have largely been unsatisfied by the
more traditional sources of mortgage credit, which underwrite loans to
conventional guidelines established by the Federal National Mortgage
Associations ("FNMA") and the Federal Home Loan Mortgage Corporation ("FHLMC").
The Company makes loans to these borrowers for such purposes as debt
consolidation, home improvement, refinancing or education, and these loans are
primarily secured by first mortgages on one- to four-family residential
properties.
Through its wholly-owned subsidiary, Delta Funding, the Company originates
home equity loans indirectly through licensed mortgage brokers and other real
estate professionals who submit loan applications on behalf of borrowers
("Brokered Loans") and also purchases loans from mortgage bankers and smaller
financial institutions that satisfy Delta's underwriting guidelines
("Correspondent Loans"). Delta Funding Corporation currently originates and
purchases the majority of its loans in 24 states, through its network of
approximately 1,600 brokers and correspondents.
Through its wholly-owned subsidiary, Fidelity Mortgage Inc. ("Fidelity
Mortgage") - which the Company acquired in February 1997 to broaden its
origination sources and to expand its geographic presence - the Company develops
retail loan leads primarily through its telemarketing system and its network of
14 retail offices located in Florida (3), Illinois, Indiana, Missouri, North
Carolina, Ohio (4), Pennsylvania (2) and Tennessee. In March 2000, the Company
decided to close a branch located in Georgia.
For the year ended December 31, 1999, the Company originated or purchased
approximately $1.47 billion of loans, of which approximately $891 million were
originated through its network of brokers, $319 million were originated through
its Fidelity Mortgage retail network and $261 million were purchased from its
network of correspondents.
Substantially all of the loans originated and purchased by the Company were
sold in securitizations in which the loans were transferred to a trust, which
had raised the cash payment to purchase the loans through the sale of
asset-backed pass-through securities of the trust. For the year ended December
31, 1999, Delta sold a total of $1.46 billion of loans through three real estate
mortgage investment conduit ("REMIC") securitizations. Each of these three
securitizations was credit-enhanced, by an insurance policy provided through a
monoline insurance company and/or a senior-subordinated structure, to receive
ratings of Aaa from Moody's Investors Service, Inc. ("Moody's"), Fitch IBCA
("Fitch") and Duff & Phelps Credit Rating Company ("Duff & Phelps") and AAA from
Standard & Poor's Ratings Group, a division of The McGraw-Hill Companies, Inc.
("S&P"). The Company sells loans through securitizations to improve its
operating leverage and liquidity, to minimize financing costs and to reduce its
exposure to fluctuations in interest rates.
The majority of the Company's revenues and cash flows result from its
securitizations and servicing of home-equity loans that it has originated or
purchased. In a securitization, the Company sells the loans to a trust for a
cash
1
payment while retaining (1) the right to service the loans, and receive a
contractual servicing fee and (2) interest-only and residual certificates in the
trust. The interest-only and residual certificates entitle the Company to
receive any "Excess Servicing" income, consisting of any remaining cash flows
collected by the trust from principal and interest payments on its loans after
the trust has first paid (a) all principal and interest required to be passed
through to holders of the trust's securities, (b) all contractual servicing
fees, and (c) other recurring fees and costs of administering the trust. Upon
securitizing a pool of loans, the Company recognizes a gain on sale of loans
("net gain on sale of mortgage loans") equal to the difference between cash
received from the trust when it sells asset-backed pass-through certificates and
the investment in the loans remaining after allocating portions of that
investment to record the value of servicing rights and interest-only and
residual certificates received by Delta in the securitization. The majority of
the net gain on the sale of mortgage loans results from, and is initially
realized in the form of, the retention of the mortgage servicing rights and
interest-only and residual certificates. The servicing rights and interest-only
and residual certificates are each recorded based on their fair values,
estimated based on a discount rate which management believes reflects the rate
market participants would utilize in purchasing similar servicing rights and
interest-only and residual certificates, and the stated terms of the transferred
loans adjusted for estimates of future prepayment rates and defaults among those
loans. If actual prepayments and/or defaults exceed the Company's estimates, the
future cash flows from the servicing rights and interest-only and residual
certificates would be negatively affected. (See "Item 7 - Management's
Discussion and Analysis of Financial Condition and Results of Operations -
Certain Accounting Considerations.")
Although the Company recognizes income from the securitization of loans at
the time of the securitization, the Company receives cash flows from the
securitization, in particular the retained servicing rights and interest-only
and residual certificates, over the life of the transferred loans. The Company
begins to receive cash flows from monthly contractual servicing fees in the
month following a securitization. The Company's servicing fees range from 0.50%
to 0.65% per annum of the outstanding balance of the loans being serviced.
The Company typically begins to receive cash flows from the interest-only and
residual certificates retained upon securitization approximately 12 to
20 months after a securitization, with the specific timing depending on
the structure and performance of the securitization. Initially, securitization
trusts utilize the Excess Servicing cash flows to make additional payments of
principal on the pass-through certificates in order to establish a spread
between the principal amount of the trust's outstanding loans and the amount of
outstanding pass-through certificates. Once a spread of between 2% and 3% of the
initial securitization principal (the "overcollateralization limit") is
established, the Excess Servicing cash flows are distributed to Delta as the
holder of the interest-only and residual certificates. The Company utilizes the
more conservative "cash-out" method of valuing future cash flows from residual
certificates (See "Item 7 Management's Discussion and Analysis of Financial
Condition and Results of Operations - Certain Accounting Considerations.").
The Company services substantially all of the loans it has originated or
purchased, including all of the loans sold through securitizations. As of
December 31, 1999, the Company had a loan servicing portfolio of $3.64 billion.
In addition to the income and cash flows earned from the Company's
securitizations, the Company also earns income and generates cash flows from
whole loan sales, the net interest spread earned on loans while they are held
for sale, and from loan origination fees on Brokered Loans and retail loans.
The Company's business strategy is to increase the size of its servicing
portfolio and focus on its more profitable broker and retail channels of
originations (instead of correspondent purchases) by (1) continuing to provide
top quality service to its network of brokers, correspondents and retail
clients, (2) maintaining its underwriting standards, (3) further penetrating its
established and recently-entered markets and expanding into new geographic
markets, (4) expanding its retail origination capabilities, (5) leveraging and
continuing its investment in information and processing technologies, and (6)
strengthening its loan production capabilities through acquisitions.
2
HOME EQUITY LENDING OPERATIONS
OVERVIEW
Delta's consumer finance activities consist of originating, acquiring,
selling and servicing non-conforming mortgage loans. These loans are primarily
secured by first mortgages on one- to four-family residences. Once loan
applications have been received, the underwriting process completed and the
loans funded or purchased, Delta typically packages the loans in a portfolio and
sells the loan portfolio through a securitization. Generally, Delta retains the
right to service the loans that it securitizes.
The Company provides its customers with an array of loan products designed to
meet their needs. The Company uses a risk-based pricing strategy and has
developed products for various risk categories. Historically, the Company
offered fixed-rate loan products and, to date, the majority of the Company's
loan production is fixed-rate. As the Company has expanded geographically, it
has expanded its product offerings to include adjustable-rate mortgages and
fixed/adjustable-rate mortgages. However, since the fourth quarter of 1998, the
Company has virtually eliminated originations of its six-month LIBOR (London
Inter Bank Offered Rate) adjustable rate mortgages, which are less profitable
and more prepayment sensitive.
Historically, Delta Funding conducted substantially all of its broker and
correspondent lending operations out of its Woodbury, New York headquarters. In
recent years, Delta Funding has opened regional branch offices - which are
typically staffed with a combination of experienced Delta personnel and local
employees - to supplement its in some of its newer geographic regions.
Currently, Delta Funding maintains regional branch offices in the Southeast,
Midwest and West. Final underwriting approval is required from the Woodbury, New
York headquarters or Southeast branch office for all mortgage loans. Fidelity
Mortgage retail loans are underwritten by two operational offices (Cincinnati,
Ohio and West Palm Beach, Florida), which have full underwriting authority.
The Company adheres to a Best Practice Lending Program to help better protect
consumers, which include (a) fair lending initiatives to ensure all borrowers
are treated fairly and similarly regardless of race, color, creed, religion,
national origin, sex, sexual orientation, marital status, age, disability, and
the applicant's exercise, in good faith, of any right under the Consumer Credit
Protection Act; (b) increased oversight of mortgage brokers and closing agents;
(c) enhanced fraud detection and protection; (d) enhanced plain English
disclosures; and (e) other originations, underwriting and servicing initiatives
which Delta's management believes help protect consumers.
LOAN ORIGINATION AND PURCHASES
The Company's loan originations and purchases decreased by 15% to $1.47
billion in 1999 from $1.73 billion in 1998. Loan originations and purchases in
1998 had increased 38% over 1997 production of $1.25 billion.
3
The following table shows the channels of the Company's loan originations and
purchases for the years shown:
YEAR ENDED DECEMBER 31,
1997 1998 1999
---- ---- ----
(DOLLARS IN THOUSANDS)
Broker:
Principal balance...................... $ 481,586 $ 841,079 $ 890,822
Average principal balance per loan..... $ 87 $ 92 $ 85
Combined weighted average initial loan-
to-value ratio(1).................... 69.9% 72.8% 72.8%
Weighted average interest rate......... 10.8% 10.0% 10.4%
Correspondent:
Principal balance...................... $ 632,639 $ 652,503 $ 261,289
Average principal balance per loan..... $ 77 $ 82 $ 77
Combined weighted average initial loan-
to-value ratio(1).................... 72.8% 73.9% 72.0%
Weighted average interest rate......... 11.3% 10.8% 11.0%
Retail:
Principal balance...................... $ 140,386 $ 234,011 $ 319,227
Average principal balance per loan..... $ 69 $ 75 $ 68
Combined weighted average initial loan-
to-value ratio(1).................... 80.1% 79.9% 77.6%
Weighted average interest rate......... 10.1% 9.4% 9.8%
Total loan purchases and originations:
Principal balance...................... $1,254,611 $ 1,727,593 $ 1,471,338
Average principal balance per loan..... $ 80 $ 85 $ 79
Combined weighted average initial loan-
to-value ratio(1).................... 72.5% 74.2% 73.7%
Weighted average interest rate......... 11.0% 10.2% 10.4%
Percentage of loans secured by:
First mortgage......................... 94.0% 95.5% 94.6%
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(1) The weighted average initial loan-to-value ratio of a loan secured by a
first mortgage is determined by dividing the amount of the loan by the lesser
of the purchase price or the appraised value of the mortgage property at
origination. The weighted average initial loan-to-value ratio of a loan
secured by a second mortgage is determined by taking the sum of the loan
secured by the first and second mortgages and dividing by the lesser of the
purchase price or the appraised value of the mortgage property at
origination.
4
<PAGE>
The following table shows the channels of loan originations and purchases on
a quarterly basis for 1999:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
--------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
1999 1999 1999 1999
--------------------------------------------------
<S> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS)
Broker:
Number of Brokered Loans...................... 2,590 2,881 2,731 2,339
Principal balance............................. $ 235,435 $ 257,011 $ 222,249 $ 176,128
Average principal balance per loan............ $ 91 $ 89 $ 81 $ 75
Combined weighted average initial loan-
to-value ratio(1)........................... 73.4% 72.7% 72.8% 72.0%
Weighted average interest rate................ 10.1% 10.0% 10.7% 11.1%
Correspondent:
Number of Correspondent Loans................. 1,188 833 765 611
Principal balance............................. $ 91,243 $ 65,535 $ 59,367 $ 45,144
Average principal balance per loan............ $ 77 $ 79 $ 78 $ 74
Combined weighted average initial loan-
to-value ratio(1)........................... 73.2% 71.9% 70.5% 71.6%
Weighted average interest rate................ 10.9% 10.9% 11.1% 11.4%
Retail:
Number of retail loans........................ 1,067 1,341 1,186 1,070
Principal balance............................. $ 77,430 $ 91,945 $ 79,400 $ 70,452
Average principal balance per loan............ $ 73 $ 69 $ 67 $ 66
Combined weighted average initial loan-
to-value ratio(1)........................... 78.7% 77.5% 76.3% 78.1%
Weighted average interest rate................ 9.6% 9.5% 10.0% 10.1%
Total loan purchases and originations:
Total number of loans......................... 4,845 5,055 4,682 4,020
Principal balance............................. $ 404,108 $ 414,491 $ 361,016 $ 291,723
Average principal balance per loan............ $ 83 $ 82 $ 77 $ 73
Combined weighted average initial loan-
to-value ratio(1)........................... 74.4% 73.6% 73.2% 73.4%
Weighted average interest rate................ 10.2% 10.0% 10.6% 10.9%
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<FN>
(1) The weighted average initial loan-to-value ratio of a loan secured by a
first mortgage is determined by dividing the amount of the loan by the
lesser of the purchase price or the appraised value of the mortgage
property at origination. The weighted average initial loan-to-value ratio
of a loan secured by a second mortgage is determined by taking the sum of
the loan secured by the first and second mortgages and dividing by the
lesser of the purchase price or the appraised value of the mortgage
property at origination.
</FN>
</TABLE>
5
<PAGE>
The following table shows lien position, weighted average interest rates and
loan-to-value ratios for the years shown:
YEAR ENDED DECEMBER 31,
-----------------------
1997 1998 1999
---- ---- ----
First mortgage:
Percentage of total purchases and originations... 94.0% 95.5% 94.6%
Weighted average interest rate................... 11.0% 10.2% 10.3%
Weighted average initial loan-to-value ratio(1).. 72.6% 74.3% 74.1%
Second mortgage:
Percentage of total purchases and originations... 6.0% 4.5% 5.4%
Weighted average interest rate................... 11.3% 10.5% 10.8%
Weighted average initial loan-to-value ratio(1).. 71.1% 70.6% 66.6%
- ---------------
(1)The weighted average initial loan-to-value ratio of a loan secured by a
first mortgage is determined by dividing the amount of the loan by the lesser
of the purchase price or the appraised value of the mortgage property at
origination. The weighted average initial loan-to-value ratio of a loan
secured by a second mortgage is determined by taking the sum of the loan
secured by the first and second mortgages and dividing by the lesser of the
purchase price or the appraised value of the mortgage property at
origination.
The following table shows the geographic distribution of loan purchases and
originations for the periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
- --------------------------------------------------------------------------------------------------------
1997 1998 1999
------------------------ ----------------------- ------------------------
REGION PERCENTAGE DOLLAR VALUE PERCENTAGE DOLLAR VALUE PERCENTAGE DOLLAR VALUE
- ------ ---------- ------------ ---------- ------------ ---------- ------------
<S> <C> <C> <C> <C> <C> <C>
(DOLLARS IN MILLIONS)
NY, NJ and PA............. 52.9% $ 664.3 55.0% $ 949.3 50.8% $ 747.9
Midwest................... 21.6 270.9 19.7 340.3 24.5 361.1
Southeast................. 9.7 121.4 9.3 161.0 8.4 123.5
New England............... 7.1 89.3 7.3 125.8 5.8 85.1
Mid-Atlantic*............. 6.5 81.3 6.9 119.1 8.6 126.7
West...................... 2.2 27.3 1.5 26.6 1.9 27.1
Canada.................... n/a n/a 0.3 5.5 n/a n/a
- ------------
* Excluding New York (NY), New Jersey (NJ) and Pennsylvania (PA).
</TABLE>
BROKER AND CORRESPONDENT MARKETING. Throughout its history Delta has been
successful in establishing and maintaining relationships with brokers and
correspondents offering non-conforming mortgage products to their clientele.
Management believes that this success is attributable primarily to the quality
of service the Company provides to its network of brokers and correspondents.
Delta typically initiates contact with a broker or correspondent through
Delta's Business Development Department, comprised of approximately 40 business
development representatives, supervised by a senior officer with over ten years
of sales and marketing experience in the industry. The Company usually hires
business development representatives who have contacts with brokers and
correspondents that originate nonconforming mortgage loans within their
geographic territory. The business development representatives are responsible
for developing and maintaining the Company's broker and correspondent networks
within their geographic territory by frequently visiting the broker or
correspondent, communicating the Company's underwriting guidelines,
disseminating new product information and pricing changes, and by demonstrating
a continuing commitment to understanding the needs of the customer. The business
development representatives attend industry trade shows and inform Delta about
the products and pricing being offered by competitors and new market entrants.
This information assists Delta in refining its programs and product offerings in
order to remain competitive. Business development representatives are
compensated with a base salary and commissions based on the volume of loans
originated or purchased as a result of their efforts.
6
APPROVAL PROCESS. Before a broker or correspondent becomes part of Delta's
network, it must go through an approval process. Once approved, brokers and
correspondents may begin submitting applications and/or loans to Delta.
To be approved, a broker must demonstrate that it is properly licensed and
registered in the state in which it seeks to transact business, submit to a
credit check and sign a standard broker agreement with Delta that requires
brokers to requires brokers to, among other things, abide by Delta's fair
lending policy, follow the National Association of Mortgage Brokers Best
Practices Policies, comply with all state and federal laws, and submit only true
and accurate documents and disclosures. Delta also performs searches on all new
brokers using a third party database that contains public and nonpublic
information on individuals and companies that have incidents of potential fraud
and misrepresentation. A correspondent is eligible to submit loans to Delta for
purchase only after an extensive investigation of the prospective
correspondent's lending operations including an on-site visit, a review of the
correspondent's financial statements for the prior two years, a credit report on
the correspondent, a review of sample loan documentation and business references
provided by the correspondent. Once approved, Delta requires that each
correspondent sign an Agreement of Purchase and Sale in which the correspondent
makes representations and warranties governing both the mechanics of doing
business with Delta and the quality of the loan submissions themselves. Delta
also performs an annual review of each approved correspondent in order to ensure
continued compliance with legal requirements and that lending operations and
financial information continue to meet Delta's standards. In addition, Delta
regularly reviews the performance of loans originated or purchased through its
brokers or correspondents.
BROKERED LOANS. For the year ended December 31, 1999, the Company's broker
network accounted for $890.8 million, or 60%, of Delta's loan purchases and
originations compared to $841.1 million, or 49%, of Delta's loan purchases and
originations for the year ended December 31, 1998 and $481.6 million, or 38%, of
Delta's loan purchases and originations for the year ended December 31, 1997. No
single broker contributed more than 3.1%, 5.2% or 5.8% of Delta's total loan
production in the years ended December 31, 1999, 1998 and 1997, respectively.
Once approved, a broker may submit loan applications for prospective
borrowers to Delta. To process broker submissions, Delta's broker originations
area is organized by geographic regions and into teams, each consisting of loan
officers and processors, which are generally assigned to specific brokers.
Because Delta operates in a highly competitive environment where brokers may
submit the same loan application to several prospective lenders simultaneously,
Delta strives to provide brokers with a rapid and informed response. Loan
officers analyze the application and provide the broker with a preliminary
approval, subject to final underwriting approval, or a denial, typically within
one business day. If the application is approved by the Company's underwriters,
a "conditional approval" will be issued to the broker with a list of specific
conditions to be met and additional documents to be supplied prior to funding
the loan. The loan officer and processor team will then work directly with the
submitting broker to collect the requested information and meet all underwriting
conditions. In most cases, the Company funds loans within 14 to 21 days after
preliminary approval of the loan application. In the case of a denial, Delta
will make all reasonable attempts to ensure that there is no missing information
concerning the borrower or the application that might change the decision on the
loan.
The Company compensates its loan officers, who on a loan-by-loan basis are
the primary relationship contacts with the brokers, predominantly on a
commission basis. All of the Company's loan officers must complete an extensive
9- to 12-month training program to attain the level of knowledge and experience
integral to the Company's commitment to providing the highest quality service
for brokers. Management believes that by maintaining an efficient, trained and
experienced staff, it has addressed three central factors which determine where
a broker sends its business: (i) the speed with which a lender closes loans,
(ii) the lender's knowledge concerning the broker and his business and (iii) the
support a lender provides. Included in this support, the Company offers fair
lending training to all brokers with whom it does business.
CORRESPONDENT LOANS. For the year ended December 31, 1999, Delta's
correspondent network accounted for $261.3 million, or 18%, of Delta's loans
purchases and originations compared to $652.5 million, or 38%, of Delta's loan
purchases and originations for the year ended December 31, 1998 and $632.6
million, or 51%, of Delta's loan purchases and originations for the year ended
December 31, 1997. No single correspondent contributed more than 1.9%, 3.8% or
6.5% of Delta's total loan production in 1999, 1998 or 1997, respectively.
An approved correspondent is a licensed mortgage banker or savings and loan
who sells loans to Delta that conform with Delta's underwriting standards, which
the correspondent has originated, processed, close and funded
7
in its own name. The loans are sold to Delta either on an individual flow basis
or in block sales. When selling on a flow basis, a correspondent typically will
seek a pre-approval from Delta prior to closing the loan, and Delta will approve
the loan based on a partial or full credit package, stipulating any items needed
to complete the package in adherence to Delta's underwriting guidelines. On a
block sale, a correspondent will offer a group of loans, generally loans that
have not been pre-approved, to Delta for sale, and Delta will purchase those
loans in the block that meet Delta's underwriting criteria.
RETAIL LOANS. The Company acquired its Fidelity Mortgage retail origination
network in 1997. For the year ended December 31, 1999, this channel accounted
for $319.3 million, or 22%, of Delta's loans purchases and originations compared
to $234.0 million, or 13%, of Delta's loan purchases and originations for the
year ended December 31, 1998 and $140.4 million, or 11%, of Delta's loan
purchases and originations for the year ended December 31, 1997. Through its
marketing efforts, Fidelity Mortgage is able to identify, locate and focus on
individuals who, based on historic customer profiles, are likely customers for
the Company's products. Fidelity Mortgage's telemarketing representatives
identify interested customers and refer these customers to loan officers at the
retail branch offices who then proceed to determine the applicant's
qualifications for the Company's loan products, negotiate loan terms with the
borrower and process the loan through completion.
LOAN UNDERWRITING
All of the brokers and correspondents who submit loans to the Company are
provided with the Company's underwriting guidelines. Loan applications received
from brokers, correspondents and retail customers are classified according to
particular characteristics, including but not limited to: ability to pay, credit
history of the applicant, loan-to-value ratio and general stability of the
applicant in terms of employment history and time in residence and condition and
location of the collateral. The Company has established classifications with
respect to the credit profile of the applicant, and each loan is placed into one
of four letter ratings "A" through "D", with subratings within those categories.
Terms of loans made by the Company, as well as maximum loan-to-value ratios and
debt-to-income ratios, vary depending on the classification of the applicant.
Loan applicants with less favorable credit ratings are generally offered loans
with higher interest rates and lower loan-to-value ratios than applicants with
more favorable credit ratings. The general criteria used by the Company's
underwriting staff in classifying loan applicants are set forth below.
8
<PAGE>
<TABLE>
<CAPTION>
DELTA'S UNDERWRITING CRITERIA
"A" RISK "B" RISK "C" RISK "D" RISK
---------------- ------------------- ------------------- -------------------
<S> <C> <C> <C> <C>
Credit Profile.......... Excellent credit Good overall credit Good to fair credit Fair to poor credit
history
Existing mortgage
history............... Current at Current at Up to 30 days 90 days delinquent
application time application time delinquent at or more
and a maximum of and a maximum of application time
two 30-day late four 30-day late and a maximum of
payments in the payments in the four 30-day late
last 12 months last 12 months payments and
one 90-day late
payment in the
last 12 months
Other credit............ Minor 30 day Some slow pays Slow pays, some Not a factor.
late items allowed allowed but open delinquencies Derogatory
with a letter of majority of credit allowed. Isolated credit must
explanation; no and installment charge-offs, collec- be paid with
open collection debt paid as agreed. tion accounts or proceeds. Must
accounts, charge- Small isolated judgments case- demonstrate
offs, judgments charge-offs, collec- by-case ability to pay
tion accounts or
judgments case-
by-case
Bankruptcy filings...... Discharged more Discharged more Discharged more May be open at
than three years than two years than one year closing, but must
prior to closing prior to closing prior to closing be paid off with
and excellent and excellent and good proceeds
reestablished reestablished reestablished
credit credit credit
Debt service to
Income ratio.......... 55% or less 55% or less 55% or less 55% or less
Maximum loan-to-value
ratio:
Owner-occupied........ Generally 80% Generally 80% Generally 75% Generally 65%
(up to 90%*) for (up to 85%*) for (up to 80%*) for (up to 70%*) for
a one- to four- a one- to four- a one- to four- a one- to four-
family residence family residence family residence family residence
Non-owner occupied.... Generally 75% Generally 70% Generally 65% Generally 55%
(up to 80%*) for (up to 80%*) for (up to 75%*) for (up to 60%*) for
a one- to four- a one- to four a one- to four- a one- to four-
family residence family residence family residence family residence
Employment............ Minimum 2 years Minimum 2 years No minimum No minimum
employment in the employment in the required required
same field same field
------------
* On an exception basis
</TABLE>
The Company uses the foregoing categories and characteristics as guidelines
only. On a case-by-case basis, the Company may determine that the prospective
borrower warrants an exception, if sufficient compensating factors exist.
Examples of compensating factors are:
o low loan-to-value ratio,
o low debt ratio,
o long-term stability of employment and/or residence,
9
o excellent payment history on past mortgages, or
o a significant reduction in monthly expenses.
The following table sets forth certain information with respect to Delta's
originations and purchases of first and second mortgage loans by borrower
classification, along with weighted average coupons, for the periods shown and
highlights the improved credit quality of the Company's originations and
purchases.
(DOLLARS IN THOUSANDS)
PERCENT
YEAR CREDIT TOTAL OF TOTAL WAC(1) WLTV(2)
- ---- ------ ----- -------- ------ -------
1999 A $ 859,935 58.4% 9.8% 76.4%
B 298,253 20.3 10.7 72.9
C 245,862 16.7 11.3 69.5
D 67,288 4.6 13.0 57.3
--------- ---- ---- ----
Totals $1,471,338 100.0% 10.4% 73.7%
========= ===== ==== ====
1998 A $ 990,988 57.3% 9.7% 77.0%
B 425,056 24.6 10.4 73.2
C 248,488 14.4 11.3 69.0
D 63,061 3.7 12.7 57.2
--------- ---- ---- ----
Totals $1,727,593 100.0% 10.2% 74.2%
========= ===== ==== ====
1997 A $ 617,724 49.2% 10.4% 76.2%
B 349,166 27.8 11.0 72.0
C 222,854 17.8 11.8 67.7
D 64,867 5.2 13.2 56.7
--------- ---- ---- ----
Totals $1,254,611 100.0% 11.0% 72.5%
========== ===== ==== ====
- ------------------
(1) Weighted Average Coupon ("WAC").
(2) Weighted Average Initial Loan-to-Value Ratio ("WLTV").
The mortgage loans originated by the Company have amortization schedules
ranging from 5 years to 30 years, generally bear interest at fixed rates and
require equal monthly payments which are due as of a scheduled day of each month
which is fixed at the time of origination. Substantially all of the Company's
mortgage loans are fully amortizing loans. The Company primarily purchases fixed
rate loans which amortize over a period not to exceed 30 years. Loans that are
not fully amortizing generally provide for scheduled amortization over 30 years,
with a due date and a balloon payment at the end of the fifteenth year. The
principal amounts of the loans purchased or originated by the Company generally
range from a minimum of $10,000 to a maximum of $350,000. The Company generally
does not acquire or originate any mortgage loans where the combined
loan-to-value ratio exceeds 90%. The collateral securing loans acquired or
originated by the Company are generally one- to four-family residences,
including condominiums and townhouses, and these properties may or may not be
occupied by the owner. It is the Company's policy not to accept commercial
properties or unimproved land as collateral. However, the Company will accept
mixed-use properties of 1-4 units where a portion of the property is used for
residential purposes and the balance is used for commercial purposes, and will
accept small residential multifamily properties (5 to 8 units), both at reduced
loan-to-value ratios. The Company does not purchase loans where any senior
mortgage contains open-end advance, negative amortization or shared appreciation
provisions.
10
The Company's mortgage loan program includes:
o a full documentation program for salaried borrowers;
o a limited documentation program;
o a no-income verification program for self-employed borrowers; and
o a "stated" income program.
The total monthly debt obligations, which include principal and interest on
the new loan and all other mortgages, loans, charge accounts and scheduled
indebtedness, generally is 50% or less of the borrower's monthly gross income.
Loans to borrowers who are salaried employees must be supported by current
employment information in addition to employment history. This information for
salaried borrowers is verified based on written confirmation from employers, one
or more pay-stubs, recent W-2 tax forms, recent tax returns or telephone
confirmation from the employer. For the Company's limited documentation program,
the Company requires a job letter to be submitted which contains the same
information one would find on a standard verification of employment form:
o job position;
o length of time on job;
o current salary; and
o the job letter should appear on the employer's letterhead.
For the Company's no-income verification program, proof of self-employment in
the same business plus proof of current self-employed status is required. The
Company's stated income program, which represents a very small percentage of the
Company's loans, is only offered for better credit quality borrowers where a
telephone verification is done by an underwriter to verify that the borrower is
employed. The Company usually requires lower combined loan-to-value ratios with
respect to loans made under programs other than the full documentation program.
The Company employs experienced non-conforming mortgage loan credit
underwriters to scrutinize the applicant's credit profile and to evaluate
whether an impaired credit history is a result of adverse circumstances or a
continuing inability or unwillingness to meet credit obligations in a timely
manner. Personal circumstances including divorce, family illnesses or deaths,
and temporary job loss due to layoffs and corporate downsizing will often impair
an applicant's credit record. Assessment of an applicant's ability and
willingness to pay is one of the principal elements in distinguishing the
Company's lending specialty from methods employed by traditional lenders, such
as savings and loans and commercial banks. All lenders utilize debt ratios and
loan-to-value ratios in the approval process. Many lenders simply use software
packages to score an applicant for loan approval and fund the loan after
auditing the data provided by the borrower. All loans underwritten by Delta's
underwriters are underwritten with regard for the borrower's ability to repay,
and are not underwritten solely on the value of the collateral property or the
amount of equity therein. All loans are underwritten to ensure that the loan has
a solid purpose and provides tangible benefits to the borrower.
The Company has a staff of approximately 80 underwriters with an average of
five years of non-conforming lending experience. With the exception of the
Company's Atlanta, Georgia office, all underwriting functions for broker and
correspondent organizations are centralized in its Woodbury, New York office.
All underwriting functions for retail organizations are centralized in the
Company's two retail underwriting "hubs" located in Cincinnati, Ohio and West
Palm Beach, Florida. The Company does not delegate underwriting authority to any
broker or correspondent. The Company's underwriting department functions
independently of its business development and mortgage origination departments
and does not report to any individual directly involved in the origination
process. No underwriter at the Company is compensated on an incentive or
commission basis.
The Company has instituted underwriting checks and balances that are designed
to ensure that every loan is reviewed and approved by a minimum of two
underwriters, with some higher loan amounts requiring a third
11
approval. The Company believes that by requiring each file be seen by a minimum
of two underwriters, a high degree of accuracy and quality control is ensured
throughout the underwriting process and before funding.
The Company's underwriting of every loan submitted consists not only of a
thorough credit review, but also the following:
o a separate appraisal review conducted by the Company's appraisal review
department and/or underwriter; and
o a full compliance review, to ensure that all documents have been
properly prepared, all applicable disclosures given in a timely
fashion, and proper compliance with all federal and state regulations.
Appraisals are performed by third party, fee-based appraisers or by the
Company's approved appraisers and generally conform to current Fannie Mae and
Freddie Mac secondary market requirements for residential property appraisals.
Each appraisal includes, among other things, an inspection of both the exterior
and interior of the subject property and data from sales within the preceding 12
months of similar properties within the same general location as the subject
property.
The Company performs an appraisal review on each loan prior to closing or
prior to purchasing. While the Company recognizes that the general quality
control practices of conventional mortgage lenders is to perform only drive-by
appraisals after closings, the Company believes this practice does not provide
sufficient protection. In addition to reviewing each appraisal for accuracy, the
Company accesses other sources to validate sales used in the appraisal to
determine market value. These sources include:
o Multiple Listing Services in nine states;
o assessment and sales services, such as Comps, Inc., Pace, 1st American
and Transamerica;
o internet services such as Realtor.com; and
o other sources for verification, including broker price opinions and
market analyses by local real estate agents.
Post closing, in addition to its normal due diligence, the Company randomly
selects one out of every ten appraisals, and performs a drive-by appraisal. This
additional step gives the Company an added degree of comfort with respect to
appraisers with which the Company has had limited experience. The Company
actively tracks and grades, on criteria that it has developed over time, all
appraisers from which it accepts appraisals for quality control purposes and
does not accept work from appraisers who have not conformed to its review
standards.
Upon completion of a broker loan's underwriting and processing, the closing
of the loan is scheduled with a closing attorney or agent approved by the
Company. The closing attorney or agent is responsible for completing the loan
closing transaction in accordance with applicable law and the Company's
operating procedures. Title insurance that insures the Company's interest as
mortgagee and evidence of adequate homeowner's insurance naming the Company as
an additional insured party are required on all loans.
The Company performs a post-funding quality control review to monitor and
evaluate the Company's loan origination policies and procedures. The quality
control department is separate from the underwriting department, and reports
directly to a member of senior management.
At least 10% of all loan originations and purchases are subjected to a full
quality control re-underwriting and review, the results of which are reported to
senior management on a monthly basis. Discrepancies noted by the audit are
analyzed and corrective actions are instituted. A typical quality control review
currently includes:
o obtaining a new drive-by appraisal for each property;
o running a new credit report from a different credit report agency;
o reviewing loan applications for completeness, signatures, and for
consistency with other processing documents;
12
o obtaining new written verification of income and employment;
o obtaining new written verification of mortgage to re-verify any
outstanding mortgages; and
o analyzing the underwriting and program selection decisions.
The quality control process is updated from time to time as the Company's
policies and procedures change.
LOAN SALES
Delta sells substantially all the loans it originates or purchases through
one of two methods: (i) securitizations, which involve the private placement or
public offering by a securitization trust of asset-backed pass-through
securities; and (ii) whole loan sales, which include the sale of blocks of
individual loans to institutional or individual investors. Since 1991, the
Company has sold approximately $5.7 billion of the loans it originated or
purchased through securitization and $63 million through whole loan sales.
SECURITIZATIONS. During 1999, Delta completed three securitizations totaling
$1.50 billion. The following table sets forth certain information with respect
to Delta's securitizations (all of which have been rated AAA/Aaa by S&P and
Moody's, respectively) by offering size, which includes prefunded amounts,
duration weighted average pass-through rate and type of credit enhancement.
<TABLE>
<CAPTION>
DURATION
OFFERING SIZE WEIGHTED AVERAGE CREDIT
SECURITIZATION COMPLETED (MILLIONS) PASS-THROUGH RATE ENHANCEMENT
- -------------- --------- ------------- ----------------- -----------
<S> <C> <C> <C> <C>
1999-1.............. 03/30/99 $375.0 6.20% Hybrid *
1999-2.............. 06/17/99 $420.0 6.72% Senior/Sub
Structure
1999-3.............. 11/30/99 $700.0 7.09% Hybrid *
- ------------------
* Senior/Sub Structure with Bond Insured AAA Tranche
</TABLE>
When Delta securitizes loans, it sells a portfolio of loans to a trust (a
"Home Equity Loan Trust") for a cash payment and the Home Equity Loan Trust
sells various classes of pass-through certificates representing undivided
ownership interests in such Home Equity Loan Trust. As servicer for each
securitization, the Company collects and remits principal and interest payments
to the appropriate Home Equity Loan Trust which, in turn, passes through such
payments to certificateholders. For each of the 1999 securitizations, Delta
retained 100% of the interests in the residual certificates while selling the
interest-only certificates for cash. Management contemplates continuing to
retain residual certificates in the future as long as, in management's opinion,
this practice maximizes earnings while remaining within the Company's liquidity
requirements.
Each Home Equity Loan Trust has the benefit of either a financial guaranty
insurance policy from a monoline insurance company or a senior-subordinated
securitization structure, which insures the timely payment of interest and the
ultimate payment of principal of the credit-enhanced investor certificate, or
both (known as a "hybrid"). In "senior-subordinated" structures, the senior
certificate holders are protected from losses by subordinated certificates,
which absorb any such losses first. In addition to such credit enhancement, the
Excess Servicing amounts are initially applied as additional payments of
principal for the investor certificates, thereby accelerating amortization of
the investor certificates relative to the amortization of the loans and creating
overcollateralization. Once the overcollateralization limit is reached, the use
of Excess Servicing to create overcollateralization stops unless it subsequently
becomes necessary to obtain or maintain required overcollateralization limits.
Overcollateralization is intended to create a source of cash (the "extra"
payments on the loans) to absorb losses prior to making a claim on the financial
guaranty insurance policy or the subordinated certificates.
WHOLE LOAN SALES WITHOUT RECOURSE. From time to time, the Company has found
that it can receive better execution by selling certain mortgage loans on a
whole loan, non-recourse basis, without retaining servicing rights, generally in
private transactions to institutional or individual investors. The Company
recognizes a gain or loss
13
when it sells loans on a whole loan basis equal to the difference between the
cash proceeds received for the loans and the Company's investment in the loans,
including any unamortized loan origination fees and costs.
In 1998, the Company sold $8.7 million of loans on a whole loan, non-recourse
basis, which represented 0.5% of its originations and purchases. In 1999 and
1997, the Company did not have any whole loan sales.
LOAN SERVICING AND COLLECTIONS
The Company has been servicing loans since its inception in 1982, and has
serviced or is servicing substantially all of the loans that it has originated
or purchased. Servicing involves, among other things, collecting payments when
due, remitting payments of principal and interest and furnishing reports to the
current owners of the loans and enforcing the current owners' rights with
respect to the loans, including, recovering delinquent payments, instituting
foreclosure and liquidating the underlying collateral. As of December 31, 1999,
the Company had a servicing portfolio of $3.6 billion.
The Company services all loans out of its headquarters in Woodbury, New York,
utilizing a leading in-house loan servicing system called LSAMS which it
purchased in 1995. LSAMS has provided the Company with considerably more
flexibility to adapt the system to the Company's specific needs as a
nonconforming home equity lender. As such, the Company has achieved significant
cost efficiencies by automating a substantial number of previously manual
servicing procedures and functions since its conversion to LSAMS.
In December 1999, Delta purchased a new default management sub-servicing
system, FORTRACS, with separate "modules" for foreclosure, bankruptcy, and REO
to provide it with the ability to more efficiently monitor and service loans in
default. These sub-servicing modules provide detailed tracking of all key events
in foreclosure and bankruptcy on a loan-by-loan and portfolio-wide basis; the
ability to track and account for all pre- and post-petition payments received in
bankruptcy from the borrower and/or trustee; and the ability to monitor, market
and account for all aspects necessary to liquidate an REO property after
foreclosure. Information entered on FORTRACS is automatically uploaded to LSAMS
on a daily basis. Further, information entered on LSAMS is automatically entered
on FORTRACS. Additionally, Delta's Management Information Systems Department has
created a market value analysis program to run with LSAMS, which provides Delta
with the ability to monitor its equity position on a loan-by-loan and/or
portfolio-wide basis. These features have led to cost savings through greater
automation and system upgrades and have helped mitigate loan losses as the
Servicing Department has been able to identify problem loans earlier, thus
allowing for earlier corrective action.
Centralized controls and standards have been established by the Company for
the servicing and collection of mortgage loans in its portfolio. The Company
revises such policies and procedures from time to time in connection with
changing economic and market conditions and changing legal and regulatory
requirements.
The Company's collections policy is designed to identify payment problems
sufficiently early to permit the Company to quickly address delinquency problems
and, when necessary, to act to preserve equity in a preforeclosure property. The
Company believes that these policies, combined with the experience level of
independent appraisers engaged by the Company, help to reduce the incidence of
charge-offs of a first or second mortgage loan.
Borrowers are billed on a monthly basis in advance of the due date.
Collection procedures commence upon identification of a past due account by the
Company's automated servicing system using the Company's proprietary payment
profiling software. If timely payment is not received, LSAMS automatically
places the loan in the assigned collector's auto queue and collection procedures
are generally initiated on the day determined by the proprietary software to be
after the borrower's typical payment date. This payment profiling allows the
Company to focus its collections efforts on those borrowers who are delinquent
and outside their typical payment date as opposed to those borrowers who are
delinquent but typically pay on or about a specific date each month. These loans
are automatically queued into LSAMS auto queue as well as a Davox predictive
dialer. The predictive dialer initiates the telephone calls and transfers the
calls to a collector when a borrower is reached. If the predictive dialer
determines a line is busy or receives a no answer, it automatically cycles those
calls through the same day at pre-
14
determined intervals. If the predictive dialer contacts an answering machine, an
automated message is left. The account remains in the queue unless and until
payment is received, at which point LSAMS automatically removes the loan from
the collector's auto queue until the next payment profile pattern is broken. In
the case of seriously delinquent accounts, collection calls can begin as soon as
two days after the payment due date.
When a loan appears in a collector's auto queue, a collector will telephone
to remind the borrower that a payment is due. Follow-up telephone contacts are
attempted until the account is current or other payment arrangements have been
made. Standard form letters are utilized when attempts to reach the borrower by
telephone fail and/or, in some circumstances, to supplement the phone contacts.
During the delinquency period, the collector will continue to contact the
borrower and property inspections are performed on or about the 45th day of
delinquency. The Company's collectors have computer access to telephone numbers,
payment histories, loan information and all past collection notes. All
collection activity, including the date collection letters were sent and
detailed notes on the substance of each collection telephone call, is entered
into a permanent collection history for each account on LSAMS. Additional
guidance with the collection process is derived through frequent communication
with the Company's senior management.
On or about the ninety-first day of delinquency, the loan is referred to the
loss mitigation department. This department is comprised of the collectors with
the ability to negotiate payment plans, deeds in lieu, short sales and other
cures. If their efforts have also been exhausted without success, the loss
mitigation representative responsible for the account recommends the loan be
sent to foreclosure at one of several foreclosure committee meetings held each
month. The foreclosure committee is comprised of the loss mitigation
representative, the foreclosure department manager and two members of the
executive department. This meeting is held to determine whether foreclosure
proceedings are appropriate, based upon the analysis of all relevant factors,
including a market value analysis, reason for default and efforts by the
borrower to cure the default.
Regulations and practices regarding the liquidation of properties and the
rights of a borrower in default vary greatly from state to state. As a result,
all foreclosures are assigned to outside counsel, located in the same state as
the secured property. Bankruptcies filed by borrowers are similarly assigned to
appropriate local counsel. All aspects of foreclosures and bankruptcies are
closely monitored by the Company through its sub-servicing loan system described
above and through monthly status reports from attorneys.
Prior to foreclosure sale, the Company performs an in-depth market value
analysis on all defaulted loans. This analysis includes:
o a current valuation of the property obtained through a drive-by appraisal
or broker's price opinion conducted by an independent appraiser or a
broker from the Company's network of real estate brokers, complete with a
description of the condition of the property, recent price lists of
comparable properties, recent closed comparables, estimated marketing time
and required or suggested repairs, and an estimate of the sales price;
o an evaluation of the amount owed, if any, for real estate taxes;
o an evaluation of the amount owed, if any, to a senior mortgagee; and
o estimated carrying costs, brokers' fee, repair costs and other related
costs associated with real estate owned properties. Delta bases the amount
it will bid at foreclosure sales on this analysis.
If Delta acquires title to a property at a foreclosure sale or otherwise, the
REO department immediately begins working the file by obtaining an estimate of
the sale price of the property by sending at least two local real estate brokers
to inspect the premises, and then hiring one to begin marketing the property. If
the property is not vacant when acquired, local eviction attorneys are hired to
commence eviction proceedings or negotiations are held with occupants in an
attempt to get them to vacate without incurring the additional time and cost of
eviction. Repairs are performed if it is determined that they will increase the
net liquidation proceeds, taking into consideration the cost of repairs, the
carrying costs during the repair period and the marketability of the property
both before and after the repairs.
The Company's loan servicing software also tracks and maintains homeowners'
insurance information and tax and insurance escrow information. Expiration
reports are generated bi-weekly listing all policies scheduled to expire within
the next 15 days. When policies lapse, a letter is issued advising the borrower
of that lapse and
15
notifying the borrower that the Company will obtain force-placed insurance at
the borrower's expense. The Company also has an insurance policy in place that
provides coverage automatically for the Company in the event that the Company
fails to obtain force-placed insurance.
DELINQUENCY AND LOSS EXPERIENCE
The following table sets forth information relating to the delinquency and
loss experience of the mortgage loans serviced by Delta (primarily for the
securitization trusts) for the periods indicated. Delta is not the holder of the
securitization loans, but generally holds residual or interest-only certificates
of the trusts, as well as the servicing rights, each of which may be adversely
affected by defaults. (See "Item 7 - Management's Discussion and Analysis of
Financial Condition and Results of Operations Certain Accounting
Considerations"):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------
1999 1998 1997
` ---- ---- ----
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Total Outstanding Principal Balance
(at period end)................................... $ 3,631,830 $ 2,950,435 $ 1,840,150
Average Outstanding(1)................................ $ 3,362,377 $ 2,436,343 $ 1,376,109
DELINQUENCY (at period end) 30-59 Days:
Principal Balance................................. $ 208,302 $ 153,726 $ 90,053
Percent of Delinquency(2)......................... 5.73% 5.21% 4.89%
60-89 Days:
Principal Balance................................. $ 83,000 $ 50,034 $ 28,864
Percent of Delinquency(2)......................... 2.28% 1.70% 1.57%
90 Days or More:
Principal Balance................................. $ 56,435 $ 47,887 $ 17,695
Percent of Delinquency(2)......................... 1.55% 1.62% 0.96%
Total Delinquencies:
Principal Balance................................. $ 347,737 $ 251,647 $ 136,612
Percent of Delinquency(2)......................... 9.56% 8.53% 7.42%
FORECLOSURES
Principal Balance................................. $ 185,843 $ 145,679 $ 85,500
Percent of Foreclosures by Dollar(2).............. 5.11% 4.94% 4.65%
REO
Principal Balance................................ 36,663 $ 18,811 $ 10,292
Percent of REO.................................. 1.01% 0.64% 0.56%
Net Gains/(Losses) on liquidated loans................ $ (14,722) $ (8,704) $ (4,986)
Percentage of Net Gains/(Losses) on liquidated
loans (based on Average Outstanding Balance)...... (0.44%) (0.36%) (0.36%)
- ---------------
<FN>
(1) Calculated by summing the actual outstanding principal balances at the end
of each month and dividing the total by the number of months in the
applicable period.
(2) Percentages are expressed based upon the total outstanding principal balance
at the end of the indicated period.
</FN>
</TABLE>
COMPETITION
As an originator and purchaser of mortgage loans, the Company faces intense
competition, primarily from mortgage banking companies, commercial banks, credit
unions, savings and loans, credit card issuers and finance companies. Many of
these competitors in the financial services business are substantially larger
and have more capital and other resources than the Company. Competition can take
many forms, including interest rates and costs of the loan, convenience in
obtaining a loan, service, marketing and distribution channels. Furthermore, the
level of gains realized by the Company and its competitors on the sale of the
type of loans originated and purchased has
16
attracted additional competitors into this market with the effect of lowering
the gains that may be realized by the Company on future loan sales. In addition,
efficiencies in the asset-backed market have generally created a desire for even
larger transactions giving companies with greater volumes of originations a
competitive advantage.
Competition may be affected by fluctuations in interest rates and general
economic conditions. During periods of rising rates, competitors which have
"locked in" low borrowing costs may have a competitive advantage. During periods
of declining rates, competitors may solicit the Company's borrowers to refinance
their loans. During economic slowdowns or recessions, the Company's borrowers
may have new financial difficulties and may be receptive to offers by the
Company's competitors. Furthermore, certain large national finance companies and
conforming mortgage originators have adapted their conforming origination
programs and allocated resources to the origination of non-conforming loans
and/or have otherwise begun to offer products similar to those offered by the
Company, targeting customers similar to those of the Company. Fannie Mae and
Freddie Mac have also expressed interest in adapting their programs to include
products similar to those offered by the Company. The entrance of these larger
and better capitalized competitors into the Company's market may have a material
adverse effect on the Company's results of operations and financial condition.
REGULATION
Delta's business is subject to extensive regulation, supervision and
licensing by federal, state and local governmental authorities and is subject to
various laws and judicial and administrative decisions imposing requirements and
restrictions on part or all of its operations. Delta's consumer lending
activities are subject to the Federal Truth-in-Lending Act and Regulation Z
(including the Home Ownership and Equity Protection Act of 1994), the Equal
Credit Opportunity Act of 1974, as amended (ECOA), the Fair Credit Reporting Act
of 1970, as amended, the Real Estate Settlement Procedures Act (RESPA), and
Regulation X, the Home Mortgage Disclosure Act and the Federal Debt Collection
Practices Act, as well as other federal and state statutes and regulations
affecting Delta's activities. Delta is also subject to the rules and regulations
of, and examinations by HUD and state regulatory authorities with respect to
originating, processing, underwriting and servicing loans. These rules and
regulations, among other things, impose licensing obligations on Delta,
establish eligibility criteria for mortgage loans, prohibit discrimination,
provide for inspections and appraisals of properties, require credit reports on
loan applicants, regulate assessment, collection, foreclosure and claims
handling, investment and interest payments on escrow balances and payment
features, mandate certain disclosures and notices to borrowers and, in some
cases, fix maximum interest rates, fees and mortgage loan amounts. Failure to
comply with these requirements can lead to loss of approved status, termination
or suspension of servicing contracts without compensation to the servicer,
demands for indemnifications or mortgage loans repurchases, certain rights of
rescission for mortgage loans, class action lawsuits and administrative
enforcement actions.
In September 1999, the Company settled allegations by the New York State
Banking Department and a lawsuit by the New York State Office of the Attorney
General alleging that Delta had violated various state and federal lending laws.
The global settlement was evidenced by that certain (a) Remediation Agreement by
and between Delta Funding and the NYSBD, dated as of September 17, 1999 and (b)
Stipulated Order on Consent by and among Delta Funding, Delta Financial and the
NYOAG, dated as of September 17, 1999. As part of the Settlement, Delta will,
among other things, implement agreed upon changes to its lending practices;
provide reduced loan payments aggregating $7.25 million to certain borrowers
identified by the NYSBD; and create a fund of approximately $4.75 million to be
financed by the grant of 525,000 shares of Delta Financial's common stock valued
at a constant assumed priced of $9.10 per share, which approximates book value.
The proceeds of the fund will be used, for among other things, to pay for a
variety of consumer educational and counseling programs.
In March 2000, the Company finalized an agreement with the U.S. Department of
Justice, the Federal Trade Commission and the Department of Housing and Urban
Development, to complete the global settlement it had reached with the NYSBD and
NYOAG. The Federal agreement mandates some additional compliance efforts for
Delta, but it does not require any additional financial commitment.
Delta believes it is in compliance in all material respects with applicable
federal and state laws and regulations.
17
ENVIRONMENTAL MATTERS
To date, Delta has not been required to perform any investigation or clean up
activities, nor has it been subject to any environmental claims. There can be no
assurance, however, that this will remain the case in the future. In the
ordinary course of its business, Delta from time to time forecloses on
properties securing loans. Although Delta primarily lends to owners of
residential properties, there is a risk that Delta could be required to
investigate and clean-up hazardous or toxic substances or chemical releases at
such properties after acquisition by Delta, and may be held liable to a
governmental entity or to third parties for property damage, personal injury and
investigation and cleanup costs incurred by such parties in connection with the
contamination. In addition, the owner or former owners of a contaminated site
may be subject to common law claims by third parties based on damages and costs
resulting from environmental contamination emanating from such property.
EMPLOYEES
As of December 31, 1999, Delta had a total of 1,134 employees (full-time and
part-time). None of Delta's employees are covered by a collective bargaining
agreement. Delta considers its relations with its employees to be good.
ITEM 2. PROPERTIES
Delta's executive and administrative offices are located at 1000 Woodbury
Road, Woodbury, New York 11797, where Delta leases approximately 120,000 square
feet of office space at an aggregate annual rent of approximately $2.4 million.
The lease provides for certain scheduled rent increases and expires in 2008.
Delta's servicing operations are located at 99 Sunnyside Boulevard, Woodbury,
New York 11797, where Delta leases approximately 40,000 square feet of office
space at an aggregate annual rent of approximately $0.9 million. The lease
provides for certain scheduled rent increases and expires in 2009.
Delta also maintains a full service office in Atlanta, Georgia and business
development offices in California, Delaware, Illinois, Michigan, Missouri, New
Jersey, Ohio, Pennsylvania, Rhode Island, and Virginia. Fidelity Mortgage
currently maintains fourteen retail mortgage origination offices in Florida (3),
Illinois, Indiana, Missouri, North Carolina, Ohio (4), Pennsylvania (2) and
Tennessee; one telemarketing hub in Ohio; and one corporate office in Ohio. The
terms of the leases vary as to duration and escalation provisions, with the
latest expiring in 2004.
ITEM 3. LEGAL PROCEEDINGS
Because the nature of the Company's business involves the collection of
numerous accounts, the validity of liens and compliance with various state and
federal lending laws, the Company is subject, in the normal course of business,
to numerous claims and legal proceedings. The Company's lending practices have
been the subject of several lawsuits styled as class actions and of
investigations by various regulatory agencies including the New York State
Banking Department (the "NYSBD"), the Office of the Attorney General of the
State of New York (the "NYOAG") and the United States Department of Justice (the
"DOJ"). The current status of these actions are summarized below.
o In or about November 1998, the Company received notice that it had been
named in a lawsuit filed in the United States District Court for the
Eastern District of New York. In December 1998, plaintiffs filed an
amended complaint alleging that the Company had violated the Home
Equity and Ownership Protection Act ("HOEPA"), the Truth in Lending Act
("TILA") and New York State General Business Lawss.349. The complaint
seeks (a) certification of a class of plaintiffs, (b) declaratory
judgment permitting rescission, (c) unspecified actual, statutory,
treble and punitive damages (including attorneys' fees), (d) certain
injunctive relief, and (e) declaratory judgment declaring the loan
transactions as void and unconscionable. On December 7, 1998,
plaintiff filed a motion seeking a temporary restraining order and
preliminary injunction, enjoining Delta from conducting foreclosure
sales on 11 properties. The District Court Judge ruled that in order
to consider such a motion, plaintiff must move to intervene on behalf
of these 11 borrowers. Thereafter, plaintiff moved to intervene on
behalf of 3 of these 11 borrowers and sought the
18
injunctive relief on their behalf. The Company opposed the motions.
On December 14, 1998, the District Court Judge granted the motion
to intervene and on December 23, 1998, the District Cour Judge
issued a preliminary injunction enjoining the Company from proceeding
with the foreclosure sales of the three intervenors' properties. The
Company has filed a motion for reconsiderationof the December 23, 1998
order. In January 1999, the Company filed an answer to plaintiffs'
first amended complaint. In July 1999, plaintiffs were granted leave, on
consent, to file a second amended complaint In August 1999, plaintiffs
filed a second amended complaint that, among other things, added
additional parties but contained the same causes of action alleged
in the first amended complaint. In September 1999, the Company filed
a motion to dismiss the complaint. Also in September 1999, plaintiffs
filed a motion for class certification. In February 2000, Delta
submitted opposition to Plaintiffs' motion. In or about October 1999,
plaintiffs filed a motion seeking an order preventing the Company, its
attorneys and/or the New York State Banking Department(the "NYSBD") from
issuing notices to certain of Delta's borrowers, in accordance
with a settlement agreement entered into by and between the Company
and the NYSBD. In or about October 1999 and November 1999, respectively,
Delta and the NYSBD submitted opposition to plaintiffs' motion. In
March 2000, the Court issued an order that permits Delta to issue an
approved form of the notice. The Company believes that it has
meritorious defenses and intends to defend this suit, but cannot
estimate with any certainty its ultimate legal or financial liability,
if any, with respect to the alleged claims.
o In or about March 1999, the Company received notice that it had been
named in a lawsuit filed in the Supreme Court of the State of New York,
New York County, alleging that Delta had improperly charged certain
borrowers processing fees. The complaint seeks (a) certification of a
class of plaintiffs, (b) an accounting, and (c) unspecified
compensatory and punitive damages (including attorneys' fees), based
upon alleged (i) unjust enrichment, (ii) fraud, and (iii) deceptive
trade practices. In April 1999, the Company filed an answer to the
complaint. In August 1999, plaintiffs filed a motion for class
certification. The Company's response to the motion for class
certification is not due until after class discovery is completed. In
September 1999, the Company filed a motion to dismiss the complaint,
which was opposed by plaintiffs, and in February 2000, the Court denied
the motion to dismiss. In April 1999, the Company filed a motion to
change venue and Plaintiff's opposed the motion. In July 1999, the
Court denied the motion to change venue. The Company appealed and in
March 2000, the Appellate Court granted Delta's appeal to change venue
from New York County to Nassau County. The Company believes that it has
meritorious defenses and intends to defend this suit, but cannot
estimate with any certainty its ultimate legal or financial liability,
if any, with respect to the alleged claims.
o In or about July 1999, the Company received notice that it had been
named in a lawsuit filed in the United States District Court for the
Western District of New York, alleging that amounts collected and
maintained by it in certain borrowers' tax and insurance escrow
accounts exceeded certain statutory (RESPA) and/or contractual (the
respective borrowers' mortgage agreements) ceilings. The complaint
seeks (a) certification of a class of plaintiffs, (b) declaratory
relief finding that the Company's practices violate applicable statutes
and/or the mortgage agreements, (c) injunctive relief, and (d)
unspecified compensatory and punitive damages (including attorneys'
fees). In October 1999, the Company filed a motion to dismiss the
complaint. In or about November 1999, the case was transferred to the
United States District Court for the Northern District of Illinois. In
February 2000, the plaintiff opposed the Company's motion to dismiss.
In March 2000, the Court granted the Company's motion to dismiss in
part, and denied it in part. The Company believes that it has
meritorious defenses and intends to defend this suit, but cannot
estimate with any certainty its ultimate legal or financial liability,
if any, with respect to the alleged claims.
o In or about August 1999, the Office of the Attorney General for the
State of New York (the "NYOAG") filed a lawsuit against the Company
alleging violations of (a) RESPA (by paying yield spread premiums), (b)
HOEPA and TILA, (c) ECOA, (d) New York Executive Lawss.296-a, and (e)
New York Executive Lawss. 63(12). In September 1999, Delta and the
NYOAG settled the lawsuit, as part of a global settlement by and among
Delta, the NYOAG and the NYSBD, evidenced by that certain (a)
Remediation Agreement by and between Delta and the NYSBD, dated as of
September 17, 1999 and (b) Stipulated Order on Consent by and among
Delta, Delta Financial and the NYOAG, dated as of September 17, 1999.
As part
19
of the Settlement, Delta will, among other things, implement
agreed upon changes to its lending practices; provide reduced loan
payments aggregating $7.25 million to certain borrowers identified by
the NYSBD; and create a fund of approximately $4.75 million to be
financed by the grant of 525,000 shares of Delta Financial's common
stock valued at a constant assumed priced of $9.10 per share, which
approximates book value. The proceeds of the fund will be used, for
among other things, to pay for a variety of consumer educational and
counseling programs. As a result, the NYOAG lawsuit has been dismissed
as against the Company.
The Remediation Agreement and Stipulated Order on Consent supersede the
Company's previously announced settlements with the NYOAG and the NY
Banking Dept. In March 2000, the Company finalizeda settlemen agreement
with the United States Department of Justice, the Federal Trade
Commission and the Department of Housing and Urban Renewal, to complete
the global settlement it had reached with the NYSBD and NYOAG. The
Federal agreement mandates some additional compliance efforts for Delta,
but it does not require any additional financial commitment.
o In November 1999, the Company received notice that it had been named in
a lawsuit filed in the United States District Court for the Eastern
District of New York seeking certification as a class action and
alleging violations of the federal securities laws in connection with
the Company's initial public offering in 1996 and its reports
subsequently filed with the Securities and Exchange Commission. The
complaint alleges that the scope of the violations alleged recently in
the consumer lawsuits and regulatory actions indicate a pervasive
pattern of action and risk that should have been more thoroughly
disclosed to investors in the Company's common stock. The Company has
learned of several other lawsuits that purportedly contain the same or
simila allegations agains the Company. The Company believes that it
has meritoriou defenses and intends to defend these suits, but has not
answered yet and cannot estimate with any certainty its ultimate legal
or financial liability, if any, with respect to the alleged claims.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The annual meeting of stockholders was held on May 12, 1999. At the
meeting, Hugh Miller was elected as a Class III Director for a term of three
years. Sidney A. Miller, Martin D. Payson, Richard Blass and Arnold B.
Pollard continue to serve as members of the Board of Directors.
Votes cast in favor of Mr. Miller's election totaled 14,125,210
while 26,985 votes were withheld.
The stockholders also voted to ratify the appointment of KPMG LLP as the
Company's independent public accountants for the fiscal year ending December 31,
1999. Votes cast in favor of this ratification were 14,140,984, while votes cast
against were 9,861 and abstentions totaled 1,350.
20
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
PRICE RANGE OF COMMON STOCK
The Company's Common Stock was listed on the New York Stock Exchange (the
"NYSE") under the symbol "DFC" on November 1, 1996. The following table sets
forth for the periods indicated the range of the high and low closing sales
prices for the Company's Common Stock on the NYSE.
1999 HIGH LOW
- ---- ---- ----
First Quarter ............................ $ 8.25 $ 4.75
Second Quarter ........................... 8.13 4.88
Third Quarter............................. 7.81 5.00
Fourth Quarter ........................... 5.06 3.63
1998 HIGH LOW
- ---- ---- ----
First Quarter ............................ $ 18.56 $ 9.56
Second Quarter ........................... 20.25 17.06
Third Quarter............................. 18.00 4.50
Fourth Quarter ........................... 7.75 3.13
On March 27, 2000, the Company had approximately 86 stockholders of record.
This number does not include beneficial owners holding shares through nominee or
"street" names. The Company believes the number of beneficial stockholders is
approximately 1,250.
DIVIDEND POLICY
The Company did not pay any dividends in 1999 and, in accordance with its
present general policy, has no present intention to pay cash dividends.
21
<PAGE>
<TABLE>
<CAPTION>
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
YEAR ENDED DECEMBER 31,
-----------------------------------------------------------
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Income Statement Data: (DOLLARS IN THOUSANDS, EXCEPT FOR SHARE DATA)
Revenues:
Net gain on sale of mortgage loans............. $ 78,663 $ 91,380 $ 85,890 $ 46,525 $ 15,383
Interest....................................... 31,041 12,458 22,341 16,372 13,588
Servicing fees................................. 16,341 10,464 7,511 5,368 2,855
Origination fees (1) .......................... 28,774 25,273 18,108 5,266 4,309
----------- ---------- ---------- --------- ---------
Total revenues............................ 154,819 139,575 133,850 73,531 36,135
----------- ---------- ---------- --------- ---------
Expenses:
Payroll and related costs (1).................. 65,116 56,709 41,214 17,633 13,753
Interest....................................... 26,656 30,019 19,964 11,298 7,964
General & administrative (1)................... 55,318 34,351 21,522 11,112 9,832
----------- ---------- ---------- --------- ---------
Total expenses........................... 147,090 121,079 82,700 40,043 31,549
----------- ---------- ---------- --------- ---------
Income before income taxes and
extraordinary item............................. 7,729 18,496 51,150 33,488 4,586
Provision for income taxes(1)...................... 3,053 7,168 20,739 9,466 --
----------- ---------- ---------- --------- ---------
Income before extraordinary item................... 4,676 11,328 30,411 24,022 4,586
Extraordinary item:................................
Gain on extinguishment of debt................. -- -- -- 3,168 --
----------- ---------- ---------- --------- ---------
Net income......................................... $ 4,676 11,328 30,411 27,190 4,586
----------- ---------- ---------- --------- ---------
Pro forma information (2)(3):
Provision for pro forma income taxes
before extraordinary item...................... -- -- -- 14,400 1,972
----------- ---------- ---------- --------- ---------
Pro forma income before extraordinary item........ $ 4,676 11,328 30,411 19,088 2,614
----------- ---------- ---------- --------- ---------
Per share data(2)(4):
Earnings per common share -
basic and diluted........................ $ 0.30 0.74 1.98 1.46 0.21
Weighted average number of
shares outstanding....................... 15,511,214 15,382,161 15,359,280 13,066,485 12,629,182
Selected Balance Sheet Data:
Loans held for sale, net........................... $ 89,036 87,170 79,247 82,411 63,324
Capitalized mortgage servicing rights.............. 45,927 33,490 22,862 11,412 3,831
Interest-only and residual certificates............ 224,659 203,803 167,809 83,073 25,310
Total assets....................................... 556,835 481,907 393,232 231,616 139,293
Senior notes, warehouse financing and
other borrowings............................... 258,493 229,660 177,540 95,482 82,756
Investor payable................................... 82,204 63,790 40,852 20,869 13,444
Total liabilities.................................. 409,694 344,219 266,779 138,098 109,460
Stockholders' equity............................... 147,141 137,688 126,453 93,518 29,833
- ---------------
<FN>
(1) In connection with the February 1997 acquisition of Fidelity Mortgage, the
Company incurred additional expenses normally associated with a retail
operation. Fidelity Mortgage's loan origination points when recognized are
reported as origination fee income.
(2) Figures for December 31, 1999, 1998 and 1997 are actual; pro forma
presentation for the years 1996 and 1995.
(3) Prior to October 31, 1996, Delta Funding (a wholly-owned subsidiary) was
treated as an S corporation for Federal and state income tax purposes. The
pro forma presentation reflects a provision for income taxes as if the
Company had always been a C corporation at an assumed tax rate of 43%.
(4) Pro forma earnings per common share has been computed by dividing pro
forma net income by the sum of (a) 10,653,000 shares of the Company's
common stock received by the former shareholders in exchange for their
shares of Delta Funding, and (b) the effect of the issuance of 1,976,182
shares of the Company's common stock issued in the Company's initial
public offering to generate sufficient cash for certain S corporation
distributions paid to the former shareholders, which shares are treated as
if they had always been outstanding.
</FN>
</TABLE>
22
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
THE FOLLOWING DISCUSSION SHOULD BE READ IN CONJUNCTION WITH THE CONSOLIDATED
FINANCIAL STATEMENTS OF THE COMPANY AND ACCOMPANYING NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS SET FORTH THEREIN.
GENERAL
Delta Financial Corporation (the "Company" or "Delta"), through its
wholly-owned subsidiaries, engages in the consumer finance business by
originating, acquiring, selling and servicing non-conforming home equity loans.
Throughout its 18 years of operating history, the Company has focused on lending
to individuals who generally have impaired or limited credit profiles or higher
debt-to-income ratios for such purposes as debt consolidation, home improvement,
mortgage refinancing or education.
Through its wholly-owned subsidiary, Delta Funding Corporation ("Delta
Funding"), the Company originates home equity loans indirectly through licensed
mortgage brokers and other real estate professionals who submit loan
applications on behalf of the borrower ("Brokered Loans") and also purchases
loans from mortgage bankers and smaller financial institutions that satisfy
Delta's underwriting guidelines ("Correspondent Loans"). Delta Funding currently
originates and purchases the majority of its loans in 24 states, through its
network of approximately 1,600 brokers and correspondents.
Through its wholly-owned subsidiary, Fidelity Mortgage Inc., the Company
develops retail loan leads ("Retail Loans") primarily through its telemarketing
system and its network of 14 retail offices located in eight states. In March
2000, the Company decided to close a branch in Georgia. In March 2000, the
Company decided to close a branch in Georgia.
In June 1999, the Company announced a settlement in principle with the Office
of the Attorney General for the State of New York ("NYOAG"), which was to
provide for retrospective relief to certain borrowers in the form of reduced
monthly obligations aggregating $6 million and prospective changes to some of
the Company's lending practices. The NYOAG took issue with Delta's lending
practices, specifically which loans should and should not be made by Delta. The
settlement in principle was later expanded to include the New York State Banking
Department ("NYSBD") and the U.S. Department of Justice ("DOJ"), which had
raised similar concerns relating to Delta's lending practices. In September
1999, the Company finalized its settlements with the NYSBD and the NYOAG, but
only after the NYOAG filed suit against the Company in August 1999, as evidenced
by (1) a Remediation Agreement by and between the Company and the NYSBD, and (2)
a Stipulated Order on Consent by and among the Company and the NYOAG.
As part of the final global settlement (in lieu of the previously announced
$6 million settlement with the NYOAG), the Company agreed to, among other
things, implement agreed upon changes to its lending practices; provide reduced
loan payments aggregating $7.25 million to certain borrowers identified by the
NYSBD; and create a reversionary fund (the "fund"), administered by a trustee
named by the NYSBD, financed by the grant by Delta of 525,000 shares of Delta's
common stock, valued at an assumed constant price of $9.10 per share, which
approximates the book value of the shares. All proceeds raised through the fund
shall be used for restitution and/or to pay for a variety of educational and
counseling programs at the discretion of the NYSBD.
The twelve-month period ended December 31, 1999 includes a $12.0 million
pre-tax charge for the global settlement with the NYSBD and the NYOAG. The
Company recorded a $6.0 million pre-tax charge in the second quarter of 1999
when it reached a settlement in principle with the NYOAG. Subsequently, an
additional $6.0 million pre-tax charge was recorded in the third quarter of 1999
when the Company reached a global settlement with the NYSBD and the NYOAG. The
Company finalized its agreement with the DOJ subsequent to December 31, 1999.
The DOJ settlement, which parallels the NYSBD and NYOAG settlement agreements,
was also signed by the Federal Trade Commission and the U.S. Department of
Housing and Urban Development. See "Legal Proceedings" for a more detailed
discussion of the settlement.
23
CERTAIN ACCOUNTING CONSIDERATIONS
As a fundamental part of its business and financing strategy, Delta sells the
majority of its loans through securitization to a securitization trust and
derives a substantial portion of its income from these sales. In a
securitization, the Company sells a pool of loans it has originated or purchased
to a REMIC trust for a cash purchase price. The trust, in turn, finances the
purchase of the pool of loans it has acquired by selling "pass-through
certificates," or bonds, which represent undivided ownership interests in the
trust. Holders of the pass-through certificates are entitled to receive monthly
distributions of all principal received on the underlying mortgages and a
specified amount of interest, determined at the time of the offering.
When the Company sells a pool of loans to a securitization trust, it receives
the following economic interests in the trust: (a) the difference between the
interest payments due on the loans sold to the trust and the interest rate paid
to the pass-through certificateholders, less the Company's contractual servicing
fee and other costs and expenses of administering the trust, represented by
interest-only and residual certificates, and (b) the right to service the loans
on behalf of the trust and earn a servicing fee, as well as other ancillary
servicing related fees directly from the borrowers on the underlying loans.
The Company's net investment in the pool of loans sold at the date of the
securitization represents the amount originally paid to originate or acquire the
loan adjusted for (i) any direct loan origination costs incurred (an increase)
and loan origination fees received (a decrease) in connection with the loans,
which are treated as a component of the initial investment in a loan under
Statement of Financial Accounting Standards ("SFAS") No. 91, "Accounting for
Non-Refundable Fees and Costs Associated with Originating or Acquiring Loans and
Initial Direct Costs of Leases," and (ii) the principal payments received, and
the amortization of the net loan fees or costs, during the period the Company
held the loans prior to their securitization. The Company's investment in the
loans also reflects adjustments for any gains (a decrease in the investment) or
losses (an increase in the investment) the Company has incurred on treasury rate
lock contracts which the Company has typically used to hedge against the effects
of changes in interest rates during the period it holds the loans prior to their
securitization. (See "Hedging.")
Upon the securitization of a pool of loans, the Company (i) recognizes in
income, as origination fees, the unamortized origination fees included in the
investment in the loans sold, and (ii) recognizes a gain on sale of loans equal
to the difference between cash received from the trust and the investment in the
loans remaining after the allocation of portions of that investment to record
interest-only and residual certificates and mortgage servicing rights received
in the securitization. The majority of the net gain on sale of mortgage loans
results from the fair value of the interest-only and residual certificates
retained by the Company in a securitization for each period and the market value
of the interest-only certificates sold in connection with each securitization.
The Company sold the interest-only certificates created in each of the 1999
securitizations for cash proceeds and intends to continue to sell the
interest-only certificate as long as the sale effectively maximizes cash flow
and profitability.
The interest-only and residual certificates received by the Company upon the
securitization of a pool of loans are accounted for as trading securities under
SFAS No. 115, "Accounting for Certain Investments in Debt and Equity
Securities." In accordance with SFAS No. 115, the amount initially allocated to
the interest-only and residual certificates at the date of a securitization
reflects the fair value of those interests. The amount recorded for the
certificates is reduced for distributions thereon which the Company receives
from the trust, and is adjusted for subsequent changes in the fair value of
interest-only and residual certificates, which are reflected in the statement of
operations. The Company assesses the fair value of interest-only and residual
certificates based upon updated estimates of prepayment and default rates
relating to loan groups comprised of loans of similar types, terms, credit
quality, interest rates, geographic location and value of loan collateral, which
represent the predominant risk characteristics that would affect prepayments and
default rates.
The Company values the mortgage servicing rights it retains in a
securitization under the provisions of SFAS No. 125, "Accounting for Transfers
and Servicing of Financial Assets and Extinguishment of Liabilities." In
accordance with SFAS No. 125, the amount of the investment in the loans
allocated to the retained servicing rights is measured at the allocated carrying
amount of such servicing rights, based on the fair value of the servicing
rights. The fair value of the servicing rights is determined by discounting to a
present value (using a discount rate which
24
management believes reflects the discount rate market participants would utilize
in purchasing similar loan servicing rights) the estimated future contractual
and ancillary servicing fees the Company will receive and the estimated costs of
servicing the loans. Those estimates are based on the stated terms of the
transferred loans adjusted for estimates of future prepayment rates made on the
basis of interest rate conditions and the availability of alternative financing,
and estimates of future defaults among those loans, each of which would
terminate the servicing of the loan and thus negatively affect servicing income.
The carry value of the servicing rights, which is classified on the balance
sheet as "Capitalized mortgage servicing rights," is then amortized over the
period of the estimated net future cash flows from the servicing income. SFAS
No. 125 also requires that the capitalized mortgage servicing rights be assessed
periodically to determine if there has been any impairment of the value of the
asset, based on the date of the assessment. The Company performs this assessment
based on the same prepayment and default estimates used to value interest-only
and residual certificates. A valuation allowance is provided for the capitalized
servicing rights relating to any pool of loans for which the recorded investment
exceeds the fair value of the servicing rights.
In recording and accounting for mortgage servicing rights and interest-only
and residual certificates, the Company makes estimates of rates of prepayments
and defaults, and the value of collateral, which it believes reasonably reflect
economic and other relevant conditions. The actual rate of prepayments, defaults
and the value of collateral generally will differ from the estimates used due to
subsequent changes in economic and other relevant conditions and the implicit
imprecision of estimates, and such differences can be material. Prepayment and
default rates, which are higher than those estimated, would adversely affect the
value of both the mortgage servicing rights (actual mortgage servicing income
will be less, and significant changes could require an impairment of the
capitalized mortgage servicing rights) and the interest-only and residual
certificates, for which changes in fair value are recorded in operations.
Conversely, prepayment and default rates, which are lower than those estimated,
would increase the servicing income earned over the life of the loans and
positively impact the value of the interest-only and residual certificates.
There are currently two methods used to calculate the present value of the
residual interests, the "cash-in" and "cash-out" methods. The "cash-in" method
assumes value as the residual cash flow is received by the securitization trust
even if it is used to create an overcollateralization provision. In contrast,
the "cash-out" method assumes value at the time the residual cash flow is
actually received by the residual certificate holder (Delta) from the
securitization trust, which is only after the required overcollateralization
provision has been met. As the Company receives residual cash flows from the
securitization trust, generally 12 to 20 months following the primary issuance,
these two methods will create dramatically different values. The Company uses
the more conservative "cash-out" method, which calculates value at the time the
residual cash flow is actually received by Delta.
The Financial Accounting Standards Board ("FASB") and the Securities and
Exchange Commission have issued proposals relating to SFAS No. 125 that would
require companies to use the "cash-out" (more conservative), not the "cash-in"
(more aggressive), method in accounting for the value of the retained interest
(residual) in securitizations and overcollateralization assets. This would
result in one-time residual asset write-downs for companies that currently use
the "cash-in" method. The Company always has used the more conservative
"cash-out" method for accounting and will not be susceptible to a write-down as
a result of this proposed accounting change.
FAIR VALUE ADJUSTMENTS
In accordance with SFAS No. 125, upon the sale or securitization of a loan, a
gain on sale and a corresponding asset is recognized for any interest-only and
residual certificates and capitalized mortgage servicing rights. The carrying
amount of the interest-only and residual certificates is classified as a trading
security and, as such, they are recorded at their fair value. The Company
implemented SFAS No. 134, "Accounting for Mortgage-Backed Securities after the
Securitization of Mortgage Loans Held for Sale by a Mortgage Banking Enterprise"
in the first quarter of 1999. The implementation of SFAS 134 did not have a
material impact on the Company's financial condition or results of operations.
For capitalized mortgage servicing rights, a valuation allowance is recorded if
the fair value of such rights is less than the carrying amount.
25
The fair values of both interest-only and residual certificates and
capitalized mortgage servicing rights are significantly affected by, among other
factors, prepayments of loans and estimates of future prepayment rates. The
Company continually reviews its prepayment assumptions in light of company and
industry experience and makes adjustments to those assumptions when such
experience indicates.
The Company's review of its prepayment experience and assumptions at June 30,
1998 indicated that the prepayment rates during 1998, particularly for
adjustable-rate mortgages ("ARMs"), and in particular during the second quarter
of 1998, were higher than those historically experienced, or previously
projected, by the Company. The Company believes that these increases in
prepayment rates were attributable to the continuation, for a longer period than
historically experienced, of low interest rates, together with changes, to a
flatter or inverted curve, of the relationship between long-term and short-term
interest rates (the "yield curve").
As a result, at June 30, 1998, the Company adjusted its prepayment
assumptions, increasing the maximum prepayment rates for all loans, and changing
the rate at which prepayments are assumed to increase from the initial rate to
the maximum rate from a "ramp" to a "vector" curve. These revised prepayment
assumptions were used to estimate the fair value of the interest-only and
residual certificates and capitalized mortgage servicing rights retained by the
Company in securitizations completed prior to the second quarter of 1998. These
revised prepayment assumptions were also used in valuing and recording the
interest-only and residual certificates and capitalized mortgage servicing
rights retained by the Company in its securitizations completed subsequent to
the first quarter of 1998.
During the second quarter of 1998, the Company recorded a $15.5 million
reduction in the carrying amount of its interest-only and residual certificates,
and also recorded a $1.9 million reduction in the carrying amount of its
capitalized mortgage servicing rights to reflect a provision for impairment (the
"fair value adjustments"). Both impairment provisions resulted from reductions
in the Company's estimates of the fair value of those assets. The reductions in
the estimated fair value resulted from the change in the prepayment assumptions
used by the Company to estimate the future cash flows to be derived from the
interest-only and residual certificates and the mortgage servicing rights.
The Company makes assumptions concerning prepayment rates and defaults based
upon the seasoning of its existing securitization loan portfolio. The following
table compares the prepayment assumptions used subsequent to the third quarter
of 1999 (the "new" assumptions"), with those used subsequent to the first
quarter of 1998 (the "2Q98" assumptions) and those used at December 31, 1997 and
through the first quarter of 1998 (the "old" assumptions):
LOAN TYPE MONTH 1 SPEED PEAK SPEED *
- --------- ------------------------- ---------------------
NEW 2Q98 OLD NEW 2Q98 OLD
--- ---- --- --- ---- ---
Fixed Rate Loans 4.0% 4.8% 4.8% 31% 31% 24%
Six-Mo. LIBOR ARMs 10.0% 10.0% 5.6% 50% 50% 28%
Hybrid ARMs 4.0% 6.0% 5.6% 50% 50% 28%
* Since the second quarter of 1998, the Company has utilized a "vector" curve,
instead of a "ramp" curve, which the Company believes will be more
representative of future loan prepayment experience.
In 1999, the Company continued, as part of its ongoing practice, to review
and assess its prepayment rate and loan loss reserve assumptions using a variety
of factors. Such factors included a review of its own loan portfolio performance
data, as well as management's current views on both the economic and competitive
environments. Based upon this review, the Company revised both its prepayment
rate and loan loss reserve assumptions in 1999 to better reflect its anticipated
future loan performance.
In the first quarter of 1999, the Company increased its loss reserve
initially established for both fixed- and adjustable-rate loans sold to the
securitizations trusts from 2.00% to approximately 2.20% of the issuance amount
securitized.
In the fourth quarter of 1999, the Company lowered its prepayment speed
assumption along parts of the prepayment rate vector curve while leaving the
peak speeds intact. In addition, the Company increased its loss
26
reserve initially established for both fixed- and adjustable-rate loans sold to
the securitizations trusts from 2.20% to approximately 3.10% of the issuance
amount securitized.
The prepayment rate assumption was revised primarily to reflect the Company's
actual loan performance experience over the past several quarters. Management
believes that industry consolidation and a higher interest rate environment has
and will continue to deter borrowers from refinancing their mortgage loans. The
loan loss reserve assumption was revised to reflect management's belief that
slower prepayment speeds, coupled with an anticipated flat to slightly moderate
rise in home values as compared to the past few years and borrowers who had
avoided default through refinancing may be readily unable to do so because of
industry consolidation and a higher interest rate environment, may have an
adverse effect on the Company's non-performing loans.
These changes resulted in approximately a $6.3 million reduction in the
Company's value of the residual and interest-only certificates for the year
1999.
An annual discount rate of 12.0% was utilized in determining the present
value of cash flows from residual certificates, using the "cash-out" method,
which are the predominant form of retained interests at both December 31, 1999
and December 31, 1998.
The Company uses the same prepayment assumptions in estimating the fair value
of its mortgage servicing rights.
RESULTS OF OPERATIONS
YEAR ENDED DECEMBER 31, 1999 COMPARED TO THE YEAR ENDED DECEMBER 31, 1998
GENERAL
The Company's net income for the year ended December 31, 1999 was $4.7
million, or $0.30 per share, compared to $11.3 million, or $0.74 per share, for
the year ended December 31, 1998. Excluding a one-time charge relating to the
Company's settlement with the NYSBD and the NYOAG, the Company's net income for
the year ended December 31,1999, would have been $12.0 million, or $0.77 per
share. Comments regarding the components of net income are detailed in the
following paragraphs.
REVENUES
Total revenues increased $15.2 million, or 11%, to $154.8 million for the
twelve months ended December 31, 1999, from $139.6 million for the comparable
period in 1998. The increase in revenue was primarily attributable to fair value
adjustments the Company made to its interest-only and residual certificates and
capitalized mortgage servicing rights in the second quarter of 1998 (See "-Fair
Value Adjustments"), an increase in servicing fees and origination fees, and was
partially offset by a decrease in the net gain recognized on the sale of
mortgage loans.
The Company originated and purchased $1.47 billion of mortgage loans for the
twelve months ended December 31, 1999, representing a 15% decrease from $1.73
billion of mortgage loans originated and purchased for the comparable period in
1998. The Company completed three securitizations and a loan sale through a
conduit facility in 1999 totaling $1.46 billion, compared to four
securitizations and loan sales totaling $1.73 billion in 1998. Total loans
serviced increased 23% to $3.63 billion at December 31, 1999 from $2.95 billion
at December 31, 1998.
NET GAIN ON SALE OF MORTGAGE LOANS. Net gain on sale of mortgage loans
represents (1) the sum of (a) the fair value of the interest-only and residual
certificates retained by the Company in a securitization for each period and the
market value of the interest-only certificates sold in connection with each
securitization, (b) the fair value of capitalized mortgage servicing rights
associated with loans securitized in each period, and (c) premiums earned on the
sale of whole loans on a servicing-released basis, (2) less the (x) premiums
paid to originate or acquire mortgage loans, (y) costs associated with
securitizations and (z) any hedge loss (gain) associated with a particular
securitization.
27
Net gain on sale of mortgage loans decreased $12.7 million, or 14%, to $78.7
million for the twelve months ended December 31, 1999, from $91.4 million for
the comparable period in 1998. This decrease was primarily due to a 16% decrease
in the amount of loans securitized or sold through a conduit facility to $1.46
billion in 1999, compared to $1.73 billion of loans securitized or sold in 1998;
a revision to the Company's loan loss reserve assumption in 1999 (See "-Fair
Value Adjustments"); coupled with wider spreads demanded by asset-backed
investors who purchase the pass-through certificates issued by securitization
trusts during 1999 compared to 1998. The decrease was partially offset by lower
aggregate premiums paid to acquire loans, resulting from both a decrease in
amount of loans purchased through the correspondent channel and lower average
premiums paid to correspondents. The weighted average net gain on sale ratio was
5.4% in 1999 compared to 5.3% in 1998.
INTEREST INCOME. Interest income primarily represents the sum of (1) the
difference between the distributions the Company receives on its interest-only
and residual certificates and the adjustments recorded to reflect changes in the
fair value of the interest-only and residual certificates, (2) the gross
interest earned on loans held for sale (other than for loans sold into the
conduit in which case, it is the net interest spread), (3) with respect to loans
sold into the conduit, the net interest margin earned (excess servicing) between
the weighted average rate on the mortgage loans less the conduit's variable
funding rate plus administrative fees, and (4) interest earned on cash
collection balances.
Interest income increased $18.5 million, or 148%, to $31.0 million for the
twelve months ended December 31, 1999, from $12.5 million for the comparable
period in 1998. The increase in interest income was primarily due to fair value
adjustments made in 1998 to the Company's interest-only and residual
certificates, including a $15.5 million reduction in the second quarter of 1998
related to the change in prepayment assumptions (see "-Fair Value Adjustments").
The increase was also attributable to an increase in income recognized from the
Company's interest-only and residual certificates primarily due to
slower-than-anticipated actual prepayment rates. (see "-Fair Value
Adjustments"). This was offset partially by the accounting for loans sold by the
Company to a mortgage loan conduit prior to securitization in the third and
fourth quarters of 1999. For conduit-related sales, the Company earns and
records the net interest margin between the interest rate earned on the pool of
mortgage loans sold to the mortgage loan conduit and the conduit financing rate,
less administrative expenses. Typically, interest expense related to the
Company's other warehouse financing and borrowings are recorded directly to
interest expense.
SERVICING FEES. Servicing fees represent all contractual and ancillary
servicing revenue received by the Company less (1) the offsetting amortization
of the capitalized mortgage servicing rights, and any adjustments recorded to
reflect valuation allowances for the impairment in mortgage servicing rights
(see "--Certain Accounting Considerations"), and (2) prepaid interest
shortfalls.
Servicing fees increased $5.8 million, or 55%, to $16.3 million for the
twelve months ended December 31, 1999, from $10.5 million for the comparable
period in 1998. This increase was primarily due to an increase in the aggregate
size of the Company's servicing portfolio and the recording of a $1.9 million
impairment provision for the Company's mortgage servicing rights during the
second quarter of 1998 (See "-Fair Value Adjustments"). The average balance of
the mortgage loans serviced by the Company increased 38% to $3.36 billion for
the twelve months ended December 31, 1999 from $2.44 billion during the
comparable period in 1998.
ORIGINATION FEES. Origination fees represent fees earned on brokered and
retail originated loans. Origination fees increased $3.5 million, or 14%, to
$28.8 million for the twelve months ended December 31, 1999, from $25.3 million
for the comparable period in 1998. The increase was primarily the result of (a)
a 36% increase in retail originated loans and (b) a 6% increase in broker
originated loans.
EXPENSES
Total expenses increased by $26.0 million, or 21%, to $147.1 million for the
twelve months ended December 31, 1999, from $121.1 million for the comparable
period in 1998. The increase was primarily the result of an increase in general
and administrative expenses primarily related to the Company's settlement with
the NYSBD and the NYOAG, and legal fees associated with the settlement, as well
as personnel costs associated with the Company's expanded retail, broker and
servicing divisions, partially offset by a decrease in interest expense.
PAYROLL AND RELATED COSTS. Payroll and related costs include salaries,
benefits and payroll taxes for all employees. Payroll and related costs
increased by $8.4 million, or 15%, to $65.1 million for the twelve months
28
ended December 31,1999, from $56.7 million for the comparable period in 1998.
The increase was primarily due to staff increases related to growth in the
Company's servicing portfolio and commissions paid to employees related to an
increase in loans originated through the Company's broker and retail divisions.
As of December 31, 1999, the Company employed 1,134 full- and part-time
employees, compared to 1,104 full- and part-time employees as of December 31,
1998.
INTEREST EXPENSE. Interest expense includes the borrowing costs to finance
loan originations and purchases under the $150 million aggregate principal
amount of 9.5% Senior Notes due 2004 issued in July 1997 (the "Senior Notes")
and the Company's credit facilities.
Interest expense decreased by $3.4 million, or 11%, to $26.6 million for the
twelve months ended December 31, 1999 from $30.0 million for the comparable
period in 1998. The decrease was primarily attributable to the accounting for
loans sold through a mortgage loan conduit prior to their securitization in the
third and fourth quarters of 1999, in which the Company earns and records the
net interest margin between the interest rate earned on the pool of mortgage
loans sold to the mortgage loan conduit and the conduit financing rate, less
administrative expenses. Typically, interest expense related to the Company's
other warehouse financing and borrowings are recorded directly to interest
expense. In addition, there was a decrease in the cost of funds on the Company's
credit facilities, which were tied to one-month LIBOR. The one-month LIBOR index
decreased to an average interest rate of 5.2% in the twelve months ended
December 31, 1999, compared to an average interest rate of 5.6% for the
comparable period in 1998.
GENERAL AND ADMINISTRATIVE EXPENSES. General and administrative expenses
consist primarily of office rent, insurance, telephone, depreciation, goodwill
amortization, license fees, legal and accounting fees, travel and entertainment
expenses, advertising and promotional expenses and the provision for loan losses
on the inventory of loans held for sale and recourse loans.
General and administrative expenses increased $20.9 million, or 61%, to $55.3
million for the twelve months ended December 31, 1999 from $34.4 million for the
comparable period in 1998. This increase was primarily attributable to (1) the
Company's settlement with the NYSBD and the NYOAG, and the associated legal
costs, and (2) an increase in depreciation expense and management and consulting
fees, reflecting the Company's ongoing investment in technology.
INCOME TAXES. Income taxes are accounted for under SFAS No. 109, "Accounting
for Income Taxes." Deferred tax assets and liabilities are recognized on the
income reported in the financial statements regardless of when such taxes are
paid. These deferred taxes are measured by applying current enacted tax rates.
The Company recorded tax provisions of $3.1 million and $7.2 million for the
periods ended December 31, 1999 and 1998, respectively. Income taxes provided a
39.5% effective tax rate for the year ended December 31, 1999, compared to a
38.8% effective tax rate for the year ended December 31, 1998.
YEAR ENDED DECEMBER 31, 1998 COMPARED TO THE YEAR ENDED DECEMBER 31, 1997
GENERAL
The Company's net income for the year ended December 31, 1998 was $11.3
million, or $0.74 per share, compared to $30.4 million, or $1.98 per share, for
the year ended December 31, 1997. Comments regarding the components of net
income are detailed in the following paragraphs.
REVENUES
Total revenues increased $5.7 million, or 4%, to $139.6 million for the
twelve months ended December 31, 1998, from $133.9 million for the comparable
period in 1997. The increase in revenue was primarily attributable to increases
in origination fees and the net gains recognized on the sale of mortgage loans,
reflecting the growth in the Company's level of loan originations and purchases
and securitizations. In addition, servicing fees increased due to an increase in
the aggregate size of the Company's loan servicing portfolio. These increases
were significantly offset by a decline in interest income primarily due to the
fair value adjustments made to the Company's interest-only and residual
certificates and capitalized mortgage servicing rights in the second and fourth
quarters of 1998 (see "--Fair Value Adjustments") and a larger than normal hedge
loss which was not offset by a higher gain on sale
29
because asset-backed investors who typically purchase the pass-through
certificates issued by securitization trusts demanded wider spreads (see "Net
gain on sale of mortgage loans").
The Company originated and purchased $1.73 billion of mortgage loans for the
twelve months ended December 31, 1998, representing a 38% increase from $1.25
billion of mortgage loans originated and purchased for the comparable period in
1997. The Company completed four securitizations and loan sales in 1998 totaling
$1.73 billion, compared to four securitizations totaling $1.24 billion in 1997.
Total loans serviced increased 60% to $2.95 billion at December 31, 1998 from
$1.84 billion at December 31, 1997.
NET GAIN ON SALE OF MORTGAGE LOANS. Net gain on sale of mortgage loans
increased $5.5 million, or 6%, to $91.4 million for the twelve months ended
December 31, 1998, from $85.9 million for the comparable period in 1997. The
increase was primarily due to a 40% increase in the amount of loans securitized
or sold on a whole loan basis to $1.73 billion in 1998, compared to $1.24
billion of loans securitized in 1997, but was partially offset by a lower
weighted average net gain on sale ratio. The weighted average net gain on sale
ratio was 5.3% in 1998 compared to 7.0% in 1997.
Net gain on the sale of loans increased less than the overall increase in
loan securitizations primarily due to (a) the Company's change to more
conservative prepayment assumptions used in initially valuing the residual
certificates and capitalized mortgage servicing rights acquired subsequent to
the first quarter of 1998 (see "--Fair Value Adjustments"), and (b) the impact
of a hedging loss during the third quarter of 1998 resulting from lower interest
rates that was not offset by a higher gain on sale due to substantially wider
spreads demanded by asset-backed investors who purchase the pass-through
certificates issued by securitization trusts.
INTEREST INCOME. Interest income decreased $9.8 million, or 44%, to $12.5
million for the twelve months ended December 31, 1998, from $22.3 million for
the comparable period in 1997. The decrease in interest income was primarily due
to the $15.5 million and $2.8 million fair value adjustments made during the
second and fourth quarters of 1998 to the interest-only and residual
certificates previously discussed (see "--Fair Value Adjustments"). The effect
of that adjustment was partially offset by increases in (a) interest-only and
residual certificates income, (b) interest on loans held for sale due to higher
average balances, partially offset by a decline, from 11.0% to 10.2%, in the
weighted average coupon rate on the mortgage loans, reflecting both a lower
interest rate environment and the Company's shift to higher credit quality loans
and (c) interest on bank deposits resulting from a higher average balance held
in securitization trust accounts by the Company.
SERVICING FEES. Servicing fees increased $3.0 million, or 40%, to $10.5
million for the twelve months ended December 31, 1998, from $7.5 million for the
comparable period in 1997. The increase was primarily due to an increase in the
aggregate size of the Company's servicing portfolio, partially offset by the
recording of the $1.9 million provision for the Company's capitalized mortgage
servicing rights. (See "--Fair Value Adjustments"). The average balance of
mortgage loans serviced by the Company increased 77% to $2.44 billion for the
twelve months ended December 31, 1998, from $1.38 billion for the comparable
period in 1997.
ORIGINATION FEES. Origination fees increased $7.2 million, or 40%, to $25.3
million for the twelve months ended December 31, 1998, from $18.1 million for
the comparable period in 1997. The increase was primarily the result of (a) a
75% increase in broker originated loans and (b) a 67% increase in retail
originated loans.
EXPENSES
Total expenses increased $38.4 million, or 46%, to $121.1 million for the
twelve months ended December 31, 1998, from $82.7 million for the comparable
period in 1997. The increase was primarily the result of (1) an increase in the
Company's personnel to support its higher level of loan originations, (2) an
increase in general and administrative costs associated with the Company's
expanded retail, broker and correspondent divisions and (3) an increase in
interest expense associated with (a) the growth in the Company's loan
originations and (b) the $150 million aggregate principal amount of 9.5% Senior
Notes due 2004 issued in July 1997 (the "Senior Notes").
PAYROLL AND RELATED COSTS. Payroll and related costs expense increased $15.5
million, or 38%, to $56.7 million for the twelve months ended December 31, 1998,
from $41.2 million for the comparable period in 1997. The increase was primarily
due to staff increases related to growth in the Company's loan originations and
the costs associated with the Company's broker and Fidelity Mortgage retail
division, which only reflects expenses from
30
February 11, 1997. The Company employed 1,104 full- and part-time employees as
of December 31, 1998, compared to 987 full- and part-time employees as of
December 31, 1997.
INTEREST EXPENSE. Interest expense increased $10.0 million, or 50%, to $30.0
million for the twelve months ended December 31, 1998, from $20.0 million for
the comparable period in 1997. The increase was primarily attributable to (1)
the Company's issuance of Senior Notes in July 1997 and (2) growth in loan
production, which increased the level of debt needed throughout 1998 to finance
the inventory of loans held for sale prior to their securitization.
GENERAL AND ADMINISTRATIVE EXPENSES. General and administrative expenses
increased $12.9 million, or 60%, to $34.4 million for the twelve months ended
December 31, 1998, from $21.5 million for the comparable period in 1997. The
increase was primarily attributable to (1) an increase in expenses associated
with the Company's increase in loan originations and purchases in 1998, (2) the
expansion costs associated with the Company's adding two additional Fidelity
Mortgage retail branch offices, and (3) depreciation expense reflecting the
Company's ongoing investment in technology.
INCOME TAXES. The Company recorded tax provisions of $7.2 million and $20.7
million for the years ended December 31, 1998 and 1997, respectively. Income
taxes provided a 38.8% effective tax rate for the year ended December 31, 1998,
compared to a 40.5% effective tax rate for the year ended December 31, 1997. The
reduction in the effective tax rate is primarily attributable to the Company's
expansion into lower tax rate states and local jurisdictions and to the benefits
due to permanent book/tax differences.
FINANCIAL CONDITION
DECEMBER 31, 1999 COMPARED TO DECEMBER 31, 1998
Cash and interest-bearing deposits increased $6.8 million, or 14%, to $56.0
million at December 31, 1999 from $49.2 million at December 31, 1998. This
increase was primarily due to a higher average loan servicing portfolio
resulting in additional monies held in securitization trust accounts by the
Company, acting as servicer for its ongoing securitization program.
Accounts receivable increased $9.8 million, or 44%, to $32.3 million at
December 31, 1999 from $22.5 million at December 31, 1998. The increase was
primarily attributable to an increase in reimbursable servicing advances made by
the Company, acting as servicer for its securitization program, related to a
higher average servicing portfolio. The Company's average servicing portfolio
increased 38% to $3.36 billion as of December 31, 1999 from $2.44 billion as of
December 31, 1998.
Loans held for sale increased $1.8 million, or 2%, to $89.0 million at
December 31, 1999 from $87.2 million at December 31, 1998. This increase was
primarily due to the net difference between loan originations and loans
securitized or sold during 1999.
Accrued interest receivable increased $16.4 million, or 35%, to $63.3 million
at December 31, 1999 from $46.9 million at December 31, 1998. This increase was
primarily due to a larger average loan servicing portfolio, which resulted in
increased reimbursable interest advances made by the Company, acting as servicer
for its securitization program.
Capitalized mortgage servicing rights increased $12.4 million, or 37%, to
$45.9 million at December 31, 1999 from $33.5 million at December 31, 1998. This
increase was directly attributable to the Company's capitalizing the allocated
carrying value amount of the servicing assets, totaling $20.5 million, resulting
from the Company's completion of three securitizations during 1999, partially
offset by the amortization of capitalized mortgage servicing rights.
Interest-only and residual certificates increased $20.9 million, or 10%, to
$224.7 million at December 31, 1999 from $203.8 million at December 31, 1998.
This increase is primarily attributable to the Company's receipt of residual
certificates valued and recorded at $48.4 million from its securitizations
during the year ended December 31, 1999, partially offset by normal amortization
due to cash distributions and fair value adjustments.
31
Equipment, net, increased $4.7 million, or 28%, to $21.7 million at December
31, 1999 from $17.0 million at December 31, 1998. The increase was primarily due
to capital expenditures related to new technology and expansion.
Cash held for advance payments increased $3.6 million, or 36%, to $13.6
million at December 31, 1999 from $10.0 million at December 31, 1998. This
increase was primarily due to a higher average loan servicing portfolio
resulting in additional monies held in securitization escrow trust accounts by
the Company, acting as servicer.
Warehouse financing and other borrowings increased $28.7 million, or 36%, to
$109.0 million at December 31, 1999 from $80.3 million at December 31, 1998.
This increase was primarily related to operating cash used to fund capital
expenditures (primarily investment in technology), legal fees associated with
the NYSBD and NYOAG settlement, and interest (delinquency) and servicing
advances made by the Company, acting as servicer for its securitization program.
The aggregate principal balance of the Senior Notes, net of unamortized bond
discount, totaled $149.5 million at December 31, 1999 compared to $149.4 million
at December 31, 1998. The Senior Notes accrue interest at a rate of 9.5% per
annum, payable semi-annually each February 1 and August 1.
Accounts payable and accrued expenses increased $22.6 million, or 108%, to
$43.6 million at December 31, 1999 from $21.0 million at December 31, 1998. This
increase was primarily attributable to the accrual of the Company's settlement
with the NYSBD and the NYOAG, in addition to the timing of various other
operating accruals and payables.
Investor payable increased $18.4 million, or 29%, to $82.2 million at
December 31, 1999 from $63.8 million at December 31, 1998. This increase was
primarily due to the 23% increase in the Company's portfolio of serviced loans
to $3.64 billion at December 31, 1999 from $2.95 billion at December 31, 1998.
Investor payable is comprised of all principal collected on mortgage loans and
accrued interest. Variability in this account is primarily due to the principal
payments collected within a given collection period.
Advance payments by borrowers for taxes and insurance increased $4.2 million,
or 44%, to $13.8 million at December 31, 1999 from $9.6 million at December 31,
1998. This increase is primarily due to a higher average loan servicing
portfolio and the timing of payments collected and disbursed resulting in
additional monies held in escrow trust accounts by the Company acting as a
servicer.
Deferred tax liability decreased $8.4 million, or 45%, to $10.4 million at
December 31, 1999 from $18.8 million at December 31, 1998. This decrease was
primarily due to income tax payments of $11.5 million.
Stockholders' equity increased $9.4 million, or 7%, to $147.1 million at
December 31, 1999 from $137.7 million at December 31, 1998. This increase is
primarily due to net income for 1999 of $4.7 million and the issuance of 525,000
shares of the Company's common stock at $9.10 per share related to Company's
settlement with the NYSBD and NYOAG.
LIQUIDITY AND CAPITAL RESOURCES
Following three successive quarters of generating positive cash flow from
operations, the Company had an operating cash deficit in the third and fourth
quarters of 1999. The Company anticipates it will continue to have an operating
cash deficit for at least the next two quarters, due primarily to lower
projected aggregate cash inflows from the Company's retained interest-only and
residual certificates. The lower projected inflows are due to expected timing
differences between older deals cash flowing less per month per deal as the
mortgage pool pays down and newer deals not yet cash flowing until initial
reserve requirements are satisfied. As initial reserve requirements on some
newer deals are reached, the Company expects to receive greater aggregate cash
inflows from its retained interest-only and residual certificates which, coupled
with (a) the Company's continued concentration on its less cash-intensive broker
and retail originations and (b) its recent history of utilizing favorable
securitization structures that have allowed the Company to sell senior
interest-only certificates for an up front cash purchase price, may offset the
operating cash deficit in future quarters. However, market conditions and
various other possibilities identified below under "Risk Factors" could impact
the Company's cash flows potentially resulting in a more significant negative
cash flow.
32
For the years ended December 31, 1999 and 1998, the Company had operating
cash deficits of $12.4 million and $24.6 million, respectively. The reduction in
negative operating cash flow was primarily due to the Company's de-emphasis of
the correspondent loan production channel, thereby decreasing the amount of
premiums paid to correspondents and an increase in the cash flows from the
Company's retained interest-only and residual certificates. However, the Company
continues to use its operating cash to fund interest (delinquency) and servicing
advance obligations required as servicer for its securitization program. These
interest and servicing advances are reimbursable to the Company as the borrowers
repay their obligations over time. As such, the exact timing of these
reimbursements cannot be predicted with certainty.
Currently, the Company's primary cash requirements include the funding of (1)
loan originations and purchases pending their pooling and sale, (2) the points
and expenses paid in connection with the acquisition of correspondent loans, (3)
interest expense on its Senior Notes and warehouse and other financings, (4)
fees, expenses, interest (delinquency) advances, servicing-related advances and
tax payments incurred in connection with its securitization program, and (5)
ongoing administrative and other operating expenses, including fees and expenses
associated with the Company's settlement of claims by the NYSBD and the NYOAG.
The Company must be able to sell loans and obtain adequate credit facilities
and other sources of funding in order to continue to originate and purchase
loans. Historically, the Company has utilized various financing facilities and
an equity financing to offset negative operating cash flows and support the
continued growth of its loan originations and purchases, securitizations and
general operating expenses. On July 23, 1997, the Company completed an offering
of the Senior Notes. A portion of the Senior Notes proceeds were used to pay
down various financing facilities with the remainder used to fund the Company's
growth in loan originations and purchases and its ongoing securitization
program. The Company's primary sources of liquidity continue to be warehouse and
other financing facilities, securitizations and, subject to market conditions,
sales of whole loans and debt and equity securities.
To accumulate loans for securitization, the Company borrows money on a
short-term basis through warehouse lines of credit. The Company has relied upon
a few lenders to provide the primary credit facilities for its loan originations
and purchases. The Company had six warehouse facilities as of December 31, 1999
for this purpose. One warehouse facility is a $200 million committed credit line
with a variable rate of interest and a maturity date of March 2000. This
facility's maturity date was extended from February 1999 to March 2000 during
the three months ended March 31, 1999. The Company's second warehouse facility,
a syndicated $100 million committed revolving line with a variable rate of
interest, was renewed in June 1999 and extended to mature in June 2000. The
Company's third warehouse facility is a renewal of a committed $200 million
mortgage loan conduit with a variable rate of interest and a maturity date of
September 2000. The Company's fourth warehouse facility is a $200 million
committed credit facility that has a variable rate of interest and a maturity
date of April 2000. The Company's fifth warehouse facility is a $250 million
committed credit facility that has a variable rate of interest and a maturity
date of April 2000. During the third quarter of 1999, the Company obtained an
additional warehouse facility with a $200 million committed credit line that has
a variable rate of interest and a maturity date of September 2000. As of
December 31, 1999, the first warehouse facility had an outstanding balance of
$42.9 million and the second warehouse facility had an outstanding balance of
$51.8 million.
The Company is required to comply with various operating and financial
covenants as provided in the agreements described above which are customary for
agreements of their type. The continued availability of funds provided to the
Company under these agreements is subject to, among other conditions, the
Company's continued compliance with these covenants. Management believes that
the Company is in compliance with all such covenants under these agreements as
of December 31, 1999.
The Company purchased a total of 116,800 shares of its common stock during
the year ended December 31, 1998, under the Company's stock repurchase program,
at a total cost of $1.3 million. All of the repurchased shares were purchased in
open market transactions at then prevailing market prices.
During 1999, no additional shares were repurchased.
33
INTEREST RATE RISK
The Company's primary market risk exposure is interest rate risk.
Profitability may be directly affected by the level of, and fluctuation in,
interest rates, which affect the Company's ability to earn a spread between
interest received on its loans and the costs of its borrowings, which are tied
to various United States Treasury maturities, commercial paper rates and the
London Inter-Bank Offered Rate ("LIBOR"). The profitability of the Company is
likely to be adversely affected during any period of unexpected or rapid changes
in interest rates. A substantial and sustained increase in interest rates could
adversely affect the Company's ability to purchase and originate loans. A
significant decline in interest rates could increase the level of loan
prepayments thereby decreasing the size of the Company's loan servicing
portfolio. To the extent servicing rights and interest-only and residual classes
of certificates have been capitalized on the books of the Company, higher than
anticipated rates of loan prepayments or losses could require the Company to
write down the value of such servicing rights and interest-only and residual
certificates, adversely impacting earnings. As previously discussed, the fair
value adjustments that the Company recorded in the second quarter of 1998 were
primarily attributable to the Company's change in prepayment assumptions to
reflect higher than originally anticipated rates of prepayments (see "--Fair
Value Adjustments"). In an effort to mitigate the effect of interest rate risk,
the Company has reviewed its various mortgage products and has identified and
modified those that have proven historically more susceptible to prepayments.
However, there can be no assurance that such modifications to its product line
will effectively mitigate interest rate risk in the future.
Fluctuating interest rates also may affect the net interest income earned by
the Company resulting from the difference between the yield to the Company on
loans held pending sales and the interest paid by the Company for funds borrowed
under the Company's warehouse facilities, although the Company undertakes to
hedge its exposure to this risk by using treasury rate lock contracts. (See
"--Hedging").
HEDGING
The Company originates and purchases mortgage loans and then sells them
primarily through securitizations. At the time of securitization and delivery of
the loans, the Company recognizes gain on sale based on a number of factors
including the difference, or "spread," between the interest rate on the loans
and the interest rate paid to asset-backed investors who purchase pass-through
certificates issued by securitization trusts. Historically, the rate paid on the
pass-through certificates was generally related to the interest rate on treasury
securities with maturities corresponding to the anticipated life of the loans.
If interest rates rise between the time the Company originates or purchases the
loans and the time the loans are sold at securitization, the excess spread
narrows, resulting in a loss in value of the loans. The Company has implemented
a strategy to protect against such losses and to reduce interest rate risk on
loans originated and purchased that have not yet been securitized through the
use of treasury rate lock contracts with various durations (which are similar to
selling a combination of United States Treasury securities), which equate to a
duration similar to the duration of the underlying loans. The nature and
quantity of hedging transactions are determined by the Company based upon
various factors including, without limitation, market conditions and the
expected volume of mortgage originations and purchases. The Company will enter
into treasury rate lock contracts through one of its warehouse lenders and/or
one of the investment bankers, which underwrite the Company's securitizations.
These contracts are designated as hedges in the Company's records and are closed
out when the associated loans are sold through securitization.
If the value of the hedges decrease, offsetting an increase in the value of
the loans, the Company, upon settlement with its hedge counterparty, will pay
the hedge loss in cash and then realize the corresponding increase in the value
of the loans as part of its net gain on sale of mortgage loans and its
corresponding interest-only and residual certificates. Conversely, if the value
of the hedges increase, offsetting a decrease in the value of the loans, the
Company, upon settlement with its hedge counterparty, will receive the hedge
gain in cash and realize the corresponding decrease in the value of the loans
through a reduction in the value of the corresponding interest-only and residual
certificates.
Up to and including the second quarter of 1998, the Company believed that its
hedging strategy of using treasury rate lock contracts was the most effective
way to manage its interest rate risk on loans held prior to securitization.
However, in the third quarter of 1998, asset-backed investors, responding to
lower treasury yields and global financial market volatility, demanded
substantially wider spreads over treasuries than historically
34
experienced for newly issued asset-backed securities. As a result, Delta's $8.8
million hedge loss resulting from lower interest rates was not offset by a
higher gain on sale as the Company had historically seen.
Given the Company's belief that the volatile market experienced in the third
quarter of 1998 would likely continue well into the fourth quarter and, as a
result, that the spreads demanded by asset-backed securitization investors would
be difficult to predict, as asset-backed securitization investors were more
interested in absolute yields, instead of spreads over treasuries - the Company
did not hedge any of its warehoused loans pending securitization in the fourth
quarter of 1998.
The Company has continued to review its hedging strategy in order to best
mitigate risk pending securitization. As the asset-backed securitization market
improved in the first quarter of 1999, and spreads over treasuries became
largely more predictable, the Company resumed its hedging strategy of selling
treasury rate-lock contracts to mitigate its interest rate risk pending
securitization. In 1999, the Company recorded a hedge gain of $3.3 million,
which largely offsets a decrease in the value of mortgage loans being hedged, as
part of its gain on sale of loans.
INFLATION
Inflation affects the Company most significantly in the area of loan
originations and can have a substantial effect on interest rates. Interest rates
normally increase during periods of high inflation and decrease during periods
of low inflation. (See "--Interest Rate Risk.")
IMPACT OF NEW ACCOUNTING STANDARDS
For discussion regarding the impact of new accounting standards, refer to
Note 1 of Notes to the Consolidated Financial Statements.
RISK FACTORS
Except for historical information contained herein, certain matters discussed
in this Form 10-K are "forward-looking statements" as defined in the Private
Securities Litigation Reform Act ("PSLRA") of 1995, which involve risk and
uncertainties that exist in the Company's operations and business environment,
and are subject to change on various important factors. The Company wishes to
take advantage of the "safe harbor" provisions of the PSLRA by cautioning
readers that numerous important factors discussed below, among others, in some
cases have caused, and in the future could cause the Company's actual results to
differ materially from those expressed in any forward-looking statements made
by, or on behalf of, the Company. The following include some, but not all, of
the factors or uncertainties that could cause actual results to differ from
projections:
o Costs associated with litigation, compliance with the NYSBD Remediation
Agreement and NYOAG Stipulated Order on Consent, and rapid or unforeseen
escalation of the cost of regulatory compliance, generally including but
not limited to, adoption of new, or changes in state or federal lending
laws and regulations and the application of such laws and regulations,
licenses, environmental compliance, adoption of new, or changes in
accounting policies and practices and the application of such polices and
practices. Failure to comply with various federal, state and local
regulations, accounting policies, environmental compliance, and compliance
with the Remediation Agreement and Stipulated Order on Consent can lead to
loss of approved status, certain rights of rescission for mortgage loans,
class action lawsuits and administrative enforcement action against the
Company.
o The Company's ability or inability to continue to access lines of credit at
favorable terms and conditions, including without limitation, warehouse and
other credit facilities used to finance newly originated mortgage loans held
for sale.
o The Company's ability or inability to continue its practice of securitization
of mortgage loans held for sale, as well as its ability to utilize optimal
securitization structures at favorable terms to the Company.
35
o A general economic slowdown. Periods of economic slowdown or recession
may be accompanied by decreased demand for consumer credit and declining
real estate values. Because of the Company's focus on credit-impaired
borrowers, the actual rate of delinquencies, foreclosures and losses on
loans affected by the borrowers reduced ability to use home equity to
support borrowings could be higher than those generally experienced in the
mortgage lending industry. Any sustained period of increased
delinquencies, foreclosure, losses or increased costs could adversely
affect the Company's ability to securitize or sell loans in the secondary
market.
o The effects of interest rate fluctuations and the Company's ability or
inability to hedge effectively against such fluctuations in interest rates;
the effect of changes in monetary and fiscal policies, laws and regulations,
other activities of governments, agencies, and similar organizations, social
and economic conditions, unforeseen inflationary pressures and monetary
fluctuation.
o Increased competition within the Company's markets has taken on many forms,
such as convenience in obtaining a loan, customer service, marketing and
distribution channels, loan origination fees and interest rates. The Company
is currently competing with large finance companies and conforming mortgage
originators many of whom have greater financial, technological and marketing
resources.
o Unpredictable delays or difficulties in development of new product
programs.
o The unanticipated expenses of assimilating newly-acquired businesses into the
Company's structure; as well as the impact of unusual expenses from ongoing
evaluations of business strategies, asset valuations, acquisitions,
divestitures and organizational structures.
36
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
The primary market risk to which the Company is exposed is interest rate
risk, which is highly sensitive to many factors, including governmental monetary
and tax policies, domestic and international economic and political
considerations and other factors beyond the control of the Company. Changes in
the general level of interest rates between the time when the Company originates
or purchases mortgage loans and the time when the Company sells such mortgage
loans at securitization can affect the value of the Company's mortgage loans
held for sale and, consequently, the Company's net gain on sale revenue by
affecting the "excess spread" between the interest rate on the mortgage loans
and the interest rate paid to asset-backed investors who purchase pass-through
certificates issued by the securitization trusts. If interest rates rise between
the time the Company originates or purchases the loans and the time the loans
are sold at securitization, the excess spread generally narrows, resulting in a
loss in value of the loans and a lower net gain on sale reported by the Company.
A hypothetical 10 basis point increase in interest rates, which historically
has resulted in approximately a 10 basis point decrease in the excess spread,
would be expected to reduce the Company's net gain on sale by approximately 25
basis points. Many factors, however, can affect the sensitivity analysis
described above including, without limitation, the structure and credit
enhancement used in a particular securitization, the Company's prepayment, loss
and discount rate assumptions, and the spread over treasuries demanded by
asset-backed investors who purchase the Companies asset-backed securities.
To reduce its financial exposure to changes in interest rates, the Company
generally hedges its mortgage loans held for sale by entering into treasury rate
lock contracts (see "Item 7 - Management's Discussion and Analysis of Financial
Condition and Results of Operations - Hedging"). The Company's hedging strategy
has largely been an effective tool to manage the Company's interest rate risk on
loans prior to securitization, by providing the Company with a cash gain (or
loss) to largely offset the reduced (increase) excess spread (and resultant
lower (or higher) net gain on sale) from an increase (decrease) in interest
rates. A hedge may not, however, perform its intended purpose of offsetting
changes in net gain on sale. This was the case in the third quarter of 1998,
when asset-backed investors, responding to lower treasury yields and global
financial market volatility, demanded substantially wider spreads over
treasuries than historically experienced for newly issued asset-backed
securities. As a result, Delta's $8.8 million hedge loss resulting from lower
interest rates was not offset by a higher gain on sale as the Company has
historically seen.
Changes in interest rates could also adversely affect the Company's ability
to purchase and originate loans and/or could affect the level of loan
prepayments thereby impacting the size of the Company's loan servicing portfolio
and the value of the Company's interest only and residual certificates and
capitalized mortgage servicing rights. (See "Item 7 Management's Discussion and
Analysis of Financial Condition and Results of Operations - Interest Rate
Risk").
37
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
INDEPENDENT AUDITORS' REPORT
To The Board of Directors and Stockholders of
Delta Financial Corporation:
We have audited the accompanying consolidated balance sheets of Delta Financial
Corporation and subsidiaries as of December 31, 1999 and 1998, and the related
consolidated statements of income, changes in stockholders' equity, and cash
flows for each of the years in the three-year period ended December 31, 1999.
These consolidated financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the consolidated financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Delta Financial
Corporation and subsidiaries as of December 31, 1999 and 1998, and the results
of their operations and their cash flows for each of the years in the three-year
period ended December 31, 1999 in conformity with generally accepted accounting
principles.
/s/ KPMG LLP
Melville, New York
March 14, 2000
38
<PAGE>
<TABLE>
<CAPTION>
DELTA FINANCIAL CORPORATION AND SUBSIDIARIES
- ------------------------------------------------------------------------------
CONSOLIDATED BALANCE SHEETS
December 31, 1999 and 1998
(DOLLARS IN THOUSANDS) 1999 1998
- ------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
Cash and interest-bearing deposits.................... $ 55,989 $ 49,152
Accounts receivable................................... 32,367 22,549
Loans held for sale, net.............................. 89,036 87,170
Accrued interest receivable........................... 63,309 46,897
Capitalized mortgage servicing rights................. 45,927 33,490
Interest-only and residual certificates............... 224,659 203,803
Equipment, net........................................ 21,721 16,962
Cash held for advance payments........................ 13,568 10,031
Prepaid and other assets.............................. 5,428 5,839
Goodwill ............................................. 4,831 6,014
- ------------------------------------------------------------------------------
Total assets..................................... $ 556,835 481,907
==============================================================================
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES:
Bank payable.......................................... $ 1,195 1,396
Warehouse financing and other borrowings.............. 109,019 80,273
Senior Notes.......................................... 149,474 149,387
Accounts payable and accrued expenses................. 43,607 20,966
Investor payable...................................... 82,204 63,790
Advance payment by borrowers for taxes and insurance.. 13,784 9,559
Deferred tax liability................................ 10,411 18,848
- ------------------------------------------------------------------------------
Total liabilities................................ 409,694 344,219
==============================================================================
STOCKHOLDERS' EQUITY:
Capital stock, $.01 par value. Authorized
49,000,000 shares; 16,000,549 shares
issued and 15,883,749 shares outstanding
at December 31, 1999, and 15,475,549
shares issued and 15,358,749 shares
outstanding at December 31, 1998.................... 160 155
Additional paid-in capital............................ 99,472 94,700
Retained earnings..................................... 48,827 44,151
Treasury stock, at cost (116,800 shares).............. (1,318) (1,318)
- ------------------------------------------------------------------------------
Total stockholders' equity....................... 147,141 137,688
- ------------------------------------------------------------------------------
Total liabilities and stockholders' equity....... $ 556,835 481,907
==============================================================================
See accompanying notes to consolidated financial statements.
</TABLE>
39
<PAGE>
<TABLE>
<CAPTION>
DELTA FINANCIAL CORPORATION AND SUBSIDIARIES
- ------------------------------------------------------------------------------------------------
CONSOLIDATED STATEMENTS OF INCOME
Years ended December 31, 1999, 1998 and 1997
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA) 1999 1998 1997
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
REVENUES:
Net gain on sale of mortgage loans....... $ 78,663 91,380 85,890
Interest................................. 31,041 12,458 22,341
Servicing fees........................... 16,341 10,464 7,511
Origination fees......................... 28,774 25,273 18,108
- -----------------------------------------------------------------------------------------------
Total revenues......................... 154,819 139,575 133,850
- -----------------------------------------------------------------------------------------------
EXPENSES:
Payroll and related costs................ 65,116 56,709 41,214
Interest expense......................... 26,656 30,019 19,964
General and administrative............... 55,318 34,351 21,522
- -----------------------------------------------------------------------------------------------
Total expenses......................... 147,090 121,079 82,700
- -----------------------------------------------------------------------------------------------
Income before income taxes................... 7,729 18,496 51,150
Provision for income taxes................... 3,053 7,168 20,739
- -----------------------------------------------------------------------------------------------
Net income............................. $ 4,676 11,328 30,411
===============================================================================================
PER SHARE DATA:
Earnings per common share - basic and diluted $ 0.30 0.74 1.98
Weighted average number of shares outstanding 15,511,214 15,382,161 15,359,280
===============================================================================================
See accompanying notes to consolidated financial statements.
</TABLE>
40
<PAGE>
<TABLE>
<CAPTION>
DELTA FINANCIAL CORPORATION AND SUBSIDIARIES
- --------------------------------------------------------------------------------------------------------------------
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
Years ended December 31, 1999, 1998 and 1997
ADDITIONAL
PAID-IN RETAINED TREASURY
(DOLLARS IN THOUSANDS) CAPITAL STOCK CAPITAL EARNINGS STOCK TOTAL
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1996................. $ 153 90,953 2,412 -- 93,518
Issuance of common stock to acquire
Fidelity Mortgage....................... 1 2,516 -- -- 2,517
Proceeds from exercise of stock options...... -- 7 -- -- 7
Net income................................... -- -- 30,411 -- 30,411
- --------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1997................. 154 93,476 32,823 -- 126,453
Issuance of common stock related to
Fidelity Mortgage................... 1 1,199 -- -- 1,200
Purchase of Treasury Stock (116,800 shares).. -- -- -- (1,318) (1,318)
Proceeds from exercise of stock options...... -- 25 -- -- 25
Net income................................... -- -- 11,328 -- 11,328
- --------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1998................. 155 94,700 44,151 (1,318) 137,688
Issuance of common stock related to
Legal Settlement.................... 5 4,772 -- -- 4,777
Net income................................... -- -- 4,676 -- 4,676
- --------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1999................. $ 160 99,472 48,827 (1,318) 147,141
====================================================================================================================
See accompanying notes to consolidated financial statements.
</TABLE>
41
<PAGE>
<TABLE>
<CAPTION>
DELTA FINANCIAL CORPORATION AND SUBSIDIARIES
- --------------------------------------------------------------------------------------------------------
CONSOLIDATED STATEMENTS OF CASH FLOWS
Years ended December 31, 1999, 1998 and 1997
(Dollars in thousands) 1999 1998 1997
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income............................................. $ 4,676 11,328 30,411
Adjustments to reconcile net income to net cash used in
Operating activities:
Provision for loan and recourse losses............... 100 750 100
Depreciation and amortization........................ 5,841 4,386 2,603
Issuance of common stock related to legal settlement. 4,777 -- --
Deferred tax (benefit) expense....................... (8,437) (6,064) 19,901
Capitalized mortgage servicing rights, net
of amortization.................................... (12,437) (10,628) (11,451)
Deferred origination costs (fees).................... 114 1,840 (88)
Interest-only and residual certificates received in
securitization transactions, net................... (20,856) (35,994) (84,736)
Changes in operating assets and liabilities:
(Increase) decrease in accounts receivable, net...... (9,818) 5,755 (20,677)
(Increase) decrease in loans held for sale, net...... (2,010) (9,793) 3,222
Increase in accrued interest receivable.............. (16,412) (17,299) (11,139)
Increase in cash held for advance payments .......... (3,537) (3,706) (3,836)
Decrease in real estate owned........................ -- -- 135
Decrease (increase) in prepaid and other assets...... 411 385 (4,630)
Increase in accounts payable and accrued expenses.... 22,571 7,648 3,211
Increase in investor payable......................... 18,414 22,938 19,984
Increase in advance payment by borrowers
for taxes and insurance............................. 4,225 3,809 3,482
- --------------------------------------------------------------------------------------------------------
Net cash used in operating activities................... (12,378) (24,645) (53,508)
- --------------------------------------------------------------------------------------------------------
Cash flows from investing activities:
Acquisition of Fidelity Mortgage..................... -- -- (4,150)
Purchase of equipment................................ (9,330) (8,982) (9,933)
- --------------------------------------------------------------------------------------------------------
Net cash used in investing activities:.................. (9,330) (8,982) (14,083)
- --------------------------------------------------------------------------------------------------------
Cash flows from financing activities:
Proceeds from (repayments of) warehouse
financing and other borrowings, net.................. 28,746 52,040 (67,481)
Proceeds from Senior Notes.............................. -- -- 149,307
Decrease in bank payable, net........................... (201) (826) (125)
Proceeds from exercise of stock options................. -- 25 7
Purchase of treasury stock.............................. -- (1,318) --
- --------------------------------------------------------------------------------------------------------
Net cash provided by financing activities............... 28,545 49,921 81,708
- --------------------------------------------------------------------------------------------------------
Net increase in cash and interest-bearing deposits...... 6,837 16,294 14,117
Cash and interest-bearing deposits at beginning of year.... 49,152 32,858 18,741
- --------------------------------------------------------------------------------------------------------
Cash and interest-bearing deposits at end of year......... $ 55,989 49,152 32,858
========================================================================================================
Supplemental Information:
Cash paid during the year for:
Interest ............................................... $ 24,085 29,576 14,314
Income taxes ........................................... 11,489 7,241 19,972
========================================================================================================
See accompanying notes to consolidated financial statements.
</TABLE>
42
<PAGE>
DELTA FINANCIAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1999, 1998, AND 1997
(1) ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(A) ORGANIZATION
Delta Financial Corporation (the "Company" or "Delta") is a Delaware
corporation, which was organized in August 1996. On October 31, 1996, the
Company acquired all of the outstanding common stock of Delta Funding
Corporation ("Delta Funding"), a New York corporation which had been organized
on January 8, 1982 for the purpose of originating, selling, servicing and
investing in residential first and second mortgages. On November 1, 1996, the
Company completed an initial public offering of 4,600,000 shares of common
stock, $.01 par value.
On February 11, 1997, the Company acquired Fidelity Mortgage Inc. and
Fidelity Mortgage (Florida), Inc. (together referred to herein as "Fidelity
Mortgage"), retail residential mortgage origination companies, for a combination
of cash and stock with a value of $6.3 million. These transactions were
accounted for under the purchase method of accounting. Accordingly, the results
of operations of Fidelity Mortgage from February 11, 1997 have been included in
the Company's consolidated financial statements. In connection with these
acquisitions the Company recorded goodwill of approximately $6.3 million, which
is being amortized on a straight-line basis over seven years. On October 1,
1997, the acquired operations were merged and have continued to operate as
Fidelity Mortgage. As a result of meeting certain production targets for the
twelve month period ended June 30, 1998, the sellers were paid an additional
$1.2 million of purchase price in the form of, and at a fair value equivalent
to, 101,361 shares of the Company's stock in August 1998. The additional
consideration has been recorded as goodwill and will be amortized over the
remaining life of the goodwill.
(B) PRINCIPLES OF CONSOLIDATION
The accompanying consolidated financial statements are prepared on the
accrual basis of accounting and include the accounts of the Company and its
wholly-owned subsidiaries. All significant intercompany accounts and
transactions have been eliminated.
Certain prior period amounts in the financial statements and notes have been
reclassified to conform with the current year presentation.
(C) USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management of the Company to make estimates and
assumptions that affect the reported amounts of assets and liabilities and the
disclosure of contingent liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting periods.
Actual results could differ from those estimates.
(D) LOAN ORIGINATION FEES AND COSTS
In accordance with Statement of Financial Accounting Standards ("SFAS") No.
91, "Accounting for Nonrefundable Fees and Costs Associated with Originating or
Acquiring Loans and Initial Direct Costs of Leases," origination fees received
net of direct costs of originating or acquiring mortgage loans, are recorded as
adjustments to the initial investment in the loan. Such fees are deferred until
the loans are securitized or sold.
(E) LOANS HELD FOR SALE, NET
Loans held for sale are accounted for at the lower of cost or estimated
market value, determined on a net aggregate basis. Cost includes unamortized
loan origination fees and costs. Net unrealized losses are provided for in a
valuation allowance created through a charge to operations. Losses are
recognized when the market value is less than cost.
(F) SECURITIZATION AND SALE OF MORTGAGE LOANS
In accordance with SFAS No. 125, the Company sells loans to a loan
securitization trust and receives the excess value of the loans' economic
interests for (i) the difference between the interest payments due on the loans
sold to the trust and the interest payments due, at the pass-through rates, to
the holders of the pass-through certificates, less the Company's contractual
servicing fee and other costs and expenses of administering the trust,
represented by
43
interest-only and residual certificates, and (ii) the right to service the loans
on behalf of the trust and earn a contractual servicing fee, as well as other
ancillary servicing related fees directly from the borrowers on the underlying
loans.
Upon the securitization of a pool of loans, the Company recognizes as
origination fees any then unamortized origination fees which had initially been
recorded as adjustments to the investment in the loans, and additionally
allocates portions of the remaining investment in the loans sold to each of (i)
the servicing rights retained by the Company and (ii) the interest-only and
residual certificates received from the trust. The retained servicing rights and
interest-only and residual certificates are initially recorded based upon their
fair value, which is estimated based on the stated terms of the transferred
loans adjusted for estimates of future prepayments or defaults among those
loans. The Company recognizes a gain for the difference between the investment
in the loans remaining after this allocation and the cash payment received from
the trust (see notes 5 and 6).
(G) CAPITALIZED MORTGAGE SERVICING RIGHTS
Effective January 1, 1997, the Company adopted SFAS No. 125, which supersedes
SFAS No. 122 and SFAS No. 65,"Accounting for Certain Banking Activities," to
require that a mortgage banking enterprise recognize as separate assets the
rights to service mortgage loans for others, however those servicing rights are
acquired. The Statement requires the assessment of capitalized mortgage
servicing rights for impairment. Mortgage servicing rights are amortized in
proportion to and over the period of the estimated net servicing income (see
note 5).
(H) INTEREST-ONLY AND RESIDUAL CERTIFICATES
The interest-only and residual certificates, received by the Company upon the
securitization of a pool of loans to the securitization trust, are accounted for
as trading securities under SFAS No. 115, "Accounting for Certain Investments in
Debt and Equity Securities." The amount initially allocated to the interest-only
and residual certificates at the date of a securitization reflects the fair
value of those interests. The amount recorded for the certificates is reduced
for distributions thereon which the Company receives from the related trust, and
is adjusted for the subsequent changes in the fair value of these certificates
which are reflected in the statement of income. The fair value of interest-only
and residual certificates is determined using the same prepayment and default
estimates utilized in valuing servicing rights, together with the consideration
of the geographic location and value of loan collateral, the value of which
would affect the credit loss sustained by a trust upon the default of a loan
(see note 6). The Company has consistently applied the more conservative
cash-out method in valuing the future cash flows of residual certificates.
(I) FAIR VALUE OF FINANCIAL INSTRUMENTS
SFAS No. 107, "Disclosure About Fair Value of Financial Instruments,"
requires the Company to disclose the fair value of financial instruments for
which it is practicable to estimate fair value. Fair value is defined as the
amount at which a financial instrument could be exchanged in a current
transaction between willing parties, other than in a forced sale or liquidation,
and is best evidenced by a quoted market price. Other than interest-only and
residual certificates which are reported at fair value, and capitalized mortgage
servicing rights, substantially all the Company's assets and liabilities deemed
to be financial instruments are carried at cost, which approximates their fair
value. The fair value of capitalized mortgage servicing rights represents the
Company's estimate of the expected future net servicing revenue based on common
industry assumptions, as well as on the Company's historical experience.
(J) GOODWILL
Goodwill, which represents the excess of the purchase price over the fair
value of the net assets acquired from Fidelity Mortgage, is being amortized on a
straight-line basis over seven years.
(K) REAL ESTATE OWNED
Properties acquired through foreclosure or a deed in lieu of foreclosure are
recorded at the lower of the unpaid loan balance, or fair value, at the date of
acquisition. The carrying value of the individual properties is subsequently
adjusted to the extent it exceeds estimated fair value less costs to sell, at
which time a provision for losses on such real estate is charged to operations.
(L) EQUIPMENT, NET
Equipment, including leasehold improvements, is stated at cost, less
accumulated depreciation and amortization. Depreciation of equipment is computed
using the straight-line or accelerated method over the
44
estimated useful lives of three to seven years. Leasehold improvements are
amortized over the lesser of the terms of the lease or the estimated useful
lives of the improvements. Expenditures for betterments and major renewals are
capitalized and ordinary maintenance and repairs are charged to operations as
incurred.
(M) SERVICING FEES
Servicing fees includes servicing income and prepayment penalties for
servicing mortgage loans owned by investors. All fees and charges are recognized
into income when earned.
(N) INCOME TAXES
The Company accounts for income taxes in conformity with SFAS No. 109,
"Accounting for Income Taxes," under which deferred tax assets and liabilities
are recognized for the future tax effects of differences between the financial
reporting and tax bases of assets and liabilities. These deferred taxes are
measured by applying current enacted tax rates.
(O) EARNINGS PER SHARE
Basic EPS excludes dilution and is computed by dividing income available to
common stockholders by the weighted-average number of common shares outstanding
for the period. Diluted EPS reflects the potential dilution that could occur if
securities or other contracts to issue common stock were exercised or converted
into common stock or resulted in the issuance of common stock that then shared
in the earnings of the entity.
(P) STOCK OPTION PLAN
In accordance with SFAS No. 123, "Accounting for Stock-Based Compensation,"
the company continues to apply the provisions of the Accounting Principles Board
("APB") Opinion No. 25, "Accounting for Stock Issued to Employees," and provide
pro forma net income and pro forma earnings per share disclosures for employee
stock option grants as if the fair-value
based method defined in SFAS No. 123 had been applied.
(Q) SEGMENT REPORTING
The Company operates as one reporting segment, as such, the segment
disclosure requirements under SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information", are not applicable to the Company.
(R) RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
SFAS NO. 133
In June 1998, the Financial Accounting Standards Board ("FASB") issued SFAS
No. 133, "Accounting for Derivative Instruments and Hedging Activities". SFAS
No. 133 establishes accounting and reporting standards for derivative
instruments and for hedging activities. It requires that any entity recognize
all derivatives as either assets or liabilities in the statement of financial
condition and measure those instruments at fair value. The accounting for
changes in the fair value of a derivative (that is, gains and losses) depends on
the intended use of the derivative and the resulting designation. In July 1999,
the FASB issued SFAS No. 137, "Accounting for Derivative Instruments and Hedging
Activities - Deferral of the Effective Date of FASB Statement No. 133." SFAS No.
137 delays the effective date of SFAS No. 133, for one year, to all fiscal
quarters of all fiscal years beginning after June 15, 2000. The delay applies to
quarterly and annual financial statements. SFAS No. 137 is effective upon
issuance and does not require restatement of prior periods. Management of the
Company currently believes the implementation of SFAS No. 133 will not have a
material impact on the Company's financial condition or results of operations.
(2) SUMMARY OF REGULATORY SETTLEMENTS
In September 1999, the Company settled allegations by the New York State
Banking Department and a lawsuit by the New York State Office of the Attorney
General alleging that Delta had violated various state and federal lending laws.
The global settlement was evidenced by that certain (a) Remediation Agreement by
and between Delta Funding and the NYSBD, dated as of September 17, 1999 and (b)
Stipulated Order on Consent by and among Delta Funding, Delta Financial and the
NYOAG, dated as of September 17, 1999. As part of the Settlement, Delta will,
among other things, implement agreed upon changes to its lending practices;
provide reduced loan payments aggregating $7.25 million to certain borrowers
identified by the NYSBD; and create a fund of approximately $4.75 million to be
financed by the grant of 525,000 shares of Delta Financial's common stock valued
at a constant
45
assumed priced of $9.10 per share, which approximates book value. The proceeds
of the fund will be used, for among other things, to pay for a variety of
consumer educational and counseling programs.
In March 2000, the Company finalized an agreement with the U.S. Department of
Justice, the Federal Trade Commission and the Department of Housing and Urban
Development, to complete the global settlement it had reached with the NYSBD and
NYOAG. The Federal agreement mandates some additional compliance efforts for
Delta, but it does not require any additional financial commitment by Delta.
(3) LOANS HELD FOR SALE, NET
The Company's inventory consists of first and second mortgages which had a
weighted average interest rate of 10.9% at December 31, 1999. These mortgages
are being held, at the lower of cost or estimated market value, for future sale.
Certain of these mortgages are pledged as collateral for a portion of the
warehouse financing and other borrowings.
Included in loans held for sale are deferred origination fees and purchase
premiums in the amount of $1.5 million and $1.7 million at December 31, 1999 and
1998, respectively and a market valuation allowance of $0.6 million and $0.3
million at December 31, 1999 and 1998, respectively. Mortgages are payable in
monthly installments of principal and interest and have terms varying from five
to thirty years.
(4) ACCOUNTS RECEIVABLE
Accounts receivable as of December 31, consist of the following:
(DOLLARS IN THOUSANDS) 1999 1998
- ------------------------------------------------------------------------------
Securitization servicing advances $ 25,994 17,058
Prepaid insurance premiums 1,868 1,691
Current tax assets 846 904
Other 3,659 2,896
- ------------------------------------------------------------------------------
Total accounts receivable $ 32,367 22,549
==============================================================================
(5) CAPITALIZED MORTGAGE SERVICING RIGHTS
The Company sells mortgage loans and retains the servicing rights which
generate servicing income and provide funds for additional investment and
lending activities. SFAS No. 125 prospectively changed the methodology for
capitalized mortgage servicing rights and the methodology used to measure
impairment of its capitalized mortgage servicing rights asset. These Statements
require that upon the sale or securitization of a loan, an asset be recognized
for any retained servicing rights based on the present value of the future
servicing cash flows. The cash flow has been computed over the average estimated
life of the mortgages, adjusted for prepayments and recorded as capitalized
mortgage servicing rights.
Capitalized mortgage servicing rights are assessed periodically to determine
if there has been any impairment of the asset, based on the fair value of the
rights at the date of the assessment. The Company performs this assessment on
the basis of the Company's historical experience, and updated estimates of
prepayment and default rates for servicing rights relating to loan groups
comprised of loans of similar types, terms, credit quality and interest rates,
which represent the predominant risk characteristics affecting prepayment and
default rates. A valuation allowance is provided for the capitalized servicing
rights relating to any loan group for which the recorded investment exceeds the
fair value. At December 31, 1999 and 1998, the fair value of the capitalized
mortgage servicing rights either exceeded or approximated their recorded amounts
and, accordingly, no valuation allowance was recorded. During the second quarter
of 1998, the Company recorded a $1.9 million reduction in the carrying amount of
its capitalized mortgage servicing rights to reflect a provision for impairment.
The activity related to the Company's capitalized mortgage servicing rights
for the years ended December 31, is as follows:
46
(DOLLARS IN THOUSANDS) 1999 1998 1997
- -------------------------------------------------------------------------------
Balance, beginning of year $33,490 22,862 11,412
Additions 20,542 19,833 15,118
Amortization and FV adjustments (8,105) (9,205) (3,668)
- -------------------------------------------------------------------------------
Balance, end of year $45,927 33,490 22,862
- -------------------------------------------------------------------------------
(6) INTEREST-ONLY AND RESIDUAL CERTIFICATES
The interest that the Company receives upon sales through securitizations is
in the form of interest-only and residual mortgage securities which are
classified as interest-only and residual certificates.
In accordance with SFAS No. 125, upon the sale or securitization of a loan, a
gain on sale and a corresponding asset is recognized for any interest-only and
residual certificates. These assets are classified as "trading securities" and,
as such, they are recorded at their fair value. Fair value of these certificates
has been determined by the Company based on various economic factors, including
loan type, sizes, interest rates, dates of origination, terms and geographic
locations, using the more conservative cash-out method. The Company also uses
other available information such as reports on prepayment rates, interest rates,
collateral value, economic forecasts and historical default and prepayment rates
of the portfolio under review. Any fair value adjustment of the interest-only
and residual certificates is recognized in the statement of income and is
reflected as a component of interest income.
Although the Company believes it has made reasonable estimates of the fair
value of the interest-only and residual certificates likely to be realized, the
rate of prepayments and the amount of defaults utilized by the Company are
estimates and actual experience may vary. The gain on securitization recognized
by the Company upon the sale of loans through securitizations will be overstated
if prepayments or losses are greater than anticipated. Higher than anticipated
rates of loan prepayments or losses would require the Company to write down the
fair value of the interest-only and residual certificates, adversely impacting
earnings. Similarly, if delinquencies, liquidations or interest rates were to be
greater than was initially assumed, the fair value of the interest-only and
residual certificates would be negatively impacted, which would have an adverse
effect on income for the period in which such events occurred. Should the
estimated loan life assumed for this purpose be shorter than the actual life,
the amount of cash actually received over the lives of the loans would exceed
the gain previously recognized at the time the loans were sold through
securitizations and would result in additional income. The Company assumes
prepayment rates and defaults based upon the seasoning of its existing
securitization loan portfolio.
The Company's underlying assumptions used in determining the fair value of
its interest-only and residual certificates are as follows:
(a)Prepayment rate assumptions are based upon the Company's on-going
analysis of industry and Company pool trends, the Company modified its
prepayment rate assumptions at June 30, 1998 and December 31, 1999.
The following table compares the prepayment assumptions used subsequent
to the third quarter of 1999 (the "new" assumptions"), with those used
subsequent to the first quarter of 1998 (the "2Q98" assumptions) and
those used at December 31, 1997 and through the first quarter of 1998
(the "old" assumptions):
LOAN TYPE MONTH 1 SPEED PEAK SPEED *
- --------- ------------------------- ---------------------
NEW 2Q98 OLD NEW 2Q98 OLD
Fixed Rate Loans 4.0% 4.8% 4.8% 31% 31% 24%
Six-Mo. LIBOR ARMs 10.0% 10.0% 5.6% 50% 50% 28%
Hybrid ARMs 4.0% 6.0% 5.6% 50% 50% 28%
* Since the second quarter of 1998, the Company has utilized a "vector" curve,
instead of a "ramp" curve, which the Company believes will be more
representative of future loan prepayment experience.
47
(b)A default reserve for both fixed- and adjustable-rate loans sold to the
securitization trusts of 3.10% of the amount initially securitized at
December 31, 1999 compared to 2.00% at December 31, 1998 and 1.90% at
December 31, 1997; and
(c)Under the "cash-out" method, an annual discount rate of 12.0% was used in
determining the present value of cash flows from residual certificates,
which represent the predominant form of retained interest.
The June 30, 1998 changes in prepayment assumptions were made based upon the
Company's analysis of the then existent Company and industry prepayment trends,
which were higher than those historically experienced or previously projected by
the Company, and resulted in a $15.5 million fair value adjustment charged to
income during the second quarter of 1998. A further fair value adjustment of
$2.8 million was charged to income during the fourth quarter of 1998 related to
a change in default assumptions.
In the fourth quarter of 1999, the Company decreased its prepayment speed
assumption along parts of its vector curve, while leaving the peak speeds in
tact, to more precisely reflect the Company's (and industry) actual loan
performance, which slowed considerably since 1998. In addition, the Company
increased its loss reserve initially established for both fixed- and
adjustable-rate loans sold to the securitization trusts from 2.20% to
approximately 3.10% of the issuance amount securitized. (The Company had
previously increased its loan losses from 2.00% to 2.20% in the first quarter of
1999.) The loan loss assumption was revised to reflect the Company's belief that
the combination of slower prepayment rates, higher interest rates, and an
anticipated flat to slightly moderate rise in home values as compared to the
past few years, among other things, may result in higher losses on the Company's
securitized portfolio. These changes resulted in approximately a $6.3 million
reduction in the Company's value of residual and interest-only certificates for
the year 1999.
To date, aggregate actual cash flows from the Company's securitization trusts
have either met or exceeded management's expectations.
The activity related to the Company's interest-only and residual certificates
for the years ended December 31, is as follows:
(DOLLARS IN THOUSANDS) 1999 1998 1997
- ------------------------------------------------------------------------------
Balance, beginning of year $ 203,803 167,809 83,073
Additions 48,356 85,092 102,072
Cash remittances, accretion
of discount and FV
adjustments, net (27,500) (49,098) (17,336)
- ------------------------------------------------------------------------------
Balance, end of year $ 224,659 203,803 167,809
- ------------------------------------------------------------------------------
(7) HEDGING TRANSACTIONS
The Company regularly securitizes and sells fixed-rate mortgage loans. To
offset the effects of interest rate fluctuations on the value of its fixed-rate
loans held for sale, the Company in certain cases will hedge its interest rate
risk related to loans held for sale through the use of treasury lock contracts
which function similar to a short-sale of US Treasury securities. The Company
accounts for these contracts as hedges of specific loans held for sale. The gain
or loss derived from these contracts is deferred and recognized as an adjustment
to the carrying amounts of the loans for which the contracts were interest rate
hedges.
As of December 31, 1999 and 1998, the Company did not have open hedge
positions. As of December 31, 1997, the Company had an open hedge loss position
of $0.5 million. The Company included a gain of $3.3 million and losses of $10.2
million and $2.0 million on the treasury lock contracts as part of gains on sale
of loans in 1999, 1998 and 1997, respectively.
(8) WAREHOUSE FINANCING AND OTHER BORROWINGS
48
The Company has six warehouse credit facilities for a combined amount of
$1.15 billion as of December 31, 1999. These lines are collateralized by
specific mortgage receivables, and interest and servicing advance receivables,
which are equal to or greater than the outstanding balances under the line at
any point in time.
The following table summarizes certain information regarding warehouse
financing and other borrowings at December 31:
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
(Dollars in millions)
Facility Balance Expiration
Facility Description Amount Rate 1999 1998 Date
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Warehouse line of credit $200.0 Libor + 1.00% $42.9 $58.7 April 2000
Warehouse line of credit 100.0 Fed Funds + 1.075% 51.8 10.7 June 2000
Warehouse line of credit 200.0 Libor + 0.625% -- -- Sept 2000
Warehouse line of credit 200.0 Libor + 0.60% -- -- April 2000
Warehouse line of credit 250.0 Libor + 0.675% -- -- April 2000
Warehouse line of credit 200.0 Libor + 0.625% -- -- Sept 2000
Term loan n/a 6.48% 0.2 0.2 June 2000
Capital leases n/a 6.63% - 10.24% 14.1 10.7 Oct 2000 - Nov 2004
- -----------------------------------------------------------------------------------------------------------
Balance at December 31, $1,150.0 $109.0 $80.3
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(9) SENIOR NOTES
9.5% Senior Notes due 2004 (the "notes") totaled $149.5 million at December
31, 1999, and $149.4 million at December 31, 1998, net of unamortized bond
discount. The notes bear interest at a rate of 9.5% per annum, payable
semi-annually commencing on February 1, 1998. The notes were issued on July 23,
1997, and mature on August 1, 2004 when all outstanding principal is due. On or
after August 1, 2001, the notes are redeemable at the option of the Company, in
whole or in part, at the redemption price set forth in the Indenture, dated July
23, 1997, governing the issuance of the notes (the "Indenture"), plus accrued
and unpaid interest through the date of redemption.
The Company is required to comply with various operating and financial
covenants in the Indenture. These covenants limit or restrict, among other
things, the ability of the Company to consummate asset sales, pay dividends,
incur additional indebtedness and incur additional liens. Costs incurred with
the issuance of the notes, in the amount of $4.8 million, have been deferred and
are being amortized over the seven year term using a method that approximates
level-yield. The unamortized debt issuance cost was $3.5 million at December 31,
1999 and $4.1 million at December 31, 1998.
(10) BANK PAYABLE
In order to maximize its cash management practices, the Company has
instituted a procedure whereby checks written against its operating account are
covered as they are presented to the bank for payment, either by drawing down
its lines of credit or from subsequent deposits of operating cash. Bank payable
represents the checks outstanding at December 31, 1999 and 1998, to be paid in
this manner.
(11) INVESTOR PAYABLE
Investor payable represents the collection of mortgage payments by the
Company as servicer, from mortgagors, which are due to the investors,
representing primarily securitization trusts. These funds, when collected, are
placed in segregated bank accounts as provided by the related servicing
agreements and are reflected on the Company's balance sheet as a component of
cash and interest-bearing deposits.
49
(12) EMPLOYEE BENEFIT PLANS
The Company had an employee profit sharing plan covering all eligible
employees, as defined, with at least 30 months of service. Effective January 1,
1997, the employee profit sharing plan was merged with the Company's 401(k)
Retirement Savings Plan.
The Company sponsors a 401(k) Retirement Savings Plan. Substantially all
employees of the Company who are at least 21 years old are eligible to
participate in the plan after completing one year of service. Contributions are
made from employees' elected salary deferrals. The Company elected to make
discretionary contributions to the Plan of $0.8 million, $0.5 million and $0.3
million for 1999, 1998 and 1997, respectively.
(13) COMMITMENTS AND CONTINGENCIES
The Company has repurchase agreements with certain of the institutions that
have purchased mortgages. Currently, some of the agreements provide for the
repurchase by the Company of any of the mortgage loans that go to foreclosure
sale. At the foreclosure sale, the Company will repurchase the mortgage, if
necessary, and make the institution whole. The dollar amount of loans which were
sold with recourse is $8.1 million at December 31, 1999 and $10.1 million at
December 31, 1998.
Included in accounts payable and accrued expenses is an allowance for
recourse losses of $1.4 million, $1.4 million and $0.7 million at December 31,
1999, 1998 and 1997, respectively. The Company recognized, as a charge to
operations, a provision for recourse losses of $70,000, $720,000 and $70,000 for
the years 1999, 1998 and 1997, respectively. Additions to the allowance for loan
losses are provided by charges to income based upon various factors, which, in
management's judgment, deserve current recognition in estimating probable
losses. The loss factors are determined by management based upon an evaluation
of historical loss experience, delinquency trends, loan volume and the impact of
economic conditions in our market area.
The Company's rental expense, net of sublease income, for the years ended
December 31, 1999, 1998 and 1997 amounted to $6.4 million, $5.4 million and $2.6
million, respectively.
Minimum future rentals under non-cancelable operating leases as of December
31, 1999 are as follows:
(DOLLARS IN THOUSANDS)
- ------------------------------------------------------------------------------
Year Amount
- ------------------------------------------------------------------------------
2000 $ 6,068
2001 5,978
2002 5,195
2003 4,464
2004 4,282
Thereafter 7,135
- ------------------------------------------------------------------------------
Total $ 33,122
- ------------------------------------------------------------------------------
Because the nature of the Company's business involves the collection of
numerous accounts, the validity of liens and compliance with various state and
federal lending laws, the Company is subject, in the normal course of business,
to numerous legal proceedings and claims, including several class action
lawsuits. The resolution of these lawsuits, in management's opinion, will not
have a material adverse effect on the financial position or results of
operations of the Company.
(14) STOCK OPTION PLAN
In October 4, 1996, the Board of Directors ratified the 1996 Stock Option
Plan (the "Plan") and authorized the reserve of 2,200,000 shares of authorized
but unissued common stock for issuance pursuant to the Plan. Substantially all
of the options issued vest over a five-year period at 20% per year and expire
seven years from the grant date.
50
The following table summarizes certain information regarding the Plan at
December 31:
<TABLE>
<CAPTION>
1999 1998 1997
- --------------------------------------------------------------------------------------------------
Weighted Weighted Weighted
Number Average Number Average Number Average
of Exercise of Exercise of Exercise
Shares Price Shares Price Shares Price
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance, beginning of year 795,060 $16.96 848,760 $17.01 464,850 $16.50
Options granted 495,350 5.84 77,000 17.35 426,610 17.67
Options exercised - - 1,500 16.50 400 16.50
Options canceled 128,060 15.27 129,200 17.54 42,300 18.06
- --------------------------------------------------------------------------------------------------
Balance at end of year 1,162,350 $12.41 795,060 $16.96 848,760 $17.01
- --------------------------------------------------------------------------------------------------
Options exercisable 335,400 $16.76 242,862 $16.77 96,510 $16.50
- --------------------------------------------------------------------------------------------------
</TABLE>
The Company applies APB Opinion No. 25, and related Interpretations in
accounting for the Plan. There was no intrinsic value of the options granted, as
the exercise price was equal to the quoted market price at the grant date.
Accordingly, no compensation cost has been recognized for the years ended
December 31, 1999, 1998 and 1997.
Had compensation cost for the Plan been determined based on the fair value at
the grant dates for awards under the Plan consistent with the method of SFAS No.
123, the Company's net income would have been $4.5 million,$10.8 million and
$30.1 for 1999, 1998 and 1997, respectively. Earnings per share for 1999, 1998
and 1997 would have been $0.29,$0.71 and $1.96, respectively.
The weighted-average fair value of options granted during 1999, 1998 and 1997
was $3.86, $9.14 and $3.54, respectively. For purposes of the pro forma
calculation under SFAS No. 123, the fair value of the options granted is
estimated using the Black-Scholes option-pricing model with the following
weighted-average assumptions used for the 1999, 1998 and 1997 grants:
- ------------------------------------------------------------------------------
1999 1998 1997
- ------------------------------------------------------------------------------
Dividend yield 0% 0% 0%
Expected volatility 78% 55% 45%
Risk-free interest rate 4.54% 4.54% 5.71%
Expected life 5 years 5 years 5 years
(15) INCOME TAXES
The provision for income taxes for the years ended December 31, 1999, 1998
and 1997 is as follows:
(DOLLARS IN THOUSANDS) 1999 1998 1997
- ------------------------------------------------------------------------------
Current: Federal $ 9,777 11,291 75
State 1,713 1,941 763
- ------------------------------------------------------------------------------
Total current income taxes $ 11,490 13,232 838
- ------------------------------------------------------------------------------
Deferred: Federal $ (7,172) (4,586) 16,982
State (1,265) (1,478) 2,919
- ------------------------------------------------------------------------------
Total deferred income taxes $ (8,437) (6,064) 19,901
- ------------------------------------------------------------------------------
Total tax provision $ 3,053 7,168 20,739
==============================================================================
Significant components (temporary differences and carryforwards) that give
rise to the Company's net deferred tax liability as of December 31, 1999 and
1998 were as follows:
51
<TABLE>
<CAPTION>
(Dollars in thousands)
1999 1998
---- ----
Deferred tax liabilities:
<S> <C> <C>
Capitalized cost of future servicing income $ 17,911 14,149
Book/tax difference in interest-only and residual certificate
carrying amount 17,275 17,359
Tax over book depreciation 1,612 791
Capitalized origination fees and related cost 603 702
- -----------------------------------------------------------------------------------------------
Total deferred tax liabilities $ 37,401 33,001
- -----------------------------------------------------------------------------------------------
Deferred tax assets:
Book over tax basis in mortgage servicing asset $ 125 158
Loss reserves 4,992 1,918
U.S. net operating loss carryforwards 21,873 12,077
- -----------------------------------------------------------------------------------------------
Total deferred tax assets $ 26,990 14,153
- -----------------------------------------------------------------------------------------------
Net deferred tax liabilities $ 10,411 18,848
===============================================================================================
</TABLE>
Under SFAS No. 109, "Accounting for Income Taxes," the Company is required to
recognize all or a portion of its net deferred tax assets if it believed that it
was more likely than not, given the weight of all available evidence, that all
or a portion of the benefits of the carryforward losses and other deferred tax
assets would be realized. Management believes that, based on the available
evidence, it is more likely than not that the Company will realize the benefit
from its net deferred tax assets.
A reconciliation of the statutory income tax provision to the effective
income tax provision, as applied to income for the years ended December 31,
1999, 1998 and 1997 is as follows:
1999 1998 1997
- ------------------------------------------------------------------------------
Tax at statutory rate 35.0% 35.0% 35.0%
State & local taxes, net of Federal benefit 1.1 1.7 4.7
Non-deductible expenses and other 3.4 2.1 0.8
- ------------------------------------------------------------------------------
Total provision 39.5% 38.8% 40.5%
- ------------------------------------------------------------------------------
(16) EARNINGS PER SHARE
The following is a reconciliation of the denominators used in the
computations of basic and diluted EPS. The numerator for calculating both basic
and diluted EPS is net income.
For the years ended December 31:
(DOLLARS IN THOUSANDS, EXCEPT EPS DATA) 1999 1998 1997
- ------------------------------------------------------------------------------
Net income $ 4,676 11,328 30,411
Weighted-average shares 15,511 15,382 15,359
Basic EPS $ 0.30 0.74 1.98
Weighted-average shares 15,511 15,382 15,359
Incremental shares-options 1 23 32
- ------------------------------------------------------------------------------
15,512 15,405 15,391
Diluted EPS $ 0.30 0.74 1.98
- ------------------------------------------------------------------------------
52
(17) QUARTERLY FINANCIAL DATA (UNAUDITED)
The following table is a summary of financial data by quarter for the years
ended December 31, 1999 and 1998:
<TABLE>
<CAPTION>
For the quarters ended
(Dollars in thousands, except per share data) March 31, June 30, Sept. 30, Dec. 31,
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1999
Revenues $42,513 44,449 29,686 38,171
Expenses (1)(2) 33,071 40,758 39,844 33,417
Net income (loss) (1)(2) 5,744 2,215 (6,095) 2,812
Earnings (loss) per common share-basic and diluted (1)(2) 0.37 0.14 (0.39) 0.18
1998
Revenues (3) $41,154 20,682 38,086 39,653
Expenses 28,053 28,718 32,993 31,315
Net income (loss) (3) 8,251 (4,902) 3,106 4,873
Earnings (loss) per common share-basic and diluted (3) 0.54 (0.32) 0.20 0.32
<FN>
(1) The quarter ended June 30, 1999 includes $6.0 million pre-tax charge, in
connection with its original agreement in principle with the NYOAG.
(2) The quarter ended September 30, 1999 includes remaining $6.0 million of the
$12.0 million pre-tax charge for the global settlement with NYSBD and the
NYOAG.
(3) The quarter ended June 30, 1998 includes:(a) a $15.5 million pre-tax
charge, related to a fair value adjustment to interest-only and residual
certificates and (b) a $1.9 million pre-tax charge, related to a fair
value adjustment to capital mortgage servicing rights.
</FN>
</TABLE>
53
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
None.
PART III
ITEMS 10-13
Registrant incorporates by reference herein information in its proxy
statement which complies with the information called for by Items 10-13 of Form
10-K. The proxy will be filed at a later date with the Commission.
PART IV
ITEM 14. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
(A)(1) FINANCIAL STATEMENTS
PAGE(S)
-------
The following Consolidated Financial Statements of Delta
Financial Corporation and Subsidiaries are included in
Part II, Item 8 of this report
Independent Auditors' Report........................................... 38
Consolidated Balance Sheets--December 31, 1999 and 1998................ 39
Consolidated Statements of Income--Years ended December 31,
1999, 1998 and 1997.................................................... 40
Consolidated Statement of Changes in Stockholders' Equity--
Years ended December 31, 1999, 1998 and 1997........................... 41
Consolidated Statements of Cash Flows--Years ended December 31,
1999, 1998 and 1997.................................................... 42
Notes to Consolidated Financial Statements............................. 43
(A)(2) FINANCIAL STATEMENT SCHEDULES
Exhibits 11.1 and 27.1 (See - Exhibit List)
(A)(3) EXHIBITS:
EXH.
NO. FILED DESCRIPTION
--- ---- -----------
3.1 (a) -- Certificate of Incorporation of Delta Financial Corporation
3.2 (f) -- Second Amended Bylaws of Delta Financial Corporation
4.1 (b) -- Indenture dated July 23, 1997, between Delta Financial
Corporation, its subsidiary guarantors and The Bank of New
York, as Trustee
10.1 (a)-- Employment Agreement dated October 1, 1996 between the
Registrant and Sidney A. Miller
10.2 (a)-- Employment Agreement dated October 1, 1996 between the
Registrant and Hugh Miller
10.3 (g)-- Employment Agreement dated July 9, 1999 between the
Registrant and Christopher Donnelly
10.4 (g)-- Employment Agreement dated July 15, 1999 between the
Registrant and Randall F. Michaels
10.5 (g)-- Employment Agreement dated July 1, 1999 between the Registrant
and Richard Blass
10.6 (g)-- Employment Agreement dated July 23, 1999 between the Registrant
and Franklin E. Pellegin, Jr.
10.7 (a)-- Lease Agreement between Delta Funding Corporation and the
Tilles Investment Company
10.8 (d)-- Fifth, Sixth and Seventh Amendments to Lease Agreement between
Delta Funding Corporation and the Tilles Investment Company
10.9 (e)-- Eighth Amendment to Lease Agreement between Delta Funding
Corporation and the Tilles Investment Company
10.10 (a)-- 1996 Stock Option Plan of Delta Financial Corporation
11.1 (g)-- Statement re: Computation of Per Share Earnings
21.1 (g)-- Subsidiaries of Registrant
27.1 (g)-- Financial Data Schedule
- ---------------
(a)Incorporated by reference from the Company's Registration Statement on Form
S-1 (No. 333-11289) filed with the Commission on October 9, 1996.
54
(b)Incorporated by reference from the Company's Current Report on Form 8-K (No.
001-12109) filed with the Commission on July 30, 1997.
(c)Incorporated by reference from the Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1997 (File No. 1-12109) filed with the
Commission on May 15, 1997.
(d)Incorporated by reference from the Company's Annual Report on Form 10-K for
the year ended December 31, 1997 (File No. 1-12109) filed with the Commission
on March 31, 1998.
(e)Incorporated by reference from the Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1998 (File No. 1-12109) filed with the
Commission on May 12, 1998.
(f)Incorporated by reference from the Company's Annual Report on Form 10-K for
the year ended December 31, 1998 (File No. 1-12109) filed with the Commission
on March 31, 1999.
(g) Filed herewith
(B) REPORTS ON FORM 8-K.
On September 23, 1999, the Company filed a Current Report on Form 8-K, in
which it reported that it had finalized the terms of a settlement with the New
York State Banking Department and the Office of the Attorney General of the
State of New York concerning some of Delta's lending practices and filed as
exhibits the (a) Remediation Agreement by and between Delta and the NYSBD, dated
as of September 17, 1999 and (b) Stipulated Order on Consent by and among Delta,
the Company and the NYOAG, dated as of September 17, 1999, memorializing the
settlements.
55
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereto duly authorized.
DELTA FINANCIAL CORPORATION
(Registrant)
Dated: March 30, 2000 By: /S/ HUGH MILLER
--------------------------------------------
Hugh Miller
President and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
SIGNATURE CAPACITY IN WHICH SIGNED DATE
- -------------------- --------------------------------------- ----------------
/S/ SIDNEY A. MILLER Chairman of the Board of Directors March 30, 2000
- --------------------
Sidney A. Miller
/S/ HUGH MILLER Chief Executive Officer,President March 30, 2000
- -------------------- and Director
Hugh Miller (Principal Executive Officer)
/S/ RICHARD BLASS Executive Vice President, March 30, 2000
- -------------------- Chief Financial Officer and
Richard Blass Director (Principal Financial Officer)
/S/ MARTIN D. PAYSON Director March 30, 2000
- --------------------
Martin D. Payson
/S/ ARNOLD B. POLLARD Director March 30, 2000
- ---------------------
Arnold B. Pollard
56
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 9th day of July, 1999 by and between DELTA
FINANCIAL CORPORATION, a Delaware corporation (the "Corporation"), and
Christopher Donnelly (the "Executive").
W I T N E S S E T H:
In consideration of the representations, warranties and conditions
contained herein, the parties hereto agree as follows:
1. POSITION AND RESPONSIBILITIES
1.1. The Executive shall serve in an executive capacity as
Executive Vice President of the Corporation. The Executive shall perform
such functions and undertake such responsibilities as are customarily
associated with such capacity. The Executive shall hold such directorships
and executive officerships in the Corporation and any subsidiary to which,
from time to time, he may be elected or appointed during the term of this
Agreement.
1.2. The Executive shall devote his full time and best efforts
to the business and affairs of the Corporation and to the promotion of its
interests.
2. TERM OF EMPLOYMENT
2.1. The term of employment shall be five years, commencing with
the date hereof, unless sooner terminated as provided in this Agreement. The
initial term of employment and any extension thereof is herein referred to as
the "Term."
2.2. Notwithstanding the provisions of Section 2.1 hereof, the
Corporation shall have the right, on written notice to the Executive, to
terminate the Executive's employment for Reasonable Cause, such termination
to be effective as of the date on which notice is given or as of such later
date otherwise specified in the notice.
2.3. For purposes of this Agreement, the term "Reasonable Cause"
shall mean any of the following actions by the Executive: (a) failure to
comply with any of the material terms of this Agreement; (b) engagement in
gross misconduct injurious to the Corporation or an affiliate of the
Corporation; (c) knowing and willful neglect or refusal to attend to the
material duties reasonably assigned to him by the Board of Directors or the
President of the Corporation; (d) intentional misappropriation of property of
the Corporation or an affiliate of the Corporation to the Executive's own
use; (e) the commission by the Executive of an act of embezzlement; (f)
Executive's conviction for a felony or if criminal penalties are imposed on
Executive relating to any individual income taxes due and owing by Executive;
or (g) Executive's engaging in any activity which would constitute a material
conflict of interest with the Corporation or an affiliate of the Corporation.
2.4. If the Executive's employment with the Corporation shall be
terminated by the Corporation other than pursuant to Sections 2.2, 4.1 or 4.2
hereof, then the Corporation shall pay: (a) if such termination occurs within
the first three (3) years of the Term of this Agreement, one (1) year's
salary, less withholding and payroll taxes; or (b) if such termination occurs
after the third year of the Term of this Agreement, fifty (50%) percent of
the remaining salary due under the balance of the Term of this Agreement,
less withholding and payroll taxes. Any payments made under this Section 2.4
shall (a) be paid in equal installments over the six months following any
such termination, and (b) be based upon the Executive's salary as it existed
immediately prior to such termination; provided, however that the Executive
shall only be entitled to such payments as long as he is in compliance with
the provisions of Section 5 below.
<PAGE>
COMPENSATION
3.1. (a) The Corporation shall pay or cause Delta Funding
Corporation to pay to the Executive for the services to be rendered by the
Executive hereunder a salary at the rate of $200,000 per annum. The salary
shall be payable in equal installments in accordance with the Corporation's
normal payroll practices. Such salary will be reviewed at least annually and
shall be increased (but not decreased) by the Board of Directors of the
Corporation in such amount as determined in its sole discretion.
(b) In addition, the Company may also pay the Executive an
annual bonus with respect to each fiscal year of the Corporation, either on
an "ad hoc" basis or pursuant to a bonus plan or arrangement as may be
established at the Corporation's discretion for Executive Vice Presidents of
this Corporation. Nothing herein contained shall, however, obligate the
Corporation to pay any annual bonus to the Executive, it being understood
that any such bonus shall be in the sole discretion of the Board of Directors
and that the amount thereof, if any, may vary depending upon actual
performance of the Corporation and the Executive as determined in the
discretion of the Board.
(c) In consideration of entering into this Agreement, the
Executive shall be entitled to receive a sign-up bonus of (1) $25,000 in cash
(the "Cash Sign-up Bonus") and (2) subject to and effective upon the date of
the approval by the Corporation's Board of Directors, $50,000 worth of
shares of the Corporation's Common Stock, par value $.01 (the "Common
Stock"), based upon the average per share market value of the Common Stock on
the New York Stock Exchange over the last twenty trading days preceding the
date that the Corporation's Board of Directors approves the grant of such
shares of Common Stock to the Executive (the "Per Share Sign-Up Value"). The
sale and other voluntary and involuntary disposition of such Common Stock
(the "Bonus Stock") is prohibited for a period of three years (the
"Disposition Restriction"), provided, however, that such Disposition
Restriction shall cease to apply with respect to $16,666 worth of shares of
such Bonus Stock (based upon the Per Share Sign-Up Value) on the first
anniversary of the date hereof, $16,666 worth of shares of such Bonus Stock
(based upon the Per Share Sign-Up Value) on the second anniversary of the
date hereof, and the remaining $16,668 worth of shares of such Bonus Stock on
the third anniversary of the date hereof (all shares of Bonus Stock which,
pursuant to this sentence, are no longer subject to the Disposition
Restriction are sometimes referred to herein as "Vested Bonus Shares"). Any
disposition of shares of Bonus Stock in violation of this Section 3.1(c)
shall be null and void. Executive agrees that if he terminates his
employment for any reason, or if the Corporation terminates his employment
pursuant to Section 2.2 hereof, (i) within the first twelve months of the
date hereof, then he shall immediately reimburse the Corporation the amount
of the Cash Sign-Up Bonus, and (ii) if any such termination occurs prior to
the completion of the Term of Employment, all shares of Bonus Stock that are
not Vested Bonus Shares as of the date of such termination shall
automatically be canceled, without any further notice or action by the
Corporation. Should the Executive fail to make the reimbursement required in
clause (i) of the immediately preceding sentence within 15 days of his
termination, the Corporation may offset the reimbursement due to it against
any severance payments that may be owing to the Executive pursuant to Section
2.4.
3.2. The Executive shall be entitled to participate in, and
receive benefits from, any insurance, medical, disability, bonus, incentive
compensation (including grants of non- qualified stock options under Delta's
1996 Stock Option Plan, as determined by the Corporation) or other employee
benefit plan, if any are adopted, of the Corporation or any subsidiary which
may be in effect at any time during the course of his employment by the
Corporation and which shall be generally available to the Executive on terms
no less favorable than to other senior executives of the Corporation or its
subsidiaries.
3.3. Upon the occurrence of a Change in Control (as defined
herein), all stock options held by the Executive beneficially (in trust or
otherwise) and/or of record, and all shares of Common Stock granted to the
Executive pursuant to Section 3.1(c) that are not Vested Bonus Shares, shall
vest and become immediately free of the Disposition Restriction on the date
of the Change of Control. For purposes of this Section 3.3, the term "Change
of Control" shall be deemed to have occurred if (i) any "person" (as such
term is used in Section 13 (d) and 14 (d) (2) of the Securities Exchange Act
of 1934), becomes the beneficial owner, directly or indirectly, of securities
of the Corporation representing 50% or more of the combined voting power of
the Corporation's then outstanding securities, (ii) during any period of 12
months, individuals who at the beginning of such period constitute the Board
of Directors of the Corporation cease for any reason to constitute a majority
thereof unless the election, or the nomination for the election by the
Corporation's stockholders of each new director was approved by a vote of at
least a majority of the directors then still in office who were directors at
the beginning of the period or (iii) a person (as defined in clause (i)
above) acquires (or, during the 12-month period ending on the date of the
most recent acquisition by such person or group or persons, has acquired) all
or substantially all of the Corporation's assets.
3.4. The Corporation agrees to reimburse the Executive for all
reasonable and necessary business expenses incurred by him on behalf of the
Corporation in the course of his duties hereunder upon the presentation by
the Executive of appropriate vouchers therefor.
3.5. The Executive will be entitled each year of this Agreement
to a paid vacation of five weeks.
3.6. Upon termination of this Agreement for Reasonable Cause or
due to the death or incapacity of the Executive (as defined in Section 4.1),
the Executive shall be entitled to all compensation and benefits accrued and
unpaid up to the date of termination.
3.7. The Executive shall not be required to mitigate damages or
the amount of any payment provided to him under this Agreement by seeking other
employment or otherwise.
3.8. Nothing contained herein shall prohibit the Board of
Directors of the Corporation, in its sole discretion, from increasing the
compensation payable to the Executive pursuant to this Agreement and/or
making available to the Executive other benefits in addition to those to
which the Executive is entitled hereunder.
4. INCAPACITY; DEATH
4.1. If, during the period of employment hereunder, because of
illness or other incapacity, the Executive shall fail for a period of 90
consecutive days, or for shorter periods aggregating more than 90 days during
any twelve month period, to render the services contemplated hereunder, then the
Corporation, at its option, may terminate the term of employment hereunder,
upon not less than 30 days written notice from the Corporation to the
Executive, effective on the 30th day after giving of such notice; PROVIDED,
HOWEVER, that no such termination will be effective if prior to the 30th day
after giving such notice, the Executive's illness or incapacity shall have
terminated and he shall be physically and mentally able to perform the
services required hereunder and shall be performing such services.
4.2. In the event of the death of the Executive during the term hereof, the
employment hereunder shall terminate on the date of death of the Executive.
4.3. The Corporation (or its designee) shall have the right to
obtain for its benefit an appropriate life insurance policy on the life of
the Executive, naming the Corporation (or its designee) as the beneficiary.
If requested by the Corporation, the Executive agrees to cooperate with the
Corporation in obtaining such policy.
4.4. In the event the employment of Executive is terminated by
the Corporation as the result of the death or incapacity of the Executive,
the Corporation agrees to continue to pay the Executive (or his estate) his
then rate of salary for a period of one year after such termination.
5. OTHER ACTIVITIES DURING EMPLOYMENT; NON-COMPETITION; SOLICITATION.
5.1. The Executive shall not during the term of this Agreement
undertake or engage in other employment, occupation or business enterprise.
Subject to compliance with the provisions of this Agreement, the Executive
may engage in reasonable activities with respect to personal investments of
the Executive.
5.2. During the Term of Agreement, and for a period of one year
after the Executive leaves the employ of the Corporation, in the event that (a)
the Corporation terminates the Executive's employment with the Corporation
pursuant to Sections 2.1 or 4.1, or (b) the Executive terminates his
employment with the Corporation for any reason, neither the Executive nor any
entity in which he may be interested as a partner, trustee, director,
officer, employee, shareholder, option holder, lender of money, guarantor or
consultant, shall be engaged directly or indirectly in any business engaged
in by the Corporation in any area where the Corporation, or any subsidiary,
conducts such business at any time during this Agreement; provided however,
that the foregoing shall not be deemed to prevent the Executive from
investing in securities if such class of securities in which the investment
is so made is listed on a national securities exchange or is issued by a
company registered under Section 12(g) of the Securities Exchange Act of
1934, so long as such investment holdings do not, in the aggregate,
constitute more than 5% of the voting stock of any company's securities.
5.3. The Executive will not at any time during his employment
with the Corporation, and for a period of one year after Executive leaves the
Corporation's employ for any reason, solicit (or assist or encourage the
solicitation of) any employee of the Corporation or any of its subsidiaries
or affiliates to work for Executive or for any business, firm corporation or
other entity in which the Executive, directly or indirectly, in any capacity
described in Section 5.2 hereof, participates or engages (or expects to
participate or engage) or has (or expects to have) a financial interest or
management position.
5.4. The Executive shall not at any time during this Agreement
or after the termination hereof directly or indirectly divulge, furnish, use,
publish or make accessible to any person or entity any Confidential
Information (as hereinafter defined). Any records of Confidential
Information prepared by the Executive or which come into Executive's
possession during this Agreement are and remain the property of the
Corporation and upon termination of Executive's employment all such records
and copies thereof shall be either left with or returned to the Corporation.
5.5. The term "Confidential Information" shall mean information
disclosed to the Executive or known, learned, created or observed by him as a
consequence of or through his employment by the Corporation, not generally
known in the relevant trade or industry, about the Corporation's or any of
its subsidiaries' or affiliates' business activities, services and processes,
including but not limited to information concerning advertising, sales
promotion, publicity, sales data, research, finances, accounting, methods,
processes, business plans, broker or correspondent lists and records and
potential broker or correspondent lists and records.
6. ASSIGNMENT. The Corporation shall require any successor or
assign to all or substantially all the assets of the Corporation (whether by
merger or by acquisition of stock, assets or otherwise) prior to
consummation of any transaction therewith, to expressly assume and agree to
perform in writing this Agreement in the same manner and to the same extent
that the Corporation would be required to perform it if no such succession
or assignment had taken place. This Agreement shall inure to the benefit of
and be binding upon the Corporation, its successors and assigns, and upon
the Executive and his heirs, executors, administrators and legal
representatives. This Agreement shall not be assignable by the Executive.
8. NO THIRD PARTY BENEFICIARIES. This Agreement does not create,
and shall not be construed as creating, any rights enforceable by any person not
a party to this Agreement, except as provided in Section 7 hereof.
9. HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
10. INTERPRETATION. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. If, moreover, any one or more of
the provisions contained in this Agreement shall for any reason be held by a
court of competent jurisdiction to be unenforceable because it is excessively
broad as to duration, geographical scope, activity or subject, it shall be
construed by limiting and reducing it, so as to be enforceable to the extent
compatible with the applicable law as it shall then appear.
11. NOTICES. All notices under this Agreement shall be in
writing and shall be deemed to have been given at the time when mailed by
registered or certified mail, addressed to the address below stated party to
which notice is given, or to such changed address as such party may have
fixed by notice:
To the Corporation:
Delta Financial Corporation
1000 Woodbury Road
Suite 200
Woodbury, New York 11797
Attn: President
And
To the Executive:
Christopher Donnelly
42 Lyndon Place
Melville, NY 11747
provided, however, that any notice of change of address shall be effective
only upon receipt.
12. WAIVERS. If either party should waive any breach of any
provision of this Agreement, he or it shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision
of this Agreement.
13. COMPLETE AGREEMENT; AMENDMENTS. The foregoing is the
entire agreement of the parties with respect to the subject matter hereof and
may not be amended, supplemented, canceled or discharged except by written
instrument executed by both parties hereto.
14. EQUITABLE REMEDIES. The Executive acknowledges that he
has been employed for his unique talents and that his leaving the employ of
the Corporation would seriously hamper the business of the Corporation and
that the Corporation will suffer irreparable damage if any provisions of
Section 5 hereof are not performed strictly in accordance with their terms or
are otherwise breached. The Executive hereby expressly agrees that the
Corporation shall be entitled as a matter of right to injunctive or other
equitable relief, in addition to all other remedies permitted by law, to
prevent a breach or violation by the Executive and to secure enforcement of
the provisions of Section 5. Resort to such equitable relief, however, shall
not constitute a waiver or any other rights or remedies, which the
Corporation may have.
15. GOVERNING LAW. This Agreement is to be governed by and
construed in accordance with the laws of the State of New York, without
giving effect to principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as the date first above written.
DELTA FINANCIAL CORPORATION
By: /S/ HUGH MILLER
---------------------
Name: Hugh Miller
Title: President and CEO
/S/ CHRISTOPHER DONNELLY
----------------------------
CHRISTOPHER DONNELLY
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 15th day of July, 1999 by and between DELTA
FINANCIAL CORPORATION, a Delaware corporation (the "Corporation"), and
Randall F. Michaels (the "Executive").
W I T N E S S E T H:
In consideration of the representations, warranties and conditions
contained herein, the parties hereto agree as follows:
1. POSITION AND RESPONSIBILITIES
1.1. The Executive shall serve in an executive capacity as
Executive Vice President of the Corporation. The Executive shall perform
such functions and undertake such responsibilities as are customarily
associated with such capacity. The Executive shall hold such directorships
and executive officerships in the Corporation and any subsidiary to which,
from time to time, he may be elected or appointed during the term of this
Agreement.
1.2. The Executive shall devote his full time and best efforts
to the business and affairs of the Corporation and to the promotion of its
interests.
2. TERM OF EMPLOYMENT
2.1 The term of employment shall be five years, commencing with
the date hereof, unless sooner terminated as provided in this Agreement. The
initial term of employment and any extension thereof is herein referred to as
the "Term."
2.2. Notwithstanding the provisions of Section 2.1 hereof, the
Corporation shall have the right, on written notice to the Executive, to
terminate the Executive's employment for Reasonable Cause, such termination
to be effective as of the date on which notice is given or as of such later
date otherwise specified in the notice.
2.3. For purposes of this Agreement, the term "Reasonable Cause"
shall mean any of the following actions by the Executive: (a) failure to
comply with any of the material terms of this Agreement; (b) engagement in
gross misconduct injurious to the Corporation or an affiliate of the
Corporation; (c) knowing and willful neglect or refusal to attend to the
material duties reasonably assigned to him by the Board of Directors or the
President of the Corporation; (d) intentional misappropriation of property of
the Corporation or an affiliate of the Corporation to the Executive's own
use; (e) the commission by the Executive of an act of embezzlement; (f)
Executive's conviction for a felony or if criminal penalties are imposed on
Executive relating to any individual income taxes due and owing by Executive;
or (g) Executive's engaging in any activity which would constitute a material
conflict of interest with the Corporation or an affiliate of the Corporation.
2.4. If the Executive's employment with the Corporation shall be
terminated by the Corporation other than pursuant to Sections 2.2, 4.1 or 4.2
hereof, then the Corporation shall pay to the Executive the sum of (a) one
(1) year's salary, less withholding and payroll taxes and (b) twelve times
the average commissions per month earned by the Executive pursuant to the
Commission Agreement (as such term is defined in Section 3.1(a)) over the six
calendar months immediately preceding the date of termination, less
withholding and payroll taxes. Any payments made under clause (a) of this
Section 2.4 shall be based upon the Executive's salary as it existed
immediately prior to such termination, and any payments made under either
clause (a) or clause (b) of this Section 2.4 shall be paid in equal
installments over the six months following any such termination; provided,
however that the Executive shall only be entitled to such payments under
either clause (a) or clause (b) of this Section 2.4 as long as he is in
compliance with the provisions of Section 5 below.
3. COMPENSATION
3.1. (a) The Corporation shall pay or cause Delta Funding
Corporation to pay to the Executive for the services to be rendered by the
Executive hereunder a salary at the rate of $175,000 per annum. The salary
shall be payable in equal installments in accordance with the Corporation's
normal payroll practices. Such salary will be reviewed at least annually and
shall be increased (but not decreased) by the Board of Directors of the
Corporation in such amount as determined in its sole discretion. In addition
to the salary, the Corporation will pay commissions to the Executive pursuant
to a separate commission agreement between the Company and the Executive to be
entered into simultaneously with this Agreement (the "Commission Agreement").
The Commission Agreement may be amended from time to time by the mutual
agreement of the Executive and the Company.
(b) In addition, the Company may also pay the Executive an
annual bonus with respect to each fiscal year of the Corporation, either on
an "ad hoc" basis or pursuant to a bonus plan or arrangement as may be
established at the Corporation's discretion for Executive Vice Presidents of
this Corporation. Nothing herein contained shall, however, obligate the
Corporation to pay any annual bonus to the Executive, it being understood
that any such bonus shall be in the sole discretion of the Board of Directors
and that the amount thereof, if any, may vary depending upon actual
performance of the Corporation and the Executive as determined in the
discretion of the Board.
(c) In consideration of entering into this Agreement,
subject to and effective upon the date of the approval by the Corporation's
Board of Directors, the Executive shall be entitled to receive a sign-up
bonus of $100,000 worth of shares of the Corporation's Common Stock, par
value $.01 (the "Common Stock"), based upon the average per share market
value of the Common Stock on the New York Stock Exchange over the last twenty
trading days preceding the date that the Corporation's Board of Directors
approves the grant of such shares of Common Stock to the Executive. The sale
and other voluntary and involuntary disposition of such Common Stock is
prohibited for a period of one year from date of grant.
3.2. The Executive shall be entitled to participate in, and
receive benefits from, any insurance, medical, disability, bonus, incentive
compensation (including grants of non- qualified stock options under Delta's
1996 Stock Option Plan, as determined by the Corporation) or other employee
benefit plan, if any are adopted, of the Corporation or any subsidiary which
may be in effect at any time during the course of his employment by the
Corporation and which shall be generally available to the Executive on terms
no less favorable than to other senior executives of the Corporation or its
subsidiaries.
3.3. Upon the occurrence of a Change in Control (as defined
herein), all stock options held by the Executive beneficially (in trust or
otherwise) and/or of record, including, without limitation, all stock options
held in trust for the benefit of the Executive in any Key Employee Share
Option Plan as may be established at the Corporation's discretion, and all
unvested shares of Common stock granted to the Executive pursuant to Section
3.1(c), shall vest and become immediately exercisable on the date of the
Change of Control. For purposes of this Section 3.3, the term "Change of
Control" shall be deemed to have occurred if (i) any "person" (as such term
is used in Section 13 (d) and 14 (d) (2) of the Securities Exchange Act of
1934), becomes the beneficial owner, directly or indirectly, of securities of
the Corporation representing 50% or more of the combined voting power of the
Corporation's then outstanding securities, (ii) during any period of 12
months, individuals who at the beginning of such period constitute the Board
of Directors of the Corporation cease for any reason to constitute a majority
thereof unless the election, or the nomination for the election by the
Corporation's stockholders of each new director was approved by a vote of at
least a majority of the directors then still in office who were directors at
the beginning of the period or (iii) a person (as defined in clause (i)
above) acquires (or, during the 12-month period ending on the date of the
most recent acquisition by such person or group or persons, has acquired) all
or substantially all of the Corporation's assets.
3.4. The Corporation agrees to reimburse the Executive for all
reasonable and necessary business expenses incurred by him on behalf of the
Corporation in the course of his duties hereunder upon the presentation by
the Executive of appropriate vouchers therefor.
3.5. The Executive will be entitled each year of this Agreement
to a paid vacation of four weeks.
3.6. Upon termination of this Agreement for Reasonable
Cause or due to the death or incapacity of the Executive (as defined in
Section 4.1), the Executive shall be entitled to all compensation and
benefits accrued and unpaid up to the date of termination.
3.7. The Executive shall not be required to mitigate
damages or the amount of any payment provided to him under this Agreement by
seeking other employment or otherwise.
3.8. Nothing contained herein shall prohibit the Board of
Directors of the Corporation, in its sole discretion, from increasing the
compensation payable to the Executive pursuant to this Agreement and/or making
available to the Executive other benefits in addition to those to which the
Executive is entitled hereunder.
4. INCAPACITY; DEATH
4.1 If, during the period of employment hereunder, because
of illness or other incapacity, the Executive shall fail for a period
of 90 consecutive days, or for shorter periods aggregating more than 90 days
during any twelve month period, to render the services contemplated
hereunder, then the Corporation, at its option, may terminate the term of
employment hereunder, upon not less than 30 days written notice from the
Corporation to the Executive, effective on the 30th day after giving of such
notice; PROVIDED, HOWEVER, that no such termination will be effective if
prior to the 30th day after giving such notice, the Executive's illness or
incapacity shall have terminated and he shall be physically and mentally able
to perform the services required hereunder and shall be performing such
services.
4.2 In the event of the death of the Executive during the term
hereof, the employment hereunder shall terminate on the date of death of the
Executive.
4.3. The Corporation (or its designee) shall have the right to
obtain for its benefit an appropriate life insurance policy on the life of
the Executive, naming the Corporation (or its designee) as the beneficiary.
If requested by the Corporation, the Executive agrees to cooperate with the
Corporation in obtaining such policy.
4.4. In the event the employment of Executive is terminated by
the Corporation as the result of the death or incapacity of the Executive,
the Corporation agrees to continue to pay the Executive (or his estate) one
year's salary at his then rate of salary, less withholding and payroll taxes,
plus twelve times the average commissions per month earned by the Executive
pursuant to the Commission Agreement over the six calendar months immediately
preceding the date of termination, less withholding and payroll taxes. Any
payments made under this Section 4.4 shall be paid in equal installments over
a period of one year after such termination.
5. OTHER ACTIVITIES DURING EMPLOYMENT; NON-COMPETITION;
SOLICITATION.
5.1. The Executive shall not during the term of this Agreement
undertake or engage in other employment, occupation or business enterprise.
Subject to compliance with the provisions of this Agreement, the Executive
may engage in reasonable activities with respect to personal investments of
the Executive.
5.2 During the Term of this Agreement, and for the Restricted
Period (hereinafter defined), if any, neither the Executive nor any entity in
which he may be interested as a partner, trustee, director, officer, employee,
shareholder, option holder, lender of money, guarantor or consultant, shall
be engaged directly or indirectly in any business engaged in by the
Corporation in any area where the Corporation, or any subsidiary, conducts
such business at any time during this Agreement; provided however, that the
foregoing shall not be deemed to prevent the Executive from investing in
securities if such class of securities in which the investment is so made is
listed on a national securities exchange or is issued by a company registered
under Section 12(g) of the Securities Exchange Act of 1934, so long as such
investment holdings do not, in the aggregate, constitute more than 5% of the
voting stock of any company's securities. For purposes of this Section 5.2,
the term "Restricted Period" shall mean : (i) in the event that the
Corporation terminates the Executive's employment with the Corporation
pursuant to Section 4.1 at any time during the Term of this Agreement, or the
Executive terminates his employment with the Corporation for any reason prior
to the forty-eighth (48th) month of the Term of this Agreement, a period of
one year after the Executive leaves the employ of the Corporation, and (ii)
in the event that the Executive terminates his employment with the
Corporation for any reason during the forty-eighth (48th) though the sixtieth
(60th) month of the Term of this Agreement, a period equal to the unexpired
portion of the Term as of the date that the Executive leaves the employ of
the Corporation. The Restricted Period shall not be in effect if the
Executive's employment is terminated pursuant to Section 2.2 or 2.4 hereof.
5.3. During his employment with the Corporation, and, in the
event that the Executive terminates his employment with the Corporation for
any reason during the Term of this Agreement, for a period of one year after
Executive leaves the Corporation's employ, the Executive will not at any time
solicit (or assist or encourage the solicitation of) any employee of the
Corporation or any of its subsidiaries or affiliates to work for Executive or
for any business, firm corporation or other entity in which the Executive,
directly or indirectly, in any capacity described in Section 5.2 hereof,
participates or engages (or expects to participate or engage) or has (or
expects to have) a financial interest or management position. This Section
5.3 shall not be in effect if the Corporation terminates Executive's
employment for any reason.
5.4. The Executive shall not at any time during this Agreement
or after the termination hereof directly or indirectly divulge, furnish, use,
publish or make accessible to any person or entity any Confidential
Information (as hereinafter defined). Any records of Confidential
Information prepared by the Executive or which come into Executive's
possession during this Agreement are and remain the property of the
Corporation and upon termination of Executive's employment all such records
and copies thereof shall be either left with or returned to the Corporation.
5.5. The term "Confidential Information" shall mean information
disclosed to the Executive or known, learned, created or observed by him as a
consequence of or through his employment by the Corporation, not generally
known in the relevant trade or industry, about the Corporation's or any of
its subsidiaries' or affiliates' business activities, services and processes,
including but not limited to information concerning advertising, sales
promotion, publicity, sales data, research, finances, accounting, methods,
processes, business plans, broker or correspondent lists and records and
potential broker or correspondent lists and records.
6. ASSIGNMENT. The Corporation shall require any successor or
assign to all or substantially all the assets of the Corporation (whether by
merger or by acquisition of stock, assets or otherwise) prior to
consummation of any transaction therewith, to expressly assume and agree to
perform in writing this Agreement in the same manner and to the same extent
that the Corporation would be required to perform it if no such succession
or assignment had taken place. This Agreement shall inure to the benefit of
and be binding upon the Corporation, its successors and assigns, and upon
the Executive and his heirs, executors, administrators and legal
representatives. This Agreement shall not be assignable by the Executive.
8. NO THIRD PARTY BENEFICIARIES. This Agreement does not create,
and shall not be construed as creating, any rights enforceable by any person not
a party to this Agreement, except as provided in Section 7 hereof.
9. HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
10. INTERPRETATION. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. If, moreover, any one or more of the
provisions contained in this Agreement shall for any reason be held by a court
of competent jurisdiction to be unenforceable because it is excessively broad as
to duration, geographical scope, activity or subject, it shall be construed
by limiting and reducing it, so as to be enforceable to the extent compatible
with the applicable law as it shall then appear.
11. NOTICES. All notices under this Agreement shall be in
writing and shall be deemed to have been given at the time when mailed by
registered or certified mail, addressed to the address below stated party to
which notice is given, or to such changed address as such party may have
fixed by notice:
To the Corporation:
Delta Financial Corporation
1000 Woodbury Road
Suite 200
Woodbury, New York 11797
Attn: President
And
To the Executive:
Randall F. Michaels
114 Asharoken Road
Northport, NY 11768
provided, however, that any notice of change of address shall be effective
only upon receipt.
12. WAIVERS. If either party should waive any breach of any
provision of this
Agreement, he or it shall not thereby be deemed to have waived any preceding
or succeeding breach of the same or any other provision of this Agreement.
13. COMPLETE AGREEMENT; AMENDMENTS. The foregoing is the
entire agreement of the parties with respect to the subject matter hereof and
may not be amended, supplemented, canceled or discharged except by written
instrument executed by both parties hereto.
14. EQUITABLE REMEDIES. The Executive acknowledges that he
has been employed for his unique talents and that his leaving the employ of
the Corporation would seriously hamper the business of the Corporation and
that the Corporation will suffer irreparable damage if any provisions of
Section 5 hereof are not performed strictly in accordance with their terms or
are otherwise breached. The Executive hereby expressly agrees that the
Corporation shall be entitled to seek injunctive or other equitable relief,
in addition to all other remedies permitted by law, to prevent a breach or
violation by the Executive and to secure enforcement of the provisions of
Section 5. Resort to such equitable relief, however, shall not constitute a
waiver or any other rights or remedies, which the Corporation may have.
15. GOVERNING LAW. This Agreement is to be governed by and
construed in accordance with the laws of the State of New York, without
giving effect to principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as the date first above written.
DELTA FINANCIAL CORPORATION
By: /S/ HUGH MILLER
------------------
Name: Hugh Miller
Title: President and CEO
/S/ RANDALL F. MICHAELS
--------------------------
RANDALL F. MICHAELS
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of July, 1999 by and between DELTA
FINANCIAL CORPORATION, a Delaware corporation (the "Corporation"), and
Richard Blass (the "Executive").
W I T N E S S E T H:
In consideration of the representations, warranties and conditions
contained herein, the parties hereto agree as follows:
1. POSITION AND RESPONSIBILITIES
1.1. The Executive shall serve in an executive capacity as Chief
Financial Officer and Senior Vice President of the Corporation. The
Executive shall perform such functions and undertake such responsibilities as
are customarily associated with such capacity. The Executive shall hold such
directorships and executive officerships in the Corporation and any
subsidiary to which, from time to time, he may be elected or appointed during
the term of this Agreement.
1.2. The Executive shall devote his full time and best efforts
to the business and affairs of the Corporation and to the promotion of its
interests.
2. TERM OF EMPLOYMENT
2.1. The term of employment shall be five years, commencing with
the date hereof, unless sooner terminated as provided in this Agreement. The
initial term of employment and any extension thereof is herein referred to as
the "Term."
2.2. Notwithstanding the provisions of Section 2.1 hereof, the
Corporation shall have the right, on written notice to the Executive, to
terminate the Executive's employment for Reasonable Cause, such termination to
be effective as of the date on which notice is given or as of such later date
otherwise specified in the notice.
2.3. For purposes of this Agreement, the term "Reasonable Cause"
shall mean any of the following actions by the Executive: (a) failure to
comply with any of the material terms of this Agreement; (b) engagement in
gross misconduct injurious to the Corporation or an affiliate of the
Corporation; (c) knowing and willful neglect or refusal to attend to the
material duties reasonably assigned to him by the Board of Directors or the
President of the Corporation; (d) intentional misappropriation of property of
the Corporation or an affiliate of the Corporation to the Executive's own
use; (e) the commission by the Executive of an act of embezzlement; (f)
Executive's conviction for a felony or if criminal penalties are imposed on
Executive relating to any individual income taxes due and owing by Executive;
or (g) Executive's engaging in any activity which would constitute a material
conflict of interest with the Corporation or an affiliate of the Corporation.
2.4. If the Executive's employment with the Corporation shall be
terminated by the Corporation other than pursuant to Sections 2.2, 4.1 or 4.2
hereof, then the Corporation shall pay: (1) (a) if such termination occurs
within the first three (3) years of the Term of this Agreement, one (1)
year's salary, less withholding and payroll taxes; or (b) if such termination
occurs after the third year of the Term of this Agreement, fifty (50%)
percent of the remaining salary due under the balance of the Term of this
Agreement, less withholding and payroll taxes; and (2) if such termination
occurs during the years 1999 or 2000 (in addition to any amount payable
pursuant to clause (1)(a) of this Section 2.4), the amount of any unpaid
Minimum Annual Bonus that would otherwise be payable pursuant to Section
3.1(c). Any payments made under clause (1) of this Section 2.4 shall (i) be
paid in equal installments over the six months following any such
termination, and (ii) be based upon the Executive's salary as it existed
immediately prior to such termination; provided, however that the Executive
shall only be entitled to such payments as long as he is in compliance with
the provisions of Section 5 below. Any payment made under clause (2) of this
Section 2.4 shall be paid within 15 days of the date of termination.
3. COMPENSATION
3.1 (a) The Corporation shall pay or cause Delta Funding
Corporation to pay to the Executive for the services to be rendered by the
Executive hereunder a salary at the rate of $250,000 per annum. The salary
shall be payable in equal installments in accordance with the Corporation's
normal payroll practices. Such salary will be reviewed at least annually and
shall be increased (but not decreased) by the Board of Directors of the
Corporation in such amount as determined in its sole discretion.
(b) In addition, the Executive will be paid a quarterly
cash bonus based on the actual performance of the Corporation. The amount of
such quarterly cash bonus will be as follows: for each 1% increase in net
earnings per share for the relevant fiscal quarter greater than 10% as
measured against the corresponding quarter in the prior fiscal year, the
Executive will receive a cash bonus of 1.875% of his current annual salary,
PROVIDED THAT for any fiscal year the sum of the quarterly cash bonuses paid
to the Executive may not exceed 50% of the Executive's current annual salary,
and PROVIDED FURTHER THAT for any fiscal quarter the quarterly cash bonus
paid to the Executive may not exceed 15% of the Executive's current annual
salary. "Net earnings per share" shall be calculated in accordance with
generally accepted accounting principles, consistently applied. Such
quarterly bonuses will be payable 60 days after the relevant quarter. By way
of illustration only, if the Company reports net earnings per share for the
quarter 13% higher than in the corresponding quarter of the prior fiscal year
and the Executive's salary is $160,000 per annum, 60 days after the last day
of the relevant quarter the Executive would be paid a cash bonus of $9,000.
(c) In addition to the quarterly bonus described in
Section 3.1(b), the Corporation shall pay the Executive a cash bonus in the
amount of $300,000 for each of the fiscal years ending December 31, 1999 and
December 31, 2000, respectively (each such bonus being sometimes referred to
as a "Minimum Annual Bonus"). Each Minimum Annual Bonus shall be paid by the
Corporation within forty-five (45) days after the end of the fiscal year for
which it is being paid.
(d) In addition to any bonus described in Sections 3.1(b)
or 3.1(c), the Corporation may also pay the Executive an annual bonus with
respect to each fiscal year of the Corporation, either on an "ad hoc" basis
or pursuant to a bonus plan or arrangement as may be established at the
Corporation's discretion for Senior Vice Presidents of this Corporation.
Nothing contained in this Section 3.1(d) shall, however, obligate the
Corporation to pay any annual bonus described in this Section 3.1(d) to the
Executive, it being understood that any such bonus shall be in the sole
discretion of the Board of Directors and that the amount thereof, if any, may
vary depending upon actual performance of the Corporation and the Executive
as determined in the discretion of the Board.
(e) In consideration of entering into this Agreement, the
Executive shall be entitled to receive a sign-up bonus of four hundred
thousand dollars ($400,000) payable upon the signing of this Agreement.
Executive agrees that if he terminates his employment for any reason, except
by reason of death or for Good Reason in connection with a Change of Control
(as set forth in Section 3.3 below), or if the Corporation terminates his
employment pursuant to Section 2.2 hereof, prior to the completion of the
Term of Employment, he will immediately reimburse the Corporation one-hundred
fifty thousand dollars ($150,000.00) of the sign-up bonus paid under this
Section 3.1(e). Should the Executive fail to make such reimbursement within
15 days of his termination, the Corporation may offset the $150,000.00 due to
it against any severance payments that may be owing to the Executive pursuant
to Section 2.4.
3.2. The Executive shall be entitled to participate in, and
receive benefits from, any insurance, medical, disability, bonus, incentive
compensation (including additional grants of non- qualified stock options
under Delta's 1996 Stock Option Plan, as determined by the Corporation) or
other employee benefit plan, if any are adopted, of the Corporation or any
subsidiary which may be in effect at any time during the course of his
employment by the Corporation and which shall be generally available to the
Executive on terms no less favorable than to other senior executives of the
Corporation or its subsidiaries.
3.3 If, upon a Change of Control, as defined under Section 6, the
Executive's employment with the Corporation is terminated by the Corporation,
or the Executive terminates his employment with the Corporation for Good
Reason (as defined below) within a twenty-four (24) month period following a
Change of Control (each a "Change of Control Termination"), the Executive
shall be entitled to the following severance compensation and benefits in
lieu of any payments which would otherwise be payable under Section 2.4:
(a) within 15 days of the date of the Change of Control
Termination (the "Change of Control Termination Date"), the Corporation shall
pay the Executive all amounts of earned or accrued compensation through the
Executive's termination date, including reasonable business expenses and
vacation pay;
(b) within 15 days of the Change of Control Termination
Date, the Corporation shall pay the Executive as severance pay and in lieu of
any further compensation for periods subsequent to the Change of Control
Termination Date, an amount equal to the sum of (i)(x) if less than two (2)
years remain on the term of this Agreement, two (2) times the Executive's
annual base salary at the rate in effect as of the Change in Control
Termination Date, and (y) if more than two (2) years remain on the term of
this Agreement, the Executive's annual base salary at the rate in effect as
of the Change in Control Termination Date, multiplied by the number of
remaining years of the term of this Agreement (including fractions of a
year), but in no event shall the severance pay described in this clause (i)
of this Section 3.3(b) exceed three (3) times the Executive's annual base
salary at the rate in effect as of the Change of Control Termination Date and
(ii) the amount of any unpaid Annual Minimum Bonus that would otherwise be
payable pursuant to Section 3.1(c);
(c) the Corporation shall continue on behalf of the
Executive and his dependents and beneficiaries the life insurance,
disability, medical, dental, prescription drug and hospitalization coverages
and benefits provided to the Executive immediately prior to the Change of
Control Termination Date or, if greater, the coverages and benefits generally
provided at any time thereafter by the Corporation to its senior officers for
a period of twenty-four (24) months following the Change of Control
Termination Date, or until such time as Executive is receiving such similar
benefits from a subsequent employer, whichever is shorter; and
(d) Any obligation the Executive may have to reimburse the
Corporation three hundred thousand dollars ($150,000) of the sign-up bonus
paid under Section 3.1(e) will terminate in the event of the occurrence of a
Change of Control Termination.
For purposes of this Section, "Good Reason" shall mean any of the following
which occurs subsequent to the date of this Agreement;
(i) the Corporation materially changes the Executive's duties and
responsibilities to a level materially below those normally associated with
the position held by the Executive on the date hereof.
(ii) a reduction of the Executive's base salary as then in
effect, without the Executive's written consent, or the Corporation's
failure to increase the Executive's base salary at least annually as
provided by Section 3.1(a), or the Corporation's failure to increase the
Executive's base salary by an amount equal to at least ninety (90%) of the
Executive's last annual increase in base salary; provided, however, that
Good Reason shall not be deemed to exist under this subsection (ii) if
during the 12-month period immediately succeeding the effective date of such
last annual increase in base salary, the Corporation increased the
Executive's base salary, granted the Executive a discretionary bonus or
bonuses, granted the Executive stock options, stock appreciation rights,
restricted stock or warrants, or otherwise provided the Executive with
additional compensation not required by the terms of this Agreement, and the
effect of which either individually or in the aggregate, after giving a
reasonable valuation to all such forms of compensation (determined as of the
date that each such form of compensation was provided to Executive,
disregarding any vesting or like restrictions)), and also after giving
effect to any Minimum Annual Bonus payable to Executive for such time period
pursuant to Section 3.1(c), has the effect of having increased the
Executive's total compensation by an amount equal to at least ninety (90%)
of the previous annual increase in the Executive's base salary.
(iii) a relocation or an actual change in the Executive's place
of employment which is not within a 50-mile radius of the Executive's place
of employment immediately before such change without the Executive's written
consent;
(iv) any material breach by the Corporation of any provision of
this Agreement;
(v) any failure by the Corporation to obtain the assumption of
this Agreement by any successor entity.
The severance pay and benefits provided for in this Section 3 shall be
in lieu of any other pay to which the Executive may be entitled under this
Agreement or any other severance or employment agreement with the
Corporation. In addition, the Executive shall only be entitled to receive
payments and benefits pursuant to this Section 3 as long as he is in
compliance with the provisions of Section 5 below, provided, however, that
any payment described in clause (ii) of Section 3(b) shall not be conditioned
on Executive's compliance with the provisions of Section 5 below.
Notwithstanding anything contained in Section 3.3 to the contrary, the
Executive in his sole discretion shall be entitled to waive his right to
receive any amount of severance pay and/or benefits otherwise payable to him
pursuant to this Section 3.
3.4. Upon the occurrence of a Change in Control , (a) all stock
options held by the Executive beneficially (in trust or otherwise) and/or of
record, including, without limitation, all stock options held in trust for
the benefit of the Executive in any Key Employee Share Option Plan as may be
established at the Corporation's discretion, shall vest and become
immediately exercisable on the date of the Change of Control and (b) if such
Change of Control occurs during the years 1999 or 2000, then, within 15 days
of the date of the Change of Control, the Corporation shall pay the Executive
an amount equal to any unpaid Minimum Annual Bonus that would otherwise be
payable pursuant to Section 3.1(c). Notwithstanding anything contained in
this Agreement to the contrary, upon payment in full to the Executive of the
amount payable pursuant to clause (b) of this Section 3.4, the obligation of
the Corporation to pay any Minimum Annual Bonus or any amount equal to a
Minimum Annual Bonus pursuant to Sections 2.4, 3.1(c) or 4.4 shall terminate.
3.5 The Corporation agrees to reimburse the Executive for all
reasonable and necessary business expenses incurred by him on behalf of the
Corporation in the course of his duties hereunder upon the presentation by
the Executive of appropriate vouchers therefor.
3.6. The Executive will be entitled each year of this Agreement
to a paid vacation of four weeks.
3.7. Upon termination of this Agreement for Reasonable
Cause or due to the death or incapacity of the Executive (as defined in
Section 4.1), the Executive shall be entitled to all compensation and
benefits accrued and unpaid up to the date of termination.
3.8. The Executive shall not be required to mitigate
damages or the amount of any payment provided to him under this Agreement by
seeking other employment or otherwise.
3.9. Nothing contained herein shall prohibit the Board of
Directors of the Corporation, in its sole discretion, from increasing the
compensation payable to the Executive pursuant to this Agreement and/or
making available to the Executive other benefits in addition to those to
which the Executive is entitled hereunder.
4. INCAPACITY; DEATH
4.1 If, during the period of employment hereunder, because of
illness or other incapacity, the Executive shall fail for a period of 90
consecutive days, or for shorter periods aggregating more than 90 days during
any twelve month period, to render the services contemplated hereunder, then the
Corporation, at its option, may terminate the term of employment hereunder,
upon not less than 30 days written notice from the Corporation to the
Executive, effective on the 30th day after giving of such notice; PROVIDED,
HOWEVER, that no such termination will be effective if prior to the 30th day
after giving such notice, the Executive's illness or incapacity shall have
terminated and he shall be physically and mentally able to perform the
services required hereunder and shall be performing such services.
4.2 In the event of the death of the Executive during the term
hereof, the employment hereunder shall terminate on the date of death of the
Executive.
4.3. The Corporation (or its designee) shall have the right to
obtain for its benefit an appropriate life insurance policy on the life of
the Executive, naming the Corporation (or its designee) as the beneficiary.
If requested by the Corporation, the Executive agrees to cooperate with the
Corporation in obtaining such policy.
4.4. In the event the employment of Executive is terminated by
the Corporation as the result of the death or incapacity of the Executive,
the Corporation agrees to make a payment to the Executive (or his estate)
within 15 days of such termination equal to the Executive's annual salary in
effect as of the date of such termination, plus (if such termination occurs
during the years 1999 or 2000) the amount of any unpaid Minimum Annual Bonus
that would otherwise be payable pursuant to Section 3.1(c).
5. OTHER ACTIVITIES DURING EMPLOYMENT; NON-COMPETITION;
SOLICITATION.
5.1. The Executive shall not during the term of this Agreement
undertake or engage in other employment, occupation or business enterprise.
Subject to compliance with the provisions of this Agreement, the Executive
may engage in reasonable activities with respect to personal investments of
the Executive.
5.2 During the Term of Agreement, and for a period of one year
after the Executive leaves the employ of the Corporation, in the event that
(a) the Corporation terminates the Executive's employment with the Corporation
pursuant to Sections 2.1 or 4.1, or (b) the Executive terminates his
employment with the Corporation for any reason other than Good Reason
following a Change in Control, neither the Executive nor any entity in which
he may be interested as a partner, trustee, director, officer, employee,
shareholder, option holder, lender of money, guarantor or consultant, shall
be engaged directly or indirectly in any business engaged in by the
Corporation in any area where the Corporation, or any subsidiary, conducts
such business at any time during this Agreement; provided however, that the
foregoing shall not be deemed to prevent the Executive from investing in
securities if such class of securities in which the investment is so made is
listed on a national securities exchange or is issued by a company registered
under Section 12(g) of the Securities Exchange Act of 1934, so long as such
investment holdings do not, in the aggregate, constitute more than 5% of the
voting stock of any company's securities.
5.3. The Executive will not at any time during his employment
with the Corporation, and for a period of one year after Executive leaves the
Corporation's employ for any reason, solicit (or assist or encourage the
solicitation of) any employee of the Corporation or any of its subsidiaries
or affiliates to work for Executive or for any business, firm corporation or
other entity in which the Executive, directly or indirectly, in any capacity
described in Section 5.2 hereof, participates or engages (or expects to
participate or engage) or has (or expects to have) a financial interest or
management position.
5.4. The Executive shall not at any time during this Agreement
or after the termination hereof directly or indirectly divulge, furnish, use,
publish or make accessible to any person or entity any Confidential
Information (as hereinafter defined). Any records of Confidential
Information prepared by the Executive or which come into Executive's
possession during this Agreement are and remain the property of the
Corporation and upon termination of Executive's employment all such records
and copies thereof shall be either left with or returned to the Corporation.
5.5. The term "Confidential Information" shall mean information
disclosed to the Executive or known, learned, created or observed by him as a
consequence of or through his employment by the Corporation, not generally
known in the relevant trade or industry, about the Corporation's or any of
its subsidiaries' or affiliates' business activities, services and processes,
including but not limited to information concerning advertising, sales
promotion, publicity, sales data, research, finances, accounting, methods,
processes, business plans, broker or correspondent lists and records and
potential broker or correspondent lists and records.
6. CHANGE OF CONTROL. For purposes of this Agreement, the
term "Change of Control" shall be deemed to have occurred if (i) any
"person" (as such term is used in Section 13 (d) and 14 (d) (2) of the
Securities Exchange Act of 1934), becomes the beneficial owner, directly or
indirectly, of securities of the Corporation representing 50% or more of the
combined voting power of the Corporation's then outstanding securities, (ii)
during any period of 12 months, individuals who at the beginning of such
period constitute the Board of Directors of the Corporation cease for any
reason to constitute a majority thereof unless the election, or the
nomination for the election by the Corporation's stockholders of each new
director was approved by a vote of at least a majority of the directors then
still in office who were directors at the beginning of the period or (iii) a
person (as defined in clause (i) above) acquires (or, during the 12-month
period ending on the date of the most recent acquisition by such person or
group or persons, has acquired) all or substantially all of the
Corporation's assets.
7. ASSIGNMENT. The Corporation shall require any successor or
assign to all or substantially all the assets of the Corporation (whether by
merger or by acquisition of stock, assets or otherwise) prior to consummation
of any transaction therewith, to expressly assume and agree to perform in
writing this Agreement in the same manner and to the same extent that the
Corporation would be required to perform it if no such succession or
assignment had taken place. This Agreement shall inure to the benefit of and
be binding upon the Corporation, its successors and assigns, and upon the
Executive and his heirs, executors, administrators and legal
representatives. This Agreement shall not be assignable by the Executive.
8. NO THIRD PARTY BENEFICIARIES. This Agreement does not
create, and shall not be construed as creating, any rights enforceable by any
person not a party to this Agreement, except as provided in Section 7 hereof.
9. HEADINGS. The headings of the sections hereof are inserted
for convenience only and shall not be deemed to constitute a part hereof nor
to affect the meaning thereof.
10. INTERPRETATION. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. If, moreover, any
one or more of the provisions contained in this Agreement shall for any
reason be held by a court of competent jurisdiction to be unenforceable
because it is excessively broad as to duration, geographical scope, activity
or subject, it shall be construed by limiting and reducing it, so as to be
enforceable to the extent compatible with the applicable law as it shall then
appear.
11. NOTICES. All notices under this Agreement shall be in
writing and shall be deemed to have been given at the time when mailed by
registered or certified mail, addressed to the address below stated party to
which notice is given, or to such changed address as such party may have
fixed by notice:
To the Corporation:
Delta Financial Corporation
1000 Woodbury Road
Suite 200
Woodbury, New York 11797
Attn: President
And
To the Executive:
Richard Blass
22 Wharton Place
Melville, NY 11747
provided, however, that any notice of change of address shall be effective
only upon receipt.
12. WAIVERS. If either party should waive any breach of any
provision of this Agreement, he or it shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision
of this Agreement.
13. COMPLETE AGREEMENT; AMENDMENTS. The foregoing is the
entire agreement of the parties with respect to the subject matter hereof and
may not be amended, supplemented, canceled or discharged except by written
instrument executed by both parties hereto.
14. EQUITABLE REMEDIES. The Executive acknowledges that he
has been employed for his unique talents and that his leaving the employ of
the Corporation would seriously hamper the business of the Corporation and
that the Corporation will suffer irreparable damage if any provisions of
Section 5 hereof are not performed strictly in accordance with their terms or
are otherwise breached. The Executive hereby expressly agrees that the
Corporation shall be entitled as a matter of right to injunctive or other
equitable relief, in addition to all other remedies permitted by law, to
prevent a breach or violation by the Executive and to secure enforcement of
the provisions of Section 5. Resort to such equitable relief, however, shall
not constitute a waiver or any other rights or remedies, which the
Corporation may have.
15. GOVERNING LAW. This Agreement is to be governed by and
construed in accordance with the laws of the State of New York, without
giving effect to principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as the date first above written.
DELTA FINANCIAL CORPORATION
By: /S/ HUGH MILLER
----------------------
Name: Hugh Miller
Title: President and CEO
/S/ RICHARD BLASS
-------------------------
RICHARD BLASS
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 23rd day of July, 1999 by and between DELTA
FINANCIAL CORPORATION, a Delaware corporation (the "Corporation"), and
Franklin E. Pellegrin, Jr. (the "Executive").
W I T N E S S E T H:
In consideration of the representations, warranties and conditions
contained herein, the parties hereto agree as follows:
1. POSITION AND RESPONSIBILITIES
1.1. The Executive shall serve in an executive capacity as
Executive Vice President of the Corporation. The Executive shall perform
such functions and undertake such responsibilities as are customarily
associated with such capacity. The Executive shall hold such directorships
and executive officerships in the Corporation and any subsidiary to which,
from time to time, he may be elected or appointed during the term of this
Agreement.
1.2. The Executive shall devote his full time and best efforts
to the business and affairs of the Corporation and to the promotion of its
interests, provided, however, that Executive may engage on a part-time basis
in a Financial Planning Business (hereinafter defined), subject, however to
the following restrictions:
1.2.1 Executive shall devote no more than [200] hours per
calendar quarter to such Financial Panning Business, including time spent in
class room instruction and preparing for license exams;
1.2.2 Executive's engagement in such Financial Planning
Business shall not materially interfere with the performance of his functions
and responsibilities currently existing or hereinafter arising under this
Agreement; and
1.2.3 Executive's responsibilities in such Financial
Planning Business shall not in any way involve performing, directing,
supervising, or consulting with respect to, the servicing of mortgages,
loans, leases, or consumer receivables, in a service manager or equivalent
capacity on behalf of lenders, lessors, or consumer-receivables providers (as
distinguished from providing such services to individual consumers).
For purposes of this Section 1.2, the term "Financial Planning
Business" shall mean any business or enterprise where the primary activities
thereof by the Executive are the provision to individual consumers of advice,
consultations, counseling and services with respect to the individual
insurance, credit, estate-planning, financial (including without limitation
relating to mortgage loans) and investment needs and goals of such individual
consumers. The Executive may hold officer and director positions in
Pellegrin & Associates, without violating the terms of this Agreement, so
long as the Executive is otherwise in compliance with this Section 1.2.
2. TERM OF EMPLOYMENT
2.1 The term of employment shall be three years, commencing with
the date hereof, unless sooner terminated as provided in this Agreement. The
initial term of employment and any extension thereof is herein referred to as
the "Term."
2.2. Notwithstanding the provisions of Section 2.1 hereof, the
Corporation shall have the right, on written notice to the Executive, to
terminate the Executive's employment for Reasonable Cause, such termination
to be effective as of the date on which notice is given or as of such later
date otherwise specified in the notice.
2.3. For purposes of this Agreement, the term "Reasonable Cause"
shall mean any of the following actions by the Executive: (a) failure to
comply with any of the material terms of this Agreement; (b) engagement in
gross misconduct injurious to the Corporation or an affiliate of the
Corporation; (c) knowing and willful neglect or refusal to attend to the
material duties reasonably assigned to him by the Board of Directors or the
President of the Corporation; (d) intentional misappropriation of property of
the Corporation or an affiliate of the Corporation to the Executive's own
use; (e) the commission by the Executive of an act of embezzlement; (f)
Executive's conviction for a felony or if criminal penalties are imposed on
Executive relating to any individual income taxes due and owing by Executive;
or (g) Executive's engaging in any activity which would constitute a material
conflict of interest with the Corporation or an affiliate of the Corporation.
2.4. If the Executive's employment with the Corporation shall be
terminated by the Corporation other than pursuant to Sections 2.2, 4.1 or 4.2
hereof, then the Corporation shall pay: (a) if such termination occurs within
the first (1st) year of the Term of this Agreement, one (1) year's salary,
less withholding and payroll taxes; or (b) if such termination occurs after
the first year of the Term of this Agreement, fifty (50%) percent of the
remaining salary due under the balance of the Term of this Agreement, less
withholding and payroll taxes. Any payments made under this Section 2.4
shall (a) be paid in equal installments over the six months following any
such termination, and (b) be based upon the Executive's salary as it existed
immediately prior to such termination; provided, however that the Executive
shall only be entitled to such payments as long as he is in compliance with
the provisions of Section 5 below.
3. COMPENSATION
3.1 (a) The Corporation shall pay or cause Delta
Funding Corporation to pay to the Executive for the services to be
rendered by the Executive hereunder a salary at the rate of $175,000 per
annum. The salary shall be payable in equal installments in accordance
with the Corporation's normal payroll practices. Such salary will be
reviewed at least annually and shall be increased (but not decreased) by
the Board of Directors of the Corporation in such amount as determined in
its sole discretion.
(b) In addition, the Company may also pay the Executive an
annual bonus with respect to each fiscal year of the Corporation, either on
an "ad hoc" basis or pursuant to a bonus plan or arrangement as may be
established at the Corporation's discretion for Executive Vice Presidents of
this Corporation. Nothing herein contained shall, however, obligate the
Corporation to pay any annual bonus to the Executive, it being understood
that any such bonus shall be in the sole discretion of the Board of Directors
and that the amount thereof, if any, may vary depending upon actual
performance of the Corporation and the Executive as determined in the
discretion of the Board.
(c) In consideration of entering into this Agreement, the
Executive shall be entitled to receive a sign-up bonus of (1) $15,000 in
cash (the "Cash Sign-Up Bonus") and (2) subject to and effective upon the
date of the approval by the Corporation's Board of Directors, $50,000 worth
of shares of the Corporation's Common Stock, par value $.01 (the "Common
Stock"), based upon the average per share market value of the Common Stock on
the New York Stock Exchange over the last twenty trading days preceding the
date that the Corporation's Board of Directors approves the grant of such
shares of Common Stock to the Executive (the "Per Share Sign-Up Value"). The
sale and other voluntary and involuntary disposition of such Common Stock
(the "Bonus Stock") is prohibited for a period of three years (the
"Disposition Restriction"), provided, however, that such Disposition
Restriction shall cease to apply with respect to $16,666 worth of shares of
such Bonus Stock (based upon the Per Share Sign-Up Value) on the first
anniversary of the date hereof, $16,666 worth of shares of such Bonus Stock
(based upon the Per Share Sign-Up Value) on the second anniversary of the
date hereof, and the remaining $16,668 worth of shares of such Bonus
Stock(based upon the Per Share Sign-Up Value) on the third anniversary of the
date hereof (all shares of Bonus Stock which, pursuant to this sentence, are
no longer subject to the Disposition Restriction are sometimes referred to
herein as "Vested Bonus Shares"). Any disposition of shares of Bonus Stock
in violation of this Section 3.1(c) shall be null and void. Executive agrees
that if he terminates his employment for any reason, or if the Corporation
terminates his employment pursuant to Section 2.2 hereof, prior to the
completion of the Term of Employment, (i) all shares of Bonus Stock that are
not Vested Bonus Shares as of the date of such termination shall
automatically be canceled, without any further notice or action by the
Corporation, and (ii) the Executive will immediately reimburse the
Corporation the Cash Sign-up Bonus and the aggregate value of all Vested
Bonus Shares. For purposes of this Section 3.1(c), the " aggregate value"
of Vested Bonus Shares shall be the product of the number of such Vested
Bonus Shares and the Per Share Sign-Up Value. Should the Executive fail to
make such reimbursement within 15 days of his termination, the Corporation
may offset the reimbursement due to it against any severance payments that
may be owing to the Executive pursuant to Section 2.4.
3.2. The Executive shall be entitled to participate in, and
receive benefits from, any insurance, medical, disability, bonus, incentive
compensation (including grants of non- qualified stock options under Delta's
1996 Stock Option Plan, as determined by the Corporation) or other employee
benefit plan, if any are adopted, of the Corporation or any subsidiary which
may be in effect at any time during the course of his employment by the
Corporation and which shall be generally available to the Executive on terms
no less favorable than to other senior executives of the Corporation or its
subsidiaries.
3.3. Upon the occurrence of a Change in Control (as defined
herein), all stock options held by the Executive beneficially (in trust or
otherwise) and/or of record, and all shares of Common Stock granted to the
Executive pursuant to Section 3.1(c) that are not Vested Bonus Shares, shall
vest and become immediately free of the Disposition Restriction on the date
of the Change of Control. For purposes of this Section 3.3, the term "Change
of Control" shall be deemed to have occurred if (i) any "person" (as such
term is used in Section 13 (d) and 14 (d) (2) of the Securities Exchange Act
of 1934), becomes the beneficial owner, directly or indirectly, of securities
of the Corporation representing 50% or more of the combined voting power of
the Corporation's then outstanding securities, (ii) during any period of 12
months, individuals who at the beginning of such period constitute the Board
of Directors of the Corporation cease for any reason to constitute a majority
thereof unless the election, or the nomination for the election by the
Corporation's stockholders of each new director was approved by a vote of at
least a majority of the directors then still in office who were directors at
the beginning of the period or (iii) a person (as defined in clause (i)
above) acquires (or, during the 12-month period ending on the date of the
most recent acquisition by such person or group or persons, has acquired) all
or substantially all of the Corporation's assets.
3.4. The Corporation agrees to reimburse the Executive for all
reasonable and necessary business expenses incurred by him on behalf of the
Corporation in the course of his duties hereunder upon the presentation by
the Executive of appropriate vouchers therefor.
3.5. The Executive will be entitled each year of this Agreement
to a paid vacation of four weeks.
3.6. Upon termination of this Agreement for Reasonable
Cause or due to the death or incapacity of the Executive (as defined in
Section 4.1), the Executive shall be entitled to all compensation and
benefits accrued and unpaid up to the date of termination.
3.7. The Executive shall not be required to mitigate
damages or the amount of any payment provided to him under this Agreement by
seeking other employment or otherwise.
3.8. Nothing contained herein shall prohibit the Board of
Directors of the Corporation, in its sole discretion, from increasing the
compensation payable to the Executive pursuant to this Agreement and/or
making available to the Executive other benefits in addition to those to
which the Executive is entitled hereunder.
4. INCAPACITY; DEATH
4.1 If, during the period of employment hereunder,
because of illness or other incapacity, the Executive shall fail for a period
of 90 consecutive days, or for shorter periods aggregating more than 90 days
during any twelve month period, to render the services contemplated
hereunder, then the Corporation, at its option, may terminate the term of
employment hereunder, upon not less than 30 days written notice from the
Corporation to the Executive, effective on the 30th day after giving of such
notice; PROVIDED, HOWEVER, that no such termination will be effective if
prior to the 30th day after giving such notice, the Executive's illness or
incapacity shall have terminated and he shall be physically and mentally able
to perform the services required hereunder and shall be performing such
services.
4.2 In the event of the death of the Executive during the term
hereof, the employment hereunder shall terminate on the date of death of the
Executive.
4.3. The Corporation (or its designee) shall have the right to
obtain for its benefit an appropriate life insurance policy on the life of
the Executive, naming the Corporation (or its designee) as the beneficiary.
If requested by the Corporation, the Executive agrees to cooperate with the
Corporation in obtaining such policy.
4.4. In the event the employment of Executive is terminated by
the Corporation as the result of the death or incapacity of the Executive,
the Corporation agrees to continue to pay the Executive (or his estate) his
then rate of salary for a period of one year after such termination.
5. OTHER ACTIVITIES DURING EMPLOYMENT; NON-COMPETITION;
SOLICITATION.
5.1. The Executive shall not during the term of this Agreement
undertake or engage in other employment, occupation or business enterprise.
Subject to compliance with the provisions of this Agreement, the Executive
may engage in reasonable activities with respect to personal investments of
the Executive. . Subject to compliance with the provisions of Section 1.2 of
this Agreement, the Executive may engage in a Financial Planning Business.
5.2 During the Term of Agreement, and for a period of one year
following the date upon which Executive leaves the employ of the Corporation
in the event that (a) the Corporation terminates the Executive's employment
with the Corporation pursuant to Sections 2.1 or 4.1, or (b) the Executive
terminates his employment with the Corporation for any reason, neither the
Executive nor any entity in which he may be interested as a partner, trustee,
director, officer, employee, shareholder, option holder, lender of money,
guarantor or consultant, shall be engaged directly or indirectly in any
business engaged in by the Corporation in any area where the Corporation, or
any subsidiary, conducts such business at any time during this Agreement;
provided however, that the foregoing shall not be deemed to prevent the
Executive from (1) investing in securities if such class of securities in
which the investment is so made is listed on a national securities exchange
or is issued by a company registered under Section 12(g) of the Securities
Exchange Act of 1934, so long as such investment holdings do not, in the
aggregate, constitute more than 5% of the voting stock of any company's
securities, or (2) engaging in any Financial Planning Business (provided,
however, that for so long as the Executive is employed by the Corporation
during the Term of this Agreement, the Executive shall comply with Section
1.2 of this Agreement).
5.3. The Executive will not at any time during his employment
with the Corporation, and for a period of one year after Executive leaves the
Corporation's employ for any reason, solicit (or assist or encourage the
solicitation of) any employee of the Corporation or any of its subsidiaries
or affiliates to work for Executive or for any business, firm corporation or
other entity in which the Executive, directly or indirectly, in any capacity
described in Section 5.2 hereof, participates or engages (or expects to
participate or engage) or has (or expects to have) a financial interest or
management position.
5.4. The Executive shall not at any time during this Agreement
or after the termination hereof directly or indirectly divulge, furnish, use,
publish or make accessible to any person or entity any Confidential
Information (as hereinafter defined). Any records of Confidential
Information prepared by the Executive or which come into Executive's
possession during this Agreement are and remain the property of the
Corporation and upon termination of Executive's employment all such records
and copies thereof shall be either left with or returned to the Corporation.
5.5. The term "Confidential Information" shall mean information
disclosed to the Executive or known, learned, created or observed by him as a
consequence of or through his employment by the Corporation, not generally
known in the relevant trade or industry, about the Corporation's or any of
its subsidiaries' or affiliates' business activities, services and processes,
including but not limited to information concerning advertising, sales
promotion, publicity, sales data, research, finances, accounting, methods,
processes, business plans, broker or correspondent lists and records and
potential broker or correspondent lists and records.
6. ASSIGNMENT. The Corporation shall require any successor or
assign to all or substantially all the assets of the Corporation (whether by
merger or by acquisition of stock, assets or otherwise) prior to
consummation of any transaction therewith, to expressly assume and agree to
perform in writing this Agreement in the same manner and to the same extent
that the Corporation would be required to perform it if no such succession
or assignment had taken place. This Agreement shall inure to the benefit of
and be binding upon the Corporation, its successors and assigns, and upon
the Executive and his heirs, executors, administrators and legal
representatives. This Agreement shall not be assignable by the Executive.
8. NO THIRD PARTY BENEFICIARIES. This Agreement does not
create, and shall not be construed as creating, any rights enforceable by any
person not a party to this Agreement, except as provided in Section 7 hereof.
9. HEADINGS. The headings of the sections hereof are inserted
for convenience only and shall not be deemed to constitute a part hereof nor
to affect the meaning thereof.
10. INTERPRETATION. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. If, moreover, any one or more of
the provisions contained in this Agreement shall for any reason be held by a
court of competent jurisdiction to be unenforceable because it is excessively
broad as to duration, geographical scope, activity or subject, it shall be
construed by limiting and reducing it, so as to be enforceable to the extent
compatible with the applicable law as it shall then appear.
11. NOTICES. All notices under this Agreement shall be in
writing and shall be deemed to have been given at the time when mailed by
registered or certified mail, addressed to the address below stated party to
which notice is given, or to such changed address as such party may have
fixed by notice:
To the Corporation:
Delta Financial Corporation
1000 Woodbury Road
Suite 200
Woodbury, New York 11797
Attn: President
And
To the Executive:
Franklin E. Pellegrin, Jr.
67 Aberdeen Road
Smithtown, NY 11787-4439
provided, however, that any notice of change of address shall be effective
only upon receipt.
12. WAIVERS. If either party should waive any breach of any
provision of this Agreement, he or it shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision
of this Agreement.
13. COMPLETE AGREEMENT; AMENDMENTS. The foregoing is the
entire agreement of the parties with respect to the subject matter hereof and
may not be amended, supplemented, canceled or discharged except by written
instrument executed by both parties hereto.
14. EQUITABLE REMEDIES. The Executive acknowledges that he
has been employed for his unique talents and that his leaving the employ of
the Corporation would seriously hamper the business of the Corporation and
that the Corporation will suffer irreparable damage if any provisions of
Section 5 hereof are not performed strictly in accordance with their terms or
are otherwise breached. The Executive hereby expressly agrees that the
Corporation shall be entitled as a matter of right to injunctive or other
equitable relief, in addition to all other remedies permitted by law, to
prevent a breach or violation by the Executive and to secure enforcement of
the provisions of Section 5. Resort to such equitable relief, however, shall
not constitute a waiver or any other rights or remedies, which the
Corporation may have.
15. GOVERNING LAW. This Agreement is to be governed by and
construed in accordance with the laws of the State of New York, without
giving effect to principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as the date first above written.
DELTA FINANCIAL CORPORATION
By: /S/ HUGH MILLER
----------------------
Name: Hugh Miller
Title: President and CEO
/S/ FRANKLIN E. PELLEGRIN, JR
-----------------------------
FRANKLIN E. PELLEGRIN, JR.
<TABLE>
<CAPTION>
Exhibit 11.1. Statement Re: Computation of Per Share Earnings
Three Months Ended Twelve Months Ended
December 31, December 31,
(Dollars in thousands, except EPS data) 1999 1999
- ----------------------------------------------------------------------------------
<S> <C> <C>
Basic Earnings Per Share
Net income $ 2,812 $ 4,676
========= =========
Weighted average number of common
and common equivalent shares: 15,920,869 15,511,214
-----------------------------
Basic earnings per share $ 0.18 $ 0.30
========== ===========
Diluted Earnings Per Share
Net income $ 2,812 $ 4 ,676
========= ==========
Weighted average number of common
and common equivalent shares:
-----------------------------
Average number of shares outstanding 15,920,869 15,511,214
Net effect of dilutive stock
options based on the treasury
method & Fidelity additional
shares -- 1,243
Total average shares: 15,920,869 15,512,457
========== ==========
Diluted earnings per share $ 0.18 $ 0.30
========== ==========
</TABLE>
EXHIBIT 21.1
Subsidiaries of Delta Financial Corporation
Name State of Incorporation
------------------ ----------------------
Delta Funding Corporation............................... New York
Fidelity Mortgage Inc................................... Delaware
DFC Financial Corporation............................... Delaware
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
BALANCE SHEETS AND STATEMENTS OF INCOME FOUND IN THE COMPANY'S FORM 10-K FOR
THE TWELVE MONTHS ENDED DECEMBER 31, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 55,989
<SECURITIES> 224,659
<RECEIVABLES> 231,194
<ALLOWANCES> 555
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 33,865
<DEPRECIATION> 12,144
<TOTAL-ASSETS> 556,835
<CURRENT-LIABILITIES> 0
<BONDS> 149,474
0
0
<COMMON> 160
<OTHER-SE> 146,981
<TOTAL-LIABILITY-AND-EQUITY> 556,835
<SALES> 0
<TOTAL-REVENUES> 154,819
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 120,334
<LOSS-PROVISION> 100
<INTEREST-EXPENSE> 26,656
<INCOME-PRETAX> 7,729
<INCOME-TAX> 3,053
<INCOME-CONTINUING> 4,676
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 4,676
<EPS-BASIC> 0.30
<EPS-DILUTED> 0.30
</TABLE>
