<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 29, 1998
REGISTRATION NO. 333-48653
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-11
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
REALTRUST ASSET CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS GOVERNING INSTRUMENTS)
2855 EAST COTTONWOOD PARKWAY, SUITE 500
SALT LAKE CITY, UTAH 84121
(ADDRESS OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JOHN D. FRY, CHIEF EXECUTIVE OFFICER
REALTRUST ASSET CORPORATION
2855 EAST COTTONWOOD PARKWAY, SUITE 500
SALT LAKE CITY, UTAH 84121
(801) 365-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
<TABLE>
<S> <C>
CHRISTOPHER A. WILSON, ESQ. PETER T. HEALY, ESQ.
JEFFERS, WILSON, SHAFF & FALK, LLP O'MELVENY & MYERS LLP
18881 VON KARMAN AVENUE, SUITE 1400 275 BATTERY STREET
IRVINE, CALIFORNIA 92612 SAN FRANCISCO, CALIFORNIA 94111
TELEPHONE: (714) 660-7700 TELEPHONE : (415) 984-8700
FACSIMILE: (714) 660-7799 FACSIMILE: (415) 984-8701
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- --------------------------------
TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
Units........................... 5,750,000 $16.00 $ 92,000,000 $27,140.00
Common Stock, par value $.001... 5,750,000 (3) (3) (3)
Common Stock Purchase
Warrants...................... 5,750,000 (3) (3) (3)
Representative's Warrants....... 172,500 $ 0.01 $ 1,725 $ 0.51
Common Stock, par value $.001
per share, issuable upon
exercise of Common Stock
Purchase Warrants(4).......... 5,750,000 $16.00 $ 92,000,000 $27,140.00
Common Stock, par value $.001
per share, issuable upon
exercise of Representative's
Warrants(4)................... 172,500 $16.00 $ 2,760,000 $ 814.20
------------ ----------
Total................. $186,761,725 $55,094.11
=================================================================================================================================
</TABLE>
(1) Assumes exercise of an over-allotment option granted to the Underwriters to
purchase 750,000 Units.
(2) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(a).
(3) Included in the Units at no additional cost.
(4) This Registration Statement also covers any additional shares of Common
Stock which may become issuable by virtue of the anti-dilution provisions of
the Common Stock Purchase Warrants and Representative's Warrants. No
additional registration fee is included for these shares.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BE COME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
================================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALES OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MAY 28, 1998
realtrust logo
5,000,000 UNITS
REALTRUST ASSET CORPORATION
EACH UNIT TO CONSIST OF ONE SHARE OF COMMON STOCK AND ONE STOCK PURCHASE WARRANT
All of the units (the "Units") offered hereby are being sold by RealTrust
Asset Corporation, a newly formed Maryland corporation (the "Company"). Each
Unit consists of one share of Company common stock, par value $.001 per share
("Common Stock"), and one warrant to purchase one share of Common Stock (a
"Warrant"). The Warrants included with the Units will automatically detach from
the Common Stock six months after the closing of this offering (the "Offering").
See "Description of Capital Stock." Each Warrant entitles the holder thereof to
purchase one share of Common Stock (a "Warrant Share"), subject to certain
anti-dilution adjustments. The Warrants will become exercisable six months after
the initial closing of this Offering and will remain exercisable until 5:00 p.m.
New York Time on the third anniversary of the date the Warrants first become
exercisable, at an exercise price equal to the Price to Public (as set forth
below). The Company will elect to be taxed as a real estate investment trust
("REIT") under the Internal Revenue Code of 1986, as amended (the "Code"), and
generally will not be subject to federal taxation on its income to the extent
that it distributes its net income to its stockholders and maintains its
qualification as a REIT.
------------------------
SEE "RISK FACTORS" COMMENCING ON PAGE 19 FOR MATERIAL RISK FACTORS THAT SHOULD
BE CONSIDERED BY PROSPECTIVE INVESTORS. THESE RISKS INCLUDE:
- - Adoption of the President's 1999 Budget Plan would prohibit a REIT from
owning, by vote or value, more than 10% of the stock of a corporation and
would require the Company to combine and/or fully divest itself of its
interest in CMG Funding Corp., a Delaware corporation and a taxable subsidiary
of the Company (the "Taxable Subsidiary"), and to make other significant
changes in the Company's operations, which may reduce earnings and
distributions.
- - The Company has no commitments to purchase specific assets and none of the
anticipated net proceeds from the Offering have been allocated to specific
investments. Inability to acquire or delays in investing the net proceeds from
this Offering will reduce the Company's anticipated income and may have a
material adverse effect on its results of operations. The Company will have
broad discretion (i) in the allocation of the net proceeds, (ii) in the types
and percentages of any type of Mortgage Assets included in its investment
portfolio, and (iii) in changing its investment and operating policies and
strategies without the consent of the stockholders. Such discretion creates
uncertainty for stockholders and could adversely affect results of operations.
- - The Company intends to acquire most of its Subprime Mortgage Loans from the
Taxable Subsidiary. There can be no assurance that the Taxable Subsidiary will
originate and sell to the Company a sufficient quantity of Subprime Mortgage
Loans, which may require the Company to acquire Subprime Mortgage Loans from
third parties at a higher cost, thereby adversely affecting results of
operations.
(continued on next page)
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, NOR HAS THE SECURITIES AND EXCHANGE COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
<TABLE>
<S> <C> <C> <C>
====================================================================================================================
PRICE TO PUBLIC UNDERWRITING DISCOUNT(1) PROCEEDS TO COMPANY(2)
- --------------------------------------------------------------------------------------------------------------------
Per Unit.................. $ $ $
- --------------------------------------------------------------------------------------------------------------------
Total(3).................. $ $ $
====================================================================================================================
</TABLE>
(1) Excludes value of the Warrants to be issued to Stifel, Nicolaus & Company,
Incorporated (the "Representative"), to purchase 150,000 shares of Common
Stock (172,500 shares of Common Stock if the Underwriters' over-allotment
option is exercised) at an exercise price equal to the Price to Public (the
"Representative's Warrants"). The Company and certain of its affiliates have
agreed to indemnify the Underwriters against certain liabilities, including
liabilities under the Securities Act of 1933, as amended. See
"Underwriting."
(2) Before deducting expenses of the Offering payable by the Company, estimated
to be $1,100,000.
(3) The Company has granted the Underwriters an option exercisable within 30
days after the date of this Prospectus to purchase up to 750,000 additional
Units on the same terms and conditions set forth above to cover
over-allotments, if any. If all such additional Units are purchased, the
total Price to Public, Underwriting Discount and Proceeds to Company will be
$ , $ and $ , respectively. See "Underwriting."
------------------------
The Securities are offered by the Underwriters subject to receipt and
acceptance by them, prior sale and the Underwriters' right to reject any order
in whole or in part and to withdraw, cancel or modify the offer without notice.
It is expected that delivery of certificates for the Securities will be made
through The Depository Trust Company, on or about , 1998.
STIFEL, NICOLAUS & COMPANY
INCORPORATED
, 1998
<PAGE> 3
(continued from previous page)
- - The Taxable Subsidiary was organized in April, 1996 and has experienced losses
of $1,774,311 and $1,305,866 for fiscal years ended December 31, 1997 and
1996, respectively, and had an accumulated deficit of $1,494,072 as of
December 31, 1997. The Company's management of an investment portfolio is a
change from the historical operations of the Taxable Subsidiary. The Company
will not control the operations of the Taxable Subsidiary. Management of the
Company has no experience in managing a REIT, which could adversely affect the
Company's results of operations.
- - Conflicts of interest arising from the relationships between the Company and
each of ContiFinancial Corporation and the Founders may result in decisions
regarding the Company and its operations, which may not be in the best
interest of the other stockholders or the Company as a whole. The Taxable
Subsidiary has agreed to sell 75% of its fixed rate Subprime Mortgage Loans to
ContiFinancial Corporation at prices established by ContiFinancial Corporation
(or pay a 40 basis point penalty on the principal shortfall). The Company has
appointed ContiFinancial Corporation as exclusive placement agent for
structured debt offerings at fees which may exceed those offered by third
parties. Of the net proceeds of the Offering, $2.0 million will be used to
repay the Taxable Subsidiary's working capital debt to ContiFinancial
Corporation and $2.2 million will be paid to redeem the Company's preferred
stock held by ContiFinancial Corporation.
- - The Founders and ContiFinancial Corporation own in the aggregate 20.6% of the
Common Stock of the Company outstanding immediately after the closing of the
Offering and could exert significant influence over the Company. The Founders
will own approximately 68% of the voting stock of the Taxable Subsidiary and
will control its operations. Investors in the Offering will not acquire an
interest in any entity that controls the Taxable Subsidiary.
- - The Company intends to invest in Subprime Mortgage Loans, which are generally
subject to higher delinquency and loss rates than Prime Mortgage Loans and no
assurance can be given that the Company's underwriting criteria or methods
will adequately protect the Company.
- - Subprime Mortgage Loans are subject to prepayment risks even during periods of
stable or rising interest rates in that Subprime Mortgage Loan borrowers may
be able to improve their credit ratings and refinance their Mortgage Loans to
benefit from reduced interest rate costs.
- - The Company will face substantial competition for Subprime Mortgage Loans,
which may adversely affect future performance and results of operations.
- - The Company may invest in Mortgage Loans with high loan-to-value ratios and
subordinated Mortgage Securities, which are subject to greater loss and credit
risks than senior or more adequately collateralized Mortgage Loans.
- - The Company intends to invest in Mortgage Securities, which may include
interest-only and principal-only Mortgage Securities and non-investment grade
Mortgage Securities, which may be subject to a greater risk of loss than
investments in senior, investment-grade securities.
- - Sudden and significant increases in interest rates may adversely affect the
Company's cost of short-term borrowings used to finance the purchase of
long-term Mortgage Assets, and may thereby substantially reduce the Company's
income or result in losses from operations.
- - Declining interest rates may increase prepayment rates and reduce net interest
income.
- - The Company intends to use hedging strategies, including interest rate swaps
and interest rate collars, caps or floors, which have significant transaction
costs (and therefore will reduce the Company's overall returns on its
investments) and may not be effective in mitigating interest rate and
prepayment risks. The Company has no specific hedging policies and generally
will have broad discretion in the types of hedging transactions it utilizes.
- - The Company intends to borrow against a substantial portion of the market
value of its assets (up to approximately 92%) and to maintain a ratio of
equity to total assets of approximately 8% to 15%; such leverage is likely to
increase the volatility of income and asset value and may result in losses.
The Company's governing instruments do not restrict management's ability to
leverage the Company's assets.
- - Mortgage Loan prepayments may reduce the average lives of certain Mortgage
Assets and thereby reduce the Company's operating income.
- - Defaults on Mortgage Loans held by the Company may reduce earnings and
distributions or result in losses.
- - Purchasers of the Units will be subject to immediate and substantial dilution
of $4.20 per share prior to exercise of the Warrants and Representative's
Warrants or $2.31 per share assuming exercise of the Warrants and
Representative's Warrants and may be subject to further and substantial
dilution resulting from additional equity offerings in the future.
- - Failure to maintain REIT status will subject the Company to corporate-level
tax and thereby reduce or eliminate earnings and the amount of cash available
for distributions to shareholders.
<PAGE> 4
See "Underwriting." For purposes of this Prospectus, the Units, the Common
Stock, the Warrants and the Warrant Shares are referred to collectively as the
"Securities" unless the context indicates otherwise.
Prior to the closing of the Offering, there has been no public market for
the Securities. It is currently estimated that the Price to Public for the Units
will be between $14.00 and $16.00 per Unit. See "Underwriting" for information
relating to the factors considered in determining the Price to Public. The
Company intends to apply for quotation of the Units on the American Stock
Exchange under the symbol "RAC.U" The Company intends to apply for quotation of
the Common Stock and Warrants on the American Stock Exchange effective on the
date the Warrants automatically detach from the Common Stock under the symbols
"RAC" and "RAC.WS," respectively. There can be no guarantee that a public market
for the Securities will develop or be sustained.
------------------------
CERTAIN PERSONS PARTICIPATING IN THE OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE UNITS. SUCH
TRANSACTIONS MAY INCLUDE STABILIZING BIDS AND PURCHASES IN THE OPEN MARKET,
OVER-ALLOTMENTS, SYNDICATE SHORT COVERING TRANSACTIONS AND PENALTY BIDS. FOR A
DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING."
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<S> <C>
PROSPECTUS SUMMARY............................... 1
The Company.................................... 1
Summary Risk Factors........................... 2
Competitive Advantages......................... 7
Management..................................... 8
Business Strategies............................ 8
Marketing and Production Strategy............ 8
Underwriting and Quality Control............. 10
Loan Sales................................... 10
Mortgage Investment Portfolio................ 10
Structured Debt Instruments.................. 12
Capital Allocation Guidelines................ 12
Servicing Activities......................... 12
Structure and Formation Transactions........... 13
Structure of the Company..................... 13
Formation Transactions and Post-Closing
Transactions............................... 13
Dividend Policy and Distributions.............. 16
The Offering................................... 16
Conflicts of Interest and Related Party
Transactions................................. 17
ContiFinancial Corporation................... 17
Capstone Investments, Inc. .................. 18
Control of Taxable Subsidiary................ 18
Formation Transactions....................... 18
Employment Agreements........................ 18
RISK FACTORS..................................... 19
General........................................ 19
President's 1999 Budget Plan, If Enacted, Would
Adversely Affect Results of Operations....... 19
Operation of a New Enterprise Involves
Uncertainty.................................. 20
Inability to Acquire or Delays in Acquiring
Mortgage Assets Will Reduce Income to the
Company.................................... 20
The Taxable Subsidiary May Not Provide
Sufficient Subprime Mortgage Loans to the
Company Which May Adversely Affect Results
of Operations.............................. 20
Limited Operating History of the Company
Creates Uncertainty About Future Results... 21
The Management of an Investment Portfolio of
Mortgage Assets is a Change in
Operations................................. 21
Lack of Experience Managing a REIT May
Adversely Affect Operating Results......... 21
Loss of Any Key Personnel May Adversely
Affect Operations.......................... 21
Future Revisions in Investment and Operating
Policies and Strategies by Board of
Directors Creates Uncertainty.............. 21
Failure to Raise Additional Capital May
Adversely Affect Future Growth and Results
of Operations.............................. 22
Conflicts of Interest May Result in Decisions
That Do Not Fully Reflect the Stockholders'
Best Interest................................ 22
Conflicts of Interest With and Dependence
Upon ContiFinancial Corporation May Not be
in the Stockholders' Best Interest......... 22
A Portion of the Net Proceeds From This
Offering Will Be Used to Retire Debt to and
Redeem Stock of ContiFinancial
Corporation................................ 23
Investors Will Have No Voting Control of the
Taxable Subsidiary......................... 23
The Founders and ContiFinancial Corporation
May Exert Influence Over the Company....... 23
Investments in Subprime Mortgage Loans Involve
Greater Risk of Loss......................... 23
Higher Delinquency and Loss Rates on Subprime
Mortgage Loans May Result in Losses........ 23
Subprime Mortgage Loans May Experience High
Prepayment Rates Which Reduces Income From
Operations................................. 24
Competition in the Subprime Mortgage Lending
Market May Have a Material Adverse Effect
on Results of Operations................... 24
Investments in High LTV Mortgage Loans and
Subordinated Mortgage Securities Involve
Greater Risks of Loss........................ 25
Defaults on High Loan-to-Value Mortgage Loans
May Result in Losses....................... 25
Subordinated Classes of Mortgage Securities
Are Subject to Greater Credit Risks Than
Senior Classes............................. 25
Interest Rate Fluctuations May Adversely Affect
Operations and Net Interest Income........... 26
Interest Rate Mismatches Between Mortgage
Assets and Borrowings May Result in Reduced
Income or Losses........................... 26
Interest Rate Increases May Reduce Mortgage
Loan Originations and Income............... 27
Declining Interest Rates May Increase
Prepayment Rates and Reduce Net Interest
Income..................................... 27
Hedging Transactions Limit Gains and May
Increase Exposure to Losses................ 27
Interest-Only and Principal-Only Mortgage
Securities Are Subject to Substantial
Interest Rate and Prepayment Risks Which
May Adversely Affect Results of
Operations................................. 28
The Company Has No Specific Hedging Policies
and Failure to Appropriately Hedge May
Adversely Affect Results of Operations..... 28
Counterparty and Unenforceability Risk in
Hedging Transactions May Result in
Losses..................................... 28
Basis Risk in Hedging Transactions May Result
in Losses.................................. 29
Borrowing to Finance Investment Portfolio May
Adversely Affect Results of Operations....... 29
Leverage Increases Exposure to Loss.......... 29
Inability to Implement Leveraging Strategy
May Reduce Income or Result in Losses...... 30
Inability to Renew or Replace Maturing
Borrowings May Result in Losses............ 30
Decline in Market Value of Mortgage Asset May
Limit the Company's Ability to Borrow or
Result in Losses........................... 30
Contingent and Residual Risks in Structured
Debt Financings May Adversely Affect
Results of Operations...................... 31
Unavailability of Structured Debt Financing
May Adversely Affect Results of
Operations................................. 31
The Company Depends Upon Several Lenders to
Finance Operations......................... 31
Lender Bankruptcy May Result in Losses....... 32
Risks Relating to Mortgage Lending
Operations................................... 32
Default on Mortgage Loans May Result in
Losses..................................... 32
Competition for Mortgage Loans From
Independent Mortgage Brokers and
Correspondents May Adversely Affect Results
of Operations.............................. 33
</TABLE>
(i)
<PAGE> 6
<TABLE>
<S> <C>
Commitments to Purchase Mortgage Assets
Exposes the Company to Interest Rate
Risk....................................... 33
Payments to Brokers in Violation of RESPA May
Result in Adverse Claims................... 33
Lack of Geographic Diversification Exposes
the Company to Greater Default Risk........ 33
Inadequate or Ineffective Servicing May
Increase Delinquency and Default Rates..... 34
Inability to Sell Mortgage Loans May
Adversely Affect Results of Operations..... 34
Legislation and Regulation May Subject the
Company to Costs of Compliance and Adverse
Claims For Noncompliance................... 34
Mortgage Loans Secured By Properties With
Environmental Problems May Result in
Liability and Losses....................... 35
Changes in Economic Conditions May Adversely
Affect Results of Operations............... 36
Factors Beyond Control of the Company May
Affect Performance of the Investment
Portfolio.................................... 36
Investors Will Incur Immediate and Substantial
Economic Dilution............................ 36
Future Debt and Equity Offering May Dilute
Investors.................................... 37
Failure to Develop a Trading Market May Result
in Depressed Common Stock Price.............. 37
Failure to Maintain REIT Status Would Have
Adverse Tax Consequences..................... 37
Failure to Qualify for Exemption From
Investment Company Act May Adversely Affect
the Company.................................. 38
Issuances of Preferred Stock May Adversely
Affect the Value of Common Stock............. 38
Restrictions on Ownership of Capital Stock
Could Discourage a Change of Control......... 38
THE COMPANY...................................... 40
USE OF PROCEEDS.................................. 40
DIVIDEND POLICY AND DISTRIBUTIONS................ 41
DIVIDEND REINVESTMENT PLAN....................... 42
DILUTION......................................... 43
CAPITALIZATION................................... 44
REALTRUST ASSET CORPORATION
PRO FORMA FINANCIAL DATA....................... 44
REALTRUST ASSET CORPORATION
PRO FORMA BALANCE SHEET (unaudited)............ 45
REALTRUST ASSET CORPORATION
PRO FORMA STATEMENT OF OPERATIONS
(unaudited).................................... 46
SELECTED FINANCIAL DATA OF REALTRUST ASSET
CORPORATION AND CMG FUNDING CORP............... 47
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS............ 48
Overview....................................... 48
Certain Accounting Policies and Procedures..... 48
Results of Operations.......................... 49
Liquidity and Capital Resources................ 50
Inflation...................................... 51
Year 2000 Compliance........................... 51
BUSINESS......................................... 53
General........................................ 53
Competitive Advantages......................... 54
Overview of Subprime Mortgage Market........... 56
Industry Developments.......................... 57
Mortgage Lending Business...................... 58
Marketing and Production Strategy.............. 59
Underwriting and Quality Control Strategies.... 65
Financing Loans Held for Sale and Investment
Prior to Structured Debt Financing........... 69
Information Management Systems................. 71
Mortgage Investment Portfolio.................. 72
Retained Interests in Structured Debt
Instruments.................................. 73
Capital and Liquidity Management............... 74
Capital Allocation Guidelines.................. 75
Servicing Activities........................... 76
Interest Rate Risk Management.................. 78
Credit Risk Management......................... 80
Mortgage Loan Prepayments...................... 81
Future Changes in Operating, Investment and
Accounting Policies.......................... 82
MANAGEMENT....................................... 84
Directors and Executive Officers............... 84
Key Employees.................................. 85
Terms of Directors and Officers................ 86
Committees of the Board........................ 87
Compensation of Directors...................... 87
Compensation Committee Interlocks.............. 87
Executive Compensation......................... 87
Stock Option Grants............................ 93
Individual Grants.............................. 93
STRUCTURE AND FORMATION TRANSACTIONS............. 94
Structure of the Company....................... 94
RealTrust Asset Corporation.................... 94
The Taxable Subsidiary......................... 95
Formation Transactions and Post-Closing
Transactions................................. 95
CONFLICTS OF INTEREST AND RELATED PARTY
TRANSACTIONS................................... 96
ContiFinancial Corporation..................... 96
Capstone Investments, Inc...................... 98
Control of Taxable Subsidiary.................. 98
Formation Transactions......................... 98
Employment Agreements.......................... 98
PRINCIPAL STOCKHOLDERS........................... 99
DESCRIPTION OF CAPITAL STOCK..................... 100
General........................................ 100
Historical Capital Structure................... 100
Common Stock................................... 100
Preferred Stock................................ 100
Warrants and Options........................... 101
Repurchase of Shares and Restriction on
Transfer..................................... 104
Limitation of Liability and Indemnification.... 106
Control Share Acquisitions..................... 107
Business Acquisitions Statutes................. 108
Transfer Agent and Registrar................... 108
SHARES ELIGIBLE FOR FUTURE SALE.................. 109
</TABLE>
(ii)
<PAGE> 7
<TABLE>
<S> <C>
General........................................ 109
Registration Rights............................ 109
FEDERAL INCOME TAX CONSIDERATIONS................ 111
General........................................ 111
Opinion of Counsel............................. 111
Qualification as a REIT........................ 112
Taxation of the Company........................ 115
Taxation of Taxable Subsidiary................. 115
Termination or Revocation of REIT Status....... 116
Taxation of the Company's Stockholders......... 116
Taxation of Tax-Exempt Entities................ 117
Foreign Investors.............................. 118
Recordkeeping Requirement...................... 118
Backup Withholding............................. 118
Recent Legislative Proposals................... 119
State and Local Taxes.......................... 119
ERISA Considerations........................... 119
UNDERWRITING..................................... 120
LEGAL MATTERS.................................... 121
EXPERTS.......................................... 122
ADDITIONAL INFORMATION........................... 122
GLOSSARY......................................... 123
TABLE OF CONTENTS TO FINANCIAL STATEMENTS........ F-1
</TABLE>
(iii)
<PAGE> 8
PROSPECTUS SUMMARY
The summary information below should be read in conjunction with, and is
qualified in its entirety by, the detailed information appearing elsewhere in
this Prospectus. Capitalized terms used herein shall have the definitive
meanings assigned to them in the text below and in the Glossary beginning at
page 121.
THE COMPANY
RealTrust Asset Corporation, a Maryland corporation formed on April 1, 1998
("RealTrust" or the "Company"), is a specialty finance company engaged in the
business of originating, purchasing, selling and servicing mortgage loans
secured (i) primarily by first mortgages on single-family residences ("First
Lien Mortgage Loans") and (ii) to a much lesser extent by second lien Mortgage
Loans ("Second Lien Mortgage Loans"; collectively with First Lien Mortgage
Loans, "Mortgage Loans"). RealTrust will own and manage a portfolio composed
primarily of First Lien Mortgage Loans that do not conform to one or more of the
underwriting criteria of Federal Home Loan Mortgage Corporation ("FHLMC") and
Federal National Mortgage Association ("FNMA"). Such Mortgage Loans are referred
to as "Subprime Mortgage Loans." RealTrust expects to acquire Subprime Mortgage
Loans primarily from CMG Funding Corp., a Delaware corporation and RealTrust's
taxable subsidiary (the "Taxable Subsidiary"). The Company has entered into a
Mortgage Loan Purchase Agreement (the "Purchase Agreement") with the Taxable
Subsidiary pursuant to which the Company has the right of first refusal on all
Mortgage Loans originated and acquired by the Taxable Subsidiary (except the 75%
of fixed-rate Subprime Mortgage Loans required to be sold to ContiFinancial
Corporation).
RealTrust intends to build a portfolio of primarily Subprime Mortgage Loans
and securities backed by Mortgage Loans ("Mortgage Securities"; together with
Mortgage Loans, "Mortgage Assets") financed with structured debt instruments and
reverse repurchase agreements. The portfolio is expected to generate net
interest income, which, upon election to be taxed as a real estate investment
trust ("REIT"), will not be taxed at the corporate level. RealTrust is now and
intends to remain self-advised and self-managed.
The Taxable Subsidiary has operated a mortgage lending business since
April, 1996 and currently originates Mortgage Loans through 14 wholesale and two
retail branch offices. The Taxable Subsidiary's mortgage lending operations
originate and purchase fixed and adjustable-rate Subprime Mortgage Loans, as
well as Mortgage Loans that conform to FHLMC or FNMA underwriting criteria
("Prime Mortgage Loans"). In addition, the Taxable Subsidiary has built a
correspondent lending operation that began purchasing Subprime Mortgage Loans in
the fourth quarter of 1997. Pursuant to the Purchase Agreement, the Company
intends to purchase adjustable-rate Subprime Mortgage Loans originated or
acquired by the Taxable Subsidiary, as well as fixed-rate Subprime Mortgage
Loans not sold to ContiFinancial Corporation. However, the Company does not
intend to purchase Prime Mortgage Loans from the Taxable Subsidiary.
The Taxable Subsidiary will sell its Prime Mortgage Loans and selected
Subprime Mortgage Loans to generate current income and cash flow to partially
fund the Company's mortgage lending operations. See "Business -- Industry
Developments." For the fiscal quarter ended March 31, 1998, the Taxable
Subsidiary had originated or purchased $60.5 million of Subprime Mortgage Loans,
including $2.8 million of Subprime Mortgage Loans purchased through its
correspondent operations, and originated $91.6 million of Prime Mortgage Loans.
RealTrust owns 100% of the preferred stock (representing 95% of the economic
interest) of the Taxable Subsidiary but does not control its operations. The
Founders own approximately 68% of the voting common stock of the Taxable
Subsidiary and, therefore, control its operations. See "Structure and Formation
Transactions."
To date, the Taxable Subsidiary has sold all of its Subprime Mortgage Loan
production in whole loan sales for cash. From September 1, 1996 to March 31,
1998, the Taxable Subsidiary sold approximately $150.5 million of Subprime
Mortgage Loans, or approximately 54% of all Subprime Mortgage Loan sales during
such period, to ContiFinancial Corporation (with its affiliates ContiMortgage
Corporation, ContiTrade Services L.L.C., and ContiFinancial Services
Corporation, "ContiFinancial Corporation"). Subsequent to the closing of the
Offering, the Company, a newly-established entity, will commence building a
portfolio of Subprime Mortgage Loans and financed with structured debt. See
"Business -- Industry Developments" and
1
<PAGE> 9
"Risk Factors -- Operation of a New Enterprise Involves Uncertainty." The
Taxable Subsidiary will continue to sell certain Mortgage Loans for cash gains,
primarily to the Company, but also to third party investors, including the sale
of 75% of its fixed-rate Subprime Mortgage Loans to ContiFinancial Corporation.
See "Conflicts of Interest and Related Party Transactions."
RealTrust will elect to be taxed as a REIT under the Internal Revenue Code
of 1986, as amended (the "Code"), beginning with the tax year ending December
31, 1998. Upon such election, RealTrust will generally not be subject to federal
income tax to the extent that it distributes its earnings to its stockholders
and maintains its qualification as a REIT. The Taxable Subsidiary has been and
will continue to be taxed as a "C" corporation and, therefore, was subject to
tax on any earnings.
The Company's principal business objectives are to increase earnings per
share, to increase cash available for distribution to stockholders and to
enhance stockholder value. The Company intends to accomplish these goals
primarily by capitalizing on the yields available from investing in Subprime
Mortgage Loans compared to Prime Mortgage Loans, and managing the risks of such
investments. The Company will derive income from two principal business
activities, as follows:
(i) the management of an investment portfolio of Mortgage Assets which
will generate net interest income based upon the difference between the
interest earned on its Mortgage Assets and the interest paid on its
borrowings used to acquire the Mortgage Assets; and
(ii) the operation of the Taxable Subsidiary's mortgage origination
business, which will generate income from its mortgage lending activities
and will supply adjustable-rate Subprime Mortgage Loans for long-term
investment through the proposed REIT structure which avoids Federal income
tax at the corporate level.
RealTrust will conduct the investment portfolio operations. Specifically,
RealTrust will determine which Mortgage Loans will be held for long-term
investment, will establish underwriting guidelines for the Mortgage Loans, will
arrange financing for the investment portfolio (including the issuance of
structured debt offerings), will administer the capital allocation guidelines
and other risk management policies, and will supervise the servicing operations
of third-party servicers.
The Taxable Subsidiary will conduct the mortgage lending operations. The
Taxable Subsidiary will establish and maintain the wholesale, retail and
correspondent channels of production, will perform all underwriting and quality
control processes, will sell all Mortgage Loans that RealTrust does not desire
to hold for long-term investment (either through whole loan sales or
securitizations) and will maintain all necessary state mortgage lending
licenses.
SUMMARY RISK FACTORS
Each prospective purchaser of the Units offered hereby should review the
"Risk Factors" beginning on page 18 for a discussion of material risk factors
that should be considered before acquiring the Units, including the following:
- President's 1999 Budget Plan, if Enacted, Would Adversely Affect Results
of Operations. Provisions of the President's 1999 Budget Plan would
prohibit REITs from owning, by vote or value, more than 10% of the stock
of any corporation. If enacted, the 1999 Budget Plan would cause the
Company to either combine and/or divest itself of the Taxable Subsidiary
and its mortgage lending operations and impair the Company's ability to
qualify as a REIT for the fiscal year ending December 31, 1998,
subjecting the Company to federal taxation on its income, and thereby
reducing or eliminating earnings and cash available for distributions,
and may otherwise adversely affect the Company's operations.
- Inability to Acquire or Delays in Acquiring Mortgage Assets Will Reduce
Income to the Company. The Company has not entered into any commitment
to purchase Mortgage Assets. There can be no assurance that a sufficient
quantity or quality of Mortgage Assets will be provided by the Taxable
Subsidiary or otherwise available at all to the Company. The Company's
results of operations also
2
<PAGE> 10
may be adversely affected during the period in which it is initially
implementing its investment, leveraging and hedging strategies, at which
time the Company will likely invest in short-term Mortgage Assets which
generally provide a lower rate of return than long-term investments. The
Company's inability to acquire quality long-term Mortgage Assets in a
sufficient quantity will reduce the Company's income and may adversely
affect its results of operations. In addition, management will have
broad discretion in the allocation of the net proceeds of this Offering
and in the type and percentages of Mortgage Assets included in its
investment portfolio. Such discretion further creates uncertainty for
stockholders and could result in losses to the Company.
- The Taxable Subsidiary May Not Provide Sufficient Subprime Mortgage
Loans to RealTrust Which May Adversely Affect Results of Operations. The
Company intends to acquire most of its Subprime Mortgage Loan Portfolio
from the Taxable Subsidiary. If the Taxable Subsidiary is unable to
supply a sufficient quantity of Subprime Mortgage Loans, whether as a
result of its commitment to sell 75% of its fixed-rate Subprime Mortgage
Loans to ContiFinancial Corporation or otherwise, the Company would be
forced to acquire Subprime Mortgage Loans from third parties. Such
Mortgage Loans may not be available or may be available only at higher
costs, adversely affecting the Company's results of operations.
- Limited Operating History of the Company Creates Uncertainty About
Future Results. RealTrust was organized on April 1, 1998 and the Taxable
Subsidiary began its operations in April, 1996; as such, the Company has
not developed an extensive earnings history. Since its inception, the
Taxable Subsidiary has experienced net losses of $1,774,311 and
$1,305,866 for the fiscal years ended December 31, 1997 and 1996,
respectively, and had an accumulated deficit of $1,494,072 as of
December 31, 1997. Accordingly, there is substantial uncertainty
regarding the Company's future performance and results of operations.
- The Management of an Investment Portfolio of Mortgage Assets is a Change
in Operations. The Company's plans to invest in and manage a portfolio
of Mortgage Assets represent a substantial departure from the Taxable
Subsidiary's historic operations and the development of an entirely new
business enterprise. The management of an investment portfolio requires
the Company's involvement in activities in which the Company has not
previously engaged, namely financing with structured debt information,
hedging activities and the investment in Mortgage Securities. The
Company's management may not have the experience in these particular
activities necessary to successfully develop or manage such new and
expanded business enterprise.
- Lack of Relevant Experience Managing a REIT May Adversely Affect
Operating Results. The Company's management has had no prior experience
in managing a REIT. The Company's results of operation and earnings will
be adversely affected if the Company is unable to manage a REIT
successfully in the manner described in this Prospectus or otherwise.
- Loss of Any Key Personnel May Adversely Affect Operations. The Company's
operations depend in significant part upon the skills and experience of
Messrs. John D. Fry, Terry L. Mott, John P. McMurray and Steven K.
Passey. The loss of any such persons could have a material adverse
effect on the Company's business. The Company's employment agreements
with each of Messrs. John D. Fry, Terry L. Mott, John P. McMurray and
Steven K. Passey, and the non-competition provisions thereof, are
unlikely to be enforceable by the Company against the employees since
state law and public policy generally prohibit forced employment and
severely restrict the scope of non-competition provisions. As a result,
there can be no assurance that such employees will remain with the
Company and that they will not compete after termination.
- Future Revisions in Investment and Operating Policies and Strategies by
Board of Directors Creates Uncertainty. The Board of Directors has
established, but generally can waive and modify, the investment and
operating policies and strategies of the Company. These policies and
strategies do not limit the amount of capital which may be invested in
any one type of Mortgage Asset. These changes may have a material
adverse effect on the Company's business, results of operations and
financial condition.
3
<PAGE> 11
- Conflicts of Interest May Result in Decisions That Do Not Fully Reflect
the Stockholders' Best Interest. The Company is subject to various
potential conflicts of interest arising from its relationship with
ContiFinancial Corporation and the Founders. ContiFinancial Corporation
may be in a position to exercise significant influence over the
Company's operations in that it will beneficially own a substantial
portion of the Company's Common Stock (6.9% after this Offering) and
because of the Company's dependence on ContiFinancial Corporation for
many financial and financial advisory services. The Company has
appointed ContiFinancial Corporation as its exclusive placement agent
for structured debt offerings at a fee which may be higher than those
available from third parties. The Company is unable to quantify, with
any degree of reasonable accuracy, the amount of fees which would be
paid to ContiFinancial Corporation. Such fees depend on market
conditions which cannot be predicted at this time. Further, such fees
could be misleading if not placed in the context of the Company's
earnings and distributions, which the Company is unable to reasonably
calculate at this time. In addition, the Taxable Subsidiary has agreed
to sell to ContiFinancial Corporation 75% of its fixed-rate Subprime
Mortgage Loan production at prices established by ContiFinancial
Corporation (or pay a 40 basis point penalty on the principal
shortfall). In addition, $2.0 million of the proceeds from the Offering
will be used to retire the Taxable Subsidiary's outstanding balance on a
working capital line and $2.2 million of the proceeds will be used to
redeem shares of preferred stock held by ContiFinancial Corporation. The
Founders and ContiFinancial Corporation also control 100% of the voting
stock of the Taxable Subsidiary. Investors in the Offering will not
acquire an interest in any entity that controls the Taxable Subsidiary.
The Founders and ContiFinancial Corporation will also own approximately
20.6% of the Common Stock of the Company outstanding after the closing
of the Offering and can collectively exert substantial influence on its
operations. These relationships may create potential conflicts of
interest which may result in decisions that do not fully reflect the
best interest of the stockholders or the Company as a whole and may
materially reduce the Company's earnings and distributions.
- Higher Delinquency and Loss Rates on Subprime Mortgage Loans May Result
in Losses. Subprime Mortgage Loans are made to borrowers who do not
qualify for Prime Mortgage Loans, generally as a result of past
derogatory credit items. Thus, Subprime Mortgage Loans may result in
increased delinquency rates and/or credit losses which could have an
adverse effect on the Company's business and results of operations.
- Subprime Mortgage Loans May Experience High Prepayment Rates Which
Reduces Income From Operations. Prepayment rates on Subprime Mortgage
Loans may increase even in periods of stable or rising interest rates
since subprime borrowers may be able to improve their credit ratings and
refinance the Mortgage Loan to reduce their interest rate. Rapid
prepayments could reduce the Company's income from operations.
- Competition in the Subprime Mortgage Lending Market May Have a Material
Adverse Effect on Results of Operations. The market for Subprime
Mortgage Loans is highly competitive and dynamic. The Company faces
competition from numerous institutions, including other mortgage REITs
such as NovaStar Financial, Inc. and Hanover Capital Mortgage Holdings,
Inc. As the Company expands into particular geographic markets, it will
face increasing competition from larger lenders with substantially
easier access to capital and other resources than the Company. Continued
and increasing competition from new entrants into the market and the
changing competitive environment may have a material adverse effect on
the Company's financial condition and its future results of operation.
- Investments in High LTV Mortgage Loans and Subordinated Mortgage
Securities Involve Greater Risks of Loss. The Company's current
underwriting guidelines allow for the acquisition of Mortgage Loans with
up to a 90% loan-to-value ratio ("LTV"), which creates a substantial
risk that the Company will not be able to recover full amounts due on
its Mortgage Loans in the event the borrower defaults and the Company
forecloses and sells the underlying collateral. The Company's planned
investments in other subordinated classes of debt are subject to similar
risks of loss upon default, which could have a material adverse effect
on the Company's business and results of operations.
4
<PAGE> 12
- Interest Rate Mismatches Between Mortgage Assets and Borrowings May
Result in Reduced Income or Losses. Sudden and significant increases in
interest rates may increase the cost of the Company's short-term
borrowings more rapidly than the earnings on its long-term Mortgage
Assets, and thereby may substantially reduce income from operations and
adversely affect the Company's business and its results of operations.
In addition, such interest rate increases may also reduce Mortgage Loan
originations.
- Declining Interest Rates May Increase Prepayment Rates and Reduce Net
Interest Income. In the event that prepayments on the Company's Mortgage
Assets exceed expectations, the Company may (i) lose the opportunity to
receive interest at the fully indexed rate, (ii) need to write-off
capitalized premium amounts and (iii) be unable to acquire new or
replacement Mortgage Assets with similar yields.
- Hedging Transactions Limit Gains and May Increase Exposure to Losses;
Company Has No Specific Hedging Policies. The Company intends to
purchase interest rate caps, swaps and other financial instruments such
as interest-only Mortgage Securities ("IOs") and principal-only Mortgage
Securities ("POs") to mitigate the risk of interest rate fluctuations.
Hedging transactions involve costs which costs increase as the period
covered by the hedge increases and which increase in periods of rising
or volatile interest rates. The Company does not have specific hedging
policies and no hedging policy can entirely eliminate interest rate
risk. Failure to inappropriately hedge may affect the Company's results
of operations. The value of IOs and POs are highly sensitive to
fluctuations in prepayment and interest rates, which may adversely
affect the Company's results of operations.
- Counterparty, Unenforceability and Basis Risks in Hedging Transactions
May Result in Losses. The Company bears the risk that the counterparty
in any hedging transaction will be unable to perform its obligations.
Such risk could arise from insufficient documentation, insufficient
capacity or authority of the counterparty or from the bankruptcy or
insolvency of the counterparty. In addition, the Company will be subject
to exposure to differences in price performance between the Company's
Mortgage Assets and the hedges. Such risks may result in losses on
hedging transactions.
- Leverage Increases Exposure to Loss. The Company expects to borrow
against a substantial portion of the market value of its assets (up to
approximately 92%, depending upon the nature of the underlying Mortgage
Asset). The Company expects to maintain a ratio of equity to total
assets of approximately 10% to 15%. Such ratio may change depending upon
market conditions. The Company does not have any limits on the amount of
indebtedness. Leverage increases the volatility of income and asset
value. Failure to implement the Company's leveraging strategy may result
in losses if the return on its Mortgage Assets is less than its
borrowing cost and result in reduced profits if the optimal degree of
leverage is not achieved.
- Inability to Renew or Replace Maturing Borrowings May Result in
Losses. The Company relies on short-term borrowings to fund acquisitions
of long-term Mortgage Assets. Any failure to obtain or renew adequate
funding on favorable terms could have a material adverse effect on the
Company's operations. In such event, the Company could be required to
sell Mortgage Assets under adverse market conditions and incur losses as
a result.
- Defaults on Mortgage Loans May Result in Losses. In the event of a
default on any Mortgage Loan held by the Company, the Company will bear
the risk of loss of principal and the Mortgage Loan will cease to be
eligible collateral for borrowings. To the extent any property
collateralizing Mortgage Loans is contaminated by hazardous substances,
the Company may bear the costs of cleanup which could result in losses.
- Lack of Geographic Diversification Exposes the Company to Greater
Default Risk. The Mortgage Loans originated by the Taxable Subsidiary in
the first quarter of 1998 were predominantly concentrated in the
following states: Florida (32.92%), Utah (17.80%), California (14.04%),
Georgia (9.43%) and Arizona (5.16%). Lack of geographic diversification
may subject the Company to a greater default risk in the event of
adverse economic, political, business developments and material hazards.
- Inadequate or Ineffective Servicing May Increase Delinquency and Default
Rates. The Company will initially contract for servicing of its Mortgage
Loans by third-party servicers. The Company is subject to risks
associated with insufficient or untimely services which may result in
increased delinquency
5
<PAGE> 13
and default rates. The Company has entered into a servicing agreement
with Advanta which requires the payment of termination fees of $100 per
Mortgage Loan serviced by Advanta at the time of termination. As the
Company expects to assume responsibility for the servicing of the
Mortgage Loans, the corresponding termination fee may increase costs and
reduce the Company's net income from operations, if any.
- Legislation and Regulation May Subject the Company to Costs of
Compliance and Claims for Noncompliance. The mortgage lending operations
of the Taxable Subsidiary are subject to extensive state and federal
laws, regulations, supervision and licensing. The Taxable Subsidiary
incurs costs to comply with such laws and regulations and may be subject
to regulatory or enforcement actions and private proceedings for
non-compliance. The Real Estate Settlement Procedures Act ("RESPA")
prohibits certain yield spread premium payments to brokers. While the
Taxable Subsidiary has adopted procedures to mitigate the risk of claims
for violation of RESPA, the Taxable Subsidiary may be required to change
its broker compensation program or be subject to adverse claims.
- Changes in Economic Conditions May Adversely Affect Results of
Operations. The Company's business may be adversely affected by periods
of economic slowdown or recession which may be accompanied by decreasing
demand for consumer credit and declining real estate values. Declining
real estate values decrease the demand for borrowings and increases the
loan-to-value ratios of Mortgage Loans previously made by the Company,
thereby impairing collateral coverage and increasing the possibility of
a loss in the event of default. Depressed economic conditions also
increase the risk of delinquencies, foreclosures and losses. Improving
economic conditions, on the other hand, may increase prepayments and
lead to further losses. As such, any substantial changes in economic
conditions could have a material adverse effect on the Company and its
results of operations.
- Purchasers Will Incur Immediate and Substantial Dilution. Purchasers of
the Units offered hereby will be subject to immediate and substantial
economic dilution of $4.20 per share (28.0%) prior to exercise of the
Warrants and the Representative's Warrants or $2.31 per share (15.4%) if
all of the Warrants and the Representative's Warrants are exercised, in
the per share net tangible book value of the Common Stock components of
such Units (assuming sale of all the Units offered hereby at $15.00 per
Unit).
- Future Debt and Equity Offerings May Dilute Investors. In addition, the
Company plans to increase its capital resources in the future through
additional offerings of equity and debt securities. Accordingly,
purchasers of the Units offered hereby can expect further and
substantial dilution of their equity in the future.
- Failure to Develop a Trading Market May Result in Depressed Common Stock
Price. There has not been a public market for the securities prior to
this Offering and there can be no assurance that a trading market for
the securities will develop immediately after the closing of the
Offering or at all. The price of the Units have been determined by the
Underwriters and may not reflect the fair value of the Units. As such,
there can be no assurance that the price of the Units will not fall
below the public offering price. Even if a public market for the
Company's securities develops in the future, such market price may not
reflect the Company's earnings performance and may be subject to
substantial volatility as a result of fluctuations in interest rates and
other factors.
- Consequences of Failure to Maintain REIT Status Would Have Adverse Tax
Consequences. If the Company fails to qualify as a REIT in any taxable
year, the Company may be subject to federal income tax as a regular,
domestic corporation, thereby significantly reducing or eliminating the
amount of cash available for distribution to its stockholders. Failure
to qualify for REIT status may reduce or eliminate any advantage over
non-REIT companies.
- Restrictions on Ownership of Capital Stock Could Discourage a Change of
Control. The Company's Amended and Restated Articles of Incorporation
prohibit any person from owning more than 9.8% in value of the capital
stock of the Company. Such a restriction on ownership may inhibit market
activity and reduce or eliminate any premium that may otherwise have
existed on the Securities.
6
<PAGE> 14
COMPETITIVE ADVANTAGES
Management believes that the Company will be able to compete effectively
against its competitors (including certain "C" corporations and mortgage REITs,
see "Risk Factors -- Investments in Subprime Mortgage Loans Involve Greater Risk
of Loss -- Competition in the Subprime Mortgage Lending Market May Have a
Material Adverse Effect on Results of Operations" as a result of the following
factors:
- The Company's management team has previously built extensive mortgage
banking operations which allows the Company to intensively manage the
cost and quality of the Mortgage Loans held for investment.
- The Taxable Subsidiary's Mortgage Loan production franchise and the
Company's investment portfolio will focus on Subprime Mortgage Loans.
- The use of structured debt instruments to finance Mortgage Assets held
in the Company's investment portfolio is expected to mitigate interest
rate risk.
- The Company's status as a REIT offers tax advantages by eliminating
corporate level Federal income tax.
- The Company is self-advised and self-managed which limits potential
conflicts of interest between the stockholders and management.
- The Taxable Subsidiary structure affords the Company the ability to sell
Mortgage Loans for cash gains when management determines that such sales
will provide favorable returns (see "Business -- Industry
Developments").
The Company is, however, subject to numerous risks and uncertainties with
respect to its operations. Such risks and uncertainties include the following.
The Company's management has never managed a REIT and lacks experience in
certain activities associated with managing an investment portfolio, including
the use of structured debt financing, certain hedging strategies and investing
in Mortgage Securities. REITs are subject to numerous asset, income and other
tests, the failure of which could result in loss of REIT status. Subprime
Mortgage Loans are subject to increased risks of delinquency and default which
could result in losses. The use of substantial leverage exposes the Company to
increased risk of loss. The Company has no established limits on the amount of
debt it may incur. The Company is subject to numerous potential conflicts of
interest with each of ContiFinancial Corporation and the Founders. The Founders
will own 68% of the voting common stock of the Taxable Subsidiary and,
therefore, will control its operations. Provisions of the President's 1999
Budget Plan would prohibit the Company from owning more than 10% of the Taxable
Subsidiary's capital stock, requiring significant changes to the currently
intended manner of operations. For a description of these and other risks
associated with an investment in the Units, see "-- Summary Risk Factors" above.
7
<PAGE> 15
MANAGEMENT
The Company will be governed by a Board of Directors comprised of five
members, three of whom are not officers or employees of the Company or its
affiliates ("Independent Directors"). Day-to-day operations will be conducted by
the Company's executive officers. Although the Company's management does not
have experience managing or operating a REIT, management does have experience
managing taxable entities with similar operations including originating,
purchasing, underwriting, and securitizing Mortgage Loans as well as the
management of Mortgage Asset portfolios.
The Company's two primary executive officers, Mr. John D. Fry and Mr. Terry
L. Mott, collectively have extensive experience in building and operating
mortgage banking operations in a variety of environments, including building
Mortgage Loan production and management teams and creating and implementing
policies, budgets and controls. Mr. Fry, Certified Mortgage Banker (CMB), formed
the Company in February, 1996 and has been the President, Chief Executive
Officer and Chairman of the Board of Directors since inception. Mr. Fry began
his mortgage banking career in 1966. From 1989 to 1994, Mr. Fry was Senior Vice
President of Wholesale Lending of ComUnity Lending, Inc., a mortgage bank
located in San Jose, California. From 1984 to 1989, Mr. Fry was Vice President
and Western Division Manager of Goldome Realty Credit Corp., a thrift located in
Buffalo, New York. See "Management."
Mr. Mott has been the Executive Vice President of the Company primarily
responsible for Mortgage Loan production and a Director since inception. Mr.
Mott began his career in mortgage banking in 1977. From 1980 to 1988, Mr. Mott
was the regional Vice President at Fleet Mortgage Corp. where he developed and
managed the retail and wholesale mortgage loan production for the western United
States. From 1988 to 1994, Mr. Mott was Executive Vice President and served on
the executive committee for Medallion Mortgage Company. Mr. Mott left AccuBanc
Mortgage, the successor to Medallion Mortgage Company, in December, 1995, to
form the Company with Mr. Fry. See "Management."
In contemplation of the Offering and the proposed business strategy of the
Company, the Company has hired additional executive management team members,
including Mr. John P. McMurray and Mr. Steven K. Passey. Mr. McMurray joined the
Company in February, 1998, as the Executive Vice President of Secondary
Marketing and Asset Liability Management. Prior to joining the Company, Mr.
McMurray was the President of Keystroke Financial, Inc., a start-up internet
mortgage origination company. From 1995 to 1996, Mr. McMurray was Executive Vice
President and Director, Risk Management and Capital Markets for Crestar Mortgage
Corporation where he was responsible for interest rate and credit risk
management, as well as hedging, securitization and loan/securities trading
activities. From 1982 to 1995, Mr. McMurray served in various management
positions with BancPlus Mortgage Corp., most recently serving as the Senior Vice
President, Capital Markets. Mr. McMurray is a Chartered Financial Analyst and a
Certified Public Accountant. He received a Master of Science degree in Real
Estate from Massachusetts Institute of Technology, a Masters of Business
Administration degree from the University of Texas, San Antonio and a Bachelor
of Science degree from Trinity University. Mr. Passey joined the Company in
October, 1997 as the Senior Vice President and Chief Financial Officer. Prior to
joining the Company, Mr. Passey was employed by KPMG Peat Marwick LLP in the
financial services area for eight years, most recently as a manager responsible
for accounting and audit work for financial services companies. Mr. Passey is a
Certified Public Accountant. See "Management."
BUSINESS STRATEGIES
MARKETING AND PRODUCTION STRATEGY
The Taxable Subsidiary acquires or will acquire Mortgage Loans from four
sources: (i) its wholesale channel through which Mortgage Loans are acquired
from a network of independent wholesale brokers, (ii) its correspondent channel
through which closed Mortgage Loans are purchased from other lenders, (iii) its
retail channel through which direct originations are obtained from its retail
branches, and (iv) to a lesser extent, its bulk acquisitions of Mortgage Loans
from other mortgage banks and financial institutions.
8
<PAGE> 16
The wholesale channel, which originates Mortgage Loans through independent
wholesale brokers, accounted for $115.9 million, or 76.2%, of the Taxable
Subsidiary's Mortgage Loan production during the first quarter of 1998. Of the
wholesale channel Mortgage Loans originated during the first quarter of 1998,
$56.6 million, or 48.8%, were Subprime Mortgage Loans. As of March 31, 1998, the
wholesale channel originated Mortgage Loans through 14 branch offices located
nationwide. These offices are owned by the Taxable Subsidiary and are staffed
with the Taxable Subsidiary's employees, generally between one and 15 loan
officers, zero to five underwriters and two to 20 support personnel. The Taxable
Subsidiary's believes that the Taxable Subsidiary has been successful in
penetrating the broker market by providing prompt, consistent service, which
includes (i) response time efficiencies in the purchase process as a result of
decentralized underwriting, (ii) direct and frequent contact with brokers
through a trained sales force, (iii) competitive pricing, and (iv) a variety of
pricing programs and Mortgage Loan products. The Taxable Subsidiary intends to
initially increase wholesale Mortgage Loan production through expanded marketing
efforts by existing branches and to identify new areas of the United States
where it will establish additional wholesale branches. The Taxable Subsidiary
intends to continue to increase the percentage of Subprime Mortgage Loans
originated through its wholesale channel. The Taxable Subsidiary does not have
exclusive arrangements with any wholesale brokers who remain free to sell
Mortgage Loans to others.
The correspondent lending channel acquires closed Subprime Mortgage Loans
through a national network of approved Mortgage Loan originators that fund and
close each Subprime Mortgage Loan using their own funds and subsequently sell
the Mortgage Loans to the Taxable Subsidiary. The correspondent lending channel
accounted for $2.8 million, or 1.8%, of the Taxable Subsidiary's Mortgage Loan
production during the first quarter of 1998, all of which were Subprime Mortgage
Loans. The goal of the correspondent lending channel is to increase the volume
of Subprime Mortgage Loan production while maintaining the comprehensive quality
control systems currently employed by the wholesale and retail channels of the
Taxable Subsidiary. Subprime Mortgage Loans will be purchased from mortgage
bankers, commercial bankers and savings and loans on a servicing released basis.
Each seller will maintain certain eligibility criteria such as net worth
requirements, Mortgage Loan origination experience and warehouse line
capability. In October, 1997, the Taxable Subsidiary entered into a letter
agreement with Nomura Asset Capital Corporation ("Nomura") to acquire from
Nomura Subprime Mortgage Loans and certain non-binding seller relationships
between Nomura and several sellers through which Nomura has actively purchased
Subprime Mortgage Loans since 1994. See "Business -- Marketing and Production
Strategy -- Correspondent Lending." Pursuant to the terms of the letter
agreement, the Taxable Subsidiary agreed to purchase certain Subprime Mortgage
Loans from Nomura and Nomura agreed to introduce to the Taxable Subsidiary
correspondents and sellers from whom Nomura formerly acquired Subprime Mortgage
Loans. The Taxable Subsidiary agreed to pay Nomura a fee of 25 basis points to
the extent that the Taxable Subsidiary purchases more than $90.0 million of
Subprime Mortgage Loans from such correspondents prior to June 30, 1998. The
Taxable Subsidiary does not expect to purchase any additional loans from such
correspondents until after June 30, 1998 and, therefore, does not expect to pay
any additional fees to Nomura under the agreement. Nomura also agreed to provide
a $100 million reverse repurchase facility. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations -- Liquidity and
Capital Resources." The Company views the assumption of the Nomura seller
relationships as a platform to build and develop the Subprime Mortgage Loans
necessary to implement the Company's Mortgage Asset portfolio strategy.
The retail channel, which originates Mortgage Loans through the direct
solicitation of borrowers, accounted for $33.4 million, or 22.0%, of the Taxable
Subsidiary's Mortgage Loan production during the first quarter of 1998. Of the
Mortgage Loans originated through the retail channels during the first quarter
of 1998, $1.2 million, or 3.5%, were Subprime Mortgage Loans. As of March 31,
1998, the retail channel originated Mortgage Loans through two branch offices
located in Salt Lake City, Utah and Las Vegas, Nevada. Such offices are staffed
with five to 10 loan officers, one underwriter and five to seven support
personnel. The retail channel includes traditional marketing activities
conducted by retail loan officers, all of whom are commissioned employees of the
Taxable Subsidiary, who seek to identify potential borrowers through referral
sources and individual sales efforts, as well as high-volume targeted direct
mail and telephone solicitation. The Taxable Subsidiary intends to maintain
Prime Mortgage Loan production and to focus on increasing Subprime Mortgage Loan
production within its existing retail branch offices by staffing each retail
office with a
9
<PAGE> 17
minimum of two Subprime Mortgage Loan officers who will utilize direct mail and
telephone solicitation methods to generate such Mortgage Loans.
The Taxable Subsidiary may also acquire a portion of its Mortgage Asset
portfolio through occasional bulk acquisitions of Mortgage Asset pools ranging
in size from $2.0 million to $50.0 million. The Taxable Subsidiary has made two
bulk acquisitions of Mortgage Loans in an aggregate principal amount of $63.1
million.
UNDERWRITING AND QUALITY CONTROL
The Taxable Subsidiary underwrites all Mortgage Loans originated through
its retail and wholesale channels with a staff of in-house underwriters. The
Taxable Subsidiary staffs each office with senior underwriters with a minimum of
five years experience and trains each underwriter on the Taxable Subsidiary's
underwriting policies and procedures at the Taxable Subsidiary's headquarters in
Salt Lake City, Utah. The underwriters are permitted to staff retail or
wholesale offices after approval by the Chief Credit Officer, and are subject to
a 30-day probation, during which their work is closely scrutinized by the
Taxable Subsidiary. The Taxable Subsidiary has an extensive, systematized
quality control and audit plan currently in place to monitor the quality of the
Mortgage Loans originated and purchased, personnel and processes.
LOAN SALES
The Taxable Subsidiary has historically followed a strategy of selling for
cash gains all of its Mortgage Loan originations and purchases through Mortgage
Loan sales in which the Taxable Subsidiary disposes of its entire economic
interest in the Mortgage Loans (including servicing rights) for a cash price
that represents a premium over the principal balance of the Mortgage Loans sold.
For the fiscal year ended December 31, 1997, the Taxable Subsidiary sold $477.1
million of Mortgage Loans through whole Mortgage Loan sales transactions. The
Taxable Subsidiary did not sell any Mortgage Loans through securitization during
this period; however, substantially all of the Mortgage Loans sold during this
period were ultimately securitized by the purchasers thereof. Ultimately, the
Company plans to build an investment portfolio by retaining selected Subprime
Mortgage Loans. The Taxable Subsidiary, however, intends to continue to sell to
various Mortgage Loan investors for cash gains, all of its Prime Mortgage Loans,
all of its Second Lien Mortgage Loans and certain of its Subprime Mortgage
Loans. See "Business -- Industry Developments." The sale of these Mortgage Loans
is expected to generate current income and cash flow to partially fund the
Taxable Subsidiary's mortgage lending operations. See "Risk Factors -- Risks
Relating to Mortgage Lending Operations."
MORTGAGE INVESTMENT PORTFOLIO
The Company will acquire and manage a portfolio of Mortgage Assets,
primarily composed of Subprime Mortgage Loans originated and purchased by the
Taxable Subsidiary and financed with structured debt instruments. As with a bank
or savings and loan association, the Company's portfolio of Mortgage Assets is
expected to generate net income to the extent that the yield on its Mortgage
Assets exceeds the overall cost of its borrowings. The Company will attempt to
construct a portfolio of Mortgage Assets which will provide a relatively
consistent level of net interest income through a variety of interest rate
environments. The Company intends to develop and manage this portfolio of
Mortgage Assets to maximize net interest income within prescribed risk
constraints.
The Company's Mortgage Assets will be comprised of both whole Subprime
Mortgage Loans and Subprime Mortgage Securities. The Company anticipates that
such Mortgage Assets will be subject to numerous risks, primarily interest rate
risk, credit risk and prepayment risk, among others. The Company has established
policies to attempt to manage the risks relating to the use of substantial
leverage, interest rate risks, credit risks and prepayment risks associated with
its long-term investment in Mortgage Assets. The Board of Directors and
management have broad discretion to amend such policies without the consent of
the stockholders. See "Risk Factors -- Operation of a New Enterprise Involves
Uncertainty -- Future Revisions in Investment and Operating Policies and
Strategies by Board of Directors Creates Uncertainty."
10
<PAGE> 18
USE OF LEVERAGE
The Company employs capital allocation guidelines to manage the risks
associated with the use of substantial leverage. See "Summary -- Capital
Allocation Guidelines."
CREDIT RISK MANAGEMENT
The Company attempts to manage credit risk through a number of policies and
strategies, including early intervention and aggressive collection servicing
techniques. See "Summary -- Servicing Activities." In addition, the Company
attempts to mitigate credit risk through its underwriting, appraisal and quality
control programs. To manage credit risk, the Company has adopted underwriting
guidelines wherein all Mortgage Loans are subjected to a detailed review by
Company underwriters. The underwriting guidelines determine maximum LTV ratios
that will be accepted (generally not in excess of 90%), which LTVs are expected
to provide sufficient protection in the event of default and foreclosure. In
addition, the Company requires appraisals by FIRREA-qualified appraisers to
determine the LTV. The Taxable Subsidiary purchases loans only from
Correspondents who meet minimum net worth requirements ($400,000), and each of
whom make extensive representations and warranties regarding Mortgage Loans sold
to the Taxable Subsidiary. Upon any breach of such representations or
warranties, the Correspondents are required to repurchase the corresponding
Mortgage Loan. Finally, the Taxable Subsidiary employs a quality assurance
program to monitor the performance of its underwriters as well as Correspondents
and brokers which sell Mortgage Loans to the Taxable Subsidiary. See
"Business -- Credit Risk Management."
INTEREST RATE RISK MANAGEMENT
To manage interest rate risk, which arises primarily from potential
mismatches in the interest rate on the Company's borrowings and those on its
Mortgage Assets, the Company has adopted a number of policies. The Company will
attempt to structure its liabilities to have interest rate indices and
adjustment periods that correspond as closely as possible with the indices and
adjustment periods on its Mortgage Assets. The Company also intends to use
interest rate caps, swaps and similar instruments to limit, fix or partially
offset changes in interest rates on its borrowings. See "Business -- Interest
Rate Risk Management" and "Risk Factors -- Interest Rate Fluctuations May
Adversely Affect Operations and Net Interest Income." The Company will finance
its Mortgage Assets with CMOs which mitigate some interest rate risk. See
"Summary -- Structured Debt Financing." No interest rate management strategy can
completely insulate the Company from interest rate risks. Moreover, certain
provisions of the Code limit the hedging strategies of REITs. See "Risk
Factors -- Interest Rate Fluctuations May Adversely Affect Operations and Net
Interest Income -- Hedging Transactions Limit Gains and May Increase Exposure to
Losses."
PREPAYMENT RISK MANAGEMENT
Prepayments of Mortgage Loans prior to their maturity date generally
increase as interest rates decline. Subprime Mortgage Loans may be subject to
increased rates of prepayment in stable or rising interest rates if borrowers
are able to repair their credit ratings and refinance at lower rates. Prepayment
affects the Company in several ways. First, to the extent the Company pays a
premium over the outstanding principal balance of the Mortgage Loan, significant
unexpected expenses may be recognized upon prepayment. Second, since prepayments
tend to accelerate in declining interest rate environments, it may be difficult
to replace prepaid Mortgage Loans with Mortgage Loans offering similar yields.
Replacement Mortgage Loans may have low introductory rates that would reduce the
Company's earnings. The Company attempts to mitigate prepayment rates by
acquiring Mortgage Loans that carry prepayment penalties. During the first
quarter of 1998, 84.5% of the Taxable Subsidiary's Subprime Mortgage Loans had
prepayment fees. The Company also intends to structure into its CMO financing
with certain hedging instruments which may mitigate some prepayment risk. The
Company further intends to implement procedures for soliciting borrowers who are
expected to refinance and prepay. No policies or procedures can fully protect
the Company from prepayment risks. See "Risk Factors -- Interest Rate
Fluctuations May Adversely Affect Operations and Reduce Net Interest Income --
Declining Interest Rates May Increase Prepayment Rate and Reduce Net Interest
Income."
11
<PAGE> 19
STRUCTURED DEBT INSTRUMENTS
The Company intends to hold for long-term investment Subprime Mortgage
Loans originated or acquired by its mortgage lending operation and to finance
such Mortgage Loans with long-term financings through the issuance of structured
debt instruments, or collateralized mortgage obligations ("CMOs"). Pursuant to
this approach, for accounting purposes, the Mortgage Loans collateralizing any
CMO remain on the balance sheet as assets and the debt obligations (i.e., CMOs)
appear as liabilities, if such obligations meet the requirements of Statement of
Financial Accounting Standards No. 125, Accounting for Transfers and Servicing
of Financial Assets and Extinguishments of Liabilities, to be accounted for as
financings. The Company's retained interest under this approach is reflected by
the excess of the assets over the related liabilities on its balance sheet. The
Company will recognize net interest income to the extent that the interest rate
on the Mortgage Loans collateralizing CMOs exceeds the interest payable to the
holders of the CMOs. Unlike other forms of securitization, CMOs are not
considered sales of the Mortgage Loans which result in immediate accounting
recognition of the expected stream of future income, referred to as "gain on
sale." Gain-on-sale securitizations result in income recognition in excess of
actual cash received. In the event that the actual income is less than expected
at the time of the gain-on-sale securitization, the issuer may be required to
restate income or take losses. The Company believes that CMO financing is
preferable because it reflects only actual net interest income and reduces the
risk of future earnings volatility.
CAPITAL ALLOCATION GUIDELINES
The Company's goal is to maintain a balance between the under-utilization
of leverage, which may diminish returns to stockholders, and the
over-utilization of leverage, which could limit the Company's funding
alternatives during adverse market conditions. See "Risk Factors -- Borrowing to
Finance Investment Portfolio May Adversely Affect Results of
Operations -- Leverage Increases Exposure to Loss." Therefore, the Company has
adopted Capital Allocation Guidelines (the "CAG"). The primary factors
influencing the Company under circumstances of adverse market conditions are (i)
increases in interest rates, and (ii) increases in general market perception of
credit risk associated with residential Mortgage Loans. Interest rate increases
reduce the market value of the Company's Mortgage Assets and therefore reduce
the amount of available financing since financing is dependent on market values.
An increase in the perceived credit risk tends to increase the level of
over-collateralization required by rating agencies so that the Company can
obtain investment grade ratings on its senior classes of structured financings,
such as CMOs. Higher levels of over-collateralization reduce the quantity of
total financing prospectively available to the Company for a given quantity of
Mortgage Loans. The Company's CAG are designed for purposes of sustaining
liquidity and funding alternatives during each of these adverse market
conditions.
SERVICING ACTIVITIES
Initially, the Company intends to engage a third-party servicer to service
all Mortgage Loans in the Company's investment portfolio while management
focuses on Mortgage Loan production, Mortgage Loan processing, asset/liability
management, administrative operations and securitization. Such a subservicing
agreement will allow the Company to take advantage of the experience of
Advanta's servicing staff, their computer and customer service systems and
collection procedure. Although there can be no assurances, the Company intends
to develop its own servicing capability in order to oversee the performance of
its Mortgage Loans more directly and to manage the servicing relationship with
its borrowers. The timing of this action will be based on the time required to
obtain the personnel and computer systems necessary to properly manage a
servicing department capable of servicing over $1.0 billion in Subprime Mortgage
Loans.
The Company currently has a Loan Servicing Agreement with Advanta Mortgage
Corp. (the "Advanta Servicing Agreement"). Under the Advanta Servicing
Agreement, the Company is obligated to pay Advanta a monthly servicing fee on
the declining principal of each Mortgage Loan serviced and a set-up fee for each
Mortgage Loan delivered to Advanta for servicing. Upon termination by the
Company of this servicing agreement, the Company will be obligated to pay a
termination fee equal to $100 per Mortgage Loan then serviced by Advanta, and
will incur additional costs incident to such termination. See
"Business -- Servicing Activities." As of March 31, 1998, the Company had an
immaterial number and principal amount of
12
<PAGE> 20
Mortgage Loans under the Advanta Servicing Agreement (five Mortgage Loans with a
principal balance of $0.4 million). The Company intends to select the servicer
offering the most favorable terms and highest quality services and believes the
Advanta Servicing Agreement will not, now or in the future, deter the Company
from selecting another servicer.
STRUCTURE AND FORMATION TRANSACTIONS
STRUCTURE OF THE COMPANY
The Company will initially conduct its operations through at least two
entities as follows: (i) RealTrust Asset Corporation, a newly formed Maryland
corporation which will elect REIT status beginning with the taxable year ending
December 31, 1998 (for purposes of this discussion, sometimes referred to as
"RealTrust"), and (ii) CMG Funding Corp., a Delaware corporation which will not
elect REIT status (for purposes of this discussion, sometimes referred to as the
"Taxable Subsidiary"). This structure is designed primarily to permit RealTrust
to acquire the ownership of a substantial portion of the economic interest of
the Taxable Subsidiary while qualifying for REIT status. See "Federal Income Tax
Considerations -- Qualification as a REIT -- Nature of Assets" and "Risk
Factors -- President's 1999 Budget Plan, If Enacted, Would Adversely Affect
Results of Operations."
[STRUCTURE CHART]
FORMATION TRANSACTIONS AND POST-CLOSING TRANSACTIONS
FORMATION TRANSACTIONS
Immediately prior to or upon the closing of this Offering, the following
transactions will be consummated (the "Formation Transactions"):
- As of April 15, 1998, the stockholders of the Taxable Subsidiary have
contributed 95% of their capital stock of the Taxable Subsidiary to
RealTrust in exchange for shares of capital stock issuable by RealTrust,
including the Common Stock and preferred stock (the "Capital Stock");
13
<PAGE> 21
- The capital stock of the Taxable Subsidiary will be recapitalized such
that RealTrust will own 100% of the non-voting preferred stock
representing 95% of the economic interest of the Taxable Subsidiary and
the stockholders of the Taxable Subsidiary prior to this Offering (other
than ContiFinancial Corporation, the "Founders") (68%) and
ContiFinancial Corporation (32%), will own all of the common stock
representing five percent of the economic interest of the Taxable
Subsidiary (reflecting their respective ownership percentages of the
Taxable Subsidiary's entire capital stock);
- The outstanding shares of preferred stock of RealTrust, owned by
ContiFinancial Corporation, John Fry and Terry Mott, and all of the
shares of Common Stock of RealTrust held by the Founders and
ContiFinancial Corporation will be converted into an aggregate of
1,295,807 shares of Common Stock of RealTrust, par value $.001 per share
(the "Common Stock"); except the 410,581 shares of Class B Redeemable
Preferred Stock owned by ContiFinancial Corporation which will be
redeemed after the closing of this Offering (see "Conflicts of Interest
and Related Party Transactions -- ContiFinancial Corporation" and "Use
of Proceeds");
- The Company will amend its Articles of Incorporation to adopt provisions
necessary for qualification as a REIT;
- The Company will sell 5,000,000 Units in the Offering (assuming no
exercise of the Underwriters' over-allotment option); and
- The Company will grant the Representative's Warrants.
POST-CLOSING TRANSACTIONS
Following the closing of the Offering, the following transactions will be
consummated (the "Post-Closing Transactions"):
- The Company will elect to be taxed as a REIT;
- The Company will conduct certain aspects of its mortgage lending
operations through the Taxable Subsidiary. The Company will own all of
the shares of non-voting preferred stock of the Taxable Subsidiary,
which shares shall represent 95% of the economic interest of the Taxable
Subsidiary. See "Risk Factors -- President's 1999 Budget Plan, If
Enacted, Would Adversely Affect Results of Operations";
- The Founders will own approximately 68% and ContiFinancial Corporation
will own approximately 32% of the voting common stock of the Taxable
Subsidiary, which shares shall represent five percent of the economic
interest of the Taxable Subsidiary;
- The Company will redeem the 410,581 shares of Class B Redeemable
Preferred Stock held by ContiFinancial Corporation for $2,000,000, plus
dividends accrued since January 1, 1998, at the rate of 18% per annum;
and
- In addition to the options to purchase 72,925 shares of Common Stock
granted to officers, directors and employees under the 1996 Stock Option
Plan, the Company will also grant to officers, directors and employees
(including ContiFinancial Corporation) options to purchase an aggregate
of 407,569 shares of Common Stock under the 1998 Stock Option Plan (See
"Management -- Executive Compensation -- 1998 Stock Option Plan").
CONSEQUENCES OF FORMATION TRANSACTIONS AND POST-CLOSING TRANSACTIONS
The consummation of the Formation Transactions and the Post-Closing
Transactions will have the following consequences:
- The purchasers of Units in the Offering will own 79.4% of the
outstanding shares of Common Stock (assuming no exercise of the
Warrants, the Representative's Warrants, the over-allotment option or
outstanding stock options) and will own all of these Warrants, except
the Representative's Warrants;
- The Founders and ContiFinancial Corporation will collectively own 20.6%
of the outstanding shares of Common Stock of the Company (assuming no
exercise of the Warrants, the Representative's Warrants, the
over-allotment option or outstanding stock options);
14
<PAGE> 22
- In addition to options granted to officers, directors and employees of
the Company to purchase 72,925 shares of Common Stock at exercise prices
ranging from $7.33 to $15.00 under the 1996 Stock Option Plan, officers,
directors and employees of the Company (including ContiFinancial
Corporation) will have options to purchase an aggregate of 407,569
shares of Common Stock, subject to certain vesting provisions, at an
exercise price equal to the Price to Public (See "Management --
Executive Compensation -- 1998 Stock Option Plan);
- The Company will own all of the non-voting preferred stock of the
Taxable Subsidiary, which shares will represent 95% of the economic
interest of the Taxable Subsidiary; and
- The Founders will own all of the voting shares of common stock of the
Taxable Subsidiary, which stock will represent five percent of the
economic value of the Taxable Subsidiary.
15
<PAGE> 23
DIVIDEND POLICY AND DISTRIBUTIONS
As a REIT, the Company must distribute substantially all of its taxable
income to stockholders during each year. See "Dividend Policy and Distributions"
and "Federal Income Tax Considerations -- Qualification as a
REIT -- Distributions." The Company expects to declare four regular
distributions each year commencing with a pro rata distribution for the quarter
ending June, 1998. After the closing of this Offering, the Company intends to
adopt a Dividend Reinvestment Plan (the "DRP") that will allow stockholders to
have their distributions reinvested automatically in additional shares of Common
Stock. Upon adoption of the DRP, each stockholder will be notified in writing of
the procedure for enrolling in the DRP. See "Dividend Reinvestment Plan."
THE OFFERING
<TABLE>
<S> <C>
Units Offered by the Company and Outstanding After This
Offering(1)............................................... 5,000,000
Common Stock to be Outstanding After the Offering(2)(3)..... 6,295,807
Common Stock Purchase Warrants to be Outstanding After the
Offering(4)............................................... 5,000,000
Common Stock Options Outstanding After the Offering(5)...... 480,494
Use of Proceeds.............................. Mortgage Asset acquisition................ $59,375,000
Redemption of ContiFinancial Corporation
Preferred Stock......................... 2,180,000
Repayment of ContiFinancial Corporation
Working Capital Debt.................... 2,025,000
Repayment of Capstone Note................ 850,000
Working Capital........................... 4,220,000
-----------
Net Proceeds.............................. $68,650,000
===========
American Stock Exchange Symbol
For the Units............................................. RAC.U
For the Common Stock(6)................................... RAC
For the Warrants(6)....................................... RAC.WS
</TABLE>
- ---------------
(1) Assumes the Underwriters' over-allotment option to purchase up to 750,000
additional Units is not exercised. Includes Units issuable upon exercise of
the option granted to Capstone Investments, Inc. to convert all or any
portion of a Convertible Secured Promissory Note into Units of the Company
offered hereby at the Price to Public. See "Conflicts of Interest and
Related Party Transactions -- Capstone Investments, Inc."
(2) Does not include (i) 5,000,000 shares of Common Stock reserved for issuance
upon exercise of the Warrants which will be a part of the outstanding Units
(5,750,000 if the over-allotment option is exercised), or (ii) 150,000
shares of Common Stock reserved for issuance upon exercise of the
Representative's Warrants (172,500 if the over-allotment option is
exercised).
(3) Excludes the 410,581 shares of Class B Redeemable Preferred Stock owned by
ContiFinancial Corporation which will be redeemed after the closing of the
Offering. See "Conflicts of Interest and Related Party
Transactions -- ContiFinancial Corporation."
(4) Exercisable at the Price to Public. Excludes the Representative's Warrants.
The Warrants shall automatically detach from the Common Stock six months
after the closing of the Offering. Also excludes warrants granted to
ContiFinancial Corporation which terminate upon the closing of the Offering
and excludes warrants to purchase 50,000 shares of Common Stock at the Price
to Public granted to Capstone Investments, Inc. See "Conflicts of Interest
and Related Party Transactions -- ContiFinancial Corporation" and
" -- Capstone Investments, Inc."
(5) Includes options to purchase 42,925 shares of Common Stock at an exercise
price of $7.33 per share and options to purchase 30,000 shares at an
exercise price of $15.00 per share granted to employees of the Company under
the 1996 Stock Option Plan and options to purchase 407,569 shares of Common
Stock at
16
<PAGE> 24
an exercise price equal to the Price to Public granted to employees of the
Company under the 1998 Stock Option Plan. See "Management -- Executive
Compensation -- 1998 Stock Option Plan."
(6) The Common Stock and Warrants will not be separately listed and traded until
the Warrants are detachable, six months after the closing of the Offering.
CONFLICTS OF INTEREST AND RELATED PARTY TRANSACTIONS
CONTIFINANCIAL CORPORATION
The Taxable Subsidiary and the Company have entered into the following
transactions with ContiFinancial Corporation.
Stock Ownership. Immediately prior to the closing of the Offering,
ContiFinancial Corporation will own 546,883 shares of Common Stock, 252,117
shares of Class A Convertible Preferred Stock and 410,581 shares of Class B
Redeemable Preferred Stock, which in the aggregate represents approximately
43.0% of the outstanding shares of Capital Stock (approximately 42.0% on a fully
diluted basis). Immediately prior to the closing of this Offering, each share of
Class A Convertible Preferred Stock, including those owned by ContiFinancial
Corporation, will be converted into one share of Common Stock. All of the
outstanding shares of Common Stock will be reverse split into an aggregate of
1,295,807 shares of Common Stock. As a result, immediately prior to the closing
of the Offering, ContiFinancial Corporation will own 431,418 shares of Common
Stock, representing 33.3% of the outstanding shares (32.4% on a fully diluted
basis). Upon closing of the Offering, the Company intends to redeem the Class B
Redeemable Preferred.
The redemption price for all shares of the Class B Redeemable Preferred
Stock equals the original purchase price of $2,000,000, plus dividends accrued
from January 1, 1998 at the rate of 18% per annum, for a total redemption price
of $2,180,000, assuming redemption occurs on June 30, 1998. The Class B
Redeemable Preferred Stock is also entitled to a liquidation preference of
$2,000,000 plus accrued dividends. The Class B Redeemable Preferred Stock is not
convertible into Common Stock.
Agreements to Sell Mortgage Loans. Upon the closing of the Offering until
December 31, 2001, the Taxable Subsidiary has agreed to sell to ContiFinancial
Corporation not less than 75% of the fixed-rate Subprime Mortgage Loans
originated or acquired by the Taxable Subsidiary in each month. The purchase
price for such Subprime Mortgage Loans shall be the fair market value as
determined by the best published rate sheet at ContiMortgage Corporation, an
affiliate of ContiFinancial Corporation. In any month, the Taxable Subsidiary
may substitute adjustable-rate Subprime Mortgage Loans for up to 50% of the
amount required to be offered for sale to ContiFinancial Corporation. To the
extent that the Taxable Subsidiary offers to sell less than 75% of the monthly
fixed-rate Subprime Mortgage Loan production, the Taxable Subsidiary has agreed
to pay ContiFinancial Corporation a fee equal to 40 basis points multiplied by
the amount of the principal shortfall.
Warehouse, Standby and Working Capital Financing Agreements. The Taxable
Subsidiary currently has a warehouse facility with ContiFinancial Corporation in
the principal amount of $50.0 million and a working capital facility in the
maximum principal amount of $2.0 million. As of March 31, 1998, the Taxable
Subsidiary had outstanding borrowings under such lines of $40.3 million and $2.0
million, respectively. The Company anticipates that, immediately after the
closing of this Offering, the Company will advance to the Taxable Subsidiary an
amount sufficient to repay all amounts borrowed under the working capital
facility. See "Use of Proceeds." The Taxable Subsidiary may continue to finance
the acquisition of Mortgage Loans under the warehouse facility. Although the
Taxable Subsidiary anticipates that it will be able to obtain financing on terms
more favorable than those provided by the warehouse facility after the closing
of the Offering, the Taxable Subsidiary believes that the warehouse facility is
currently on terms not less favorable to the Taxable Subsidiary than those
available from independent third parties in arm's-length transactions.
Warrants to Purchase Capital Stock. The Taxable Subsidiary has granted to
ContiFinancial Corporation two warrants to purchase shares of common stock. If
the amount of principal and interest due under the working capital facility is
not repaid in full by January 1, 1999, the first warrant allows ContiFinancial
Corporation to purchase, for a nominal amount, shares of common stock
representing up to five percent of the
17
<PAGE> 25
outstanding shares (on a fully diluted basis) of the Taxable Subsidiary. If the
Company repays in full the working capital facility, the warrant is not
exercisable and automatically terminates. The Company anticipates that the
working capital facility will be repaid upon closing of the Offering from the
net proceeds thereof. See "Use of Proceeds."
The Taxable Subsidiary has also granted ContiFinancial Corporation a
warrant to purchase, for a nominal amount, shares of common stock representing
one percent of the outstanding shares (on a fully diluted basis) for each
quarter ending prior to the closing of the Offering in which the Taxable
Subsidiary does not attain at least 90% of its pre-tax net income target. Such
warrant automatically expires and may not be exercised by ContiFinancial
Corporation after the closing of the Offering. The Taxable Subsidiary has
established the pre-tax net income targets.
Structured Debt Placement Agent/Underwriter. Until December, 2001, the
Company has appointed ContiFinancial Corporation as its exclusive placement
agent for structured debt offerings and other securitizations and has agreed to
pay to ContiFinancial Corporation a fee of 25 basis points of the principal
amount of any such structured debt public offering and 50 basis points of the
gross proceeds of any such structured debt private offering. These fees are
payable to ContiFinancial Corporation for financial advisory services to be
rendered pursuant to the Investment Banking Services Agreement and will not be
reduced by any fees payable or paid to others, including the underwriters, the
placement agent or to other agents or advisors, if any, in connection with any
structured debt offering. Such combined fees may exceed those available from a
single third party. See "Conflicts of Interest and Related Party
Transactions -- ContiFinancial Corporation" and "Risk Factors -- Conflicts of
Interest May Result in Decisions That Do Not Fully Reflect the Stockholders'
Best Interests."
CAPSTONE INVESTMENTS, INC.
In March, 1998 and April, 1998, the Taxable Subsidiary borrowed an
aggregate $850,000 from Capstone Investments, Inc., a Nevada corporation,
evidenced by a Convertible Secured Promissory Note (the "Note") bearing simple
interest at 9% per annum. The Note matures upon the earlier of (i) January 1,
1999 or (ii) the closing of the Offering. Interest on the Note is payable
monthly and principal is payable upon maturity. Capstone Investments, Inc. has
the option to convert all or any portion of the Note into Units of the Company
offered hereby at the Price to Public. In addition, the Company has granted
Capstone Investments, Inc. warrants to purchase 50,000 shares of Common Stock at
a price equal to the Price to Public. See "Conflicts of Interest and Related
Party Transactions -- Capstone Investments, Inc."
CONTROL OF TAXABLE SUBSIDIARY
Although RealTrust will be entitled to 95% of the economic benefits of the
Taxable Subsidiary, it will not own any voting securities. All voting securities
will be owned by the Founders and ContiFinancial Corporation. As a result, the
Founders and ContiFinancial Corporation can conduct the affairs of the Taxable
Subsidiary in a manner that may not be in the best interests of the Stockholders
of RealTrust. See "Risk Factors -- Conflicts of Interest May Result in Decisions
That Do Not Fully Reflect the Stockholders' Best Interests."
FORMATION TRANSACTIONS
The Formation Transactions that will occur on or prior to the closing of
the Offering will benefit the Founders of the Company. See "Structure and
Formation Transactions."
EMPLOYMENT AGREEMENTS
The Company has entered into employment agreements with each of Messrs.
Fry, Mott, McMurray and Passey. Such employment agreements will provide for an
initial term of five years for Messrs. Fry and Mott and three years for Messrs.
McMurray and Passey, among other benefits. See "Management -- Executive
Compensation -- Employment Agreements."
18
<PAGE> 26
RISK FACTORS
In addition to the other information contained in this Prospectus, the
following material risk factors should be carefully considered in evaluating the
Company and its business before purchasing any of the Units offered hereby. This
Prospectus contains forward-looking statements which are indicated by the words
"may," "will," "expect," "anticipate," "continue," "believe," "intend," and
similar expressions. Discussions containing such forward-looking statements may
be found in the material set forth under "Prospectus Summary," "Use of
Proceeds," "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and "Business," as well as within the Prospectus
generally. Actual results may differ materially from those described in the
forward-looking statements as a result of the risks and uncertainties set forth
below and within the Prospectus generally.
GENERAL
The Company's mortgage lending operations conducted through CMG Funding
Corp., a Delaware corporation (the "Taxable Subsidiary" or "CMG Funding Corp.")
and the proposed management of a portfolio of Mortgage Assets involve numerous
risk factors, many of which overlap. For example, the risks associated with
changes in interest rates affect the mortgage lending business (e.g., by
impacting the level of Mortgage Loan originations) as well as the Mortgage Asset
portfolio business (e.g., by impacting the value of the Mortgage Assets and the
prepayment rate and, hence, the rate of amortization of premium and discount).
In addition, both of the Company's lines of business are subject to risks
generally impacting the Company as a whole, such as loss of REIT status for tax
purposes. See "-- Failure to Maintain REIT Status Would Have Adverse Tax
Consequences."
The reader is cautioned, however, that the risk factors must be read in
their entirety for a full understanding of the Company's risk profile. It should
be noted that many of the risk factors discussed below apply to both lines of
business in different ways which could have offsetting effects on the Company's
combined businesses.
PRESIDENT'S 1999 BUDGET PLAN, IF ENACTED, WOULD ADVERSELY AFFECT RESULTS OF
OPERATIONS
Certain provisions in the President's 1999 Budget Plan, if enacted, would
adversely affect both the Company's ability to conduct operations through the
Taxable Subsidiary and the Company's ability to qualify as a REIT for the fiscal
year ended December 31, 1998. The President's 1999 Budget Plan, as presented to
Congress on February 2, 1998, contains several provisions which affect REITs.
One such provision, if enacted, could have a potentially adverse effect on the
way that the Company intends to operate its mortgage conduit operations. That
provision would prohibit a REIT from owning, by vote or value, more than 10% of
the stock of another corporation. The rules currently in place for REIT
compliance limit (i) a REIT to owning less than 10% of the outstanding voting
securities of another corporation and (ii) the value of a REIT's ownership of
the securities of any one issuer to less than five percent of the value of the
REIT's assets. See "Federal Income Tax Considerations -- Qualification as a
REIT -- Nature of Assets." By limiting a REIT's ownership of the securities of
another corporation to 10% of the value of the issuing corporation, the
proposal, if enacted, would force the Company to divest itself of most of the
preferred stock of the Taxable Subsidiary that the Company currently owns or
terminate activities in the Taxable Subsidiary that would be prohibited
activities by a REIT, including, but not limited to, the origination of Mortgage
Loans for sale. In such an event the Company would not receive the dividends
that the Company expects to earn from the Taxable Subsidiary, which could have a
material adverse effect on the Company's net earning (loss) after such
divestiture. See "Business -- Industry Developments" and "Federal Income Tax
Considerations -- Recent Legislative Proposals." In addition, in the event the
Taxable Subsidiary could no longer engage in Mortgage Loan sales, the Taxable
Subsidiary would be unable to fulfill its contractual obligation to sell certain
fixed-rate Mortgage Loans to ContiFinancial Corporation. See "Certain
Transactions -- ContiFinancial Corporation." If the Taxable Subsidiary fails to
sell to ContiFinancial Corporation 75% of the Company's fixed-rate Mortgage Loan
production, the Taxable Subsidiary would have to pay ContiFinancial Corporation
a fee equal to 40 basis points multiplied by the principal amount of the
shortfall. Such payment may reduce the earnings and distributions of the
Company.
19
<PAGE> 27
In addition, if the 1999 Budget Plan is adopted with a retroactive date of
application which is after the effective date of a quarterly REIT test date, the
Company would not be able to qualify as REIT for 1998. See "Business -- Industry
Developments." As a result, the Company would be taxed as a "C" corporation for
1998, and would be subject to corporate level tax on all of its net earnings. In
such an event, the anticipated dividends and distributions of the Company would
be materially reduced.
Further, the 1999 Budget Plan, if adopted as proposed, would result in the
recognition by the Company of tax on the built-in gain on its assets. Under
current law, a "C" corporation may be acquired by or converted into a REIT on a
tax-free basis. If the REIT makes the appropriate election, the tax on the
built-in gain (the difference between (a) the purchase price for the "C"
corporation or the fair market value of the "C" corporation's stock and (b) the
adjusted tax basis of the "C" corporation's assets) would only be imposed if the
REIT disposed of an asset of the acquired corporation within 10 years after the
acquisition of the "C" corporation. The 1999 Budget Plan proposes to treat the
acquisition of a "C" corporation by a REIT as a taxable liquidation by the "C"
corporation to its shareholders followed by a deemed contribution of the "C"
corporation's assets to the REIT. Such treatment would result in corporate level
tax to the "C" corporation in the amount of the built-in gain on the "C"
corporation's assets followed by shareholder level tax to the extent that the
value of the assets deemed distributed from the "C" corporation to its
shareholders exceeds the shareholders' tax basis in their stock in the "C"
corporation. The 1999 Budget Plan proposes that such changes would first be
effective for years beginning after January 1, 1999.
Adoption of the 1999 Budget Plan could have a material adverse effect on
the Company's operations and profitability. No assurance can be given that
future legislation, regulations, administrative interpretations or court
decisions will not significantly change the tax laws with respect to the
Company's qualification as a REIT or the federal income tax consequences of such
qualification, which may reduce or eliminate the Company's competitive advantage
over non-REIT competitors. See "Federal Income Tax Considerations --
Qualification as a REIT" and "Federal Income Tax Considerations -- Taxation of
the Company."
OPERATION OF A NEW ENTERPRISE INVOLVES UNCERTAINTY
INABILITY TO ACQUIRE OR DELAYS IN ACQUIRING MORTGAGE ASSETS WILL REDUCE INCOME
TO THE COMPANY
As of the date of this Prospectus, the Company has not entered into
commitments to purchase any specific Mortgage Assets. The Company's income and
its ability to make distributions to its stockholders will depend upon its
ability to acquire investments on acceptable terms and at favorable spreads over
the Company's borrowing costs. The Company expects that a significant portion of
its portfolio of Mortgage Assets will be originated or otherwise made available
to it through the Taxable Subsidiary. See "-- President's 1999 Budget Plan, If
Effected, Would Adversely Affect Results of Operations." There can be no
assurance, however, that a sufficient quantity or quality of Mortgage Assets
will be provided by the Taxable Subsidiary or will be otherwise available to the
Company. The Company presently intends to fully invest the net proceeds of this
Offering in Mortgage Assets within 12 months after the closing of the Offering.
The Company's results of operations may be adversely affected during the period
in which the Company is initially implementing its investment, leveraging and
hedging strategies, because during this time the Company may be primarily
investing in short-term investments in Mortgage Securities which are expected to
provide a lower net return than the Company expects to achieve from its
long-term investments in Subprime Mortgage Loans. See "Use of Proceeds." To the
extent that the Company is unable to acquire and maintain a sufficient volume of
Subprime Mortgage Loans, the Company's income and, thus, the Company's ability
to make distributions to its stockholders, will be adversely affected.
THE TAXABLE SUBSIDIARY MAY NOT PROVIDE SUFFICIENT SUBPRIME MORTGAGE LOANS TO
THE COMPANY
WHICH MAY ADVERSELY AFFECT RESULTS OF OPERATIONS
The Company intends to acquire most of its Subprime Mortgage Loan Portfolio
from the Taxable Subsidiary. If the Taxable Subsidiary is unable to supply a
sufficient quantity of Subprime Mortgage Loans, whether as a result of its
commitment to sell 75% of its fixed-rate Subprime Mortgage Loans to
ContiFinancial Corporation or otherwise, the Company would be forced to acquire
Subprime Mortgage Loans
20
<PAGE> 28
from third parties. Such Mortgage Loans may not be available or may be available
only at higher costs, adversely affecting the Company's results of operations.
LIMITED OPERATING HISTORY OF THE COMPANY CREATES UNCERTAINTY ABOUT FUTURE
RESULTS
The Taxable Subsidiary began mortgage lending operations in April, 1996 and
RealTrust was formed on April 1, 1998. Accordingly, the Company has not yet
developed an extensive earnings history or experienced a wide variety of
interest rate or market conditions. Although the Taxable Subsidiary has grown
its Mortgage Loan origination volume significantly since the beginning of
operations, there can be no assurances that it will be able to successfully
operate its business as described in this Prospectus. Therefore, the Taxable
Subsidiary's historical operating performance may be of limited relevance in
predicting future performance.
Further, the Taxable Subsidiary has experienced net losses of $1,774,311
and $1,305,866 for the fiscal years ended December 31, 1997 and 1996,
respectively, and had an accumulated deficit of $1,494,072 as of December 31,
1997.
THE MANAGEMENT OF AN INVESTMENT PORTFOLIO OF MORTGAGE ASSETS IS A CHANGE IN
OPERATIONS
The Company's earnings will depend primarily upon management's ability to
acquire and manage a portfolio of Mortgage Assets, which is a new and unproven
business for the Company. The past experience of the officers and directors of
the Company may not be sufficient for the successful management of an investment
portfolio of Mortgage Assets. Specifically, management of an investment
portfolio entails certain activities not previously engaged in by the Company,
such as the issuance of structured debt financing, the purchase of Mortgage
Securities, the retention of subordinated classes of Mortgage Securities and
certain hedging activities. Therefore, there can be no assurance that the
Company will be able to successfully develop or manage its new business
operations. The past performance of the Taxable Subsidiary may not be indicative
of future results.
LACK OF EXPERIENCE MANAGING A REIT MAY ADVERSELY AFFECT OPERATING RESULTS
None of the officers or directors have managed a REIT. See
"Management -- Directors and Executive Officers." There can be no assurance that
the Company will be able to successfully manage a REIT in the manner described
in this Prospectus or in compliance with the Code. The Company's results of
operation and earnings will be adversely affected if the Company is unable to
manage a REIT successfully in the manner described in this Prospectus and in
compliance with the Code. See "-- Failure To Maintain REIT Status Would Have
Adverse Tax Consequences."
LOSS OF ANY KEY PERSONNEL MAY ADVERSELY AFFECT OPERATIONS
The Company's operations will depend heavily upon the contributions of
Messrs. John D. Fry, Terry L. Mott, John McMurray and Steven K. Passey, each of
whom may be difficult to replace. There can be no assurance that they will
remain in the Company's employ. The loss of any of these individuals could have
a material adverse effect upon the Company's business and results of operations.
See "Management -- Executive Compensation -- Employment Agreements." The
Company's employment agreements with each of Messrs. Fry, Mott, McMurray and
Passey, and the non-competition provisions thereof, are unlikely to be
enforceable by the Company against the employees since state law and public
policy generally prohibit forced employment and severely restrict the scope of
non-competition provisions. As a result, there can be no assurance that such
employees will remain with the Company and that they will not compete after
termination.
FUTURE REVISIONS IN INVESTMENT AND OPERATING POLICIES AND STRATEGIES BY BOARD
OF DIRECTORS CREATES UNCERTAINTY
Management has established the Company's investment and operating policies
and strategies as set forth in this Prospectus. However, these policies and
strategies may be modified or waived by the Board of Directors, subject in
certain cases to approval by a majority of the Independent Directors, without
stockholder
21
<PAGE> 29
approval. Ultimately, these changes may have a material adverse effect on the
Company's business, results of operations or financial condition.
FAILURE TO RAISE ADDITIONAL CAPITAL MAY ADVERSELY AFFECT FUTURE GROWTH AND
RESULTS OF OPERATIONS
To implement fully the Company's strategy to rapidly grow a portfolio of
Mortgage Assets, the Company will be required to raise capital in addition to
the capital raised in this Offering. Accordingly, the Company expects to
increase its capital resources by making additional offerings of equity and debt
securities, which may include classes of preferred stock, Common Stock,
commercial paper, medium-term notes, mortgage-backed obligations and senior or
subordinated debt. There can be no assurances that such additional capital
resources will be available on terms acceptable to the Company. Further, there
can be no assurance that the Company will successfully or economically raise the
capital required to implement its business plan. If the Company is unable to
raise sufficient capital or raise capital on favorable terms, the Company's
business, results of operation and financial condition may be materially
adversely affected.
CONFLICTS OF INTEREST MAY RESULT IN DECISIONS THAT DO NOT FULLY REFLECT THE
STOCKHOLDERS' BEST INTEREST
CONFLICTS OF INTEREST WITH AND DEPENDENCE UPON CONTIFINANCIAL CORPORATION MAY
NOT BE IN THE STOCKHOLDERS' BEST INTEREST
The Company is subject to various potential conflicts of interest arising
from its relationship with ContiFinancial Corporation. See "Conflicts of
Interest and Related Party Transactions." In summary, immediately prior to the
Offering, ContiFinancial Corporation (a) will beneficially own 32.2% (on a fully
diluted basis) of the outstanding Common Stock of the Company, (b) will
beneficially own all of the Class B Redeemable Preferred, (c) until December,
2001, will have the right to purchase not less than 75% of the fixed rate
Subprime Mortgage Loans originated or acquired by the Taxable Subsidiary at a
price determined by the best published rates of ContiFinancial Corporation, (d)
will have lent the Taxable Subsidiary substantial funds under the warehouse
credit facility ($40.3 million at March 31, 1998), (e) may beneficially own
warrants to purchase additional shares of the Common Stock, and (f) will have
the right to be the Company's exclusive placement agent for all structured debt
offerings and other securitizations for a fee. See "Conflicts of Interest and
Related Party Transactions -- ContiFinancial Corporation."
As a stockholder, ContiFinancial Corporation may be in a position to
exercise significant direct and indirect influence over the affairs of the
Company. Consequently, ContiFinancial Corporation may be able to influence the
election of certain members of the Board of Directors.
In addition, in light of the Company's or the Taxable Subsidiary's
dependence upon ContiFinancial Corporation for many financial and financial
advisory services, the Company may act in a manner which does not fully reflect
the best interests of all of the Company's stockholders. For example, the
Taxable Subsidiary may elect to retain certain of its credit facilities with
ContiFinancial Corporation when credit facilities from others third parties may
be obtained at a lower cost. Moreover, if the fees payable to ContiFinancial
Corporation are higher than those required by other third parties, the Company's
earnings and distributions to stockholders may be materially reduced.
Further, pursuant to an Investment Banking Services Agreement, until
December, 2001, the Company has appointed ContiFinancial Corporation as its
exclusive placement agent for structured debt offerings and other
securitizations and has agreed to pay a placement agent fee of 25 basis points
of the principal amount of any such structured debt on public offerings and 50
basis points of the gross proceeds of any such private offering. Such fees are
payable to ContiFinancial Corporation for financial advisory services to be
rendered and will not be reduced by any fees payable or paid to others,
including the underwriters, placement agent or to other agents or advisors, if
any, in connection with any structured debt offering. If the fees payable to
ContiFinancial Corporation are higher than those available from other third
parties, the Company's earnings and distributions may be materially reduced. See
"Conflicts of Interest and Related Party Transactions -- ContiFinancial
Corporation." The Company is unable to quantify, with any degree of reasonable
accuracy, the amount of fees which would be paid to ContiFinancial Corporation.
Such fees depend on market conditions which cannot be predicted at this time.
Further, such fees could be misleading if not placed in the context of
22
<PAGE> 30
the Company's earnings and distributions, which the Company is unable to
accurately calculate at this time with any degree of certainty.
In an effort to mitigate the foregoing potential conflicts of interest, the
Company has implemented policies and procedures which require, among other
things, that each decision that implicates a conflict of interest must be
approved by a majority of the Independent Directors. However, there can be no
assurance that the Company's policies or procedures will be successful in
eliminating the influence of such conflicts and, thus, the Company may take
courses of action which fail to fully represent the best interests of all
stockholders of the Company.
A PORTION OF THE NET PROCEEDS FROM THIS OFFERING WILL BE USED TO RETIRE DEBT TO
AND REDEEM STOCK OF CONTIFINANCIAL CORPORATION
The Taxable Subsidiary has obtained a working capital credit facility from
ContiFinancial Corporation in the maximum principal amount of $2.0 million. See
"Conflicts of Interest and Related Party Transactions -- ContiFinancial
Corporation." Any outstanding principal balance and accrued interest under this
facility ($2.0 million as of March 31, 1998) is expected to be retired with a
portion of the net proceeds of the Offering. In addition, $2.2 million of the
net proceeds of the Offering will be used to redeem the outstanding shares of
Class B Redeemable Preferred Stock held by ContiFinancial Corporation (which was
issued in exchange for $2.0 million of working capital debt). Thus,
ContiFinancial Corporation will receive a portion of the net proceeds from the
Offering as repayment of debt.
INVESTORS WILL HAVE NO VOTING CONTROL OF THE TAXABLE SUBSIDIARY
The Company will own 95% of the economic value of the Taxable Subsidiary,
but will not own any voting securities. In fact, all voting power will be held
by the Founders and ContiFinancial Corporation. As a result, the Company will
not control the management or operations of the Taxable Subsidiary. Therefore,
the Founders and ContiFinancial Corporation, and not the Company, will own or
control the voting stock of the Taxable Subsidiary and, thus, may direct the
business and operations of the Taxable Subsidiary in a manner inconsistent with
the best interests of the Company and its stockholders.
THE FOUNDERS AND CONTIFINANCIAL CORPORATION MAY EXERT INFLUENCE OVER THE
COMPANY
The Founders and ContiFinancial Corporation will beneficially own or have a
right to control approximately 20.6% of the outstanding shares of Common Stock
of the Company (assuming no exercise of the Warrants, the Representative's
Warrants, the Underwriter's over-allotment option or options granted under the
1996 and 1998 Stock Option Plans). As stockholders, the Founders and
ContiFinancial Corporation could exert significant influence over corporate
actions requiring stockholder approval.
INVESTMENTS IN SUBPRIME MORTGAGE LOANS INVOLVE GREATER RISK OF LOSS
HIGHER DELINQUENCY AND LOSS RATES ON SUBPRIME MORTGAGE LOANS MAY RESULT IN
LOSSES
A large portion of the Company's Mortgage Loans are made to borrowers who
do not qualify for Mortgage Loans from conventional Mortgage Loan lenders. For
the year ended December 31, 1997, approximately 2.73% and 0.57% of the Company's
Subprime Mortgage Loan purchases and originations were comprised of Mortgage
Loans made to borrowers graded "C" or "C-" respectively, the Company's two
lowest credit grade classifications. See "Business -- Underwriting and Quality
Control Strategies." No assurances can be given that the Company's underwriting
criteria or methods will afford adequate protection against the higher risks
associated with Mortgage Loans made to Subprime Mortgage Loan borrowers. The
failure of the Company to adequately address the risk of Subprime Mortgage Loan
lending would have a material adverse impact on the Company's results of
operations, financial condition or business prospects.
Credit risks associated with Subprime Mortgage Loans may be relatively
greater than those associated with Prime Mortgage Loans. Certain of the
important differences between Subprime Mortgage Loans and Prime Mortgage Loans
include the applicable loan-to-value ratios ("LTV"), the credit and income
histories of the borrowers, the documentation required for approval of the
borrowers, the types of properties securing
23
<PAGE> 31
the Mortgage Loans, Mortgage Loan sizes and the borrowers' occupancy status with
respect to the related mortgaged property. As a result of these and other
factors, the interest rates charged on Subprime Mortgage Loans are often higher
than those charged for Prime Mortgage Loans. The combination of different
underwriting criteria and higher rates of interest may lead to higher
delinquency rates and/or credit losses for Subprime Mortgage Loans as compared
to Prime Mortgage Loans and could have an adverse effect on the Company to the
extent that the Company invests in such Mortgage Loans or Mortgage Securities
secured by such Mortgage Loans.
SUBPRIME MORTGAGE LOANS MAY EXPERIENCE HIGH PREPAYMENT RATES WHICH REDUCES
INCOME FROM OPERATIONS
Rapid prepayments of Mortgage Loans in the Company's investment portfolio
adversely affects the Company's income and distributions to stockholders. See
"-- Interest Rate Fluctuations May Adversely Affect the Company's Investments
and Results of Operations -- Declining Interest Rates May Increase Prepayment
Rates and Reduce Net Interest Income." Since there is less information and
historical data than exists for Prime Mortgage Loans, there is uncertainty about
prepayment rates on Subprime Mortgage Loans.
Prepayment rates on Subprime Mortgage Loans may increase even in periods
when interest rates are stable or rising since subprime borrowers may be able to
improve their credit ratings and refinance their Mortgage Loans to reduce the
interest rate. The Company intends to minimize the effect of rapid prepayment by
investing in Mortgage Loans with prepayment penalties. However, not all Subprime
Mortgage Loans will have prepayment penalties. Ultimately, increasing prepayment
rates could materially reduce income from operations.
COMPETITION IN THE SUBPRIME MORTGAGE LENDING MARKET MAY HAVE A MATERIAL ADVERSE
EFFECT ON RESULTS OF OPERATIONS
As an originator and purchaser of Subprime Mortgage Loans, the Company will
face intense competition, primarily from commercial banks, savings and loans,
other independent mortgage lenders and certain other mortgage REITs and
specialty finance companies. Such competitors include other mortgage REITs,
including Novastar Financial, Inc., and Hanover Capital Mortgage Holdings, Inc.
As the Company expands into particular geographic markets across the nation, it
will face competition from lenders with established positions in these
locations. Many of the Company's competitors in the financial services business
are substantially larger and have more capital and other resources than the
Company. In addition, competition can take place on various other levels,
including convenience in obtaining a Mortgage Loan, service, marketing,
origination channels and pricing. Failure to be competitive on these levels
could have a material adverse effect on the Company's results of operations.
Additionally, the Subprime Mortgage Loan market is currently undergoing
substantial changes. There are new entrants into the market, which is a changing
competitive environment. Furthermore, certain large national finance companies
and Prime Mortgage Loan originators have announced their intention to adapt
their Prime Mortgage Loan origination programs by allocating resources to the
origination of Subprime Mortgage Loans. Certain of these larger mortgage
companies and commercial banks have begun to offer products similar to those
offered by the Company and to target customers similar to those that the Company
targets. For example, FHLMC has announced its intention to make a secondary
marketplace for Subprime Mortgage Loans originated by certain financial
institutions. The entrance of these and other potential competitors into the
Company's markets could have a material adverse effect upon the Company's
results of operations and financial condition. In particular, the increasing
level of capital resources being devoted to Subprime Mortgage Loan lending may
increase the competition among lenders to originate or purchase Subprime
Mortgage Loans and result in either (i) reduced interest rates and, thus,
compressed spreads on such Mortgage Loans compared to present levels, which
would decrease potential profit margins, or (ii) revised underwriting standards
permitting higher loan-to-value ratios on properties securing Subprime Mortgage
Loans, which would increase the risk of loss in the event of default. There can
be no assurance that the Company will be able to compete successfully in this
market environment and any failure in this regard could have a material adverse
effect on the Company's results of operations and financial condition.
24
<PAGE> 32
INVESTMENTS IN HIGH LTV MORTGAGE LOANS AND SUBORDINATED MORTGAGE SECURITIES
INVOLVE GREATER RISKS OF LOSS
DEFAULTS ON HIGH LOAN-TO-VALUE MORTGAGE LOANS MAY RESULT IN LOSSES
The Company's current underwriting guidelines allow for the acquisition of
Mortgage Loans with up to a 90% loan-to-value ratio ("LTV"). See
"Business -- Underwriting and Quality Control Strategies." The higher the LTV,
the greater the risk that the Company may be unable to recover full amounts due
on its Mortgage Loans in the event the borrower defaults and the Company
forecloses and sells the underlying collateral. The failure of the Company to
adequately address the risk of high LTV Mortgage Loan products could have a
material adverse effect on the Company's results of operations and financial
condition.
SUBORDINATED CLASSES OF MORTGAGE SECURITIES ARE SUBJECT TO GREATER CREDIT
RISKS THAN SENIOR CLASSES
The Company expects its investment portfolio to include Mortgage Securities
acquired from third parties, including "first loss" classes of subordinated
Mortgage Securities. A "first loss" class is the most subordinated class of
securities and is the first to bear the loss upon a default on the underlying
Mortgage Loans. Subordinated Mortgage Securities are subject to special risks
than more senior classes, including a substantially greater risk of loss of
principal and non-payment of interest. While the market value of most
subordinated interest classes tend to react less to fluctuations in interest
rate levels than more senior classes, the market values of subordinated Mortgage
Securities tend to be more sensitive to changes in economic conditions than more
senior classes. As a result of these and other factors, subordinated Mortgage
Securities generally are not actively traded, are more difficult to pledge as
collateral for borrowings and may not provide the holders thereof with
liquidity.
Additionally, the yield to maturity on subordinated Mortgage Securities of
the type that the Company intends to acquire will be extremely sensitive to the
default and loss experience of the underlying mortgage pass-through securities
or pools of whole loans securing or backing a series of Mortgage Securities and
the timing of any such defaults or losses. Because the subordinated Mortgage
Securities of the type the Company intends to acquire generally have no credit
support, to the extent there are realized losses on the Mortgage Loans
collateralizing such classes, the Company may recover less than the full amount,
if any, of its initial investment in such subordinated Mortgage Securities.
Further, the subordination of Mortgage Securities to more senior classes
may adversely affect the yield on such Mortgage Securities even if realized
losses are not ultimately allocated to such classes. On any payment date,
interest and principal are paid on the more senior classes before interest and
principal are paid with respect to the unrated or non-investment grade credit
support classes. Typically, interest deferred on these credit support classes is
payable on subsequent payment dates to the extent funds are available, but such
deferral may not itself bear interest. Such deferral of interest will affect
adversely the yield on the Mortgage Securities.
Finally, the Mortgage Securities that the Company retains from its
structured debt financings may be subordinated Mortgage Securities that are not
supported by credit enhancements, are not investment grade and have limited
liquidity. To the extent third parties have been contracted to provide the
credit enhancement, the Company is dependent in part upon the creditworthiness
and the ability of the insurer to pay claims and the timeliness of reimbursement
in the event of a default on the underlying obligations. The insurance coverage
for various types of losses is limited in amount and, consequently, losses in
excess of the limitation would be borne by the Company. Credit enhancements on
non-investment grade Mortgage Securities are less likely to fully absorb the
losses from mortgage defaults which tend to be significantly higher for non-
investment grade Mortgage Securities as compared to investment grade Mortgage
Securities. Non-investment grade Mortgage Securities are also generally less
liquid than investment grade securities. Accordingly, to the extent that the
Company invests in non-investment grade securities, it will be subject to
greater credit and liquidity risks the consequences of which may result in
losses and adversely affect results of operations.
25
<PAGE> 33
INTEREST RATE FLUCTUATIONS MAY ADVERSELY AFFECT OPERATIONS AND NET INTEREST
INCOME
INTEREST RATE MISMATCHES BETWEEN MORTGAGE ASSETS AND BORROWINGS MAY RESULT IN
REDUCED INCOME OR LOSSES
A substantial portion of all Mortgage Assets are expected to have
adjustable rates or are fixed initially, but have interest rate indices that
will adjust at some point in the future. Interest rates on the Company's
borrowings are, and generally will be, based on short-term indices. To the
extent any of the Company's Mortgage Assets are financed with borrowings bearing
interest based on, or varying with, an index different from that used for the
related Mortgage Assets, so-called "basis" interest rate risk will arise. In
such event, if the index used for the Mortgage Assets is a "lagging" index (such
as the 11th District Cost of Funds) that reflects market interest rate changes
on a delayed basis, and the rate borne by the related borrowings reflects market
rate changes more rapidly, the Company's net interest income will be adversely
affected in periods of increasing market interest rates.
Additionally, the Company's adjustable-rate Mortgage Assets will be subject
to periodic rate adjustments which may be more or less frequent than the
increases or decreases in rates borne by the borrowings or financings utilized
by the Company. Accordingly, in a period of increasing interest rates, the
Company could experience a decrease in net interest income or a net loss because
the interest rates on borrowings could adjust faster than the interest rates on
the Company's adjustable-rate Mortgage Loans ("ARMs") or Mortgage Assets backed
by ARMs. Moreover. ARMs are typically subject to periodic and lifetime interest
rate caps which limit the amount an ARMs interest rate can change during any
given period. The Company's borrowings will not be subject to similar
restrictions. Hence, in a period of rapidly increasing interest rates, the
Company could also experience a decrease in net interest income or a net loss in
the absence of effective hedging because the interest rates on borrowings could
increase without limitation while the interest rates on the Company's ARMs and
Mortgage Assets backed by ARMs would be limited by caps. Furthermore, some ARMs
may be subject to periodic payment caps that result in some portion of the
interest accruing on the ARM being deferred and added to the principal
outstanding. This could result in receipt by the Company of less cash income on
its ARMs than the debt service that the Company is required to pay on the
related borrowings, which will not have such payment caps. The Company expects
that the net effect of these factors, all other factors being equal, will be to
lower the Company's net interest income or cause a net loss during periods of
rapidly rising market interest rates (but not necessarily in an environment of
gradually rising market interest rates), which could negatively impact the level
of dividend distributions and the market price of the Common Stock.
The Company acquires the majority of its Mortgage Assets at a premium over
face amount. For financial reporting purposes, these premiums are amortized as
an adjustment to the yield of the acquired Mortgage Asset. During periods of
decreasing interest rates, borrowers are more likely to refinance Mortgage
Loans. As Mortgage Loans are prepaid, premiums may be amortized faster than
originally expected. Sudden declines in interest rates may increase prepayments,
which would cause a significant portion of premiums to be amortized, resulting
in a significant negative impact on net interest income or result in a net loss.
Although many of the Mortgage Loans originated by the Company have penalties for
prepayment, certain Mortgage Loans originated and Mortgage Loans acquired from
third-party correspondents may not have prepayment penalties, thereby increasing
the Company's exposure to prepayment risks.
Changes in anticipated prepayment rates of Mortgage Assets could affect the
Company in several adverse ways. A portion of the ARMs acquired by the Company
will have been recently originated and will still bear initial interest rates
which are lower than their "fully-indexed" rates (the applicable index, plus a
margin). In the event that such an ARM is prepaid faster than anticipated, such
as prior to or soon after the time of adjustment to a fully-indexed rate, the
Company will have experienced an adverse effect on its net interest income
during the time it held such ARM (compared with holding a fully-indexed ARM) and
will have lost the opportunity to receive interest at the fully-indexed rate
over the expected life of the ARM. In addition, the faster than anticipated
prepayment of any Mortgage Asset that had been purchased at a premium by the
Company would generally result in a faster than anticipated write-off of any
remaining capitalized premium amount and consequent reduction of the Company's
net interest income by such amount.
26
<PAGE> 34
INTEREST RATE INCREASES MAY REDUCE MORTGAGE LOAN ORIGINATIONS AND INCOME
A substantial or sustained increase in interest rates could adversely
affect the ability of the Company to originate and purchase Mortgage Loans and
would reduce the interest rate differential between newly originated Mortgage
Loans and the pass-through rate on Mortgage Loans that are financed.
Historically, interest rate increases have resulted in a reduction in the level
of re-financed Mortgage Loan originations. In such event, the Company's
origination volume may significantly decrease, prohibiting the Company from
acquiring or originating sufficient new Mortgage Loans to replace those Mortgage
Loans that are prepaid. In periods of declining production, the Company may be
required to purchase Mortgage Assets in the secondary market at higher costs,
thereby reducing earnings and income.
DECLINING INTEREST RATES MAY INCREASE PREPAYMENT RATES AND REDUCE NET INTEREST
INCOME
Prepayment rates vary from time to time and may cause changes in the amount
of the Company's net interest income. Prepayments of ARMs and Mortgage Assets
backed by ARMs usually can be expected to increase when mortgage interest rates
fall below the then-current interest rates on such ARMs and decrease when
mortgage interest rates exceed the then-current interest rate on the ARMs,
although such effects are not predictable. Prepayment experience also may be
affected by the geographic location of the property securing the Mortgage Loans,
the assumability of the Mortgage Loans, conditions in the housing and financial
markets and general economic conditions. In addition, prepayments on certain
ARMs may be affected by the ability of the borrower to convert an ARM to a
fixed-rate Mortgage Loan and by conditions in the fixed-rate Mortgage Loan
market. If the interest rates on ARMs increase at a rate greater than the
interest rates on fixed-rate Mortgage Loans, prepayments on ARMs may tend to
increase. In periods of fluctuating interest rates, interest rates on ARMs may
exceed interest rates on fixed-rate Mortgage Loans, which may tend to cause
prepayments on ARMs to increase at a rate greater than anticipated. Mortgage
Securities backed by Mortgage Loans are often structured so that certain classes
are provided protection from prepayments for a period of time. However, in a
period of extremely rapid prepayments, during which earlier-paying classes may
be retired faster than expected, the protected classes may receive unscheduled
payments of principal earlier than expected and would have average lives that,
while longer than the average lives of the earlier-paying classes, would be
shorter than originally expected. The Company will seek to minimize prepayment
risk through a variety of means, including structuring a diversified portfolio
of Mortgage Assets with a variety of prepayment characteristics, originating and
investing in Mortgage Assets with prepayment prohibitions and penalties,
investing in certain Mortgage Security structures which have prepayment
protection, and balancing Mortgage Assets purchased at a premium with Mortgage
Assets purchased at a discount. In addition, the Company may in the future
purchase IOs as part of its hedging strategy. However, no strategy can
completely insulate the Company from prepayment risks arising from the effects
of interest rate changes.
HEDGING TRANSACTIONS LIMIT GAINS AND MAY INCREASE EXPOSURE TO LOSSES
The Company follows an asset/liability management strategy intended to
protect against interest rate changes and prepayments. See "Business
-- Interest Rate Risk Management." Nevertheless, developing an effective
asset/liability management strategy is complex and no strategy can completely
insulate the Company from risks associated with interest rate changes and
prepayments. In addition, there can be no assurance that the Company's hedging
activities will have the desired beneficial impact on the Company's results of
operations or financial condition. Hedging typically involves costs, including
transaction costs, which increase dramatically as the period covered by the
hedge increases and which also increase during periods of rising and volatile
interest rates. The Company may increase its hedging activity, and, thus,
increase its hedging costs, during such periods when interest rates are volatile
or rising and hedging costs have increased. Moreover, federal tax laws
applicable to REITs may substantially limit the Company's ability to engage in
certain asset/liability management transactions. Such federal tax laws may
prevent the Company from effectively implementing particular hedging strategies
that the Company determines, absent such restrictions, would best insulate the
Company from the risks associated with changing interest rates and prepayments.
See "Federal Income Tax Considerations -- Taxation of the Company."
27
<PAGE> 35
INTEREST-ONLY AND PRINCIPAL-ONLY MORTGAGE SECURITIES ARE SUBJECT TO SUBSTANTIAL
INTEREST RATE AND PREPAYMENT RISKS WHICH MAY ADVERSELY AFFECT RESULTS OF
OPERATIONS.
The Company may invest a portion of its assets in interest-only Mortgage
Securities ("IOs") and principal-only Mortgage Securities ("POs"), which are
subject to substantial interest rate and related risks, in conjunction with its
other hedging activities. IOs represent investments in the interest payments
from a pool of Mortgage Loans, whereas POs represent investments in the
principal payments from a pool of Mortgage Loans. The returns from IOs and POs
are subject to significant prepayment risks. To the extent that the average
prepayment rate on a pool of Mortgage Loans is higher than expected, the IOs
issued on such pool will generate less interest income than IOs issued on pools
of Mortgage Loans with lower prepayment rates. As interest rates decline,
prepayment rates will generally increase and thereby reduce the stream of income
which can be generated through an investment in IOs. Conversely, POs benefit
from higher prepayment rates since the holders are entitled to receive such
prepayments. The present value of the cash flow generated from POs will
generally decline in the event that prepayments are slower than expected. In
addition, rising interest rates will negatively impact the present value of the
future cash flows from both IOs and POs. Accordingly, any such fluctuations in
interest rates or prepayment rates may reduce or eliminate the effectiveness of
hedging strategies using IOs and POs, and thereby may have an adverse effect on
the Company's results of operations.
THE COMPANY HAS NO SPECIFIC HEDGING POLICIES AND FAILURE TO APPROPRIATELY HEDGE
MAY ADVERSELY AFFECT RESULTS OF OPERATIONS
The Company intends to purchase interest rate caps, interest rate swaps and
other appropriate financial instruments to mitigate the risk of the interest
cost of its variable rate liabilities increasing at a faster rate than the
earnings on its Mortgage Assets during a period of rising rates. In this way,
the Company intends generally to hedge as much of the interest rate risk as
management determines is in the best interests of the Company given the cost of
such hedging transactions and the need to maintain the Company's status as a
REIT. In this regard, the amount of income the Company may earn from its hedging
is subject to limitation under the REIT provisions of the Code. The Company may
hedge the risk of its borrowing costs on its liabilities increasing faster than
its income, due to the effect of the periodic and lifetime caps on its Mortgage
Assets, through the acquisition of (i) Qualified REIT Assets, such as
interest-only REMIC regular interests, that function in a manner similar to
hedging instruments, (ii) Qualified Hedges, the income from which qualifies for
the 95% income test, but not the 75% income test for REIT qualification
purposes, and (iii) other hedging instruments, whose income qualifies for
neither the 95% income test nor the 75% income test. See "Federal Income Tax
Considerations -- Qualification as a REIT -- Sources of Income." The latter form
of hedging may be accomplished through the Taxable Subsidiary. See
"Business -- Industry Developments," "Business -- Interest Rate Risk Management"
and "Federal Income Tax Considerations -- Taxation of the Company." The
Company's policies do not contain specific requirements as to the percentage or
amount of interest rate risks which the Company is required to hedge. The Board
of Directors will, from time to time, review the extent and effectiveness of
hedging transactions conducted by the Company. The Company may attempt to
increase its overall yield by saving the cost of acquiring and carrying hedging
instruments by not hedging certain periodic interest rate adjustments when the
Company determines, based on all relevant facts, that bearing such risk is
advisable and does not present an unacceptable risk. However, there can be no
assurance that the Company's estimation of the risks will be accurate and
failure to hedge appropriately may effect the Company's results of operations.
COUNTERPARTY AND UNENFORCEABILITY RISK IN HEDGING TRANSACTIONS MAY RESULT IN
LOSSES
Hedging instruments are not always traded on regulated exchanges,
guaranteed by an exchange or its clearing house, or regulated by any U.S. or
foreign governmental authorities. Consequently, there are no requirements with
respect to record-keeping, financial responsibility or segregation of customer
funds and positions. Hedging transactions subject the Company to risks that the
counterparty will be unable or unwilling to perform its obligations. Such risks
could result from insufficient documentation, insufficient capacity or authority
of a counterparty and unenforceability in the event of bankruptcy or insolvency.
If a hedging
28
<PAGE> 36
transaction entered into by the Company was determined to be unenforceable, the
Company could incur unrecoverable losses from such transaction. The business
failure of a counterparty with which the Company has entered into a hedging
transaction will most likely result in a default. Default by a party with which
the Company has entered into a hedging transaction may result in the loss of
unrealized profits and force the Company to cover its resale commitments, if
any, at their then current market price. Although generally the Company will
seek to reserve for itself the right to terminate its hedging positions, it may
not always be possible to dispose of or close out a hedging position without the
consent of the counterparty, and the Company may not be able to enter into an
offsetting contract in order to cover its risk. There can be no assurance that a
liquid secondary market will exist for hedging instruments purchased or sold,
and the Company may be required to maintain a position until exercise or
expiration which could result in losses.
BASIS RISK IN HEDGING TRANSACTIONS MAY RESULT IN LOSSES
To the extent the Company utilizes a derivatives transaction to hedge
another position, such transaction will also subject the Company to basis or
correlation risk. Basis or correlation risk refers to the exposure of a
transaction or portfolio to the differences in the price performance of the
derivatives it contains and their hedges. If the Company enters into a
transaction in which an instrument and its hedge are not perfectly correlated,
changes in applicable indices or other price movements will result in a change
(which could include a loss) in the market value of the combined hedge position.
The Company does not have any policies limiting the amount of derivatives used
for hedging transactions which increases uncertainty for stockholders.
BORROWING TO FINANCE INVESTMENT PORTFOLIO MAY ADVERSELY AFFECT RESULTS OF
OPERATIONS
LEVERAGE INCREASES EXPOSURE TO LOSS
The Company's operations are expected be highly leveraged. The Company
expects to borrow against a substantial portion of the market value of its
assets (up to approximately 92%, depending upon the nature of the underlying
Mortgage Assets). The Company generally expects to maintain a ratio of equity
capital to book value of total assets of approximately 8% to 15%. The actual
ratio may be higher or lower from time to time depending upon market conditions
and other factors deemed relevant by management, subject to the review of the
Board of Directors. The Company's Amended and Restated Articles of Incorporation
and Bylaws do not limit the amount of indebtedness the Company can incur, and
management will have the discretion to deviate from or change its indebtedness
policy at any time, without consent from or notice to the Company's
stockholders. See "-- Operations of a New Enterprise Involves
Uncertainty -- Future Revisions in Investment and Operating Policies and
Strategies by Board of Directors Creates Uncertainty." The Company intends to
finance its acquisition of Mortgage Assets through the net proceeds of the
Offering and by borrowing against or "leveraging" its investment portfolio. The
Company will leverage primarily with reverse repurchase agreements,
securitizations of its Mortgage Loans and secured and unsecured borrowings.
Leverage increases the volatility in the Company's income and the value of
its investment portfolio of Mortgage Assets. The Company will leverage its
investment portfolio only when there is an expectation that it will enhance
returns; however, there can be no assurance that the Company's use of leverage
will prove to be beneficial or advantageous to the Company, relative to the
Company's risks. Moreover, there can be no assurance that the Company will be
able to meet its debt service obligations. The Company's ability to meet its
debt service obligations will depend upon the Company's receipt of sufficient
income from its Mortgage Assets investment portfolio. In the event of a mismatch
in interest rates between the Company's borrowings and the yield on its Mortgage
Assets investment portfolio or other reductions in cash flow, including without
limitation reductions resulting from payment defaults on the Company's Mortgage
Assets, the Company may not have sufficient cash flow to meet its debt service
obligations.
A substantial portion of the Company's borrowings are expected to be in the
form of securitizations and reverse repurchase agreements. If the value of the
Mortgage Assets pledged to secure such borrowings were to decline, the Company
would be required to post additional collateral in order to reduce the amount
borrowed or suffer forced sales of its collateral. If sales were made at prices
lower than the carrying value of the collateral, the Company would experience
additional losses. If the Company is forced to liquidate its Mortgage
29
<PAGE> 37
Assets, there can be no assurance that it will be able to maintain compliance
with the REIT provisions of the Code regarding asset and source of income
requirements. See "-- Failure to Maintain REIT Status Would Have Adverse Tax
Consequences."
INABILITY TO IMPLEMENT LEVERAGING STRATEGY MAY REDUCE INCOME OR RESULT IN
LOSSES
The Company employs a financing strategy to increase the size of its
Mortgage Asset portfolio by borrowing a substantial portion (which may vary
depending upon the mix of the Mortgage Assets in the Company's portfolio and the
application of the Company's Capital Allocation Guidelines with respect to such
mix of Mortgage Assets) of the market value of its Mortgage Assets. If the
returns on the Mortgage Assets purchased with borrowed funds fail to cover the
cost of its borrowings, the Company will experience net interest losses. In
addition, through increases in haircuts (i.e., the equity capital required by a
lender or purchaser to finance the Company's Mortgage Assets), decreases in the
market value of the Company's Mortgage Assets, increases in interest rate
volatility, availability of financing in the market, circumstances then
applicable in the lending market and other factors, the Company may not be able
to achieve the degree of leverage it believes to be optimal, which may cause the
Company to be less profitable than it might be otherwise.
INABILITY TO RENEW OR REPLACE MATURING BORROWINGS MAY RESULT IN LOSSES
The ability of the Company to achieve its investment objectives depends not
only on its ability to borrow money in sufficient amounts and on favorable
terms, but also on the Company's ability to renew or replace on a continuous
basis its maturing short-term borrowings. The Company's business strategy relies
on warehouse facilities and short-term reverse repurchase agreements to fund
Mortgage Loan originations and purchases. See "Business -- Capital and Liquidity
Management." In the event the Company is not able to renew or replace maturing
borrowings, the Company could be required to sell Mortgage Assets under adverse
market conditions and could incur losses as a result. See "Business -- Industry
Developments." In addition, in such event, the Company may be required to
terminate hedge positions, which could result in further costs to the Company.
An event or development such as a sharp rise in interest rates or increasing
market concern about the value or liquidity of a type or types of Mortgage
Assets in which the Company's Mortgage Loan portfolio is concentrated will
reduce the market value of the Mortgage Assets, which would likely cause lenders
to require additional collateral. At the same time, the market value of the
Mortgage Assets in which the Company's liquid capital is invested may have
decreased. A number of such factors in combination may cause difficulties for
the Company, including a possible liquidation of a major portion of the
Company's Mortgage Asset portfolio at disadvantageous prices with consequent
losses, which could have a material adverse effect on the Company and its
solvency.
DECLINE IN MARKET VALUE OF MORTGAGE ASSET MAY LIMIT THE COMPANY'S ABILITY TO
BORROW OR RESULT IN LOSSES
A decline in the market value of the Company's portfolio of Mortgage Assets
may limit the Company's ability to borrow or result in lenders initiating margin
calls (i.e., requiring a pledge of cash or additional Mortgage Assets to
re-establish the ratio of the amount of the borrowing to the value of the
collateral). This remains true despite effective hedging against such
fluctuations because the hedging instruments may not be part of the collateral
securing the collateralized borrowings. Additionally, it may be difficult to
realize the full value of the hedging instrument when desired for liquidity
purposes due to the applicable REIT provisions of the Code. See "Federal Income
Tax Considerations -- Qualification as a REIT -- Sources of Income -- The 95%
Test." The Company could be required to sell Mortgage Assets under adverse
market conditions in order to maintain liquidity. See "Business -- Industry
Developments." Such sales may be effected by management when deemed by it to be
necessary in order to preserve the capital base of the Company. If these sales
were made at prices lower than the amortized cost of the Mortgage Assets, the
Company would experience additional losses. A default by the Company under its
collateralized borrowings could also result in a forced liquidation of
collateral, including any cross-collateralized assets, and resulting in a loss
equal to the difference between the value of the collateral and the amount
borrowed.
30
<PAGE> 38
CONTINGENT AND RESIDUAL RISKS IN STRUCTURED DEBT FINANCINGS MAY ADVERSELY
AFFECT RESULTS OF OPERATIONS
In connection with any structured debt financings the Company may
undertake, the Company will be required to repurchase or substitute Mortgage
Loans in the event of a breach of representation or warranty made by the
Company. While the Company may have recourse to the sellers of Mortgage Loans it
purchases, there can be no assurance of the sellers' abilities to honor their
obligations to the Company. Likewise, in connection with any whole loan sales
made by the Company, the Company will enter into agreements with the purchaser
thereof, which generally will require the Company to repurchase or substitute
Mortgage Loans in the event of a breach of a representation or warranty made by
the Company to the Mortgage Loan purchaser, any misrepresentation during the
Mortgage Loan origination process or, in some cases, upon any fraud or default
on such Mortgage Loans. The remedies available to a purchaser of Mortgage Loans
from the Company may be generally broader than those available to the Company
against the sellers of such Mortgage Loans. If a purchaser enforces its remedies
against the Company, the Company may not be able to enforce on a cost-effective
basis whatever remedies the Company may have against its sellers. During the
period of time that the Mortgage Loans are held by the Company, the Company is
subject to the various business risks associated with the lending business,
including borrower default, foreclosure and the risk that a rapid increase in
interest rates would result in a decline in the value of Mortgage Loans held for
sale to potential purchasers. To the extent the Company maintains an interest in
structured debt financings backed by Mortgage Loans it acquires or originates,
the Company retains some degree of prepayment, credit, default and interest rate
risk.
In addition, borrowers, purchasers of the Company's Mortgage Loans,
monoline insurance carriers and trustees in any structured debt financing
undertaken by the Company may make claims against the Company arising from (i)
alleged breaches of fiduciary obligations, misrepresentations, errors and
omissions of employees, officers and agents of the Company, including
appraisers, (ii) incomplete documentation, and (iii) failure by the Company to
comply with various laws and regulations applicable to its business. Any claims
asserted in the future may result in liabilities or legal expenses that could
have a material adverse effect on the Company's results of operations, financial
conditions and business prospects.
UNAVAILABILITY OF STRUCTURED DEBT FINANCING MAY ADVERSELY AFFECT RESULTS OF
OPERATIONS
The Company intends to pool and finance through structured debt financing a
substantial portion of the Mortgage Loans it acquires or originates. The Company
may be required in such financings to continue to bear some risk of loss on the
underlying Mortgage Loans. Adverse changes in the structured debt financing
market could impair the Company's ability to originate, acquire and finance
Mortgage Loans through financings on a favorable or timely basis. Any such
impairment could have a material adverse effect upon the Company's results of
operations or financial condition. In addition, in order to gain access to the
structured debt financing market, the Company may rely upon credit enhancements
provided by one or more monoline insurance carriers. Any substantial reductions
in the size or availability of the structured debt financing market for the
Company's Mortgage Loans, or the unwillingness of insurance companies to provide
credit enhancement for the Company's Mortgage Securities could have a material
adverse effect upon the Company's results of operations or financial condition.
THE COMPANY DEPENDS UPON SEVERAL LENDERS TO FINANCE OPERATIONS
The Company and the Taxable Subsidiary finance substantially all of the
Mortgage Loans which they originate or acquire through interim financing
facilities, including its warehouse credit line and reverse repurchase
agreements. See "Business -- Capital and Liquidity Management." In the case of
the Taxable Subsidiary, these borrowings historically have been repaid with the
proceeds received by the Company through Mortgage Loan sales. See "-- Presidents
1999 Budget Plan, If Enacted Would Adversely Affect Results of Operation." The
Taxable Subsidiary is currently dependent upon ContiFinancial Corporation and
Nomura Asset Capital Corporation to provide the primary credit facilities for
its Mortgage Loan originations and acquisitions. For a description of the terms
of the Taxable Subsidiary's arrangements and agreements with ContiFinancial
Corporation and Nomura Asset Capital Corporation, see "Business -- Marketing and
Production Strategy -- Correspondent Lending -- Initial Correspondent Platform"
and "Conflicts of Interest and Related Party Transactions -- ContiFinancial
Corporation." Any failure to renew or obtain adequate funding
31
<PAGE> 39
under these financing arrangements, or any substantial reduction in the size of,
or pricing in, the market for the Taxable Subsidiary's Mortgage Loans, could
have a material adverse effect on the Company's operations. Furthermore, the
Company would not be able to hold a large volume of Mortgage Loans pending
structured debt financing, and, therefore, would have to curtail its Mortgage
Loan production or sell Mortgage Loans either through whole loan sales or
through smaller structured debt financing, potentially having a material adverse
effect on the Company's results of operations. Upon the sale of Mortgage Loans,
the Company would terminate the hedge positions associated with such Mortgage
Loans, which could result in further costs to the Company. A sharp rise in
interest rates or increasing market concern about the value or liquidity of a
type or types of Mortgage Assets being held by the Company will reduce the
market value of the Mortgage Assets, which may cause lenders to require
additional collateral. A number of such factors in combination may cause
difficulties for the Company, including a possible liquidation of a major
portion of the Company's Mortgage Assets at disadvantageous prices, which can
cause additional losses and could have a material adverse effect on the Company
and its solvency.
LENDER BANKRUPTCY MAY RESULT IN LOSSES
Additionally, in the event of a bankruptcy of the Company, certain reverse
repurchase agreements may qualify for special treatment under the Bankruptcy
Code, the effect of which is, among other things, to allow the creditors under
such agreements to avoid the automatic stay provisions of the Bankruptcy Code
and to liquidate the collateral under such agreements without delay. Conversely,
in the event of the bankruptcy of a party with whom the Company had a reverse
repurchase agreement, the Company might experience difficulty recovering the
collateral subject to such agreement if the agreement were repudiated by the
bankrupt lender and the Company's claim against the bankrupt lender for damages
resulting therefrom were to be treated simply as one of an unsecured creditor.
Should this occur, the Company's claims would be subject to significant delay
and recoveries, if and when received, and may be substantially less than the
damages actually suffered by the Company. Although the Company has, and intends
to continue to, enter into reverse repurchase agreements with several different
parties and has developed policies to reduce its exposure to such risks, no
assurance can be given that the Company will be able to avoid such third-party
risks.
RISKS RELATING TO MORTGAGE LENDING OPERATIONS
DEFAULT ON MORTGAGE LOANS MAY RESULT IN LOSSES
Prior to completing a structured debt financing with respect to any
Mortgage Assets, the Company generally does not intend to obtain credit
enhancements such as mortgage pool or special hazard insurance for its Mortgage
Loans, other than Federal Housing Association ("FHA") insurance, Veterans
Association ("VA") guarantees and private mortgage insurance, in each case
relating only to individual Mortgage Loans. Accordingly, during the time it
holds such Mortgage Loans for which third-party insurance is not obtained, the
Company will be subject to risks of borrower defaults, bankruptcies and special
hazard losses that are not covered by standard hazard insurance (including,
without limitation, those occurring from earthquakes or floods). In the event of
a default on any Mortgage Loan held by the Company, including, without
limitation, resulting from declining property values and worsening economic
conditions, among other factors, the Company would bear the risk of loss of
principal to the extent of any deficiency between the market value of the
underlying real property, plus any payments from an insurer or guarantor, and
the amount owing on the Mortgage Loan. Defaulted Mortgage Loans would also cease
to be eligible collateral for borrowings and would have to be financed by the
Company out of other funds until ultimately liquidated, resulting in increased
financing costs and reduced net income or a net loss.
Many of the risks of holding Subprime Mortgage Loans and retaining, after
structured debt financing, a portion of the credit risk derived therefrom
reflect the risks of investing directly in the real estate securing the
underlying Mortgage Loans. This may be especially true in the case of a
relatively small or less diverse pool of Subprime Mortgage Loans. In the event
of a default on the underlying Mortgage Loan, the ultimate extent of the loss,
if any, may only be determined after a foreclosure of the Mortgage Loan
encumbering the property and, if the Company takes title to the property, upon
liquidation of the property. Factors such as title or the property's physical
condition (including environmental considerations) may make a third-party
unwilling to
32
<PAGE> 40
purchase the property at a foreclosure sale or for a price sufficient to satisfy
the obligations with respect to the related Mortgage Loans. Foreclosure laws in
various states may protract the foreclosure process. In addition, the condition
of a property may deteriorate during the pendency of foreclosure proceedings.
Moreover, certain Mortgage Loan borrowers may become subject to bankruptcy
proceedings, preventing the Company from immediately liquidating the underlying
real property. In each of the foregoing cases, the amount and timing of amounts
due to the Company may be materially adversely affected.
COMPETITION FOR MORTGAGE LOANS FROM INDEPENDENT MORTGAGE BROKERS AND
CORRESPONDENTS MAY ADVERSELY AFFECT RESULTS OF OPERATIONS
The Taxable Subsidiary depends upon independent Mortgage Loan brokers and
correspondent lenders for a portion of its originations and purchases of new
Mortgage Loans. The Taxable Subsidiary has not entered into any exclusive
arrangements with independent brokers or correspondent lenders, who thus remain
free to sell Mortgage Loans to others. The Taxable Subsidiary competes with many
other purchasers for the correspondents' business based on pricing, service,
loan fees, costs and other factors. The Taxable Subsidiary's competitors also
seek to establish relationships with brokers and correspondents. The Taxable
Subsidiary's future results may become more exposed to fluctuations in the
volume and cost of acquiring its Mortgage Loans resulting from, among other
things, competition from other prospective purchasers of such Mortgage Loans.
COMMITMENTS TO PURCHASE MORTGAGE ASSETS EXPOSES THE COMPANY TO INTEREST RATE
RISK
The Taxable Subsidiary may issue commitments obligating it to purchase a
specific aggregate principal amount of Mortgage Assets from time to time during
the commitment term. As of the date of this Prospectus, the Taxable Subsidiary
has not entered into any commitments to purchase specific Mortgage Assets but
may do so if management believes the offered price is favorable and such
commitment does not expose the Company to excessive risk. From the date the
price for the Mortgage Assets to be acquired by the Taxable Subsidiary is
determined and the date of delivery of such Mortgage Assets occurs, interest
rates on borrowings of the type to be used to finance the purchase of such
Mortgage Assets may rise. If the interest rates on the Mortgage Assets do not
rise by a corresponding amount and the Taxable Subsidiary's hedge, if any,
against the commitments does not perform as expected, the Taxable Subsidiary
will nonetheless be required to purchase such Mortgage Assets and such Mortgage
Assets may produce a lower than anticipated net earnings or a net loss, which
could have a material adverse effect upon the Taxable Subsidiary's results of
operations.
PAYMENTS TO BROKERS IN VIOLATION OF RESPA MAY RESULT IN ADVERSE CLAIMS
Class action lawsuits have been filed against a number of mortgage lenders
alleging that such lenders have violated the Federal Real Estate Settlement
Procedures Act ("RESPA") by making certain payments to independent brokers.
These lawsuits have generally been filed on behalf of a purported nationwide
class of borrowers and allege that payments made by a lender to a broker in
addition to payments made by the borrower to a broker are prohibited by RESPA,
and are therefore illegal. In Culpepper v. Inland Mortgage Corporation, U.S.
Court of Appeals for the 11th Circuit, 1998 U.S. App. LEXIS 274 (January 9,
1998), the Court of Appeals determined that the payment of yield spread premiums
was an illegal referral fee. The Taxable Subsidiary has adopted disclosure
requirements for brokers as suggested by the Mortgage Bankers Association. While
the Taxable Subsidiary has been advised that such disclosure may mitigate the
risk of claims, the Culpepper decision may require the Taxable Subsidiary to
change its broker compensation programs or subject it to material monetary
judgments or other penalties. Any such changes or penalties may have a material
adverse effect on the Taxable Subsidiary's results of operations, financial
condition or business prospects.
LACK OF GEOGRAPHIC DIVERSIFICATION EXPOSES THE COMPANY TO GREATER DEFAULT RISK
The Company seeks geographic diversification of the properties underlying
its Mortgage Assets and has originated Mortgage Loans in more than 25 states.
Nevertheless, properties underlying such Mortgage Assets may be located in the
same or a limited number of geographical regions. The loans originated by the
Taxable
33
<PAGE> 41
Subsidiary in 1997 were predominantly concentrated in the following states:
Florida (23.0%), Utah (17.92%), Georgia (11.66%), California (11.33%), Colorado
(5.55%) and New York (5.02%). To the extent that properties underlying such
Mortgage Assets are located in the same geographical region, such Mortgage
Assets may be subject to a greater risk of default than other comparable,
geographically dispersed Mortgage Assets in the event of adverse economic,
political or business developments and natural hazard risks in such region and,
ultimately, the ability of property owners to make payments of principal and
interest on the underlying Mortgage Loans.
INADEQUATE OR INEFFECTIVE SERVICING MAY INCREASE DELINQUENCY AND DEFAULT RATES
Initially, the Company intends to contract for the servicing of all
Mortgage Loans it originates, purchases and holds to maturity with a third-party
mortgage servicer pursuant to an interim servicing agreement. See
"Business -- Servicing Activities." In addition, a third-party mortgage servicer
will subservice each structured debt financing of the Company's Mortgage Loans
pursuant to a related pooling and servicing agreement and a corresponding
subservicing agreement between the Company and the third-party servicer. As with
any external service provider, the Company is subject to risks associated with
insufficient or untimely services. Many of the Company's borrowers will require
notices and reminders to keep their Mortgage Loans current and to prevent
delinquencies and foreclosures. Any failure of the subservicer to adequately
service the Company's Mortgage Loans could cause a substantial increase in the
Company's delinquency or foreclosure rates, which could adversely effect the
Company's ability to access equity or debt capital resources. Ultimately,
inadequate or ineffective servicing could have a material adverse effect on the
Company's results of operations, financial condition and business prospects.
Additionally, the Company has entered into a servicing agreement with
Advanta which requires the Company to pay certain termination or transfer
penalties, fees and costs in the event the Company terminates such servicing
agreement without cause or transfers the servicing of any Mortgage Loans
serviced thereunder to another servicer. The Company will be subject to a fee
equal to $100 per Mortgage Loan upon termination of the servicing agreement. The
payment of such a termination fee may reduce the Company's earnings and amounts
available for distribution to stockholders. See "Business -- Servicing
Activities -- Advanta Servicing Agreement."
INABILITY TO SELL MORTGAGE LOANS MAY ADVERSELY AFFECT RESULTS OF OPERATIONS
The Taxable Subsidiary plans to sell certain Mortgage Loans (primarily
fixed-rate Subprime Mortgage Loans, Prime Mortgage Loans and Second Lien
Mortgage Loans) to secondary market purchasers. See "-- President's 1999 Budget
Plan, If Enacted, Would Adversely Affect Results of Operations" and
"Business -- Industry Developments." The Company's ability to manage its
Mortgage Loan portfolio according to its plan necessitates the existence of
purchasers for such Mortgage Loans. Any such difficulty may have a material
adverse effect on the Company's results of operations, financial condition or
business prospects.
LEGISLATION AND REGULATION MAY SUBJECT THE COMPANY TO COSTS OF COMPLIANCE AND
ADVERSE CLAIMS FOR NONCOMPLIANCE
Members of Congress and government officials from time to time have
suggested the elimination of the mortgage interest deduction for federal income
tax purposes, either entirely or in part, based on borrower income, type of
Mortgage Loan or principal amount. Since many of the Taxable Subsidiary's
Mortgage Loans will be made to borrowers for the purpose of consolidating
consumer debt or financing other consumer needs, the competitive advantages of
tax-deductible interest, when compared with alternative sources of financing,
could be eliminated or seriously impaired by such government action.
Accordingly, the reduction or elimination of these tax benefits could have a
material adverse effect on the demand for the Mortgage Loans offered by the
Taxable Subsidiary.
The Taxable Subsidiary's business is subject to extensive regulation,
supervision and licensing by federal, state and local governmental authorities
and will be subject to various laws and judicial and administrative decisions
imposing requirements and restrictions on part or all of its operations.
Regulated matters include,
34
<PAGE> 42
without limitation, Mortgage Loan origination marketing efforts, credit
application and underwriting activities, maximum finance and other charges,
disclosure to customers, certain rights of rescission on Mortgage Loans, closing
and servicing Mortgage Loans, collection and foreclosure procedures,
qualification and licensing requirements for doing business in various
jurisdictions and other trade practices. Mortgage Loan origination activities
are subject to the laws and regulations in each of the states in which those
activities are conducted. Activities as a lender are also subject to various
federal laws including the Truth in Lending Act ("TILA"), the Equal Credit
Opportunity Act of 1974, as amended ("ECOA"), the Home Mortgage Disclosure Act
("HMDA") and the Debt Collection Practices Act and the Fair Credit Reporting
Act. TILA and Regulation Z, issued under TILA, as amended, contain disclosure
requirements designed to provide consumers with uniform, understandable
information with respect to the terms and conditions of loans and credit
transactions in order to give them the ability to compare credit terms. TILA
also guarantees consumers a three-day right to cancel certain credit
transactions. TILA further imposes disclosure, underwriting and documentation
requirements on Mortgage Loans, known as "Section 32 loans," which are Mortgage
Loans with (i) total points and fees upon origination in excess of 8% of the
Mortgage Loan amount or (ii) an annual percentage rate of more than 10% higher
than comparably maturing United States Treasury securities. The Taxable
Subsidiary is also required to comply with the ECOA, which prohibits creditors
from discriminating against applicants on the basis of race, color, sex, age or
marital status. Regulation B interpreting ECOA restricts creditors from
obtaining certain types of information from loan applicants. It also requires
certain disclosures by the lender regarding consumer rights and requires lenders
to advise applicants of the reasons for any credit denial. In instances where
the applicant is denied credit or the rate or charge for a Mortgage Loan
increases as a result of information obtained from a consumer credit agency, the
Fair Credit Reporting Act of 1970, as amended, requires the lender to supply the
applicant with the name and address of the reporting agency.
The Taxable Subsidiary will also be subject to the RESPA and will be
required to file an annual report with the Department of Housing and Urban
Development ("HUD") pursuant to the HMDA. The Taxable Subsidiary will also be
subject to the rules and regulations of, and examinations by, GNMA, HUD and
state regulatory authorities with respect to originating, processing,
underwriting, selling and servicing Mortgage Loans. 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 Loan repurchases, certain rights of rescission for
Mortgage Loans, class action lawsuits and administrative enforcement actions.
There can be no assurance that the Taxable Subsidiary will maintain compliance
with these requirements in the future without additional expenses, or that more
restrictive local, state or federal laws, rules and regulations will not be
adopted or that existing laws and regulations will not be interpreted in a more
restrictive manner, which would make compliance more difficult for the Taxable
Subsidiary.
The laws and regulations described above are subject to legislative,
administrative and judicial interpretation, and certain of these laws and
regulations have been infrequently interpreted or only recently enacted.
Infrequent interpretations of these laws and regulations or an insignificant
number of interpretations of recently enacted regulations can result in
ambiguity with respect to permitted conduct under these laws and regulations.
Any ambiguity under the regulations to which the Taxable Subsidiary is subject
may lead to regulatory investigations or enforcement actions and private causes
of action, such as class action lawsuits, with respect to the Taxable
Subsidiary's compliance with the applicable laws and regulations. As a mortgage
lender, the Taxable Subsidiary will be subject to regulatory enforcement actions
and private causes of action from time to time with respect to its compliance
with applicable laws and regulations.
MORTGAGE LOANS SECURED BY PROPERTIES WITH ENVIRONMENTAL PROBLEMS MAY RESULT IN
LIABILITY AND LOSSES
Certain properties securing Mortgage Loans may be contaminated by hazardous
substances. As a result, the value of the real property may be diminished. In
the event that the Company is forced to foreclose on a defaulted Mortgage Loan
on such a property, the Company may be subject to environmental liabilities
regardless of whether the Company was responsible for the contamination. While
the Company intends to exercise due diligence to discover potential
environmental liabilities prior to the acquisition of any such
35
<PAGE> 43
property through foreclosure, hazardous substances or wastes, contaminants,
pollutants or sources thereof (as defined by state and federal laws and
regulations) may be discovered on properties during the Company's ownership or
after a sale thereof to a third-party. If such hazardous substances are
discovered on a property, the Company may be required to remove those substances
or sources and clean-up the property. The Company may also be liable to tenants
and other users of neighboring properties. In addition, the Company may find it
difficult or impossible to sell the property prior to or following any such
clean-up. Any exposure to environmental liability could have a material adverse
effect on the Company's results of operations or financial condition.
CHANGES IN ECONOMIC CONDITIONS MAY ADVERSELY AFFECT RESULTS OF OPERATIONS
The Company's business may be adversely affected by periods of economic
slowdown or recession which may be accompanied by decreased demand for consumer
credit and declining real estate values. Any material decline in real estate
values reduces the ability of borrowers to use home equity to support borrowings
and increases the LTVs of Mortgage Loans owned by the Company, thereby weakening
collateral coverage and increasing the possibility of a loss in the event of
default. Further, delinquencies, foreclosures and losses generally increase
during economic slowdowns or recessions. Because of the Company's focus on
borrowers who are unable or unwilling to obtain Mortgage Loans from conventional
mortgage sources, the actual rates of delinquencies, foreclosures and losses on
Subprime Mortgage Loans could be higher under adverse economic conditions than
those experienced in the conventional mortgage lending industry. Any sustained
period of such increased delinquencies, foreclosures and losses would adversely
affect the pricing of the Taxable Subsidiary's Mortgage Loan sales, the rate
paid to investors and the over-collateralization required on the Taxable
Subsidiary's long-term financing or whole loan sales. On the other hand, the
Company faces certain risks related to an improving economy, including, but not
limited to, the risk that during times of falling interest rates borrowers tend
to prepay their Mortgage Loans. See "-- Interest Rate Fluctuations May Adversely
Affect Operations and Net Interest Income -- Declining Interest Rates May
Increase Prepayment Rates and Reduce Net Interest Income."
FACTORS BEYOND CONTROL OF THE COMPANY MAY AFFECT PERFORMANCE OF THE INVESTMENT
PORTFOLIO
Although the Company hedges certain aspects of its interest rate risk, the
results of the Company's Mortgage Assets portfolio operation is affected by
various factors, many of which are difficult to predict or are beyond the
control of the Company. The performance of the Company's Mortgage Assets
portfolio depends on, among other things, the level of net interest income
generated by the Company's Mortgage Assets, the market value of such Mortgage
Assets, credit losses on Mortgage Assets held and the supply of, and demand for,
such Mortgage Assets. The Company's net interest income varies primarily as a
result of changes in short-term interest rates, borrowing costs and prepayment
rates, the behavior of which involve various risks and uncertainties as set
forth below. Prepayment rates, interest rates, borrowing costs and credit losses
depend upon the nature and terms of the Mortgage Assets, the geographic location
of the properties securing the Mortgage Loans included in or underlying the
Mortgage Assets, conditions in financial markets, the fiscal and monetary
policies of the United States government and the Board of Governors of the
Federal Reserve System, international economic and financial conditions,
competition and other factors, none of which can be predicted with any
certainty. Because changes in interest rates may significantly affect the
Company's activities, the operating results of the Company depend, in large
part, upon the ability of the Company to effectively manage its interest rate
and prepayment risks while maintaining its status as a REIT. See "-- Interest
Rate Fluctuations May Adversely Affect Operations and Net Interest Income" and
"Borrowing to Finance Investment Portfolio May Adversely Affect Results of
Operations."
INVESTORS WILL INCUR IMMEDIATE AND SUBSTANTIAL ECONOMIC DILUTION
The Price to Public of the Units offered hereby is higher than the net
tangible book per share of the Common Stock. Because prior purchasers of Common
Stock paid less than the Price to Public, purchasers of the Units offered hereby
will be subject to immediate and substantial economic dilution in the net
tangible
36
<PAGE> 44
book value attributable to the Common Stock included as a component of the Units
purchased by them of $2.12 per share (assuming the sale of 5,000,000 Units
offered hereby at $15.00 per Unit).
FUTURE DEBT AND EQUITY OFFERINGS MAY DILUTE INVESTORS
The Company expects in the future to increase its capital resources by
making additional offerings of equity and debt securities, including classes of
preferred stock, Common Stock, commercial paper, medium-term notes,
mortgage-backed obligations and senior or subordinated debt. See "-- Operation
of a New Enterprise Involves Uncertainty -- Failure to Raise Additional Capital
May Adversely Affect Future Growth and Results of Operations." All debt
securities and classes of preferred stock will be senior to the Common Stock in
the event of a liquidation of the Company. Additional equity offerings may
dilute the equity of stockholders of the Company or reduce the price of shares
of the Company's Common Stock, or both. The Company is unable to estimate the
amount, timing or nature of additional offerings as they will depend upon market
conditions and other factors.
FAILURE TO DEVELOP A TRADING MARKET MAY RESULT IN DEPRESSED COMMON STOCK PRICE
There has not been a public market for the Securities prior to the
Offering. Accordingly, there can be no assurance that a liquid trading market
for the Securities offered hereby will develop or, if developed, that the market
will be sustained. In the absence of a public trading market, an investor may be
unable to liquidate his investment in the Company. The Price to Public was
determined by the Company and the Underwriter. See "Underwriting." There can be
no assurance that the price of the Units in the public market after the closing
of the Offering will not be lower than the Price to Public. While there can be
no assurance that a market for the Company's Securities will develop, the
Company intends to apply for listing of the Units, the Common Stock and the
Warrants on the American Stock Exchange.
If a public market for the Securities exists, it is likely that the market
price of the Securities will be influenced by any variation between the net
yield on the Company's Mortgage Assets and prevailing market interest rates.
However, earnings will not necessarily be greater in high interest rate
environments than in low interest rate environments. Moreover, in periods of
high interest rates, the net earnings of the Company, and, therefore, the
dividend yield on the Common Stock, may be less attractive compared with
alternative investments, which could negatively impact the price of the
Securities. If the anticipated or actual net yield on the Company's Mortgage
Assets declines or if prevailing market interest rates rise, thereby decreasing
the positive spread between the net yield on such investments and the cost of
the Company's borrowings, the market price of the Securities may be adversely
affected.
FAILURE TO MAINTAIN REIT STATUS WOULD HAVE ADVERSE TAX CONSEQUENCES
The Company intends, for the fiscal year ending December 31, 1998, and all
times thereafter, to operate so as to qualify as a REIT for federal income tax
purposes. In order to maintain its qualification as a REIT for federal income
tax purposes, the Company must satisfy certain tests with respect to the sources
of its income, the nature and diversification of its assets, the amount of its
distributions to stockholders and the ownership of its Capital Stock. See
"Federal Income Tax Considerations -- Qualification as a REIT -- Distributions."
If the Company fails to qualify as a REIT in any taxable year and certain relief
provisions of the Code do not apply, the Company would be subject to federal
income tax as a regular, domestic corporation for four subsequent years, and its
stockholders would be subject to tax in the same manner as stockholders of such
a corporation. Distributions to stockholders in any year in which the Company
fails to qualify as a REIT, including the fiscal year 1998, would not be
deductible by the Company in computing its taxable income. As a result, the
Company could be subject to income tax liability, thereby significantly reducing
or eliminating the amount of cash available for distribution to its
stockholders. Further, the Company could also be disqualified from re-electing
REIT status for the four taxable years following the year during which it became
disqualified.
37
<PAGE> 45
FAILURE TO QUALIFY FOR EXEMPTION FROM INVESTMENT COMPANY ACT MAY ADVERSELY
AFFECT THE COMPANY
The Company at all times intends to conduct its business so as not to
become regulated as an investment company under the Investment Company Act of
1940, as amended (the "Investment Company Act"). Accordingly, the Company does
not expect to be subject to the restrictive provisions of the Investment Company
Act. The Investment Company Act exempts entities that are "primarily engaged in
the business of purchasing or otherwise acquiring mortgages and other liens on
and interests in real estate" ("Qualifying Interests"). Under the current
interpretation of the staff of the Commission, in order to qualify for this
exemption, the Company must maintain at least 55% of its assets directly in
Mortgage Loans, qualifying Pass-Through Certificates and certain other
qualifying interests in real estate. In addition, unless certain Mortgage Assets
owned by the Company represent all the certificates representing economic
interests issued with respect to an underlying pool of Mortgage Loans, such
Mortgage Assets may be treated as securities separate from the underlying
Mortgage Loans and, thus, may not qualify as Qualifying Interests for purposes
of the 55% safe harbor. Therefore, the Company's ownership of certain Mortgage
Assets may be limited by the provisions of the Investment Company Act. If the
Company fails to qualify for exemption from registration as an investment
company, its ability to use leverage would be substantially reduced and it would
be unable to conduct its business as described herein. Any such failure to
qualify for such exemption could have a material adverse effect on the Company.
ISSUANCES OF PREFERRED STOCK MAY ADVERSELY AFFECT THE VALUE OF COMMON STOCK
Subject to the limitations set forth in the Amended and Restated Articles
of Incorporation, the Board of Directors is authorized to reclassify any of the
unissued shares of authorized capital stock into a class or classes of preferred
stock. The issuance of additional preferred stock could have the effect of
making an attempt to gain control of the Company more difficult by means of a
merger, tender offer, proxy contest or otherwise. The additional preferred
stock, if issued, could have a preference on dividend payments over the Common
Stock which could affect the ability of the Company to make dividend
distributions to the holders of Common Stock. Further, the shares of preferred
stock may be entitled to preferential liquidation, voting and other rights which
could have a material adverse effect on the value of the Company's other
Securities.
RESTRICTIONS ON OWNERSHIP OF CAPITAL STOCK COULD DISCOURAGE A CHANGE OF CONTROL
In order that the Company may meet the requirements for qualification as a
REIT at all times, the Amended and Restated Articles of Incorporation prohibit
any person from acquiring or holding, directly or indirectly, shares of Capital
Stock in excess of 9.8% in value of the aggregate of the outstanding shares of
Capital Stock or in excess of 9.8% (in value or in number of shares, whichever
is more restrictive) of the aggregate of the outstanding shares of Common Stock
of the Company. For this purpose, the term "ownership" is defined in accordance
with REIT provisions of the Code and the constructive ownership provisions of
Section 544 of the Code, as modified by Section 856(h)(1)(B) of the Code. Under
such rules, for example, certain types of entities such as widely-held
corporations may hold in excess of the 9.8% limit because shares held by such
entities are attributed to such entities' stockholders. Conversely, shares of
Capital Stock owned or deemed to be owned by a person who individually owns less
than 9.8% of the shares outstanding may nevertheless be in violation of the
ownership limitations set forth in the Amended and Restated Articles of
Incorporation if, under certain circumstances, shares owned by others (such as
family members) are attributed to such individual. See "Federal Income Tax
Considerations -- Qualification as a REIT -- Ownership of Stock." The Amended
and Restated Articles of Incorporation further prohibit (i) any person from
beneficially or constructively owning shares of Capital Stock that would result
in the Company being "closely held" under Section 856(h) of the Code or
otherwise cause the Company to fail to qualify as a REIT, and (ii) any person
from transferring shares of Capital Stock if such transfer would result in
shares of Capital Stock being owned by fewer than 100 persons.
Subject to certain limitations, the Board of Directors may increase or
decrease the ownership limitations. In addition, to the extent consistent with
the REIT provisions of the Code, the Board of Directors may waive the ownership
limitations for and at the request of certain purchasers in this Offering. The
provisions described above may inhibit market activity and the resulting
opportunity for the holders of the Company's Capital
38
<PAGE> 46
Stock and Warrants to receive a premium for their Securities that might
otherwise exist in the absence of such provisions. Such provisions also may make
the Company an unsuitable investment vehicle for any person seeking to obtain
ownership of more than 9.8% of the outstanding shares of Capital Stock.
In addition, the provisions of the Amended and Restated Articles and Bylaws
of the Company which stagger the Board of Directors into three classes, require
advance notification of stockholder proposals and require a supermajority vote
to remove directors may also have the effect of delaying, deterring or
preventing take over attempt thereby reducing the price of the Common Stock.
Further, the provisions of Maryland law which restrict business acquisitions by
certain beneficial owners of stock and owners of "control shares" also have the
effect of delaying, deterring or preventing a takeover attempt or change in
control that might be beneficial to stockholders or result in a premium over
their prevailing market prices. See "Description of Capital Stock -- Control
Share Acquisitions" and "-- Business Acquisitions Statutes" and "Management --
Terms of Directors and Officers."
Further, the employment agreements with Messrs. Fry, Mott and McMurray
provide for severence payments of three times their respective and bonus
compensation upon termination following a "Change in Control," as defined
therein. Such provisions would result in minimum payments to Messrs. Fry, Mott
and McMurray of $750,000, $600,000 and $600,000, respectively, which may also
defer or prohibit takeover attempts.
39
<PAGE> 47
THE COMPANY
RealTrust Asset Corporation is a newly formed Maryland corporation
incorporated on April 1, 1998. The Taxable Subsidiary, CMG Funding Corp., was
organized in February, 1996 as a mortgage banking company and is located in Salt
Lake City, Utah. The Taxable Subsidiary now has 16 branch offices located in 13
states which originated or purchased approximately $507.4 million in
single-family residential Mortgage Loans during the calendar year ended December
31, 1997 and $152.1 million during the first quarter of 1998.
The Company intends to avail itself of the federal income tax advantages of
electing REIT status for the tax year ending December 31, 1998, subject to the
discussion under "Business -- Industry Developments" and "Risk
Factors -- President's 1999 Budget Plan, If Enacted, Would Adversely Affect
Results of Operations." As a REIT, the Company must distribute to its
stockholders on a pro rata basis each year an amount equal to 95% of its taxable
income before deduction of dividends paid and excluding net capital gain, plus
(ii) 95% of the excess of the net income from foreclosure property over the tax
imposed on such income by the Code, less (iii) any "excess noncash income." See
"Federal Income Tax Considerations -- Qualification as a REIT." The Company
intends to make distributions to its stockholders in amounts sufficient to meet
these 95% distribution requirements. In any year in which the Company qualifies
as a REIT, it generally will not be subject to federal income tax on that
portion of its taxable income or net capital gain which is distributed to its
stockholders. See "Federal Income Tax Considerations."
The Company will manage a portfolio of Mortgage Assets. In addition, the
Company conducts a mortgage lending business through the Taxable Subsidiary. See
"Business -- Industry Developments" and "Risk Factors -- President's 1999 Budget
Plan, If Enacted, Would Adversely Affect Results of Operations." The Company
owns all of the issued and outstanding shares of non-voting preferred stock of
the Taxable Subsidiary which entitles the Company to 95% of the economic value
of the Taxable Subsidiary. The Founders of the Company own all of the issued and
outstanding shares of voting common stock of the Taxable Subsidiary which
entitle them to voting control but only five percent of the economic value of
the Taxable Subsidiary. The Taxable Subsidiary will not be consolidated with the
Company for accounting purposes because the Company will not own any of the
Taxable Subsidiary's voting common stock and, thus, the Company will not control
the Taxable Subsidiary.
As a REIT, the Company will be self-advised and self-managed. Management of
the Company conducts the day-to-day operations of the Company, subject to the
direction of the Board of Directors. The Company's offices are located at 2855
East Cottonwood Parkway, Suite 500, Salt Lake City, Utah 84121, and its
telephone number is (801) 365-3000.
USE OF PROCEEDS
The net proceeds of the Offering, assuming a Price to Public of $15.00 per
Unit, are estimated to be $68,650,000 ($79,112,500 if the Underwriters'
over-allotment option is exercised). The net proceeds will be used to acquire a
portfolio of Mortgage Assets, to fund the origination and purchase of Mortgage
Loans through the Taxable Subsidiary's mortgage lending operation, to expand the
Mortgage Loan production capacity, to repay the outstanding balance on the
working capital credit facility from ContiFinancial Corporation ($2.0 million as
of March 31, 1998), to redeem shares of Class B Redeemable Preferred Stock held
by ContiFinancial Corporation ($2.2 million), to repay the Convertible Secured
Promissory Note to Capstone Investments, Inc. ($850,000), and for general
working capital and other corporate purposes. Any proceeds resulting from the
exercise of the Underwriters' over-allotment option will be entirely used to
purchase Mortgage Assets which have not been identified. Pending the use of the
net proceeds of the Offering for such purposes, the net proceeds will be
invested in Mortgage Assets acquired in the secondary mortgage market. The
Company intends to increase its investment in Mortgage Assets by borrowing
against existing Mortgage Assets and using the loan proceeds to acquire
additional Mortgage Assets. The Company's borrowings generally will be secured
by the Mortgage Assets owned by the Company. Until the Company has fully
implemented this financing strategy and increased its Mortgage Asset investments
to the desired level, the net earnings on the Company's portfolio of Mortgage
Assets are expected to be lower than would be the case if the investment
strategy were fully implemented promptly after the closing of the Offering.
40
<PAGE> 48
The following table sets forth certain information concerning the estimated
use of the gross proceeds of the Offering:
<TABLE>
<CAPTION>
PERCENTAGE OF
AMOUNT TOTAL FUNDS
----------- -------------
<S> <C> <C>
Estimated Offering Expenses:
Underwriting Discount(1)............................. $ 5,250,000 7.0%
Offering Expenses(2)................................. 1,100,000 1.5
Funding of Mortgage Loan Originations and Purchases of
Mortgage Assets(3)...................................... 59,375,000 79.2
Repayment of ContiFinancial Corporation's Working Capital
Debt(4)................................................. 2,025,000 2.7
Repayment of Capstone Note(5)............................. 850,000 1.1
Redemption of Preferred Stock and Accrued Dividends(4).... 2,180,000 2.9
Working Capital and Other Corporate Purposes.............. 4,220,000 5.6
----------- -----
Gross Offering Proceeds(6)................................ $75,000,000 100.0%
=========== =====
</TABLE>
- ---------------
(1) The underwriting discount is seven percent, plus Representative's Warrants
to acquire, at the Price to Public, a number of Warrant Shares equal to
three percent of the number of Units sold (including those sold pursuant to
the over-allotment option).
(2) This amount consists of estimated legal, accounting, printing and other
expenses of this Offering, and organizational expenses, which have been or
will be paid by the Company.
(3) See "Business."
(4) See "Conflicts of Interest and Related Party Transactions -- ContiFinancial
Corporation."
(5) See "Conflicts of Interest and Related Party Transactions -- Capstone
Investments, Inc."
(6) Assumes no exercise of the Underwriter's over-allotment option.
DIVIDEND POLICY AND DISTRIBUTIONS
Commencing with the 1998 fiscal year, the Company generally intends to
distribute substantially all of its taxable income each year (which does not
ordinarily equal net income as calculated in accordance with GAAP) to its
stockholders so as to comply with the REIT provisions of the Code. The Company
intends to make distributions quarterly. Any taxable income remaining after the
distribution of the final regular quarterly distribution each year will be
distributed together with the first regular quarterly dividend payment of the
following taxable year or in a special distribution distributed prior thereto.
The dividend policy is subject to revision at the discretion of the Board of
Directors. All distributions will be made by the Company at the discretion of
the Board of Directors and will depend on the taxable income of the Company, the
financial condition of the Company, maintenance of REIT status and such other
factors as the Board of Directors deems relevant. See "Federal Income Tax
Considerations -- Qualification as a REIT -- Distributions."
Distributions to stockholders will generally be subject to tax as ordinary
income, although a portion of such distributions may be designated by the
Company as capital gain or may constitute a tax-free return of capital. The
Company will annually furnish to each of its stockholders a statement setting
forth distributions paid during the preceding year and their characterization as
ordinary income, capital gains, or return of capital. For a discussion of the
Federal income tax treatment of distributions by the Company, see "Federal
Income Tax Considerations -- Taxation of the Company's Stockholders."
41
<PAGE> 49
DIVIDEND REINVESTMENT PLAN
The Company will, after the closing of the Offering, adopt a dividend
reinvestment plan ("DRP") for stockholders who wish to reinvest their
distributions in additional shares of Common Stock. The DRP will be administered
by American Securities Transfer & Trust Incorporated which will maintain
records, prepare and send out statements to all participants, provide
safe-keeping for the shares purchased under the DRP and perform other duties
related to the DRP. Generally, under a DRP, dividends paid with respect to
shares of Capital Stock are automatically invested in additional shares of
Common Stock at a discount to the then current market price. Such discount will
be determined, from time to time, by the Board of Directors consistent with the
REIT provisions of the Code. The DRP will also allow each stockholder to make
additional investments in Common Stock by contributing cash to the DRP
administrator (up to a specified maximum). Upon adoption of the DRP, each
stockholder will be notified in writing of the procedure for enrolling in the
DRP.
42
<PAGE> 50
DILUTION
As of April 1, 1998, there were 1,295,807 shares of the Company's Common
Stock outstanding, having a net tangible book value per share of Capital Stock
of approximately $1.19. Net tangible book value per share represents the amount
of the Company's total tangible assets less its total liabilities, divided by
the number of shares of its Capital Stock outstanding. On a pro forma basis
after giving effect to the Formation Transactions (other than the issuance and
sale of the Units offered hereby) and the Post-Closing Transactions, the net
tangible book value of the Company was $1,540,728 (the net book value of the CMG
Funding Corp. capital stock being contributed).
After giving effect to the net proceeds from the sale of Units offered
hereby at the Price to Public of $15.00 per Unit, assuming no exercise of the
Underwriters' over-allotment option, the pro forma net tangible book value of
the Company as of April 1, 1998 would have been $68,010,728 or $10.80 per share.
This represents a dilution of $4.20 per share to new investors purchasing Units
at $15.00 per Unit. If the Warrants and the Representative's Warrants were
exercised, the pro forma net tangible book value of the Company as of April 1,
1998 would be $145,260,728 or $12.69 per share.
<TABLE>
<CAPTION>
PER SHARE
---------
<S> <C> <C>
Price to Public per Unit................................. $15.00
Dilution attributable to underwriting discount and
offering expenses................................. (1.27)
Dilution attributable to Formation Transactions and
Post-Closing Transactions......................... (2.93)
(4.20)
------ ------
Book value per share after underwriting discount and
offering expenses, Formation Transactions.............. 10.80
======
Accretion attributable to exercise of the Warrants
and Representative's Warrants(1).................. 1.89
------
Book value per share after accretion for Warrants and
Representative's Warrants.............................. $12.69
======
</TABLE>
- ------------
(1) Exercise of the Warrants and Representative's Warrants is entirely at the
discretion of the holders of such Warrants and the Company cannot compel
such holders to exercise. Therefore, there can be no assurance that the
Warrant's or Representative's Warrants will ever be exercised or that the
book value of the Company will increase.
The following table summarizes, on a pro forma basis as of April 1, 1998,
after giving effect to the Formation Transactions, the difference between the
existing stockholders and the investors in the Offering with respect to the
number of shares of Common Stock (assuming no exercise of the Underwriters'
over-allotment option, the Warrants or the Representative's Warrants) purchased
from the Company, the total consideration paid and the average price per share:
<TABLE>
<CAPTION>
SHARES OF THE COMPANY TOTAL CONSIDERATION
---------------------- ---------------------- AVERAGE PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
---------- -------- ----------- ------- -------------
<S> <C> <C> <C> <C> <C>
Existing stockholders............... 1,295,807 20.6% $ 1,540,728(1) 2.0% $ 1.19
New investors(2).................... 5,000,000 79.4 75,000,000 98.0 15.00
--------- ----- ----------- -----
Total.......................... 6,295,807 100.0% $76,540,728 100.0%
========= ===== =========== =====
</TABLE>
- ---------------
(1) Reflects the capital contributions to CMG Funding Corp. by each of the
Founders and ContiFinancial Corporation, and includes the $2.0 million paid
by ContiFinancial Corporation for its 410,581 shares of Class B Redeemable
Preferred Stock in December, 1997, which will be redeemed after the closing
of the Offering for the purchase price plus accrued dividends at 18% per
annum, for a total price of $2.18 million, assuming redemption occurs on
June 30, 1998.
(2) Assumes no exercise of the Warrants, the warrants granted to Capstone
Investments, Inc., the Representative's Warrants or the Underwriters'
over-allotment option.
43
<PAGE> 51
CAPITALIZATION
The table below sets forth the capitalization of the Company, as of April
1, 1998 and as adjusted to reflect the issuance of the Units offered in the
Offering at a Price to Public of $15.00 per Unit and the application of the
estimated net proceeds therefrom as described under "Use of Proceeds."
<TABLE>
<CAPTION>
PRO FORMA
APRIL 1, 1998 --------------------------
------------- AS AS
ACTUAL ADJUSTED(1) ADJUSTED(2)
------------- ----------- -----------
<S> <C> <C> <C>
STOCKHOLDERS' EQUITY:
Class A Convertible Preferred Stock, par value $0.001
per share; 1,263,472 shares authorized; no shares
issued and outstanding; As adjusted: 1,263,472 and
5,000,000 shares authorized; 852,891 and no shares
issued and outstanding............................... $ -- $ -- $ --
Class B Redeemable Preferred Stock, par value $.001;
410,581 shares authorized; no shares issued and
outstanding; As adjusted: 410,581 and no shares
issued and outstanding, respectively................. -- 410 --
Common Stock, par value $.001 per share; 2,810,455
authorized; 66 shares issued and outstanding; As
adjusted: 100,000,000 shares authorized; 1,295,807
and 6,295,807 shares issued and outstanding,
respectively......................................... -0- 1,296 6,296
Additional paid-in capital............................. 1,000 1,540,022 68,004,432
------ ---------- -----------
Total Stockholders' Equity........................ $1,000 $1,541,728 $68,010,728
====== ========== ===========
</TABLE>
- ---------------
(1) Gives effect to the shares of RealTrust Capital Stock issued to Founders and
ContiFinancial Corporation in the Formation Transactions. Total
Stockholders' Equity reflects 95% of the stockholders' equity of CMG Funding
Corp. as of March 31, 1998.
(2) Assumes the sale of 5,000,000 Units in the Offering and that none of the
Underwriters' over-allotment option, the Warrants, the warrants granted to
Capstone Investments, Inc. or the Representative's Warrants are exercised.
After deducting the underwriting discount of seven percent and estimated
offering expenses of $1,100,000 payable by the Company. Excludes all options
granted to officers, directors and employees of the Company pursuant to the
1996 Stock Option Plan and the 1998 Stock Option Plan. See
"Management -- Executive Compensation -- 1996 Stock Option Plan" and
"-- 1998 Stock Option Plan."
REALTRUST ASSET CORPORATION
PRO FORMA FINANCIAL DATA
The following pro forma balance sheet has been prepared based on the
historical audited April 1, 1998 balance sheet of RealTrust Asset Corporation.
The unaudited pro forma balance sheet gives effect to the formation
transactions, which will occur upon the effective date of this Offering. See
"Structure and Formation Transactions." Upon completion of the Formation
Transactions, RealTrust intends to invest substantially all of the net proceeds
of the Offering in Qualified REIT Assets, which Qualified REIT Assets will
comprise the investment portfolio. The investment portfolio is expected to
generate in excess of 95% of RealTrust's gross revenues. The balance of
RealTrust's gross revenues is expected to be generated from its equity
investment in CMG Funding Corp. The pro forma adjustments are based upon
currently available information and upon certain assumptions that management
believes to be reasonable under the circumstances. This pro forma information is
for illustrative purposes only and should not be viewed as a projection or
forecast of RealTrust's performance. The pro forma balance sheet does not
purport to represent RealTrust's actual financial position had such events
occurred on the aforementioned dates. Such pro forma information should be read
in conjunction with RealTrust's financial statements and the notes relating
hereto included elsewhere herein.
RealTrust is a recently formed Maryland corporation, which will elect to be
taxed as a REIT. CMG Funding Corp. is a Delaware corporation, established in
1996. RealTrust will account for its investment in CMG Funding Corp. on the
equity method of accounting.
44
<PAGE> 52
REALTRUST ASSET CORPORATION
PRO FORMA BALANCE SHEET
(UNAUDITED)
<TABLE>
<CAPTION>
AT APRIL 1, 1998
--------------------------------------------------------
INCREASE INCREASE
HISTORICAL (DECREASE) (DECREASE) PRO FORMA
---------- ---------- ----------- -----------
<S> <C> <C> <C> <C>
ASSETS
68,650,000(2)
(2,180,000)(3)
(2,875,000)(4)
Cash........................................................ $1,000 (1,000)(5) $63,595,000
Receivable due from CMG Funding Corp. ...................... 2,875,000(4) 2,875,000
Investment in CMG Funding Corp. ............................ -- 1,540,728(1) 1,540,728
------ ---------- ----------- -----------
TOTAL ASSETS................................................ $1,000 1,540,728 66,469,000 $68,010,728
====== ========== =========== ===========
STOCKHOLDERS' EQUITY
Class A Convertible Preferred Stock, par value $.001;
1,263,472 shares authorized, no shares outstanding; As
adjusted: 1,263,472 and 5,000,000 shares authorized,
852,891 and no shares outstanding, 853(1)
respectively.............................................. $ -- (853)(6) $ --
Class B Redeemable Preferred Stock, par value $.001; 410,581
shares authorized, no shares outstanding; As adjusted:
410,581 and no shares authorized; 410,581 and no shares
outstanding, respectively................................. -- 410(1) (410)(3) --
Common Stock, par value $.001; 4,484,508 shares authorized;
66 shares outstanding; As adjusted: 4,484,508 and
100,000,000 shares 1,547(1) 5,000(2) 6,296
authorized; 66 and 6,295,807 shares outstanding,
respectively............................................ -- (251)(6) (2,179,590)(3)
Additional paid-in capital.................................. 1,000 1,537,918(1) (68,645,000)(2) 68,004,432
1,104(6) (1,000)(5)
------ ---------- ----------- -----------
TOTAL STOCKHOLDERS' EQUITY.................................. $1,000 1,540,728 66,469,000 $68,010,728
====== ========== =========== ===========
</TABLE>
- ---------------
(1) Reflects 95% of the book value of CMG Funding Corp. as of March 31, 1998
($1,539,021) resulting from the CMG Funding Corp. stockholders' contribution
of 95% of their capital stock of CMG Funding Corp. in exchange for shares of
RealTrust Asset Corporation Capital Stock. RealTrust's investment will be
reflected at cost (which is determined to be 95% of the net book value of
CMG Funding Corp.). Even though RealTrust will generally have no right to
control the affairs of CMG Funding Corp. because the preferred stock owned
in CMG Funding Corp. is nonvoting, management believes that RealTrust has
the ability to exert significant influence over CMG Funding Corp. and,
therefore, the investment in CMG Funding Corp. will be accounted for on the
equity method. Some of the factors considered in determining the use of the
equity method of accounting were: (a) RealTrust will have the ability to
exercise significant influence over CMG Funding Corp. through management,
(b) substantially all of the economic benefit in CMG Funding Corp. will flow
to RealTrust, (c) CMG Funding Corp. will perform it's activities primarily
for RealTrust, (d) RealTrust and CMG Funding Corp. will have common board of
director members and officers, (e) the views of RealTrust's management
influence the operations of CMG Funding Corp., and (f) RealTrust will be
able to obtain the financial information from CMG Funding Corp. that is
needed to apply the equity method of accounting to its investment in CMG
Funding Corp.
(2) Reflects the estimated net proceeds ($68,650,000) from the offering assuming
no exercise of the Underwriters' over-allotment option at an assumed public
offering price of $15.00 per Unit.
(3) Reflects the redemption of ContiFinancial Corporation's 410,581 shares of
Class B Redeemable Preferred Stock plus dividends accrued since January 1,
1998 at the rate of 18% per annum. See "Conflicts of Interest and Related
Party Transactions -- ContiFinancial Corporation."
(4) Reflects the repayment of the $2,000,000 working capital credit facility
with ContiFinancial Corporation plus $25,000 in accrued interest and
repayment of the $850,000 owed to Capstone Investments, Inc. See "Conflicts
of Interest and Related Party Transactions." All amounts necessary to repay
the obligations to ContiFinancial Corporation and Capstone Investments, Inc.
are advanced to the Taxable Subsidiary and reflected as a receivable
therefrom.
(5) Reflects the redemption of the original 66 shares of RealTrust at the close
of the Offering, which were issued solely for the organization of RealTrust.
(6) Reflects the conversion of Class A Convertible Preferred Stock on a
one-for-one basis into Common Stock. RealTrust Common Stock is reverse split
at a ratio of approximately .54 shares for 1 prior to the closing of the
Offering.
45
<PAGE> 53
REALTRUST ASSET CORPORATION
PRO FORMA STATEMENT OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
1997(1)
------------
<S> <C>
Equity in net loss of CMG Funding Corp. .................... $(1,598,789)
-----------
Net loss.................................................... $(1,598,789)
===========
Loss per share:(2)
Basic..................................................... $ (1.23)
-----------
Diluted................................................... $ (1.23)
-----------
</TABLE>
- ---------------
(1) Pro forma net loss represents 95% of CMG Funding Corp.'s net loss for the
year ended December 31, 1997 ($1,774,311), reduced by interest expense on
subordinated debt ($91,375), which debt was converted to Common Stock
during 1997. The Company anticipates that the operations of the Taxable
Subsidiary will continue to be the origination and sale of Mortgage Loans
for cash and that the Taxable Subsidiary's results of operations may be
material to the Company's financial statements.
(2) Shares used in the calculation of loss per share reflect shares issued in
the Formation Transactions of RealTrust (1,295,807 shares) and for this
calculation are assumed to have been outstanding for the entire year of
1997.
46
<PAGE> 54
SELECTED FINANCIAL DATA OF REALTRUST ASSET CORPORATION
AND CMG FUNDING CORP.
REALTRUST ASSET CORPORATION
RealTrust was organized and capitalized on April 1, 1998, with $1,000.
Operations have not commenced as of the date of this Prospectus. The balance
sheet of RealTrust, which has been audited by KPMG Peat Marwick, LLP,
independent auditors, and the report thereon, are included elsewhere in this
Prospectus. RealTrust is not acquiring any of the operating assets of CMG
Funding Corp. However, RealTrust will acquire, in the Formation Transactions,
all of the preferred stock of CMG Funding Corp.
CMG FUNDING CORP.
The following selected financial data are derived from the audited
financial statements of CMG Funding Corp. as of December 31, 1997 and 1996, and
for the year ended December 31, 1997, and the period February 7, 1996 (date of
inception) to December 31, 1996, respectively, and from unaudited financial
information as of and for the three months ended March 31, 1998 and 1997. Such
selected financial data should be read in conjunction with the audited financial
statements of CMG Funding Corp. as of December 31, 1997 and 1996, and for the
year ended December 31, 1997, and the period February 7, 1996 (date of
inception) to December 31, 1996, respectively, which financial statements have
been audited by KPMG Peat Marwick LLP, independent auditors, whose report
appears elsewhere in this Prospectus. In the opinion of management, the
unaudited information reflects all adjustments, consisting only of normal
recurring adjustments necessary for a fair presentation of such financial
information for those periods. Results for the three months ended March 31, 1998
are not necessarily indicative of results for the year ending December 31, 1998.
<TABLE>
<CAPTION>
THREE MONTHS ENDED PERIOD FROM
MARCH 31, FEBRUARY 7, 1996
------------------------- YEAR ENDED (DATE OF INCEPTION) TO
1998 1997 DECEMBER 31, 1997 DECEMBER 31, 1996
----------- ----------- ----------------- ----------------------
(UNAUDITED)
<S> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA
Revenues:
Interest................................... $ 1,723,714 $ 218,321 $ 3,756,870 $ 621,601
Gain-on-sale of mortgage loans, net........ 1,971,551 644,701 5,967,647 446,771
Mortgage servicing fees.................... 1,886 37,028 38,826 --
Other...................................... 269,296 68 269,248 92,063
----------- ----------- ----------- -----------
Total revenues..................... 3,966,447 900,118 10,032,591 1,160,435
----------- ----------- ----------- -----------
Expenses:
Salaries and Employee Benefits............. 1,436,698 596,768 4,474,357 390,018
General Operating.......................... 1,096,294 606,731 4,313,236 1,285,156
Interest................................... 1,133,174 400,558 2,965,685 731,519
Other...................................... 7,658 15,184 53,624 59,608
----------- ----------- ----------- -----------
Total expenses..................... 3,673,824 1,619,241 11,806,902 2,466,301
----------- ----------- ----------- -----------
Income (loss) before income taxes.......... 292,623 (719,123) (1,774,311) (1,305,866)
Income taxes............................... 20,460 -- -- --
----------- ----------- ----------- -----------
Net income (loss).......................... $ 272,163 $ (719,123) $(1,774,311) $(1,305,866)
=========== =========== =========== ===========
BALANCE SHEET DATA:
Cash and cash equivalents.................... $ 1,018,527 $ 651,327 $ 708,962 $ 272,308
Mortgage loans held for sale................. 53,306,731 16,504,558 54,451,067 24,147,713
Other assets................................. 4,094,189 1,259,039 3,707,274 938,031
----------- ----------- ----------- -----------
Total assets....................... $58,419,447 $18,414,924 $58,867,303 $25,358,052
=========== =========== =========== ===========
Warehouse and revolving working capital lines
of credit.................................. $54,715,517 $16,762,751 $55,603,021 $23,996,471
Other liabilities............................ 2,082,111 1,737,165 1,802,051 1,227,450
Total liabilities.................. 56,797,628 18,499,916 57,405,072 25,223,921
Stockholders' equity......................... 1,621,819 (84,992) 1,462,231 134,131
----------- ----------- ----------- -----------
Total liabilities and stockholders'
equity........................... $58,419,447 $18,414,924 $58,867,303 $25,358,052
=========== =========== =========== ===========
</TABLE>
47
<PAGE> 55
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
As further discussed in other sections of this Prospectus, RealTrust is a
Maryland corporation formed on April 1, 1998 and has not conducted any
operations to date. As a result of the Formation Transaction, RealTrust will own
100% of the non-voting preferred stock of CMG Funding Corp. which entitles
RealTrust to receive 95% of any dividends paid by CMG Funding Corp. RealTrust
accounts for its ownership of CMG Funding Corp. using the equity method. The
following discussion of financial condition and results of operations relates to
the operations of CMG Funding Corp.
CMG Funding Corp. has operated as a specialty finance company primarily
engaged in originating, purchasing, selling and servicing Prime Mortgage Loans
and Subprime Mortgage Loans. CMG Funding Corp. funded its first Mortgage Loans
in April, 1996. Prior to the closing of the Offering, the Taxable Subsidiary
generated revenue from the following activities: (i) Mortgage Loan origination
fees, (ii) cash gains from the sale of Mortgage Loans, (iii) servicing income,
and (iv) interest income from Mortgage Loans prior to their sale. The Taxable
Subsidiary has generated profits since August, 1997; however, prior to such
time, the Taxable Subsidiary's monthly expenses exceeded monthly revenue. Such
expenses were primarily to support rapid expansion of its wholesale and retail
branch network, and included salaries and benefits, general operating expenses
and debt service, among other expenses. Included in these expense categories are
the cost of certain computer and other equipment, the purchase and creation of
software systems and customary office costs which were expensed in the current
period.
After the closing of the Offering, the business focus of the Company will
be to generate income from the net interest earned on a portfolio of Mortgage
Assets. In undertaking this new business, the Company has five principal
strategies: (i) to continue to increase the Taxable Subsidiary's Mortgage Loan
originations through high levels of service to independent brokers and borrowers
in its wholesale and retail channels, (ii) to expand the Taxable Subsidiary's
correspondent mortgage lending activities, (iii) to convert from selling the
Taxable Subsidiary's entire Mortgage Loan production to building a portfolio of
Subprime Mortgage Loans, (iv) through the Taxable Subsidiary to sell certain
Mortgage Loans for cash gains (see "Business -- Industry Developments"), and (v)
to elect to be taxed as a REIT under the Code beginning with the tax year ending
December 31, 1998.
Until December, 2001, CMG Funding Corp. is required to sell certain
Mortgage Loans to ContiFinancial Corporation. See "Conflicts of Interest and
Related Party Transactions -- ContiFinancial Corporation." All such sales are
sold servicing released in cash transactions. Since ContiFinancial Corporation
acquires the Mortgage Loans with all servicing rights, CMG Funding Corp. does
not pay any servicing fees; all such fees are paid out of the interest collected
on the Mortgage Loans by the owner thereof. RealTrust estimates that the amount
of Mortgage Loans to be sold to ContiFinancial Corporation will not materially
impair its ability to acquire a portfolio of Subprime Mortgage Loans because the
adjustable-rate Subprime Mortgage Loans (and remaining 25% of fixed-rate) will
be sufficient to acquire the intended portfolio. See "Risk Factors --
Presidents's 1999 Budget Plan, If Enacted, Would Adversely Affect Results of
Operations." There can be no assurance that the Company's strategies can be
successfully implemented or that such strategies will result in improved
revenues and earnings.
CERTAIN ACCOUNTING POLICIES AND PROCEDURES
TAXABLE INCOME AND GAAP INCOME
Income calculated for tax purposes ("taxable income") differs from income
calculated according to generally accepted accounting principles ("GAAP income")
for various reasons. Income from interest earned in Mortgage Loans differs for
purposes of taxable income and GAAP income because each uses a different method
to calculate the rate of amortization of the premium or discount when Mortgage
Assets are acquired at a price above or below the stated principal amount of the
Mortgage Loans. Credit losses differ for purposes of tax and GAAP methods of
accounting because GAAP requires the Company to take credit provisions in order
to build a credit allowance whereas only actual credit losses are deducted in
calculating taxable income.
48
<PAGE> 56
General and administrative expenses differ due to differing treatment of
leasehold amortization and other items. However, interest expense is calculated
in the same manner for GAAP and tax purposes.
These distinctions are important to the Company's stockholders since
distributions are based on taxable income. The Company generally will not pay
Federal taxes so long as it meets the REIT provisions of the Code and
distributes dividends to stockholders in an amount equal to its taxable income.
See "Federal Income Tax Considerations -- Qualification as a REIT."
TAXABLE INCOME AND DIVIDENDS
RealTrust intends to declare and pay distributions equal to its taxable
income over time. In general, the Company expects to declare a quarterly
distributions per share of Capital Stock which would result in the distribution
of most or all of the taxable income earned in that quarter. See "Dividend
Policy and Distributions" and "Risk Factors -- Operation of a New Enterprise
Involves Uncertainty -- Limited Operating History of the Company Creates
Uncertainty About Future Results" and "Federal Income Tax Considerations."
RESULTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 1998 COMPARED TO THREE MONTHS ENDED MARCH 31, 1997
Net income for the three months ended March 31, 1998 was $272,163 as
compared to a net loss of $(719,123) for the same period in 1997. Net income
before income taxes was $292,623 for the three months ended March 31, 1998 as
compared to a loss before income taxes of $(719,123) for the first three months
of 1997.
Total revenues for the first three months of 1998 was $3,966,447, an
increase of 340.7% from total revenues of $900,118 for the first three months of
1997. Approximately 43% and 50% of the total revenue increase was attributable
to the increase in revenues generated by interest income and net gain-on-sale of
mortgage loans held for sale, respectively. The increase in interest income and
net gain-on-sale of mortgage loans held for sale is a result in the increase in
volume of Mortgage Loans mainly in Subprime Mortgage Loans. During the first
three months of 1998, Subprime Mortgage Loan production increased $46.0 million
or 316.6% from $14.5 million for the first three months of 1997 to $60.5 million
for the same period in 1998. Prime Mortgage Loan production increased $38.1
million or 71.4% from $53.4 million for the first three months of 1997 to $91.6
million for the first three months of 1998.
Total expenses for the first three months of 1998 were $3,673,824 as
compared to $1,619,241 for the same period in 1997, an increase of $2,054,583,
or 126.9%. Salaries and employee benefits increased by $839,930 or 140.7% in the
first three months of 1998, as compared to the same period in 1997. The majority
of the increase in salaries and employee benefits related to normal merit
increases from 1997 to 1998, and an increase of 76 employees or 71.0% from 107
for the first quarter 1997 as compared to 183 for the same period in 1998, as a
result of four additional branches operating during the first three months of
1998 compared to 1997.
General operating expense increased from $606,731 during the first three
months of 1997 to $1,096,294 during the first three months of 1998, a $489,563
increase. Approximately 20% of this increase was related to cost associated with
an increased number of branches in 1998 compared to 1997 (i.e. rent, telephone
office expense, etc.)
Interest expense was $1,133,174 for the first three months of 1998 as
compared to $400,558 during the same period in 1997. The increase in interest
expense was a result of the increased usage of the warehouse and revolving
working capital lines of credit (average credit balance for the first three
months of 1998 and 1997 was $55.2 million and $20.4 million, respectively).
49
<PAGE> 57
YEAR ENDED DECEMBER 31, 1997 COMPARED TO THE PERIOD FEBRUARY 7, 1996 (DATE OF
INCEPTION) TO DECEMBER 31, 1996
For the year ended December 31, 1997, the net loss of CMG Funding Corp. was
$(1,774,311) as compared to $(1,305,866) for the period from February 7, 1996
(date of inception) to December 31, 1996. For the year ended December 31, 1997,
revenues were $10,032,591 as compared to $1,160,435 for the period from February
7, 1996 (date of inception) to December 31, 1996, an increase of 764.6% from
total revenues. For the year ended December 31, 1997, net gain-on-sale of
mortgage loans was $5,967,647 as compared to $446,771 for the period from
February 7, 1996 (date of inception) to December 31, 1996, an increase of
1,235.7%. For the year ended December 31, 1997, interest income was $3,756,870
as compared to $621,601 for the period from February 7, 1996 (date of inception)
to December 31, 1996. Revenues, net gain-on-sale of mortgage loans and interest
income all increased as a result of increased Mortgage Loan production with an
emphasis on higher profit margin Subprime Mortgage Loans as compared to Prime
Mortgage Loans.
Total expenses for the year ended December 31, 1997 was $11,806,902 as
compared to $2,466,301 for the period from February 7, 1996 (date of inception)
to December 31, 1996, an increase of $9,340,601 or 378.7%. Salaries and employee
benefits expenses increased by $4,084,339 or 1,047.2% for the year ended
December 1997 as compared to the period from February 7, 1996 (date of
inception) to December 31, 1996. General operating expenses increased from
$4,313,236 for the year ended December 31, 1997 as compared to $1,285,156 for
the period from February 7, 1996 (date of inception) to December 31, 1996.
Salaries and benefits and general operating expenses increased as a result of
opening branches outside the Mountain West region and the accompanying corporate
support staff.
For the year ended December 31, 1997, interest expense was $2,965,685 as
compared to $731,519 for the period from February 7, 1996 (date of inception) to
December 31, 1996. Interest expense increased as a result of increased warehouse
lines of credit and working capital borrowings required as a result of increased
Mortgage Loan production.
As of December 31, 1997, mortgage loans held for sale amounted to
$54,451,067 as compared to $24,147,713 as of December 31, 1996. Mortgage loans
held for sale increased as a result of increased production.
LIQUIDITY AND CAPITAL RESOURCES
Prior to July 31, 1997, CMG Funding Corp.'s principal need for capital
resulted from the expansion of its wholesale and retail branches and the need to
fund originations of Mortgage Loans. Such capital was provided by contributions
from the Founders and from the sale of preferred stock and subordinated debt to
ContiFinancial Corporation. CMG Funding Corp. has a limited amount of cash on
hand to fund operations. CMG Funding Corp. requires access to short-term
warehouse and credit facilities to fund the acquisition of Mortgage Loans. Sales
of Mortgage Loans provide cash to support the needs of CMG Funding Corp. pending
closing of this Offering. As of March 31, 1998, CMG Funding Corp. had borrowed
approximately $40.3 million under its warehouse facility and $2.0 million under
its working capital facility with ContiFinancial Corporation. As of December 31,
1997, ContiFinancial Corporation had converted $2.0 million of the working
capital facility into preferred stock.
CMG Funding Corp. has financed, and until the closing of the Offering CMG
Funding Corp. will finance, the origination and acquisition of Mortgage Loans in
its mortgage lending operations through warehouse facilities and reverse
repurchase facilities from several banks and financial institutions. At March
31, 1998, CMG Funding Corp. had committed warehouse facilities and reverse
repurchase facilities of $150.0 million from ContiFinancial Corporation ($50.0
million) and Nomura Asset Capital Corporation ($100.0 million). Such warehouse
and reverse repurchase facilities expire on January 1, 1999 and June 30, 1998,
respectively, and are currently at various interest rates ranging from London
Inter-Bank Offered Rate ("LIBOR") plus 1.1% to LIBOR plus 3.25%, depending on
the nature of the Mortgage Loans collateralizing the applicable borrowing. Both
agreements contain customary and usual negative covenants.
50
<PAGE> 58
In March, 1998 and April, 1998, the Taxable Subsidiary borrowed an
aggregate $850,000 from Capstone Investments, Inc., a Nevada corporation,
evidenced by a Convertible Secured Promissory Note (the "Note") bearing simple
interest at 9% per annum. The Note matures upon the earlier of (i) January 1,
1999 or (ii) the closing of the Offering. Interest on the Note is payable
monthly and principal is payable upon maturity. Capstone Investments, Inc. has
the option to convert all or any portion of the Note into Units of the Company
offered hereby at the Price to Public. In addition, the Company has granted
Capstone Investments, Inc. warrants to purchase 50,000 shares of Common Stock at
a price equal to the Price to Public. See "Conflicts of Interest and Related
Party Transactions -- Capstone Investments, Inc."
RealTrust is dependent upon the closing of the Offering for the capital
necessary to fund the acquisition of, and long-term investment in, its Mortgage
Asset portfolio. RealTrust will also require additional warehouse and reverse
repurchase facilities and will need to arrange structured debt financing.
Management believes that such facilities are readily available from various
counterparties and has entered into negotiations for such facilities. No
commitments have been received to date. The Company will require additional
capital offerings to continue the proposed growth of the Mortgage Asset
portfolio. Additional capital may not be available on terms satisfactory to
management or at all. If so, the Company would be limited in achieving asset
growth beyond the Mortgage Assets acquired with the net proceeds of the
Offering. See "Risk Factors -- Operation of a New Enterprise Involves
Uncertainty -- Failure to Raise Additional Capital May Adversely Affect Future
Growth and Results of Operations."
Neither RealTrust nor CMG Funding Corp. has made any commitments for
material capital expenditures and has no long-term debt obligations, except the
obligations (i) to repay ContiFinancial Corporation's working capital facility
before January 1, 1999, (ii) to redeem ContiFinancial Corporation's Class B
Preferred Stock and (iii) to repay Capstone's Convertible Secured Promissory
Note. See "Conflicts of Interest and Related Party Transactions." All of such
long-term obligations are expected to be repaid with the net proceeds of the
Offering.
INFLATION
The financial statements and notes thereto presented herein have been
prepared in accordance with GAAP, which require the measurements of financial
position and operating results in terms of historical dollars without
considering the changes in the relative purchasing power of money over time due
to inflation. The impact of inflation is reflected in the increased costs of the
Company's operations. Unlike industrial companies, nearly all of the assets and
liabilities of the Company's operations are monetary in nature. As a result,
interest rates have a greater impact on the Company's performance than do the
effects of general levels of inflation. Inflation affects the Company's
operations, however, primarily through its effect on interest rates, which
normally increase during periods of high inflation and decrease during periods
of low inflation. During periods of increasing interest rates, demand for
Mortgage Loans and a borrower's ability to qualify for mortgage financing in a
transaction may be adversely affected.
YEAR 2000 COMPLIANCE
The Company will rely upon a significant number of computer software
programs and operating systems in conducting its operations, including software
purchased from third-party vendors and internally developed programs. To the
extent that these software applications contain source code that is unable to
correctly interpret the upcoming calendar year "2000," some level of
modification or even possible replacement of such source code or applications
will be necessary. The Company has received written confirmation from its
primary software vendors that their applications are Year 2000 compliant or will
be before December 31, 1998. Additionally, the Company is creating or revising
all internally developed software to be Year 2000 compliant. Given the
information known at this time, it is currently not anticipated that these "Year
2000" costs will have any material adverse impact on the Company's business,
financial condition or results of operations.
The Company is, however, dependent on vendor compliance to some extent, for
example third party services. The Company is requiring its systems and software
vendors to represent that the services and
51
<PAGE> 59
products provided are, or will be, Year 2000 compliant, and contemplate a
program of testing compliance. Although no assurances can be provided regarding
compliance by third-party vendors, the Company does not expect that
noncompliance by any such vendors will have a material adverse effect on the
Company's operations. In the event of noncompliance by any such vendor, the
Company believes that alternative vendors will be available to the Company.
52
<PAGE> 60
BUSINESS
GENERAL
RealTrust Asset Corporation, a Maryland corporation formed on April 1, 1998
("RealTrust" or the "Company"), is a specialty finance company engaged in the
business of originating, purchasing, selling and servicing mortgage loans
secured (i) primarily by first mortgages on single-family residences ("First
Lien Mortgage Loans") and (ii) to a much lesser extent by second lien Mortgage
Loans ("Second Lien Mortgage Loans"; collectively with First Lien Mortgage
Loans, "Mortgage Loans"). RealTrust will own and manage a portfolio composed
primarily of First Lien Mortgage Loans that do not conform to one or more of the
underwriting criteria of Federal Home Loan Mortgage Corporation ("FHLMC") and
Federal National Mortgage Association ("FNMA"). Such Mortgage Loans are referred
to as "Subprime Mortgage Loans." RealTrust expects to acquire Subprime Mortgage
Loans primarily from CMG Funding Corp., a Delaware corporation and RealTrust's
taxable subsidiary (the "Taxable Subsidiary"). The Company has entered into a
Mortgage Loan Purchase Agreement (the "Purchase Agreement") with the Taxable
Subsidiary pursuant to which the Company has the right of first refusal on all
Mortgage Loans originated and acquired by the Taxable Subsidiary (except the 75%
of fixed-rate Subprime Mortgage Loans required to be sold to ContiFinancial
Corporation).
RealTrust intends to build a portfolio of primarily Subprime Mortgage Loans
and securities backed by Mortgage Loans ("Mortgage Securities"; together with
Mortgage Loans, "Mortgage Assets") financed with structured debt instruments and
reverse repurchase agreements. The portfolio is expected to generate net
interest income, which, upon election to be taxed as a real estate investment
trust ("REIT"), will not be taxed at the corporate level. RealTrust is now and
intends to remain self-advised and self-managed.
The Taxable Subsidiary has operated a mortgage lending business since
April, 1996 and currently originates Mortgage Loans through 14 wholesale and two
retail branch offices. The Taxable Subsidiary's mortgage lending operations
originate and purchase fixed and adjustable-rate Subprime Mortgage Loans, as
well as Mortgage Loans that conform to FHLMC or FNMA underwriting criteria
("Prime Mortgage Loans"). In addition, the Taxable Subsidiary has built a
correspondent lending operation that began purchasing Subprime Mortgage Loans in
the fourth quarter of 1997. Pursuant to the Purchase Agreement, the Company
intends to purchase adjustable-rate Subprime Mortgage Loans originated or
acquired by the Taxable Subsidiary, as well as fixed-rate Subprime Mortgage
Loans not sold to ContiFinancial Corporation. However, the Company does not
intend to purchase Prime Mortgage Loans from the Taxable Subsidiary.
The Taxable Subsidiary will sell its Prime Mortgage Loans and selected
Subprime Mortgage Loans to generate current income and cash flow to partially
fund the Company's mortgage lending operations. See "Business -- Industry
Developments." For the fiscal quarter ended March 31, 1998, the Taxable
Subsidiary had originated or purchased $60.5 million of Subprime Mortgage Loans,
including $2.8 million of Subprime Mortgage Loans purchased through its
correspondent operations, and originated $91.6 million of Prime Mortgage Loans.
RealTrust owns 100% of the preferred stock (representing 95% of the economic
interest) of the Taxable Subsidiary but does not control its operations. The
Founders own approximately 68% of the voting common stock of the Taxable
Subsidiary and, therefore, control its operations. See "Structure and Formation
Transactions."
To date, the Taxable Subsidiary has sold all of its Subprime Mortgage Loan
production in whole loan sales for cash. From September 1, 1996 to March 31,
1998, the Taxable Subsidiary sold approximately $150.5 million of Subprime
Mortgage Loans, or approximately 54% of all Subprime Mortgage Loan sales during
such period, to ContiFinancial Corporation (with its affiliates ContiMortgage
Corporation, ContiTrade Services L.L.C., and ContiFinancial Services
Corporation, "ContiFinancial Corporation"). Subsequent to the closing of the
Offering, the Company, a newly-established entity, will commence building a
portfolio of Subprime Mortgage Loans and financed with structured debt. See
"Business -- Industry Developments" and "Risk Factors -- Operation of a New
Enterprise Involves Uncertainty." The Taxable Subsidiary will continue to sell
certain Mortgage Loans for cash gains, primarily to the Company, but also to
third party investors, including the sale of 75% of its fixed-rate Subprime
Mortgage Loans to ContiFinancial Corporation. See "Conflicts of Interest and
Related Party Transactions."
53
<PAGE> 61
RealTrust will elect to be taxed as a REIT under the Internal Revenue Code
of 1986, as amended (the "Code"), beginning with the tax year ending December
31, 1998. Upon such election, RealTrust will generally not be subject to federal
income tax to the extent that it distributes its earnings to its stockholders
and maintains its qualification as a REIT. The Taxable Subsidiary has been and
will continue to be taxed as a "C" corporation and, therefore, was subject to
tax on any earnings.
The Company's principal business objectives are to increase earnings per
share, to increase cash available for distribution to stockholders and to
enhance stockholder value. The Company intends to accomplish these goals
primarily by capitalizing on the yields available from investing in Subprime
Mortgage Loans compared to Prime Mortgage Loans, and managing the risks of such
investments. The Company will derive income from two principal business
activities, as follows:
(i) the management of an investment portfolio of Mortgage Assets which
will generate net interest income based upon the difference between the
interest earned on its Mortgage Assets and the interest paid on its
borrowings used to acquire the Mortgage Assets; and
(ii) the operation of the Taxable Subsidiary's mortgage origination
business, which will generate income from its mortgage lending activities
and will supply adjustable-rate Subprime Mortgage Loans for long-term
investment through the proposed REIT structure which avoids Federal income
tax at the corporate level.
RealTrust will conduct the investment portfolio operations. Specifically,
RealTrust will determine which Mortgage Loans will be held for long-term
investment, will establish underwriting guidelines for the Mortgage Loans, will
arrange financing for the investment portfolio (including the issuance of
structured debt offerings), will administer the capital allocation guidelines
and other risk management policies, and will supervise the servicing operations
of third-party servicers.
The Taxable Subsidiary will conduct the mortgage lending operations. The
Taxable Subsidiary will establish and maintain the wholesale, retail and
correspondent channels of production, will perform all underwriting and quality
control processes, will sell all Mortgage Loans that RealTrust does not desire
to hold for long-term investment (either through whole loan sales or
securitizations) and will maintain all necessary state mortgage lending
licenses.
COMPETITIVE ADVANTAGES
EXPERIENCED MANAGEMENT TEAM
The Company's two primary executive officers, John D. Fry and Terry L.
Mott, collectively have extensive experience in building and operating mortgage
banking operations in a variety of environments, including building Mortgage
Loan production and management teams, and creating and implementing policies,
budgets and controls. Mr. Fry, CMB, formed the Company in February, 1996 and has
been the President, Chief Executive Officer and Chairman of the Board since
inception. Mr. Mott has been the Executive Vice President of the Company
primarily responsible for Mortgage Loan production and a Director since
inception. Mr. Fry began his mortgage banking career in 1966. From 1984 to 1989,
Mr. Fry was the Vice President and Western Division Manager of Goldome Realty
Credit Corp., located in Buffalo, New York. From 1989 to 1994, served as the
Senior Vice President of Wholesale Lending of ComUnity Lending, Inc., in San
Jose, California. Mr. Mott began his career in mortgage banking in 1977. From
1980 to 1988, Mr. Mott was the regional Vice President at Fleet Mortgage Corp.
where he developed and managed the retail and wholesale production for the
western United States. From 1988 to 1994, Mr. Mott was the Executive Vice
President and served on the executive committee for Medallion Mortgage Company.
Mr. Mott left AccuBanc Mortgage, the successor to Medallion Mortgage Company, in
December, 1995 to form the Company with Mr. Fry.
In contemplation of the Offering and the proposed business strategy of the
Company, the Company has hired additional executive management team members,
including John P. McMurray and Steven K. Passey. Mr. McMurray joined the Company
in February, 1998, as the Executive Vice President of Secondary Marketing and
Asset Liability Management. Prior to joining the Company, Mr. McMurray was the
President
54
<PAGE> 62
of Keystroke Financial, Inc., a start-up internet mortgage origination company.
From 1995 to 1996, Mr. McMurray was the Executive Vice President and Director,
Risk Management and Capital Markets for Crestar Mortgage Corporation where he
was responsible for interest rate and credit risk management, as well as
hedging, securitization and loan/securities trading activities. From 1982 to
1995, Mr. McMurray served in various management positions with BancPlus Mortgage
Corp., most recently serving as the Senior Vice President, Capital Markets. Mr.
McMurray is a Chartered Financial Analyst and a Certified Public Accountant. Mr.
McMurray received a Master of Science degree in Real Estate from Massachusetts
Institute of Technology, a Masters of Business Administration degree from the
University of Texas, San Antonio and a Bachelor of Science degree from Trinity
University. Mr. Passey joined the Company in October, 1997 as the Senior Vice
President and Chief Financial Officer. Prior to joining the Company, Mr. Passey
was in the financial services area at KPMG Peat Marwick LLP for eight years,
most recently as a manager responsible for accounting and audit work for
financial companies. Mr. Passey is a Certified Public Accountant and received a
Bachelor of Science degree in accounting from the University of Utah.
FOCUS ON SUBPRIME MORTGAGE LOANS
The Company will to focus its Mortgage Asset portfolio on Subprime Mortgage
Loans. Subprime Mortgage Loans are generally secured by substantial equity in
the underlying property, but are made to borrowers who have impaired or limited
credit profiles or higher debt-to-income ratios than traditional mortgage
lenders allow. Subprime Mortgage Loan borrowers also include individuals who,
due to self-employment or other circumstances, have difficulty verifying their
income, and may be individuals who prefer the prompt and personalized service
provided by the Company. These types of borrowers are generally willing to pay
higher origination fees and interest rates than those charged by conventional
lending sources. One important consideration in underwriting Subprime Mortgage
Loans is the nature and value of the collateral securing the Mortgage Loans. The
Company believes that the amount of equity required in the real estate securing
the Mortgage Loans, together with the fact that a substantial majority of the
Mortgage Loans originated or purchased by the Company are secured by borrowers'
primary residences, reduces the risks inherent in Subprime lending. See "Risk
Factors -- Investments in Subprime Mortgage Loans Involve Greater Risk of Loss."
Subprime Mortgage Loans are generally associated with higher risks of
delinquency and foreclosure, and are more likely to result in losses due to
underwriting guidelines which permit an LTV ratio of up to 90%. See "Risk
Factors -- Investments in Subprime Mortgage Loans Involve Greater Risk of Loss."
STRUCTURED DEBT INSTRUMENTS
The Company intends to finance adjustable-rate Subprime Mortgage Loans held
in its investment portfolio through structured debt instruments, where the
emphasis is on earning net interest income over time. This leverage strategy
allows the Company to take full advantage of its REIT status. Moreover, the
Company's Mortgage Asset investment portfolio which will be financed with
structured debt instruments will allow it to produce income not subject to
Federal income tax at the corporate level. Thus, distributions to stockholders
will be generated from net interest income, rather than through fully taxable
gain-on-sale income in REMIC transactions. The accounting for gain-on-sale REMIC
transactions presents as current income the present value of expected future
cash flows from the Mortgage Loans sold. Actual income is subject to revision if
actual losses, interest rates and prepayment experience differ from the assumed
levels.
ADVANTAGES OF REIT TAX STATUS
As a REIT, the Company will generally pass through earnings to stockholders
without Federal income tax at the corporate level. Thus, the Company expects
higher net earnings available to holders of Capital Stock than traditional
mortgage lending institutions which are subject to Federal income tax.
55
<PAGE> 63
CORPORATE GOVERNANCE WHICH LIMITS POTENTIAL CONFLICTS OF INTEREST
RealTrust and the Taxable Subsidiary will be a vertically integrated
organization, which is self-advised and self-managed. The Company is structured
to minimize the potential conflicts of interest between the mortgage lending
operation and the Mortgage Asset portfolio management operation. Such conflicts
can arise in REITs where the incentives and interests of management are
dependent on the size of the Mortgage Loan portfolio rather than on return on
equity or stockholder returns. Such conflicts are common in entities which are
externally advised and which have management contracts or structures where
management's compensation is not directly related to the Company's performance
or return to stockholders. The Company's primary management incentive programs
are dependent on return on equity (the incentive bonus plan, one-half of which
is paid in Common Stock of the Company and the other half of which is paid in
cash) and stock price appreciation (stock option plans). See
"Management -- Executive Compensation." However, the Company will be subject to
certain potential conflicts of interest because the voting control of the
Taxable Subsidiary is held by the Founders (who collectively own approximately
68% of the voting common stock) and other conflicts of interest arising from
transactions with ContiFinancial Corporation. See "Risk Factors -- Conflicts Of
Interest May Result in Decisions That Do Not Fully Reflect the Stockholders'
Best Interest."
In an effort to mitigate the foregoing potential conflicts of interest, the
Company has implemented policies and procedures which require, among other
things, that each decision that implicates a potential conflict of interest must
be approved by a majority of the Independent Directors. However, there can be no
assurance that the Company's policies or procedures will be successful in
eliminating the influence of such conflicts and, thus, the Company may take
courses of action which fail to fully represent the best interests of all
stockholders of the Company.
LOAN SALES FOR CASH GAINS
The Company's wholesale, retail and correspondent channels originate and
purchase Prime and Subprime, fixed- and adjustable-rate Mortgage Loans. The
Company plans to build its Mortgage Asset portfolio primarily by retaining
selected Subprime Mortgage Loans originated and purchased by the Taxable
Subsidiary. The remaining Mortgage Loans will be sold for cash gains to various
mortgage investors. See "Business -- Industry Developments." The Taxable
Subsidiary expects to sell all of the Prime Mortgage Loans and certain of the
Subprime Mortgage Loans and Second Lien Mortgage Loans originated through its
wholesale and retail channels. The Taxable Subsidiary intends to sell its entire
economic interest in these Mortgage Loans and does not intend to hold residual
interests. The sale of these Mortgage Loans is expected to generate substantial
current income and cash flow to fund, in part, the mortgage lending operations.
See "Risk Factors -- President's 1999 Budget Plan, If Enacted, Would Adversely
Affect Results of Operations" and "Risk Factors -- Operation of a New Enterprise
Involves Uncertainty."
OVERVIEW OF SUBPRIME MORTGAGE MARKET
According to Inside Mortgage Finance Publications, Inc., for the years 1995
through 1997, the residential Mortgage Loan market generated annual Mortgage
Loan volume in excess of $630.0 billion per year. The majority of these
originations (approximately 80% to 90%) were Prime Mortgage Loans. The remaining
balance of 10% to 20% (approximately $85.0 to $150.0 billion) of the
originations were Subprime Mortgage Loans.
Based on its experience originating Subprime Mortgage Loans, the Company
believes there is strong national demand by borrowers for Subprime Mortgage
Loans. Across the country, many borrowers have suffered dislocation and
temporary unemployment, resulting in negative entries on their credit reports.
Erratic market and economic conditions and other factors have resulted in high
ratios of debts to assets and high levels of credit card and other installment
debt for these individuals. In addition, more borrowers are choosing to become
self-employed. The Company believes these circumstances create an attractive
market for Subprime Mortgage Loans.
One of the significant differences between the Prime Mortgage Loan and the
Subprime Mortgage Loan markets has been the comparative dependence upon the
overall level of interest rates. Generally, the
56
<PAGE> 64
Subprime Mortgage Loan market's historical performance has been less sensitive
to interest rate changes. This is evident by the growth in Subprime Mortgage
Loan originations from 1993 through 1995. While the Prime Mortgage Loan market
experienced a decline in originations of more than 40% during that period, due
primarily to an increase in interest rates, Mortgage Loan originations in the
Subprime Mortgage Loan market continued to grow at an annual rate of 10% to 15%
over the same three-year period.
According to Inside Mortgage Finance Publications, Inc., the estimated size
of the Subprime Mortgage Loan originations in 1997 was approximately $124.5
billion. Historically, the Subprime Mortgage Loan market has been a highly
fragmented niche market dominated by local brokers with direct ties to investors
who owned and serviced this relatively higher margin, riskier product. Although
there have recently been several new entrants into the Subprime Mortgage Loan
business, the Company believes the Subprime Mortgage Loan market is still highly
fragmented, with no single competitor having more than a 5.6% market share by
volume for the year-ended December 31, 1997. The growth and profitability of the
Subprime Mortgage Loan market, the demise of numerous depository financial
institutions in the late 1980s which had served this market, and reduced profits
and Mortgage Loan volume at traditional financial institutions have together
drawn new participants and capital to the Subprime Mortgage Loan market. The
Subprime Mortgage Loan market requires more business judgment from underwriters
in evaluating borrowers with previous credit problems. Subprime Mortgage Loan
lending is also more capital intensive than the Prime Mortgage Loan market due
to the fact that the securitization function requires a higher level of credit
enhancement which must be provided by the issuer in the form of
over-collateralization or subordination.
Based on its recent experience in the Subprime Mortgage Loan market, the
Company believes that the Subprime Mortgage Loan market will continue to grow,
due in part to the following reasons: (i) growth in the number of existing
homeowners with negative entries on their credit reports; (ii) growth in the
number of immigrants with limited credit histories who are in the prime home
buying ages of 25 to 34; (iii) growth in the number of self-employed individuals
who have sources of income which are inconsistent and difficult to document;
(iv) growth in consumer debt levels which are causing many borrowers to have
higher debt/income ratios; and (v) growth in consumer bankruptcy filings, which
cause borrowers to be classified as Subprime Mortgage Loan borrowers.
INDUSTRY DEVELOPMENTS
The President's tax proposals contained in the 1999 Budget Plan released by
the Treasury Department on February 2, 1998 (the "1999 Budget Plan") include
several provisions that could adversely affect REITs. The 1999 Budget Plan has
been submitted to the Ways and Means Committee of the U.S. House of
Representatives (the "Ways and Means Committee") for review, which held its
first hearing on February 25, 1998, but has not taken any action to date. See
"Risk Factors -- President's 1999 Budget Plan, If Enacted, Would Adversely
Affect Results of Operations."
Several industry and trade organizations representing REITs and mortgage
bankers, including the National Association of Real Estate Investment Trusts and
The Mortgage Bankers Association have expressed their opposition to those
provisions of the 1999 Budget Plan which affect REITs. However, despite such
opposition, the 1999 Budget Plan may be adopted as proposed.
In summary, the 1999 Budget Plan proposes to prohibit a REIT from owning,
by vote or value, more than 10% of the capital stock of any corporation. Such
proposal is intended to prevent REITs from conducting through a taxable
subsidiary any business which would be prohibited by the REIT itself. If
adopted, such proposal would require the Company to change the nature of its
ownership in the Taxable Subsidiary and the manner in which it conducts its
business.
If adopted, the 1999 Budget Plan would require that RealTrust either (i)
acquire all of the capital stock of the Taxable Subsidiary and convert it into a
Qualified REIT Subsidiary, or (ii) divest itself of the preferred stock of the
Taxable Subsidiary. To convert the Taxable Subsidiary into a Qualified REIT
Subsidiary would require the Taxable Subsidiary to comply with all of the income
and assets tests for a REIT. While the active origination of Mortgage Loans in
itself does not violate any of the income or assets tests for maintaining REIT
status, the Service could attempt to treat the income from frequent sales of
Mortgage Loans as subject to the
57
<PAGE> 65
100% tax on income from prohibited transactions. Rather than pay the prohibited
transaction tax, the Company would likely curtail production of the Mortgage
Loans it does not intend to retain in its investment portfolio. See "Risk
Factors -- President's 1999 Budget Plan, If Enacted, Would Adversely Affect
Results of Operations."
MORTGAGE LENDING BUSINESS
The Taxable Subsidiary originated its first Mortgage Loans in April, 1996.
Since its inception, the Taxable Subsidiary's Mortgage Loan origination volume
has increased significantly. The following table describes the Taxable
Subsidiary's Mortgage Loan production volume by quarter since the third quarter
of 1996:
QUARTERLY MORTGAGE LOAN PRODUCTION
(dollars in thousands)
<TABLE>
<CAPTION>
WHOLESALE RETAIL CORRESPONDENT TOTAL
------------------ ------------------ ------------- ------------------
QUARTER ENDED PRIME SUBPRIME PRIME SUBPRIME SUBPRIME PRIME SUBPRIME
------------- ------- -------- ------- -------- -------- ------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
March 31, 1998.................................. $59,331 $56,564 $32,223 $1,170 $ 2,778 $91,555 $ 60,512
December 31, 1997............................... 46,008 68,480 34,628 3,816 63,132 80,636 135,428(1)
September 30, 1997.............................. 41,313 59,226 32,614 5,502 0 73,927 64,728
June 30, 1997................................... 25,716 27,439 26,811 4,784 0 52,527 32,223
March 31, 1997.................................. 33,513 12,456 19,913 2,068 0 53,426 14,524
December 31, 1996............................... 43,277 14,687 22,055 1,918 0 65,332 16,605
September 30, 1996.............................. 46,806 5,500 14,374 941 0 61,180 6,441
</TABLE>
- ---------------
(1) Includes $63.1 million of Subprime Mortgage Loans originated through the
correspondent channel, which production channel is expected to be fully
reactivated only after closing of the Offering.
The Taxable Subsidiary has demonstrated its ability to successfully expand
its mortgage lending operations while implementing policies and controls. The
Taxable Subsidiary's accomplishments to date include:
- Operating a wholesale channel which, as of March 31, 1998, consisted of
14 branch offices in 13 states that originated $146.6 million of Prime
Mortgage Loans and $167.6 million of Subprime Mortgage Loans for the
year ended December 31, 1997 ($59.3 million and $56.6 million,
respectively, for the quarter ended March 31, 1998);
- Developing and staffing a correspondent channel which produced $63.1
million of Subprime Mortgage Loans for the fourth quarter of 1997 and
$2.8 million of Subprime Mortgage Loans in the first quarter of 1998;
- Operating a retail channel which, as of March 31, 1998, consisted of two
branch offices (Salt Lake City, Utah and Las Vegas, Nevada) that
originated $114.0 million of Prime Mortgage Loans and $16.2 million of
Subprime Mortgage Loans for the year ended December 31, 1997 ($32.2
million and $1.2 million, respectively, for the quarter ended March 31,
1998);
- Becoming licensed to conduct mortgage lending in 27 states;
- Preparing policies and procedures for underwriting, selling and
brokering Mortgage Loans, quality control, and asset management;
- Obtaining $150.0 million in warehouse financing facilities from
ContiFinancial Corporation and Nomura Asset Capital Corporation;
- Establishing Mortgage Loan sales relationships with Mortgage Loan
investors;
- Creating its management information system to monitor and analyze
operations and financial performance; and
- Establishing a servicing relationship as the Company builds its own
servicing infrastructure.
58
<PAGE> 66
MARKETING AND PRODUCTION STRATEGY
GENERAL
The Taxable Subsidiary acquires or will acquire Mortgage Loans from four
sources: (i) its wholesale channel, through which Mortgage Loans are acquired
from a network of independent wholesale brokers, (ii) its correspondent channel,
through which closed Mortgage Loans are purchased from other lenders, (iii) its
retail channel, through which direct originations are obtained from its retail
branches, and (iv) to a lesser extent, its bulk acquisitions of Mortgage Loans
from other mortgage banks and financial institutions.
WHOLESALE CHANNEL
The wholesale channel, which originates Mortgage Loans through independent
loan brokers, accounted for $115.9 million, or 76.2%, of the Taxable
Subsidiary's Mortgage Loan production during the first quarter of 1998. As of
March 31, 1998, the wholesale channel originated Mortgage Loans through 14
branch offices located in Atlanta, Boca Raton, Denver, Green Bay, Honolulu,
Kansas City, Las Vegas, Newport Beach, Phoenix, Portland, Richmond, Sacramento,
Salt Lake City and Spokane. Such offices are owned by the Taxable Subsidiary and
are staffed with Taxable Subsidiary employees, generally between one and 15 loan
officers, zero to five underwriters and two to 20 support personnel.
Wholesale originations of Mortgage Loans involve a network of unaffiliated
mortgage brokers that will offer the Taxable Subsidiary's Mortgage Loan
products. Such mortgage brokers are generally unable or unwilling to acquire and
hold Mortgage Loans. Typically, either brokers do not have the capital necessary
to obtain warehousing facilities or they prefer or require the cash generated
from Mortgage Loan sales to sustain operations. The Taxable Subsidiary generally
acquires Mortgage Loans in the wholesale channel at a lower cost than
acquisitions of Mortgage Loans either through bulk purchases or purchases of
securities in the secondary mortgage market. During the 12 months preceding
March 31, 1998, the Taxable Subsidiary has purchased Mortgage Loans from more
than 600 mortgage brokers and banks on a non-exclusive basis.
The Taxable Subsidiary provides prompt, consistent service, which includes
(i) a quick response time in the Mortgage Loan purchase process as a result of
decentralized underwriting, (ii) direct and frequent contact with brokers
through a trained sales force, (iii) competitive pricing, and (iv) a variety of
pricing programs and Mortgage Loan products.
One of the most important factor in attracting and retaining Mortgage Loan
originations from independent brokers is an efficient Mortgage Loan processing
system. The Taxable Subsidiary staffs each wholesale branch with an experienced
underwriter. By locating underwriters in branch offices, the Taxable Subsidiary
avoids delays resulting from the need to ship the Mortgage Loan applications to
a central processing site, as is frequently the case with the Taxable
Subsidiary's competitors. The Taxable Subsidiary can generally underwrite and
approve wholesale Mortgage Loan purchases within 24 hours after receipt of a
completed file.
The Taxable Subsidiary trains its loan officers, account executives and
branch managers in its Mortgage Loan products and processes. Such personnel then
maintain regular contact with independent brokers through scheduled sales visits
and telephone calls. Regular and frequent contact with high-volume producers
results in greater broker loyalty and more consistent production.
The Company has a pricing model that takes into account changing market
conditions and is designed to allow the Company to purchase Mortgage Loans at
competitive prices that maintain adequate profit margins. After its election of
REIT status, the Company anticipates that it will offer more competitive pricing
relative to tax-paying competitors as a result of the elimination of Federal
income tax at the corporate level.
59
<PAGE> 67
The following table sets forth selected information relating to the Taxable
Subsidiary's wholesale Mortgage Loan originations during the periods shown:
<TABLE>
<CAPTION>
FOR THE QUARTER ENDED
----------------------------------------------------------------------------------------------
MARCH 31, DECEMBER 31, SEPTEMBER 30, JUNE 30, MARCH 31, DECEMBER 31, SEPTEMBER 30,
1998 1997 1997 1997 1997 1996 1996
--------- ------------ ------------- -------- --------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C> <C>
SUBPRIME:
Principal balance (in
thousands)......... $56,564 $68,480 $59,226 $27,439 $12,456 $14,687 $ 5,500
Average principal
balance per
Mortgage Loan (in
thousands)......... $ 100 $ 104 $ 111 $ 100 $ 100 $ 96 $ 98
Principal Balance:
Fixed-rate (in
thousands)...... $13,255 $18,079 $23,421 $10,677 $ 6,124 $ 8,162 $ 2,124
ARMs (in
thousands)...... $43,309 $50,401 $35,805 $16,762 $ 6,332 $ 6,525 $ 3,376
Combined weighted
average initial
loan-to-value
ratio.............. 79.67% 80.41% 79.24% 77.26% 79.13% 78.19% 79.03%
Percent of First Lien
Mortgage Loans..... 98.89% 99.11% 97.65% 97.24% 92.95% 94.04% 96.31%
Percent of Mortgage
Loans with prepay
protection......... 85.33% 93.07% 91.37% 79.24% 46.16% 37.18% 37.98%
Property securing
Mortgage Loans:
Owner occupied..... 91.48% 95.34% 96.55% 91.04% 99.36% 93.17% 97.51%
Non-owner
occupied........ 8.52% 4.66% 3.45% 8.96% 0.64% 6.83% 2.49%
PRIME:
Principal Balance (in
thousands)......... $59,331 $46,008 $41,313 $25,716 $33,513 $43,277 $46,806
</TABLE>
The Taxable Subsidiary initially intends to increase wholesale Mortgage
Loan production through expanded marketing efforts by existing branches. Such
marketing efforts are intended to obtain greater percentages of production by
independent brokers who already sell to the Taxable Subsidiary. The Taxable
Subsidiary intends to continue to increase the percentage of Subprime Mortgage
Loans originated through its wholesale channel. The Company also intends to
identify new areas of the United States within which to establish wholesale
branches, if such areas are generating significant Subprime Mortgage Loan
production.
CORRESPONDENT LENDING
In addition to the wholesale and retail operations, the Taxable Subsdiary
has formed a correspondent lending channel which is specifically directed at the
acquisition of Subprime Mortgage Loans. The correspondent lending channel
acquires closed Subprime Mortgage Loans through a national network of approved
Mortgage Loan originators ("Correspondents") that fund and close each Subprime
Mortgage Loan using their own funds and, subsequently, sell the Mortgage Loans
to the Taxable Subsidiary.
Correspondent Lending Objective. The goal of the correspondent lending
channel is to expand Subprime Mortgage Loan production while maintaining the
comprehensive quality control approach employed by the wholesale and retail
channels of the Taxable Subsidiary. Correspondents will originate Subprime
Mortgage Loans to underwriting guidelines prepared or approved by the credit
risk personnel of the Company and administered by the Taxable Subsidiary. In
addition, the correspondent lending channel provides approved
60
<PAGE> 68
Correspondents with the Taxable Subsidiary's operational guidelines to control
pricing, delivery and funding of Subprime Mortgage Loans into the program.
The correspondent lending channel will purchase Subprime Mortgage Loans
from mortgage bankers, commercial bankers and savings institutions on a
servicing released basis. Each Correspondent will maintain certain eligibility
criteria such as net worth requirements, an unqualified auditor opinion from a
nationally recognized or Taxable Subsidiary-approved accounting firm, mortgage
origination experience, quality control procedures and warehouse line
capability, among other requirements. Also, Correspondents make certain
representations and warranties with respect to, among other things, the Subprime
Mortgage Loans, the financial condition of the borrowers, the adequacy of
disclosure, first payment default and premium recapture.
Sales and delivery of Subprime Mortgage Loans to the correspondent lending
channel will be conducted in two ways: (i) on a best efforts, loan-by-loan flow
basis and (ii) bulk purchases. For flow delivery, daily pricing is provided by
the secondary marketing department of the Taxable Subsidiary and the
Correspondent may lock in Mortgage Loan purchase prices through the toll free
commitment desk. Subprime Mortgage Loans identified for purchase by the Taxable
Subsidiary are either re-underwritten by the Taxable Subsidiary or by
independent contractors engaged by the Taxable Subsidiary, or subject to a
post-purchase quality control audit to assure guideline and documentation
conformity. This flow method of acquisition is a major target for the Taxable
Subsidiary primarily because of the lower cost of acquisition. Alternatively,
the Taxable Subsidiary intends to acquire Subprime Mortgage Loans from these and
other Correspondents in bulk purchases that range from $1.0 million to $50.0
million in principal amount. Depending on Mortgage Loan and pool
characteristics, such as weighted average coupon ("WAC"), weighted average
loan-to-value ("WLTV"), weighted average maturity ("WAM"), prepayment penalties
and pool size, the premiums paid for bulk purchase can range between 50 to 200
basis points above those paid on a flow basis. Despite the higher cost, bulk
acquisitions enable economies-of-scale and may provide the Taxable Subsidiary
with market arbitrage opportunities.
Initial Correspondent Platform. In October, 1997, the Taxable Subsidiary
entered into a letter agreement with Nomura Asset Capital Corporation ("Nomura")
to acquire from Nomura Subprime Mortgage Loans and certain non-binding
Correspondent relationships between Nomura and several Correspondents through
which Nomura has actively purchased Subprime Mortgage Loans since 1994. Through
October, 1997, Nomura has purchased over $1.75 billion of Subprime Mortgage
Loans through its Subprime Mortgage Loan conduit operations. The letter
agreement required the Taxable Subsidiary to purchase certain Subprime Mortgage
Loans directly from Nomura, which Subprime Mortgage Loans the Taxable Subsidiary
acquired during the fourth quarter of 1997. The letter agreement also required
Nomura to introduce the Taxable Subsidiary to certain of the Correspondents
formerly selling Subprime Mortgage Loans to Nomura. Such relationships are not
contractually binding on the Correspondents, who remain free to sell to others.
However, the Taxable Subsidiary commenced purchasing Subprime Mortgage Loans
from many of such Correspondents in 1997. The Taxable Subsidiary acquired $2.8
million of Subprime Mortgage Loans through such Correspondents during the first
quarter of 1998.
The Taxable Subsidiary pre-paid Nomura an initial fee of $225,000 which
represented a fee of 25 basis points for the first $90 million of Mortgage Loans
to be acquired from Nomura Correspondent relationships. To the extent that the
Taxable Subsidiary purchases more than $90.0 million of Subprime Mortgage Loans
from such correspondents before June 30, 1998, the Taxable Subsidiary has agreed
to pay Nomura a fee equal to 25 basis points of the principal amount of such
purchases. The Company does not expect to acquire any additional Mortgage Loans
from such Correspondents until after June 30, 1998 and, therefore, no additional
fees will be paid to Nomura under this letter agreement. In connection
therewith, Nomura also provides to the Taxable Subsidiary a $100.0 million
reverse repurchase facility for a period of one year. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources." The Taxable Subsidiary has also
agreed to allow Nomura to participate as co-underwriter in any public offering
of securities backed by fixed-rate Subprime Mortgage Loans financed through such
facility during the term of the financing facility.
61
<PAGE> 69
The Taxable Subsidiary views the assumption of the Nomura correspondent
relationships and subsequent pipeline as a platform to build and develop the
correspondent production necessary to implement the Company's Mortgage Asset
portfolio strategy. The Taxable Subsidiary intends to expand the correspondent
lending channel by developing relationships with additional correspondents who
can accumulate and sell pools of Mortgage Loans in sizes ranging from $500,000
to $5.0 million. The Taxable Subsidiary believes that such relationships can
provide attractive Subprime Mortgage Loans at prices that meet the Company's
business plan objectives. However, Given the capital intensive nature of
correspondent lending, the Taxable Subsidiary will not fully utilize its
correspondent lending operations until after the closing of this Offering.
The following table sets forth selected information relating to the Taxable
Subsidiary's correspondent Mortgage Loan originations during the period shown:
<TABLE>
<CAPTION>
FOR THE QUARTER ENDED
-------------------------
MARCH 31, DECEMBER 31,
1998 1997
--------- ------------
<S> <C> <C>
SUBPRIME:
Principal balance (in thousands)..................... $ 2,778 $63,132
Average principal balance per Mortgage Loan (in
thousands)......................................... $ 139 $ 114
Principal Balance:
Fixed-rate (in thousands).......................... $ 589 $20,259
ARMs (in thousands)................................ $ 2,189 $42,873
Combined weighted average initial LTV ratio.......... 81.53% 76.78%
Percent of First Lien Mortgage Loans................. 100.00% 96.30%
Percent of Mortgage Loans with prepay protection..... 90.41% 22.80%
Property securing Mortgage Loans:
Owner occupied..................................... 92.07% 96.04%
Non-owner occupied................................. 7.93% 3.96%
PRIME:
Principal balance (in thousands)..................... $ 0 $ 0
</TABLE>
The Taxable Subsidiary is preparing to manage the increased Subprime
Mortgage Loan volume that is anticipated to be generated by the correspondent
lending channel upon the closing of the Offering. The Taxable Subsidiary has
entered into contractual relationships with industry-recognized vendors who will
provide operational services to support the additional Mortgage Loan production.
The Taxable Subsidiary will contract with a third-party due diligence
underwriter and a bonded custodian for the review of legal documentation. The
Taxable Subsidiary will also contract with a third-party servicer to service the
increased volume of Mortgage Loans expected to be acquired through the
correspondent channel.
RETAIL CHANNEL
The retail channel, which originates primarily Prime Mortgage Loans through
the direct solicitation of borrowers, accounted for $33.4 million, or 22.0%, of
the Taxable Subsidiary's Mortgage Loan production during the first quarter of
1998. As of March 31, 1998, the retail channel originated Mortgage Loans through
branch offices located in Salt Lake City, Las Vegas and Phoenix. Such offices
are staffed with five to 10 loan officers, one underwriter and five to seven
support personnel. The retail channel includes traditional marketing activities
conducted by retail loan officers, who seek to identify potential borrowers
through referral sources and individual sales efforts, as well as high-volume
targeted direct mail and telephone solicitation. By creating a direct
relationship with the borrower, retail lending generally creates a more
sustainable Mortgage Loan origination franchise and provides the Taxable
Subsidiary with greater control over the lending process. For Mortgage Loans
originated in the retail channel, the Taxable Subsidiary also receives the
origination fees paid by the borrower which offset the higher costs of retail
lending and may contribute to increased profitability. In addition, the Company
believes that the Taxable Subsidiary is able to maintain the highest quality
control over Mortgage Loans originated through its retail branches.
62
<PAGE> 70
The following table sets forth selected information relating to the Taxable
Subsidiary's retail Mortgage Loan originations during the periods shown:
<TABLE>
<CAPTION>
FOR THE QUARTER ENDED
----------------------------------------------------------------------------------------------
MARCH 31, DECEMBER 31, SEPTEMBER 30, JUNE 30, MARCH 31, DECEMBER 31, SEPTEMBER 30,
1998 1997 1997 1997 1997 1996 1996
--------- ------------ ------------- -------- --------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C> <C>
SUBPRIME:
Principal balance (in
thousands)......... $ 1,170 $ 3,816 $ 5,502 $ 4,784 $ 2,068 $ 1,918 $ 941
Average principal
balance per
Mortgage Loan (in
thousands)......... $ 117 $ 89 $ 79 $ 71 $ 52 $ 68 $ 157
Principal Balance:
Fixed-rate (in
thousands)...... $ 122 $ 1,496 $ 2,490 $ 2,134 $ 1,447 $ 1,232 $ 434
ARMs (in
thousands)...... $ 1,048 $ 2,320 $ 3,012 $ 2,650 $ 621 $ 686 $ 507
Combined weighted
average initial
LTV................ 70.46% 75.88% 74.44% 73.40% 73.17% 75.16% 73.75%
Percent of First Lien
Mortgage Loans..... 89.59% 82.39% 79.02% 74.34% 62.66% 80.01% 89.58%
Percent of Mortgage
Loans with prepay
protection......... 30.05% 57.53% 64.09% 64.72% 30.05% 22.29% 10.12%
Property securing
Mortgage Loans:
Owner occupied..... 87.78% 95.34% 89.42% 98.44% 100.00% 100.00% 100.00%
Non-owner
occupied........ 12.22% 4.78% 10.58% 1.56% 0.00% 0.00% 0.00%
PRIME:
Principal Balance (in
thousands)......... $32,223 $34,628 $32,614 $26,811 $19,913 $22,055 $14,374
</TABLE>
The Company believes that targeted direct mail and telephone campaigns
offer opportunities to increase Subprime Mortgage Loan originations within the
Taxable Subsidiary's existing retail branch offices. The Taxable Subsidiary
intends to staff each retail office with a minimum of two Subprime Mortgage Loan
officers who will utilize direct mail and telephone solicitation methods to
generate Subprime Mortgage Loans. The Taxable Subsidiary intends to focus on
growing production within its existing retail branch offices utilizing such
origination methods rather than opening new retail branch offices in the
immediate future.
BULK PURCHASES
The Taxable Subsidiary may initially acquire a portion of its Mortgage
Asset portfolio through bulk acquisitions due to the fact that this channel
generally allows the Taxable Subsidiary the opportunity to invest the net
proceeds of the Offering more quickly than the other channels. Bulk purchases of
Mortgage Loan pools ranging from $2.0 million to $50.0 million may be acquired
from large originators or from mortgage conduits. Bulk acquisitions of Mortgage
Loans will be conducted by the same personnel that manage the correspondent
channel. Although similar in process, the bulk acquisition process differs from
the correspondent channel in that Correspondents have generally established
regular selling relationships with the Taxable Subsidiary and may even have
Taxable Subsidiary underwriting personnel on the Correspondent's premises. Bulk
sellers have no such continuing relationship. This method of acquiring Mortgage
Loans provides the lowest profit margin to the Taxable Subsidiary. During
periods in which access to growth capital is limited, the Taxable Subsidiary
will tend to reduce its bulk purchases of Mortgage Loans in order to allow for
greater wholesale, retail and
63
<PAGE> 71
correspondent volume to be acquired. Through March 31, 1998, the Taxable
Subsidiary has made two bulk acquisitions in an aggregate amount of $69.1
million.
MORTGAGE LOAN PRODUCTS
The Taxable Subsidiary offers a broad variety of Mortgage Loan products
through its wholesale, retail and correspondent channels. Such products include
both Subprime Mortgage Loans for long-term investment by the Taxable Subsidiary
and Prime Mortgage Loans held for sale to investors. The Taxable Subsidiary's
Mortgage Loan products currently include:
- Six month LIBOR indexed ARMs;
- Two and three year LIBOR indexed ARMs;
- One, three, five and seven year CMT indexed ARMs;
- 15, 20 and 30 year fixed-rate First and Second Lien Mortgage Loans;
- 30 year amortizing balloon Mortgage Loans; and
- Jumbo fixed-rate and adjustable-rate Mortgage Loans.
PRICING OF MORTGAGE LOANS
The Company will set purchase prices for the Mortgage Loans it acquires
from the mortgage lending operations of the Taxable Subsidiary based on
prevailing market conditions. Different prices will be established for the
various types of Mortgage Loans, commitment periods and types of commitments
(mandatory or best efforts). The Taxable Subsidiary's standard pricing is based
on the anticipated price it will receive upon sale or financing of the Mortgage
Loans, the anticipated interest spread realized during the accumulation period,
the targeted profit margin and the anticipated issuance, credit enhancement and
ongoing administrative costs associated with such sale or financing.
Alternatively, such pricing may be based on the anticipated cost of financing
such Mortgage Loans to maturity plus the anticipated associated costs. The
Taxable Subsidiary is able to acquire Subprime Mortgage Loans at attractive
prices due to the high level of service delivered to Mortgage Loan brokers,
borrowers and Correspondents.
Following the issuance of a specific pricing commitment, the Company will
be subject to the risk of interest rate fluctuations and will enter into hedging
transactions to diminish such risk. Hedging transactions may include mandatory
or optional forward sales of Mortgage Loans or Mortgage Securities, mandatory or
optional sales of futures and other financial futures transactions. The nature
and quantity of hedging transactions will be determined by the management of the
Company based on various factors, including market conditions and the expected
volume of Mortgage Loan purchases. See "-- Interest Rate Risk Management" and
"Risk Factors -- Interest Rate Fluctuations May Adversely Affect Operations and
Net Interest Income -- The Company Has No Specific Hedging Policies and Failure
to Appropriately Hedge May Adversely Affect Results of Operations" and
"-- Hedging Transactions Limit Gains and May Increase Exposure to Losses."
STATE LICENSES
The Taxable Subsidiary has applied for and is licensed to conduct mortgage
banking operations in 31 states (including certain states which do not have
formal licensing requirements or in which the Taxable Subsidiary is exempt from
registration): Arizona, Arkansas, California, Colorado, Florida, Georgia,
Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Minnesota, Missouri, Montana,
Nebraska, Nevada, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, South
Carolina, South Dakota (wholesale only), Tennessee, Texas, Utah, Virginia,
Washington, Wisconsin and Wyoming. Registration is pending in Illinois and
Michigan.
64
<PAGE> 72
UNDERWRITING AND QUALITY CONTROL STRATEGIES
UNDERWRITING GUIDELINES
The Taxable Subsidiary has created a comprehensive underwriting manual for
use by its Correspondents as well as its internal staff. Generally, the
underwriting standards have been prepared in accordance with the financing
requirements of the rating agencies under the guidance of the Chief Credit
Officer. The Taxable Subsidiary's quality assurance guidelines provide for
various tests of the Mortgage Loans to be performed both before and after
purchase.
The Taxable Subsidiary underwrites all Mortgage Loans originated through
its retail and wholesale channels with a staff of in-house underwriters. The
Taxable Subsidiary staffs each office with a senior underwriter with a minimum
of five years experience. In larger offices, the Taxable Subsidiary may hire
junior underwriters with more limited experience to work directly with the
senior underwriters. Upon being hired by the Taxable Subsidiary, the underwriter
undergoes an intensive three day training of the Taxable Subsidiary's
underwriting policies and procedures at the Taxable Subsidiary's headquarters in
Salt Lake City. After the underwriter is trained to the satisfaction of the
Chief Credit Officer, the new underwriter is then placed at a retail or
wholesale office. New underwriters are subject to a 30-day probation, during
which their work is more closely scrutinized by the Taxable Subsidiary.
65
<PAGE> 73
The following is a general guideline of the eligibility criteria expected
to be adopted by the Taxable Subsidiary after the closing of the Offering:
UNDERWRITING GUIDELINES (1)
FIRST LIEN MORTGAGE LOANS
<TABLE>
<CAPTION>
A+ RISK (2) A RISK A- RISK B RISK C RISK C- RISK
---------------- ---------------- ---------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C> <C> <C>
Existing mortgage No 30-day late Maximum one Maximum two Maximum three Maximum four Maximum of two
history............ payments within 30-day late 30-day late 30-day late 30-day and two 90-day late
last 12 months; payment and no payments and no payments and one 60-day late payments and one
one 30-day late 60-day late 60-day late 60-day late payments and 120-day late
payment in last payments within payments within payment within maximum of one payment, there
24 months; must last 12 months; last 12 months; last 12 months; 90-day late may be a current
be current at must be current not required to not required to payment within notice of
application at application be current at be current at last 12 months; default; not
time. time. application application not required to required to be
time. time. be current at current at
application application
time. time.
Other credit(3)...... No open No open Minor derogatory Prior defaults Significant Significant
collections collection items allowed; acceptable; not prior defaults defaults
accounts or accounts or not more than more than $1,500 acceptable; acceptable; open
charge-offs charge-offs. $500 in open in open generally, not charge-offs or
within last 12 Generally must collection collection more than $2,500 collection
months. be paid through accounts or accounts or in open amounts may
funding not charge-offs open charge-offs open collection remain open
exceeding $300. after funding. after funding. accounts or after funding.
charge-offs open
after funding.
Bankruptcy filings... Generally, no Chapter 7 must Chapter 7 must Generally, no Generally, no Bankruptcy,
bankruptcy or have been have been bankruptcy or bankruptcy or notice of sale
notice of discharged at discharged at notice of notice of filings, notice
default filings least two years least two years default filings default filings of default
in last three prior; Chapter prior; Chapter in last two in last 18 filing or
years. 13 must have 13 must have years. Chapter months. One year foreclosure
been discharged been discharged 13 allowed at seasoning for permitted on a
at least one at least one least one year Chapter 13 with case by case
year prior. year prior. prior with reestablished basis.
reestablished credit. Generally, one
credit. year seasoning
for Chapter 7
and notices of
default. No
seasoning for
Chapter 13 paid
at funding.
Debt service to 45% 50% 50% or less 50% or less 55% or less 60% or less
income ratio.......
Maximum loan-
to-value ratio: (4)
Owner occupied: 95% 90% 90% 85% 80% 70%
single family......
Owner occupied: 90% 90% 90% 85% 80% 70%
condo/two-to-four
unit...............
Non-owner 90% 85% 80% 75% 70% 65%
occupied...........
</TABLE>
- ---------------
(1) The letter grades applied to each risk classification reflect the Taxable
Subsidiary's internal standards and do not necessarily correspond to the
classifications used by other mortgage lenders. "LTV" means loan-to-value
ratio. With respect to "A" through "C" credit grades, the combined LTV of
all Mortgage Loans secured by any property is permitted to be up to 100%,
with the first lien Mortgage Loan at the percentages indicated.
(2) On A+ product Private Mortgage Insurance ("PMI") is obtained on LTV's above
90% with 30% coverage; and 25% coverage from 85.01 to 90%; no PMI is
required for 85% LTV or less.
(3) Liens, judgments, collections and other garnishments not affecting title are
not considered.
(4) The maximum LTV set forth in the table is for borrowers providing full
documentation. The LTV is reduced five percent for stated and limited
documentation and 10% for non-owner applications.
66
<PAGE> 74
The following table sets forth information concerning the Taxable
Subsidiary's principal balance of fixed-rate and adjustable-rate Mortgage Loan
originations by borrower risk classification for the periods shown:
MORTGAGE LOAN PRODUCTION BY BORROWER RISK CLASSIFICATION
<TABLE>
<CAPTION>
FOR THE FOR THE
YEAR ENDED PERIOD ENDED
MARCH 31, MARCH 31, DECEMBER 31, DECEMBER 31,
1998 1997 1997 1996(1)
--------- ------------ ------------ -------------
<S> <C> <C> <C> <C>
PRIME:
Percent of total purchases and origination.... 60.21% 78.63% 51.27% 86.68%
Combined weighted average initial
loan-to-value ratio........................ 77.62% 79.53% 79.28% 79.34%
Weighted average interest rate:
Fixed-rate................................. 7.41% 8.13% 7.97% 8.32%
ARMs....................................... 6.01% 6.74% 6.64% 6.94%
Margin-ARMs................................ 2.76% 2.75% 2.78% 1.00%
SUBPRIME:
"A"-Risk Grade:
Percent of total purchases and origination.... 26.95% 12.71% 29.36% 9.16%
Combined weighted average initial
loan-to-value ratio........................ 80.46% 82.24% 80.12% 78.40%
Weighted average interest rate:
Fixed-rate................................. 10.46% 11.06% 10.54% 10.96%
ARMs....................................... 9.74% 9.62% 9.90% 9.29%
Margin-ARMs................................ 5.90% 5.90% 6.25% 5.52%
"B" Risk Grade:
Percent of total purchases and origination.... 7.35% 6.32% 7.48% 2.95%
Combined weighted average initial
loan-to-value ratio........................ 79.11% 75.14% 75.30% 78.19%
Weighted average interest rate:
Fixed-rate................................. 11.16% 10.95% 11.02% 11.19%
ARMs....................................... 10.36% 9.87% 10.41% 9.74%
Margin-ARMs................................ 6.63% 6.48% 6.67% 6.32%
"C" Risk Grade:
Percent of total purchases and origination.... 3.01% 1.97% 2.73% 0.54%
Combined weighted average initial
loan-to-value ratio........................ 74.48% 72.18% 71.20% 77.31%
Weighted average interest rate:
Fixed-rate................................. 12.32% 12.04% 11.55% 12.12%
ARMs....................................... 11.14% 10.29% 11.14% 10.52%
Margin-ARMs................................ 6.85% 6.37% 6.94% 6.66%
"C"- Risk Grade:
Percent of total purchases and origination.... 0.32% 0.43% 0.57% 0.08%
Combined weighted average initial
loan-to-value ratio........................ 66.24% 59.55% 62.54% 61.62%
Weighted average interest rate:
Fixed-rate................................. 0% 14.53% 13.16% 13.86%
ARMs....................................... 12.28% 13.50% 12.06% n/a
Margin-ARMs................................ 7.18% 8.88% 7.03% n/a
Unclassified (2)................................ 2.16% 0.00% 8.59% 0.59%
</TABLE>
- ---------------
(1) For the period from February, 1996 (inception) to December 31, 1996.
(2) Includes certain Mortgage Loans which the Taxable Subsidiary sold to
third-party investors without determining the credit classification.
GEOGRAPHIC DIVERSIFICATION
Although the Taxable Subsidiary does not have specific policies or targets
regarding geographic diversification of its Mortgage Loans, close attention will
be paid to geographic diversification in managing the
67
<PAGE> 75
Taxable Subsidiary's credit risk. While there will initially be some geographic
concentration in Mortgage Loans originated though the correspondent acquisition
channel, over time the Taxable Subsidiary plans to diversify its credit risk by
selecting target markets through both the wholesale and correspondent channels.
The Taxable Subsidiary believes that one of the best tools for managing credit
risk is to diversify the markets in which the Taxable Subsidiary originates and
purchases Mortgage Loans.
Currently, the Mortgage Loans originated by the Taxable Subsidiary are
geographically concentrated in Florida, Utah, Georgia and California. However,
as newly established retail and wholesale branches increase production,
geographic diversification will naturally occur. The following table sets forth
aggregate dollar amounts (in thousands) and the percentage of all Subprime
Mortgage Loans originated or purchased by the Taxable Subsidiary by state for
the periods shown:
GEOGRAPHIC DISTRIBUTION OF SUBPRIME MORTGAGE LOANS
(Dollars in thousands)
<TABLE>
<CAPTION>
FOR THE FOR THE
YEAR ENDED YEAR ENDED
MARCH 31, MARCH 31, DECEMBER 31, DECEMBER 31,
1998 1997 1997 1996(1)
--------- --------- ------------ ------------
<S> <C> <C> <C> <C>
Arizona..................................................... $ 3,125 $ 948 $ 5,634 $ 260
Percent of total for period............................... 5.16% 6.53% 2.28% 1.13%
California.................................................. 8,493 585 27,970 0
Percent of total for period............................... 14.04% 4.03% 11.33% 0.00%
Colorado.................................................... 1,892 2,158 13,695 2,817
Percent of total for period............................... 3.13% 14.86% 5.55% 12.22%
Florida..................................................... 19,921 0 56,779 0
Percent of total for period............................... 32.92% 0.00% 23.00% 0.00%
Georgia..................................................... 5,704 0 28,794 0
Percent of total for period............................... 9.43% 0.00% 11.66% 0.00%
Hawaii...................................................... 1,495 0 4,239 0
Percent of total for period............................... 2.47% 0.00% 1.72% 0.00%
Idaho....................................................... 854 317 2,277 460
Percent of total for period............................... 1.41% 2.18% 0.92% 2.00%
Illinois.................................................... 144 0 5,750 0
Percent of total for period............................... 0.24% 0.00% 2.33% 0.00%
Kansas...................................................... 296 80 1,642 0
Percent of total for period............................... 0.49% 0.55% 0.67% 0.00%
Massachusetts............................................... 0 0 2,213 0
Percent of total for period............................... 0.00% 0.00% 0.90% 0.00%
Montana..................................................... 0 145 1,003 279
Percent of total for period............................... 0.00% 1.00% 0.41% 1.21%
New York.................................................... 0 0 12,393 0
Percent of total for period............................... 0.00% 0.00% 5.02% 0.00
Nevada...................................................... 1,735 791 8,904 759
Percent of total for period............................... 2.87% 5.45% 3.61% 3.29%
Oregon...................................................... 1,968 358 7,041 80
Percent of total for period............................... 3.25% 2.46% 2.85% 0.35%
Utah........................................................ 10,773 8,639 44,244 17,584
Percent of total for period............................... 17.80% 59.48% 17.92% 76.30%
Virginia.................................................... 458 0 2,159 0
Percent of total for period............................... 0.76% 0.00% 0.87% 0.00%
Washington.................................................. 1,146 308 5,946 709
Percent of total for period............................... 1.89% 2.12% 2.41% 3.08%
Wisconsin................................................... 910 0 4,713 0
Percent of total for period............................... 1.50% 0.00% 1.91% 0.00%
Other States Combined (10 states)........................... 1,596 195 11,507 98
Percent of total for period............................... 2.64% 1.34% 4.66% 0.43%
------- ------- -------- -------
Total............................................... $60,512 $14,524 $246,904 $23,046
======= ======= ======== =======
</TABLE>
COLLATERAL APPRAISAL
The Taxable Subsidiary's underwriting standards are also intended to assess
the value of the mortgaged property and to evaluate the adequacy of such
property as collateral for the Mortgage Loan. All of the
68
<PAGE> 76
Mortgage Loans originated by the Taxable Subsidiary's wholesale and retail
channels, and purchased by the Taxable Subsidiary through Correspondents will be
appraised by qualified independent appraisers. Such appraisers inspect and
appraise the subject property and verify that such property is in acceptable
condition. Following each appraisal, the appraiser prepares a report which
includes a market value analysis based on recent sales of comparable homes in
the area, and when deemed appropriate, replacement cost analysis based on the
current cost of constructing a similar home. The Taxable Subsidiary intends to
use only Financial Institutions Reform, Recovery and Enforcement Act of 1989
("FIRREA") licensed appraisers as part of its approval process. All appraisals
are required to conform to the Uniform Standards of Professional Appraisal
Practice adopted by the Appraisal Standards Board of the Appraisal Foundation
and must be on forms acceptable to FNMA and FHLMC. It is anticipated that
substantially all Mortgage Loans purchased through Correspondents will be
subject to a second full appraisal or appraisal review prior to purchase by the
Taxable Subsidiary. The Taxable Subsidiary has a formal review process for all
appraisers, verifies licenses annually and conducts new appraisals under its
Quality Control Program.
QUALITY CONTROL PROGRAM
The Taxable Subsidiary has an extensive, systemized quality control and
audit plan currently in place. Each month, the Taxable Subsidiary randomly
selects 10% to 15% of all Mortgage Loans, including 10% from each branch and
product type (with at least one per month from each) to review. Representations
and information from each Mortgage Loan are verified against a checklist of over
60 items. Among such verifications are completeness of the Mortgage Loan
documents, additional scrutiny of the borrower's credit report, employment and
salary re-verifications (or tax return scrutiny if the borrower is
self-employed), closer scrutiny of the appraisal, general review of the legal
and closing documents, verification of the owner occupancy status (if
applicable) and a re-evaluation of the creditworthiness of the borrower. Each
discrepancy is given a grade based on its severity, from inadvertent,
non-impairing errors to a guideline violation requiring immediate action against
the borrower and the broker. Additionally, 10% of all Mortgage Loans selected
for review each month are further selected for closer scrutiny, including a new
appraisal and a new credit report ordered from different agencies. To date, all
quality control has been performed by the Taxable Subsidiary itself; however, it
may outsource some or all of these functions in the future. The Taxable
Subsidiary will not, however, outsource any pre-closing quality control.
CORRESPONDENT ELIGIBILITY REQUIREMENTS
Closed Mortgage Loans purchased by the Taxable Subsidiary will be
originated by various mortgage bankers and other mortgage lenders.
Correspondents are required to meet certain performance requirements established
by the Taxable Subsidiary before they are eligible to participate in the Taxable
Subsidiary's Correspondent program and must submit to periodic reviews by the
Taxable Subsidiary to ensure continued compliance with these requirements. The
Taxable Subsidiary's current criteria for Correspondent participation generally
include a tangible net worth of at least $400,000. In addition, Correspondents
are required to have comprehensive loan origination quality control procedures
and must be approved and in good standing with HUD, among other criteria. Each
Correspondent is expected to enter into an agreement that provides for recourse
by the Taxable Subsidiary against the Correspondent in the event of any material
breach of a representation or warranty made by the Correspondent with respect to
Mortgage Loans sold to the Taxable Subsidiary or any fraud or misrepresentation
during the Mortgage Loan origination process. There is no assurance that such
requirements will be applicable in the future.
FINANCING LOANS HELD FOR SALE AND INVESTMENT PRIOR TO STRUCTURED DEBT FINANCING
The Taxable Subsidiary will finance its Mortgage Loan originations and
purchases through interim financing facilities such as bank warehouse credit
lines and reverse repurchase agreements. As of March 31, 1998, the Taxable
Subsidiary had committed warehouse lines and reverse repurchase facilities in
place totaling $150.0 million with Nomura Asset Capital Corporation and
ContiFinancial Corporation. A reverse repurchase agreement is a borrowing device
evidenced by an agreement to sell securities or other assets to a third-party
and a simultaneous agreement to repurchase them at a specified future date and
price, with the price
69
<PAGE> 77
differential constituting interest on the borrowing. The Taxable Subsidiary is
currently in negotiations with dealer firms for additional reverse repurchase
facilities to fund production prior to long-term financing. However, no such
facility is in place.
The Taxable Subsidiary's Subprime Mortgage Loan lending operation will be a
capital intensive business. Depending on the type of Mortgage Loan product
originated, the production channel and the financing source, the amount of
capital required as a percentage of the balance of Mortgage Loans originated may
range from two percent to eight percent. See "-- Capital and Liquidity
Management -- Capital Allocation Guidelines." For illustration purposes only, a
hypothetical monthly Mortgage Loan volume of $25.0 million would equate to a
capital requirement of $500,000 to $1.75 million per month, respectively and a
hypothetical monthly volume of $50.0 million would equate to $1.0 to $3.5
million per month, respectively. Due to the capital intensive nature of this
business, the Company's Subprime Mortgage Loan lending will be operated through
the Taxable Subsidiary. Operating though the Taxable Subsidiary would give the
Company the flexibility to sell its Mortgage Loan production as whole loans or
in the form of pass-through Mortgage Securities in the event it encountered
restrictions in accessing the capital markets in order to fund its Subprime
Mortgage Loan lending operation. See " -- Industry Developments" and "Risk
Factors -- President's 1999 Budget Plan, If Enacted, Would Adversely Affect
Results of Operations." The Company intends to raise the required capital in
order to implement its preferred strategy of realizing the income from
adjustable Subprime Mortgage Loans through net interest income. The Company
intends to sell certain Mortgage Loans, which are expected to be Prime and
fixed-rate Subprime Mortgage Loans.
LOAN SALES
The Taxable Subsidiary has historically followed a strategy of selling for
cash gains all of its Mortgage Loan originations and purchases through Mortgage
Loan sales in which the Taxable Subsidiary disposes of its entire economic
interest in the Mortgage Loans (including servicing rights) for a cash price
that represents a premium over the principal balance of the Mortgage Loans sold.
See "-- Industry Developments" and "Risk Factors -- President's 1999 Budget
Plan, If Enacted, Would Adversely Affect Results of Operations." For the fiscal
year ended December 31, 1997, the Taxable Subsidiary sold $477.1 million of
Mortgage Loans through whole Mortgage Loan sales transactions. The Taxable
Subsidiary did not sell any Mortgage Loans through securitization during this
period; however, substantially all of the Mortgage Loans sold during this period
were ultimately securitized by the purchasers thereof.
The Company plans to build its Mortgage Asset investment portfolio by
retaining Subprime Mortgage Loans originated and purchased by its mortgage
operations. Prime Mortgage Loans, certain Subprime Mortgage Loans and Second
Lien Mortgage Loans originated and purchased by the Taxable Subsidiary, will,
however, be sold for cash gains to various mortgage investors. The sale of these
Mortgage Loans is expected to generate current income and cash flow to fund in
part the mortgage lending operations.
The Taxable Subsidiary seeks to maximize its revenue on whole Mortgage Loan
sales by closely monitoring institutional purchasers' requirements and focusing
on originating or purchasing the types of Mortgage Loans that meet those
requirements and for which institutional purchasers tend to pay higher premiums.
Whole Mortgage Loan sales are made on a non-recourse basis pursuant to a
purchase agreement containing customary representations and warranties by the
Taxable Subsidiary based upon the underwriting criteria applied by the Taxable
Subsidiary and the origination process. The Taxable Subsidiary, therefore, may
be required to repurchase or substitute Mortgage Loans in the event of a breach
of its representations and warranties. In addition, the Company sometimes
commits to repurchase or substitute a Mortgage Loan if a payment default occurs
within the first month following the date the Mortgage Loan is funded, unless
other arrangements are made between the Taxable Subsidiary and the purchaser.
The Taxable Subsidiary is also required in some cases to repurchase or
substitute a Mortgage Loan if the Mortgage Loan documentation is alleged to
contain fraudulent misrepresentations made by the borrower.
70
<PAGE> 78
INFORMATION MANAGEMENT SYSTEMS
The Taxable Subsidiary has established, and continues to enhance,
information gathering and reporting systems to monitor and analyze virtually
every aspect of the mortgage lending business. The Taxable Subsidiary employs a
combination of commercially available and internally developed software to
process and track each Mortgage Loan in the Taxable Subsidiary's system from
application to closing and sale.
Management reviews Mortgage Loan production data on a daily basis. The
Taxable Subsidiary's systems provide management with detailed reports on all
material aspects of the business, including Mortgage Loan processing,
underwriting, funding, secondary marketing and accounting. Such reports include
Mortgage Loan production to date (i) by branch, (ii) by loan type, (iii) by
geographic location of the property, (iv) by pre-payment penalty, and (v) by
LTV.
The Management Information Systems Department is structured into two teams:
Hardware/Software Support and Development. The Hardware/Software Support team
has built the client server network operating on a Windows NT platform. The
backbone of the Taxable Subsidiary information system is a wide area network
("WAN") employing high speed lines to each of its retail and wholesale branch
offices, with the exception of the Hawaii branch which connects to the WAN via
the internet. In addition, construction of a Taxable Subsidiary intranet site is
underway. The intranet site is expected to permit video-teleconferencing between
all Taxable Subsidiary sites, enabling face-to-face Company meetings and
on-going procedural training, and will enable the Taxable Subsidiary's
underwriting and other manual guidelines to be available on-line, with
instantaneous updates as management refines or changes any provision.
The development team has focused on building a Microsoft-standard network
of software solutions. The Taxable Subsidiary's accounting system, Accuity,
built by State of the Art Software, allows management to generate a vast number
of reports focusing on: (i) costs of origination or acquisition of Mortgage
Loans; (ii) pricing and timing of secondary sales by investor, loan type and
other factors; (iii) funding and usage of warehouse lines; and (iv) monthly and
year-to-date accounting statements. The integration of the management
information system is ongoing and is expected to link all of the Mortgage Loan
production and processing to both treasury and secondary marketing functions,
permitting management to plan and better monitor Mortgage Loan fundings and
subsequent sales. The Taxable Subsidiary believes that the integration of its
information and accounting systems will offer efficiency and information
advantages over those of certain of its competitors.
The Taxable Subsidiary is dedicated to building and maintaining an
integrated, leading edge information environment. The Taxable Subsidiary has
been selected by several software providers as a beta-site for several
advancements in their current software systems. Both Interlinq, the manufacturer
of MortgageWare (the Taxable Subsidiary's loan processing, underwriting and
funding software) and State of the Art Software have requested the Taxable
Subsidiary's participation in an advisory capacity for current and future
development of certain of their products. One innovation which is currently in
testing will enable management to determine the status of any Mortgage Loan in
any branch in virtually real time.
The fundamental integration of the Taxable Subsidiary's information systems
will enable the asset-liability manager to monitor and report on all Mortgage
Loans by asset class, age and credit rating, to relate such positions to the
Taxable Subsidiary's hedge positions at any given time, permitting management to
instantaneously determine a net value of assets and hedges. Sophisticated
analytics including option-adjusted spreads, price sensitivity, time-basis
change, residual cash flow analysis, and simulations will be performed on an
independent software model, utilizing the Taxable Subsidiary's asset and hedging
position data.
The Taxable Subsidiary maintains a secure computing environment. The file
server is located in a locked central room. All external data lines are
monitored for intrusive activity and internal access if granted by administrator
security clearance only. A routine onsite/offsite backup procedure is maintained
to enable rapid recovery in the event of a catastrophic event. Accounting
records are protected on a period-by-period basis, and are entered on
write-once, read-only compact discs which are stored in a protected off-site
location.
71
<PAGE> 79
MORTGAGE INVESTMENT PORTFOLIO
The Company will acquire and manage a portfolio of Mortgage Assets,
primarily comprised of Subprime Mortgage Loans originated and acquired by the
Taxable Subsidiary and financed with structured debt instruments. As with a bank
or savings and loan association, the Company's Mortgage Asset portfolio is
expected to generate net income to the extent that the yield on its Mortgage
Assets exceeds the overall cost of its borrowings. The Company will attempt to
construct a portfolio which will provide a relatively consistent level of net
interest income through a variety of interest rate environments. The Company
will acquire and manage this portfolio of Mortgage Assets to maximize net
interest income within prescribed risk constraints. See "Risk
Factors -- Interest Rate Fluctuations May Adversely Affect Operations and Net
Interest Income."
The Company's strategy will be to earn a relatively attractive
risk-adjusted return on equity by originating and purchasing Subprime Mortgage
Loans for investment in the Mortgage Loan portfolio. Management's expectation is
that the highest long-term risk adjusted return on equity will be earned through
investing its capital in the residual class of long-term financings of Subprime
whole Mortgage Loans originated through its Mortgage Loan acquisition channels.
The Company will not acquire residuals and has not and generally will not
acquire first loss subordinated bonds rated below BBB, or Mortgage Securities
rated below B. The Company could indirectly retain the subordinate class from
Mortgage Loans securitized by the Taxable Subsidiary. The Company may acquire
IOs or POs to assist in the hedging of prepayment or other risks. In addition,
as discussed above, the Company may create a variety of different types of
assets, including the types mentioned in this paragraph, through the normal
process of CMO financing of the Company's own Mortgage Assets. In no event will
the Company (exclusive of its Taxable Subsidiaries) acquire or retain any REMIC
residual interest that may give rise to excess inclusion income as defined under
Section 860E of the Code. Generally, excess inclusion income may be recognized
by the holder of a REMIC residual (or a residual from a taxable mortgage pool)
to the extent income from the residual exceed 120% of the long-term applicable
federal interest rate. Excess inclusion income may be taxed as unrelated
business taxable income to certain tax-exempt entities. Excess inclusion income
realized by the Taxable Subsidiary is not passed through to stockholders of the
Company. See "Risk Factors -- Interest Rate Fluctuations May Adversely Affect
Operations and Net Interest Income -- Hedging Transactions Limit Gains and May
Increase Exposure to Losses" and "Federal Income Tax Considerations -- Taxation
of Tax-Exempt Entities."
The Company will review each Mortgage Asset to be acquired to assess its
expected return, credit and liquidity risk, financing costs, the quality of the
issuer and the expected prepayment rate. The Company has developed a financial
model to evaluate each potential Mortgage Asset's impact upon the Mortgage Loan
portfolio as a whole. The Company will regularly monitor its purchases of
Mortgage Assets and the income from such Mortgage Assets, including income from
its hedging strategies, so as to ensure at all times that it maintains
RealTrust's qualification as a REIT and RealTrust's exempt status under the
Investment Company Act of 1940, as amended (the "Investment Company Act"). The
Company has engaged qualified accountants and tax experts to assist it in
developing appropriate accounting systems and testing procedures, and to conduct
quarterly compliance reviews designed to assist RealTrust in assuring compliance
with the REIT provisions of the Code and to ensure RealTrust's exempt status
under the Investment Company Act. See "Federal Income Tax
Considerations -- Qualification as a REIT" and "Risk Factors -- Failure to
Qualify for Exemption from Investment Company Act May Adversely Affect the
Company."
TYPES OF MORTGAGE ASSETS
The Company's Mortgage Assets will be comprised of Mortgage Loans and
Mortgage Securities.
Mortgage Loans. The Company expects to retain primarily Subprime Mortgage
Loans, all of which are secured by first mortgages or deeds of trust on
single-family (one-to-four-units) residences. A substantial portion of the
Subprime Mortgage Loans originated and purchased by the Company are expected to
meet the long-term investment requirements of the Company. Those Mortgage Loans
which the Company does not intend to hold to maturity will be offered for sale
by the Taxable Subsidiary to various investors, including national private
mortgage conduit programs in the secondary mortgage market. See
"Business -- Industry
72
<PAGE> 80
Developments" and Risk Factors -- President's 1999 Budget Plan, If Enacted,
Would Adversely Affect Results of Operations."
Subprime single-family Mortgage Loans are single family Mortgage Loans that
do not qualify in one or more respects for purchase by FNMA or FHLMC. The
Company expects that a majority of the Subprime Mortgage Loans it purchases will
be Subprime because generally they vary in certain other respects from the
requirements of such programs including the requirements relating to
creditworthiness of the borrowers or they have original principal balances which
exceed the requirements for FHLMC or FNMA programs.
The Company may invest a small portion of its assets in Prime Mortgage
Loans, including FHA Loans or VA Loans, which qualify for inclusion in a pool of
Mortgage Loans guaranteed by GNMA. Under current regulations, the maximum
principal balance allowed on conforming Mortgage Loans ranges from $227,150
($321,900 for Mortgage Loans secured by properties located in either Alaska or
Hawaii) for one-unit to $436,600 ($618,675 for Mortgage Loans secured by
properties located in either Alaska or Hawaii) for four-unit residential loans.
The Company may also retain Subprime Mortgage Loans.
The Company expects to hold primarily ARMs. The interest rate on an ARM is
typically tied to an index (such as LIBOR or the interest rate on United States
Treasury Bills), and is adjustable periodically at various intervals, typically
from one month to one year. Such Mortgage Loans are typically subject to
lifetime interest rate caps and periodic interest rate and/or payment caps. The
Company anticipates that the majority of the Mortgage Loans will have lifetime
interest rate caps of six percent over the initial Mortgage Loan interest rate,
although some Mortgage Loans may have lifetime interest rate caps of as high as
seven percent or as low as five percent over such initial rate. The Company
expects the Mortgage Loans to have periodic interest rate caps of either one
percent every six months or two percent per year. Lifetime and periodic interest
rate caps are a function of market and competitive factors and are, therefore,
subject to change from the levels anticipated herein. A portion of the Subprime
Mortgage Loans may be fixed-rate Mortgage Loans.
The Company may obtain credit enhancements such as mortgage pool or special
hazard insurance for its Mortgage Loans, in addition to private mortgage
insurance when specified by its underwriting criteria. Accordingly, during the
time it holds Mortgage Loans, the Company will be subject to risks of borrower
defaults, fraud and bankruptcies and special hazard losses that are not covered
by standard hazard insurance (such as those occurring from earthquakes or
floods). In the event of a default on any Mortgage Loan held by the Company, the
Company will bear the risk of loss of principal to the extent of any deficiency
between (i) the net proceeds from liquidation of the mortgage collateral and any
related insurance or guarantee and (ii) the principal amount of the Mortgage
Loan.
Mortgage Securities. The Company plans to purchase Mortgage Securities in
the capital markets. These Mortgage Securities generally have a higher level of
liquidity than the Mortgage Loans to be acquired or originated and are expected
to provide a relatively stable flow of interest income with relatively low
levels of credit risk compared to such Mortgage Loans. The Mortgage Securities
to be acquired by the Company will be backed by a pool of ARMs. These Mortgage
Securities entitle the holder to receive a pass-through of principal and
interest payments on the underlying pool of Mortgage Loans and will be
guaranteed by the Federal government sponsored agencies or issued by certain
private institutions. Mortgage Securities issued by private institutions are
usually, but not always, rated by one of the major rating services. The Company
may, from time to time, invest in Mortgage Securities that are not investment
grade. See "Risk Factors -- Investments in High LTV Mortgage Loans and
Subordinated Mortgage Securities Involve Greater Risk of Loss." The Company may
also acquire IOs and POs in conjunction with its hedging activities. See "Risk
Factors -- Interest Rate Fluctuations May Adversely Affect Operations and Net
Interest Income -- Interest-Only and Principal-Only Mortgage Securities Are
Subject to Substantial Interest Rate and Prepayment Risks Which May Adversely
Affect Results of Operations." The Company does not intend to invest in any
unregistered Mortgage Securities.
RETAINED INTERESTS IN STRUCTURED DEBT INSTRUMENTS
The Company intends to hold for long-term investment Subprime Mortgage
Loans produced by its mortgage lending operation and to finance such Subprime
Mortgage Loans with long-term financings through
73
<PAGE> 81
the issuance of CMOs. Under this approach, for accounting purposes, the Mortgage
Loans collateralizing any CMO remain on the balance sheet as assets and the debt
obligations (i.e., CMOs) appear as liabilities. The Company's retained interest
under this approach is reflected by the excess of the assets over the related
liabilities on the balance sheet. The resulting stream of expected "spread"
income will be recognized over time through the proposed tax-advantaged REIT
structure. Other forms of financing may also be employed from time to time under
which a "sale" of interests in the Mortgage Loans will be reflected and gain or
loss reflected for accounting purposes at the time of sale. Under this form,
only the net retained interest in the securitized Mortgage Loans will remain on
the balance sheet. Such sales will be made through the Taxable Subsidiaries. See
"-- Interest Rate Risk Management."
The Company expects that its retained interests in its long-term financing,
regardless of the form used, will be subordinated to the classes of securities
issued to investors in such securitizations with respect to losses of principal
and interest on the underlying Mortgage Loans. Accordingly, any such losses
incurred on the underlying Mortgage Loans will be applied first to reduce the
remaining amount of the Company's retained interest, until reduced to zero.
Thereafter, any further losses would be borne by the investors or the insurers
in such securitizations rather than the Company.
The Company may also use financing as a tool to transfer some of the
interest rate risk of the Mortgage Loan collateral to the CMO bondholder and
credit risk to monoline bond insurers. Financing structures may include
floating-rate debt classes with life caps. The life cap structured in the bond
class pays down with the collateral, reducing the basis risk inherent in other
hedging strategies. The Company may pay a monoline bond insurer a monthly fee to
assume a portion of the credit risk in a pool of Mortgage Loans. The monoline
insurer would also require the issuer to retain a portion of the credit risk and
over-collateralize a particular pool of Mortgage Loans. The Company will
structure its financing so as to avoid the attribution of any excess inclusion
income to the Company's stockholders. See "Federal Income Tax
Considerations -- Taxation of the Company's Stockholders."
Proceeds from such financing will be available to support new Mortgage Loan
originations. The Company's CMOs are expected to reduce the Company's interest
rate risk on assets held for long-term investment. CMOs are permanent financing
and are not subject to a margin call if a rapid increase in rates would reduce
the value of the underlying mortgages. The Company plans to finance the retained
interests in its CMOs through a combination of equity and secured debt
financings, including reverse repurchase agreements.
Neither the Amended and Restated Articles of Incorporation nor the Bylaws
of the Company impose any limitations on the Company's ability to incur
borrowings, either secured or unsecured. See "Risk Factors -- Borrowing to
Finance Investment Portfolio May Adversely Affect Results of Operations."
CAPITAL AND LIQUIDITY MANAGEMENT
CAPITAL ALLOCATION GUIDELINES
The Company's goal is to maintain a balance between the under-utilization
of leverage, which may diminish returns to stockholders, and over-utilization of
leverage, which could limit the Company's funding alternatives during adverse
market conditions. Therefore, the Company has adopted Capital Allocation
Guidelines (the "CAG"). The Board will review the actual amount of leverage on a
quarterly basis for purposes of ensuring that the Company is in compliance with
the CAG. The CAG are intended to keep the Company leveraged as follows: (i) by
matching the amount of leverage with the current perceived risk of the Company's
assets, and (ii) by retaining excess capital to provide for market conditions
that may substantially alter or increase the market's general assessment of
perceived risk for those Mortgage Assets.
The primary factors influencing the Company's liquidity under circumstances
of adverse market conditions are increases in interest rates and increases in
the general market perception of credit risk associated with residential
Mortgage Loans. Interest rate increases reduce the market value of the Company's
Mortgage Assets and, therefore, reduce the quantity of financing that is
dependent on market values. Any increase in the credit risk as perceived by
rating agencies tends to increase the quantity of over-collateralization
required by rating agencies to award various investment grade ratings to the
senior classes of structured
74
<PAGE> 82
financings such as CMOs. Increased over-collateralization requirements reduce
the quantity of total financing prospectively available to the Company because
the excess collateral implied by the rate of over-collateralization required on
the CMO must be financed by the Company's equity rather than by the CMO.
To estimate the quantity of capital required for such adverse
circumstances, management has simulated capital requirements under adverse
conditions whereby interest rates increased instantaneously by 200 basis points
and foreclosure frequencies increased by over 77% above those currently
estimated as required to support a AAA rating on the senior class of CMOs issued
by the Company. To estimate the amount of capital required to support assets
financed by repurchase agreements, management used an option-adjusted pricing
framework and a sophisticated mortgage prepayment and pricing model. To estimate
the amount of potential over-collateralization for CMOs, the Company employed a
general rule that determines the amount of over-collateralization based on the
potential loss severity per Mortgage Loan and the rate of foreclosure frequency.
In general, over-collateralization equals potential loss severity times
foreclosure frequency. Applying this general rule to future CMOs, the 4.5% rate
of over-collateralization equates to a potential loss severity of 40% with a
foreclosure frequency of 11.25% (i.e., 40% X 11.25% = 4.5%). The CAG are to be
structured to allow for a substantial increase in the foreclosure frequency to
20% providing the capability to continue CMO issuance under circumstances of a
required eight percent over-collateralization (i.e., 40% X 20% = 8%).
The following table depicts CAG requirements by asset/liability combination
under currently expected financing requirements and under adverse market
conditions.
CAPITAL ALLOCATION GUIDELINES
<TABLE>
<CAPTION>
(a) (b)
INCREMENT (c) = a+b
REQUIRED BY TOTAL
REQUIRED ADVERSE CAG
ASSET/LIABILITY COMBINATION EQUITY(1) MARKET(2) REQUIRED(3)
--------------------------- --------- ----------- -----------
<S> <C> <C> <C>
Subprime Mortgage Loans Financed by CMOs.................... 4.50% 3.50% 8.00%
Subprime Mortgage Loans Financed by Reverse Repurchase
Agreements................................................ 5.00% 3.78% 8.78%
Mortgage Securities Financed by Reverse Repurchase
Agreements................................................ 3.00% 4.99% 7.99%
</TABLE>
- ---------------
(1) "Required equity" is the expected amount of equity required by a typical
financing alternative for the types of Mortgage Assets held by the Company.
There is some variation in the equity requirements from time to time, and
across the spectrum of specific negotiated terms. From the lender or debt
investor's perspective, the required equity represents an incremental value
secured by the financing agreement to which the lender or debt investor may
immediately recognize through collateral liquidation to cover liquidation
costs on the collateral should the debt obligor be unable to perform under
the terms of the financing agreement.
(2) "Increment Required by Adverse Market" is the amount of excess capital
retained by the Company for each type of asset/liability combination in the
CAG for purposes of sustaining liquidity and funding alternatives during
adverse market conditions. The stress test conditions are a 200 basis point
increase in interest rates and an increase in foreclosure frequencies to
20%.
(3) "Total CAG Required" is the sum of the amount of equity required in various
forms of financing alternatives and the increment required to sustain these
resources under adverse conditions.
Implementation of the CAG. The Company will implement the CAG under a
two-dimensional framework that considers the net market value of the Mortgage
Asset portfolio equity and the potential total over-collateralization in terms
of Mortgage Loan principal balance that may be required under adverse
conditions. By sustaining the net excess market value required by the CAG, the
Company will possess the ongoing capacity to finance its Mortgage Assets. By
tracking requirements for structured financings, the Company will maintain an
updated expectation for the required equity component of prospective
transactions.
Portfolio Financed with Reverse Repurchase Agreements. Each quarter the
Company marks to market its Mortgage Securities carried as available-for-sale.
This process is accomplished by obtaining market quotes
75
<PAGE> 83
from third parties, including dealers that make markets in Mortgage Assets
similar in nature to the Company's and from mortgage banking concerns currently
engaged in the business of originating Mortgage Assets similar to those held by
the Company. Market values are then computed for the Company's assets using
those market quotes along with the Company's internally established assumptions
related to prepayments, losses, discount rates, and interest rate volatility.
The market value for all financing used by the Company, net of the market value
of hedges in place as of the valuation date, is then deducted from the current
market value of the Mortgage Assets. The remainder, which is the theoretical
market value of equity, is then compared to the weighted average amount required
by the CAG as of the date of market valuation and actual required equity as
established by the financing agreements then in place. If the theoretical market
value of equity is less than required by the CAG, management of the Company must
prepare a plan for presentation and approval by the Board of Directors to bring
capital to the required level.
Portfolio Financed with CMOs. Each quarter the Company will solicit updates
on the required over-collateralization from dealers and rating agencies for the
various types of Mortgage Assets the Company holds and produces. Should the
required equity increase substantially, the Company will evaluate at that time
the necessity for increasing the total capital allocation required for the
Company's net asset/liability position in light of the historical performance of
transactions in place to date and other financing vehicles then available to the
Company.
SERVICING ACTIVITIES
Mortgage servicing represents the contractual right to receive a portion of
the interest payments (typically 25 to 50 basis points) of a Mortgage Loan in
exchange for the performance of certain services, including collection,
foreclosure, recordkeeping, disbursement of principal and interest to the
investor and payment of taxes and insurance. Mortgage Loan servicing also
includes the loss mitigation activities of contacting delinquent borrowers and
supervising foreclosures and property disposition in the event of unremediated
defaults. The Company will acquire Subprime Mortgage Loans with the servicing
rights retained.
Until the Company develops internal servicing capabilities, the Company
will rely upon third-party servicers. The Company has entered into a
subservicing agreement with Advanta pursuant to which Advanta will provide
subservicing for the Company while management focuses on Mortgage Loan
production, Mortgage Loan processing, asset/liability management, administrative
operations and securitization. The Company is also in discussions with other
third-party servicers and intends to select the servicer offering the most
favorable terms.
Third party servicing will allow the Company to take advantage of the
experience of the servicer's staff, computer and customer service systems and
collection procedure. Eventually, the Company intends to develop its own
servicing capability in order to oversee the performance of its Mortgage Loans
more directly and to manage the servicing relationship with its borrowers. The
timing of this action will be based on the completion of construction of the
personnel and computer systems necessary to properly manage a servicing
department capable of servicing over $1.0 billion in Subprime Mortgage Loans.
While management expects that the income from its servicing activities will
exceed its cost of servicing, the primary reason for servicing Mortgage Loans on
which the Company has credit risk exposure is as a loss mitigation strategy.
EARLY INTERVENTION, ASSET MANAGEMENT, AGGRESSIVE COLLECTION AND LOSS
MITIGATION TECHNIQUES
The Company intends to emphasize the use of early intervention, asset
management, aggressive collection and loss mitigation techniques in its
servicing process to minimize losses on its whole loans and to preserve the
value of its residual interest in its CMO financings. The collections policy for
Subprime Mortgage Loans will be designed (i) to curtail payment problems by
establishing early customer contact to communicate payment expectations and by
maintaining frequent customer contact to emphasize the priority of Mortgage Loan
repayment and (ii) 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 pre-foreclosure property.
76
<PAGE> 84
With respect to Subprime Mortgage Loans, the Company will implement strict
servicing procedures. All mortgage payments are due on the first day of the
month. Late payment fees will accrue on the earliest day permitted by state law.
The late payment fees on Subprime Mortgage Loans will be the maximum allowable
under applicable state law. The subservicer will assign a counselor to each
borrower immediately upon closing of each Subprime Mortgage Loan who will alert
the borrowers of the Company's strict enforcement procedures and legal remedies
available upon nonpayment. The subservicer will generally mail payment coupons
as a monthly reminder to borrowers, enforce the late period and file notice of
default by the end of the grace period. See "-- Overview of Subprime Mortgage
Market."
ADVANTA SERVICING AGREEMENT
Although the Company may select another servicer after the closing of the
Offering, the Company had as of March 31, 1998 a servicing agreement with
Advanta (the "Advanta Servicing Agreement"). As of March 31, 1998, Advanta did
not service a material number or principal amount of Mortgage Loans (five
Mortgage Loans with an aggregate principal balance of $0.4 million). Under the
Advanta Servicing Agreement, the Company is obligated to pay Advanta a monthly
servicing fee on the declining principal balance of each Mortgage Loan serviced
and a set-up fee for each Mortgage Loan delivered to Advanta for servicing.
Advanta is required to pay all expenses related to the performance of its duties
under the Advanta Servicing Agreement. Further, Advanta is required to make
advances of taxes and required insurance premiums that are not collected from
borrowers with respect to any Mortgage Loan, only if it determines that such
advances are recoverable from the borrower, insurance proceeds or other sources
with respect to such Mortgage Loan. If such advances are made, Advanta generally
will be reimbursed prior to the Company receiving the remaining proceeds.
Advanta also will be entitled to reimbursement by the Company for expenses
incurred by it in connection with the liquidation of defaulted Mortgage Loans
and in connection with the restoration of mortgaged property. If claims are not
made or paid under applicable insurance policies or if coverage thereunder has
ceased, the Company will suffer a loss to the extent that the proceeds from
liquidation of the mortgaged property, after reimbursement of Advanta's expenses
in the sale, are less than the principal balance of the related Mortgage Loan.
Advanta is entitled to retain any late payment charge and assumption fees
collected in connection with the Mortgage Loans. Advanta receives any benefit
derived from interest earned on collected principal and interest payments
between the date of collection and the date of remittance to the Company and
from interest earned on tax and insurance impound funds. Under the Advanta
Servicing Agreement, Advanta is generally required to remit all principal and
interest scheduled to be collected from borrowers during the prior monthly
reporting period generally no later than the eighteenth day of each month.
Under the Advanta Servicing Agreement, if the Company terminates such
agreement without cause or transfers the servicing of any amount of the Mortgage
Loans serviced by Advanta to another servicer, the Company must pay Advanta
certain penalties, fees and costs, including a termination fee of $100 per
Mortgage Loan. Depending on the size of the Company's Mortgage Loan portfolio
serviced by Advanta, at any point in time, the termination or transfer penalties
that the Company will be obligated to pay Advanta may be substantial. As of
March 31, 1998, the termination fee pursuant to the Advanta Servicing Agreement
would have been immaterial and the Company does not anticipate that such
termination fee will, now or in the future, deter the Company from selecting
another servicer.
77
<PAGE> 85
DELINQUENCY AND DEFAULT DATA
To date, the Taxable Subsidiary has sold its Mortgage Loans to investors
servicing-released. That is, the purchaser of the Mortgage Loan obtains all
rights to collect payments on the Mortgage Loan. As a result, the Taxable
Subsidiary does not maintain any delinquency or default data; however,
ContiFinancial Corporation, the largest purchaser of the Taxable Subsidiary's
Subprime Mortgage Loans, provides the Company with quarterly reports setting
forth the delinquency and default rates on Mortgage Loans purchased from the
Taxable Subsidiary. The following table sets forth the delinquency and default
information provided to the Taxable Subsidiary by ContiFinancial Corporation
from inception to February 28, 1998:
<TABLE>
<CAPTION>
QUARTER PERCENT OF
OF DELINQUENT
ORIGINATION MORTGAGE LOANS(1)
-------------- -----------------
<S> <C> <C> <C>
1996
3rd Quarter 0.00%
4th Quarter 4.77%
1997
1st Quarter 11.24%
2nd Quarter 4.84%
3rd Quarter 6.07%
4th Quarter 2.94%
1998
1st Quarter (through February 28) 0.00%
</TABLE>
- ---------------
(1) Determined on the basis of principal balance of delinquent Mortgage Loans
compared to the aggregate principal balance of all Mortgage Loans purchased
by ContiFinancial Corporation and still outstanding.
Since July, 1996, ContiFinancial Corporation has charged-off one Mortgage
Loan acquired from the Taxable Subsidiary. Such charged-off loan resulted in a
loss of $9,896, or 9.83% of the principal balance of such Mortgage Loan.
The delinquency and default data provided above is not compiled or verified
by the Taxable Subsidiary, and reflects only a portion of the Mortgage Loans
sold by the Taxable Subsidiary. Therefore, the Company cannot confirm the
accuracy of the data, which may not reflect the performance of Mortgage Loans
sold to other investors. Further, the low level of delinquencies of Mortgage
Loans originated in recent quarters is directly attributable to the nominal
amount of time such Mortgage Loans have been outstanding. The Taxable Subsidiary
and the Company expect that delinquency rates will increase as such Mortgage
Loans mature.
INTEREST RATE RISK MANAGEMENT
The Company is subject to interest rate risk to the extent that the
interest rates on the Company's liabilities (i.e., reverse repurchase agreements
and CMOs) reprice more frequently, or on a different basis, than the interest
rates on the Company's Mortgage Assets. To mitigate this risk, the Company will
follow a strict interest rate risk management program managed by the Company's
Asset/Liability Manager, who has extensive experience in mortgage banking and
interest rate risk management for other financial institutions prior to his
employment with the Company. The Company's interest rate risk management program
will be formulated with the intent to mitigate the potential adverse effects
resulting from interest rate adjustment limitations on its Mortgage Assets and
the differences between the interest rate adjustment indices and interest rate
adjustment periods of its Mortgage Assets and related borrowings.
The Company's interest rate risk management program will encompass a number
of procedures. First, the Company will structure the liabilities of the Company
to have interest rate indices and adjustment periods that, on an aggregate
basis, correspond as closely as practicable to the interest rate adjustment
indices and interest rate adjustment periods of the Mortgage Assets. In
addition, the Company intends to structure its borrowing agreements to have a
range of different maturities (although substantially all will have maturities
of less than one year). As a result, the Company expects to be able to adjust
the average maturity of its
78
<PAGE> 86
borrowings on an ongoing basis by changing the mix of maturities as borrowings
come due and are renewed. In this way, the Company will attempt to minimize any
differences between interest rate adjustment periods of Mortgage Assets and
related borrowings.
The Company intends to use interest rate caps, interest rate swaps and
similar instruments to attempt to limit, fix or partially offset changes in
interest rates associated with its borrowings and changes in the value of its
Mortgage Assets. In a typical interest rate cap agreement, the cap purchaser
makes an initial lump sum cash payment to the cap seller in exchange for the
seller's promise to make cash payments to the purchaser on fixed dates during
the contract term if prevailing interest rates exceed the rate specified in the
contract. In this way, the Company intends generally to hedge as much of the
interest rate risk arising from lifetime rate caps on its Mortgage Assets and
from periodic rate and/or payment caps as the Company determines is in the best
interests of the stockholders of the Company, given the cost of such hedging
transactions and the need to maintain RealTrust's status as a REIT. See "Federal
Income Tax Considerations -- Qualification as a REIT -- Sources of Income." The
Company may also, to the extent consistent with its compliance with the REIT
provisions of the Code, buy and sell financial futures contracts, options and
trade forward contracts as a hedge against future interest rate changes;
however, the Company will not acquire such instruments unless the Company is
exempt from the registration requirements of the Commodities Exchange Act or
otherwise complies with the provisions of that Act.
The Company also considers its use of CMOs as a component of its interest
rate management strategy. CMOs address two of the problems caused by rapid
changes (primarily increases) in interest rates, margin calls and the potential
for negative interest spread on a Mortgage Loan. A rapid increase in interest
rates may cause the value of the Company's collateral used to secure reverse
repurchase agreements to decline, thereby forcing a "margin call" in which the
Company would be required to pledge additional collateral in order to support
the reverse repurchase agreement. When the Company is fully leveraged, all of
its assets may be encumbered as part of different financing arrangements, and
the only response to a margin call will be to sell Mortgage Assets. Selling
Mortgage Assets during periods of rapidly increasing interest rates may result
in the Company receiving a lower purchase price than may otherwise be received.
CMOs do not allow the investor the right to exercise a margin call, and in
periods of rapidly rising rates, the financing remains in place.
Another risk of rapidly rising interest rates is that the lifetime caps on
the Mortgage Loans are exceeded by the level of short-term rates (or the cost of
reverse repurchase agreements). To protect against this risk, the Company may
imbed an interest rate cap into the CMO structure which will approximately match
the interest rate cap on the underlying pool of Mortgage Assets. This structure
is not available to be imbedded within the Company's warehouse or reverse
repurchase agreements. While the purchase of a separate cap is available through
financial market intermediaries, the use of imbedding the cap in the CMO
structure may be preferred due to the fact that the Company is always evenly
matched within the Mortgage Assets of the CMO structure and, as Mortgage Assets
are paid down, the Company always retains a cap over the entire balance of the
Mortgage Assets.
The Company believes that it can implement a cost-effective interest rate
risk management program to provide a level of protection against interest rate
risks. However, an effective hedging strategy is complex, and no hedging
strategy can completely insulate the Company from interest rate risks. Moreover,
as noted above, certain of the Federal income tax requirements limit the
Company's ability to fully hedge its interest rate risks. The Company intends to
monitor carefully, and may have to limit, its hedging strategies to assure that
it does not realize excessive hedging income or hold hedging Mortgage Assets
having excess value in relation to total Mortgage Assets, which would result in
the Company's disqualification as a REIT or, in the case of excess hedging
income, the payment of a penalty tax for failure to satisfy certain REIT income
tests under the Code, provided such failure was for reasonable cause. See
"Federal Income Tax Considerations -- Qualification as a REIT -- Sources of
Income." The Company may elect to conduct a portion of its interest rate risk
management operations through the Taxable Subsidiary. See "Risk
Factors -- President's 1999 Budget Plan, If Enacted, Would Adversely Affect
Results of Operations."
In addition, hedging involves transaction and other costs, and such costs
increase as the level of protection and period covered by the hedging
transaction increases. Hedging transaction costs also increase in periods of
79
<PAGE> 87
rising or extremely volatile interest rates. See "Risk Factors -- Interest Rate
Fluctuations May Adversely Affect Operations and Net Interest Income -- Hedging
Transactions Limit Gains and May Increase Exposure to Losses." Therefore,
management does not believe it will be cost effective to hedge all of its
adjustable-rate indebtedness and other interest rate risk. Further, certain
losses on hedging activities would be capital losses and would not be deductible
to offset ordinary income. In such a situation, the Company would have incurred
an economic loss of capital that would not be deductible to offset the ordinary
income from which dividends must be paid.
CREDIT RISK MANAGEMENT
To limit its risk both of default and of loss on the sale of foreclosed
property, the Company has instituted the following policies as part of its
overall credit policy. These policies are currently being followed in the
origination of Mortgage Loans.
Underwriting Policies. Initially, all Mortgage Loans submitted by
correspondents and brokers will be fully underwritten or re-underwritten by
the Taxable Subsidiary. All Mortgage Loans will be subject to a detailed
review of the underwriting decision prior to purchase.
LTV Limitations. The Company has determined maximum LTV ratios that
will be accepted depending upon the credit rating and other risk factors
assigned to the Mortgage Loans. (See "-- Underwriting and Quality Control
Strategies.") These LTV ratios are expected to provide significant
protection to the Company in the event of foreclosure, as well as provide
the borrower with a strong incentive to protect the Mortgage Loan from
being foreclosed.
Appraisal Review Requirements. The Taxable Subsidiary intends to
generally require a review appraisal for each Mortgage Loan prior to
purchase. The Taxable Subsidiary intends to use only FIRREA qualified
appraisals and must be on forms acceptable to FNMA and/or FHLMC as part of
its approval process. Additionally, appraisals for Mortgage Loans being
considered at the 90% LTV ratio and those Mortgage Loans randomly selected
as part of quality control will be reviewed by designated underwriters. The
Taxable Subsidiary intends to use only FIRREA qualified appraisers as part
of its approval process. All appraisals are required by the Taxable
Subsidiary to conform to the Uniform Standards of Professional Appraisal
Practice adopted by the Appraisal Standards Board of the Appraisal
Foundation and must be on forms acceptable to FNMA and FHLMC.
Repurchase Requirements. Mortgage Loans will be acquired through
Correspondents who have entered into an agreement requiring repurchase of
Mortgage Loans found to breach any of a comprehensive list of
representations and warranties included in the applicable correspondent
agreement. Such warranties include failure by the borrower to make the
first payment, fraud in any of the Mortgage Loan documents, and errors in
the processing or underwriting of the Mortgage Loan.
Selection and Approval of Correspondents. Correspondents are subject
to a thorough analysis, including checking of references and review of
financial statements, before submission to an executive committee of the
Taxable Subsidiary for approval. The Company will generally require its
Correspondents to maintain a minimum net worth of $400,000 in order to
ensure their ability to meet repurchase requirements.
Pre-purchase Quality Assurance Program. The Taxable Subsidiary will
continue to implement the thorough quality assurance procedures currently
in use, which generally include verifications of Mortgage Assets and
employment and obtaining an independent credit report prior to the purchase
of the Mortgage Loans. The post-purchase quality control is administered by
one full-time employee and one contract person focusing on quality control
and assurance, who are under the oversight of the Chief Executive Officer.
The Taxable Subsidiary intends to increase this staff as required by the
level of origination volume.
The Company will establish Mortgage Loan loss allowances on the balance
sheet in advance of anticipated losses. Such allowances are expected to be
sufficient to absorb losses from the sale of foreclosed properties, as well as
operating expenses related to delinquencies and foreclosures and carrying costs
of
80
<PAGE> 88
Mortgage Loans in default. Management believes that actual losses will not be
commensurate with the delinquency rates, however, due to two factors: (i)
Subprime Mortgage Loan borrowers tend to be late on payments from time to time
without going to foreclosure, thus inflating the delinquency rates, and (ii) the
lower LTV ratios tend to result in reduced losses on the sale of foreclosed real
estate. Management believes its allowance for Mortgage Loan loss policies should
result in adequate coverage for losses while maintaining net yields, although
actual experience may be more or less than management's allowance.
MORTGAGE LOAN PREPAYMENTS
Mortgage Loans are generally paid in full prior to the maturity date of the
note which is typically 30 years from the date of the note. Prepayment rates are
affected by several factors, the most important of which is the change in
prevailing interest rates. Mortgage Loans will typically be prepaid more rapidly
in periods of declining interest rates as borrowers refinance to reduce monthly
payments. In periods of increasing interest rates, Mortgage Loan prepayment
rates will generally decline. Another factor which affects prepayment rates,
although to a less significant degree, is the level of home sales activity,
which generally increases when home prices are rising. Prepayment rates may also
be affected by changes in the borrower's credit rating or circumstances
following origination. Borrowers with improving credit may elect to prepay the
Mortgage Loans to take advantage of the lower rates associated with their higher
credit grades, even in periods of stable or rising interest rates. Conversely,
borrowers with deteriorating credit may be unable to take advantage of declining
interest rates as a result of their deteriorating credit.
Prepayments affect the Company in several ways. First, the amortization of
premiums or discounts related to the acquisition of the Mortgage Loans will be
affected by the speed of prepayment. Amortization of such premiums or discounts
is accounted for by the interest method by which the expense or income
recognition occurs on the basis of a fixed yield over the expected life of the
Mortgage Loan. The amortization of this premium or discount is included in the
interest income recognized each period. This method requires the use of
assumptions as to the timing of prepayments. Significant deviations in the
actual prepayment rate from the assumed rate may cause the Company to recognize
greater amortization expense for the period, and thereby reduce net interest
income. The Company's financial expectations assume a certain level of
prepayments. Actual prepayment speeds may accelerate to the point that the
return on equity earned from a given Mortgage Loan acquisition is less than
expected, and could even become negative. Second, prepayment of Mortgage Loans
will require that Mortgage Loans be acquired to replace those that have been
prepaid. The Mortgage Loans acquired may be at low introductory rates (i.e.,
"teaser rates") which may negatively impact the Company's earnings until the
rates on these Mortgage Loans reprice to the full margin over the respective
index (the "fully indexed" rate). Third, hedging instruments may have been
purchased to protect against interest rate changes related to Mortgage Loans
which may have prepaid more rapidly than anticipated, resulting in excess
coverage. Conversely, if the Mortgage Loans prepay more slowly than anticipated,
the Company may have less hedging coverage than planned, and may have to acquire
additional coverage. The Company's use of the CMO financing structure may have
these types of hedging instruments imbedded within them, and be structured in
order to better match the hedge and the Mortgage Loans. See "Risk Factors --
Interest Rate Fluctuations May Adversely Affect Operations and Net Interest
Income -- Hedging Transactions Limit Gains and May Increase Exposure to Losses."
As an additional hedge against the risk of rapid prepayments, the Company
will offer ARM programs which carry a prepayment penalty. The borrower will be
required to pay a significantly higher starting interest rate and margin to
eliminate the prepayment penalty. Prepayment penalties are subject to market and
competitive factors and may, therefore, be subject to reduction or elimination.
State laws may also restrict the Company's ability to collect prepayment
penalties. As an additional protection against the negative financial impact of
Mortgage Loan prepayments, the Company intends to adopt as soon as practicable
after the closing of the Offering policies and guidelines for its servicing
operations that will attempt to focus on borrowers that have an incentive to
refinance. The Company expects to implement a program to recapture those
Mortgage Loans by soliciting these borrowers directly rather than losing them to
another mortgage lender. The negative impact of the amortization of the premium
on these Mortgage Loans is expected to be somewhat mitigated by the fact that
the refinancing of these Mortgage Loans will be at a price at or near par.
81
<PAGE> 89
FUTURE CHANGES IN OPERATING, INVESTMENT AND ACCOUNTING POLICIES
The Board of Directors has established the investment, accounting and
operating policies and strategies set forth in this Prospectus. The Board of
Directors has the power to modify or waive such policies and strategies, such as
the mortgage investment policies, the leverage policies and the counterparty
credit policies, without the consent of stockholders, to the extent that the
Board Directors determine that such modification or waiver is in the best
interests of stockholders. However, if such modification or waiver relates to
the relationship of, or any transaction between, the Company and ContiFinancial
Corporation or any other Affiliated Person (as such term is defined in the
Glossary), the approval of a majority of the Independent Directors is also
required. Among other factors, developments in the market which affect the
operating policies and strategies mentioned herein or which change the Company's
assessment of the market may cause the Board of Directors to revise the
Company's policies and strategies.
82
<PAGE> 90
[ORGANIZATIONAL CHART]
83
<PAGE> 91
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
The directors and executive officers of the Company and their positions are
as follows:
<TABLE>
<CAPTION>
NAME POSITIONS CLASS OF DIRECTOR
---- --------- ------------------
<S> <C> <C>
John D. Fry, CMB Chairman of the Board and Chief Executive Officer III
Terry L. Mott Executive Vice President and Director II
John P. McMurray, Executive Vice President of Secondary Marketing
CFA, CPA and Asset Liability Management
Steven K. Passey, Senior Vice President and Chief Financial Officer
CPA
Carter E. Jones Independent Director II
Jeff K. Thredgold* Independent Director I
Daniel W. Campbell* Independent Director I
</TABLE>
- ---------------
* To be appointed upon the closing of the Offering.
Information regarding the business background and experience of the
Company's directors and executive officers follows:
JOHN D. FRY, CMB, age 59, has been the President, Chief Executive Officer
and Chairman of the Board of the Company since inception in February, 1996.
During 1995, Mr. Fry commenced preparations for the organization of the Company.
From 1989 to 1994, Mr. Fry commenced the Subprime Mortgage Loan operations of
ComUnity Lending, Inc., a mortgage bank located in San Jose, California. From
1984 to 1989, Mr. Fry was Vice President and Western Division Manager of Goldome
Realty Credit Corp., a thrift in Buffalo, New York. Mr. Fry received the
"Certified Mortgage Banker" (CMB) designation from the Mortgage Bankers
Association of America in 1990 and his Bachelor of Science degree in Real Estate
Finance and Economics from Brigham Young University.
TERRY L. MOTT, age 48, is the Executive Vice President of the Company and
serves on the Board of Directors. Mr. Mott joined Mr. Fry in December, 1995, to
form the Company. From 1988 to 1995, Mr. Mott was an Executive Vice President of
Medallion Mortgage Company. Upon the sale of Medallion Mortgage Company to
AccuBanc Mortgage in 1994, Mr. Mott became an Executive Vice President at
AccuBanc Mortgage, where he supervised both retail and wholesale branches. From
1980 to 1988, Mr. Mott was employed with Fleet Mortgage Corp. where he developed
and managed the retail and wholesale production for the western United States.
Mr. Mott began his career in mortgage banking in 1977.
JOHN P. MCMURRAY, CFA, CPA, age 40, joined the Company in February, 1998,
as the Executive Vice President of Secondary Marketing and Asset Liability
Management. Prior to joining the Company, Mr. McMurray was the President of
Keystroke Financial, Inc., a start-up internet mortgage origination company.
From 1995 to 1996, Mr. McMurray was the Executive Vice President and Director,
Risk Management and Capital Markets for Crestar Mortgage Corporation where he
was responsible for interest rate and credit risk management, as well as
hedging, securitization and loan/securities trading activities. From 1982 to
1995, Mr. McMurray served in various management positions with BancPlus Mortgage
Corp., most recently serving as the Senior Vice President, Capital Markets. Mr.
McMurray is a Chartered Financial Analyst (CFA) and a Certified Public
Accountant (CPA). He received a Master of Science degree in real estate from
Massachusetts Institute of Technology, a Masters of Business Administration
degree from the University of Texas, San Antonio and a Bachelor of Science
degree from Trinity University.
STEVEN K. PASSEY, CPA, age 36, is the Senior Vice President and the Chief
Financial Officer of the Company. Mr. Passey joined the Company in October,
1997, after eight years with KPMG Peat Marwick LLP ("KPMG"). As a manager at
KPMG, Mr. Passey's responsibilities included managing audits within the
financial services area, including the mortgage banking industry. Mr. Passey
received his Bachelor of Science degree in Accounting from the University of
Utah and is a Certified Public Accountant (CPA).
84
<PAGE> 92
CARTER E. JONES, age 55, is an Independent Director of the Company. Since
1990, Mr. Jones has been a Senior Vice President of EVEREN Securities, Inc.,
where he specializes in management of client assets. Mr. Jones has previously
served as a member of the Board of Directors and operating committee for EVEREN
Securities, Inc. From 1987 to 1990, Mr. Jones was Executive Vice President,
Chief Operating Officer and a member of the Board of Directors and the Executive
Committee for Boettcher & Company in Denver.
JEFF K. THREDGOLD, age 46, will become an Independent Director upon the
closing of the Offering. Mr. Thredgold is the President and Chief Executive
Officer of Thredgold Economic Associates, LLC, and Economic Consulting and
Professional Speaking Company based in Salt Lake City, Utah. Mr. Thredgold's
career includes 23 years with KeyCorp, one of the nation's largest financial
services companies, with assets of nearly $70 billion, where he served as the
Senior Vice President and Chief Economist. Mr. Thredgold appears regularly on
CNBC-TV and CNN, and is quoted frequently in The Wall Street Journal, USA Today,
Investor's Business Daily, Fortune and Business Week. Mr. Thredgold is also a
monthly contributor for the national publication, Blue Chip Financial Forecasts
and writes a weekly economic and financial newsletter entitled The Tea Leaf.
DANIEL W. CAMPBELL , age 43, will become an Independent Director upon the
closing of the Offering. Mr. Campbell is currently a Managing General Partner of
EsNet, Ltd., a limited partnership engaged in the business of owning, leasing,
managing and developing commercial properties and investing in companies with
high growth potential. From 1992 to 1994, Mr. Campbell was the Senior Vice
President and Chief Financial Officer of WordPerfect Corporation. From 1979 to
1992, Mr. Campbell was an Associate and then Partner at Price Waterhouse, where
he serviced the worldwide accounting and consulting needs of multi-national
Fortune 500 companies.
KEY EMPLOYEES
WAYNE A. MOLL, age 50, is Senior Vice President and Chief Credit Officer.
Mr. Moll has a diverse career experience in loan operations, credit management,
business development, underwriting, lending, loan sales, quality control,
appraising and personnel management. His background includes 30 years in the
lending industry, most recently as the Senior Vice President of Fairfield
Mortgage from 1995 through 1996. He was employed as the Vice President and
Regional Manager at Colonial Bancorp from 1994 to 1995, and as the Vice
President and Chief Underwriter at Medallion Mortgage Company from 1990 to 1994.
VICTOR R. CALANDRA, age 38, is the Senior Vice President in charge of
Correspondent lending. Mr. Calandra has over 12 years experience in the mortgage
banking business. Mr. Calandra was formerly a Vice President for Nomura
Securities International ("Nomura") in the fixed income and structured finance
department. At Nomura, Mr. Calandra established nationwide correspondent
relationships with sellers to Nomura's conduit and was responsible for the
marketing and sale of securities and whole loans acquired through Nomura's home
equity loan conduit.
PATRICK W. CROGHAN, age 38, is the Senior Vice President, Wholesale
Production for the eastern United States. His responsibilities include
recruiting, expanding and supervising wholesale branch operations for both Prime
and Subprime Mortgage Loan origination. Mr. Croghan has over 10 years of
experience in mortgage banking, all of which has been in loan production. Prior
to joining the Company, he was a Regional Vice President for AccuBanc Mortgage
and Medallion Mortgage.
KENT G. BILLS , age 32, is the Senior Vice President, Wholesale Production
for the western United States and the Secretary of the Company. Mr. Bills was
previously a Vice President with Security National Mortgage Corporation from
1995 through 1996. Prior to joining Security National Mortgage Corporation, he
was a Vice President at ComUnity Lending, Inc. in charge of the Company's
wholesale lending operations from 1989 through 1995.
WILLIAM J. REED, age 49, is the Senior Vice President, Information Systems.
Mr. Reed's primary responsibilities include managing the MIS department,
including software and hardware support for the Company's WAN and the
development of a company-wide integrated software network. Mr. Reed was
85
<PAGE> 93
previously Senior Product Analyst at Interlinq Software, where he was the lead
designer for the MortgageWare Secondary Marketing System. Prior to that he was
the Vice President, Secondary Marketing at Commercial Center Bank, where he
established their correspondent purchase program, and the Executive Vice
President at Government Mortgage Corporation, where he established their
secondary marketing department. Mr. Reed has more than 14 years experience in
mortgage and mortgage-related industries.
SHAUNA L. REIMANN, age 42, is the Senior Vice President in charge of Retail
Lending. Ms. Reimann has over 20 years of experience in all facets of loan
production and operations, including processing, shipping, warehousing,
underwriting, correspondent lenders and retail originations. She was elected
President of the Utah Mortgage Bankers Association in 1993 and has served on the
Board of Governors for seven years. Prior to joining the Company, she served as
Regional Vice President, Retail Production for AccuBanc and Medallion Mortgage
Companies.
TERMS OF DIRECTORS AND OFFICERS
After the Offering, the Company's Board of Directors will consist of five
persons (as such number may be changed by the Board of Directors from time to
time by resolution) and is divided into three classes, designated Class I, Class
II and Class III, with each class to be as nearly equal in number of directors
as possible. Mr. Fry is a Class III Director, Mr. Mott and Mr. Jones are Class
II Directors. Upon closing of this Offering, Mr. Thredgold and Mr. Campbell will
serve as Class I Directors. Class I, Class II and Class III directors will stand
for reelection at the annual meetings of stockholders held in 1999, 2000 and
2001, respectively. At each annual meeting, the successors to the class of
directors whose term expires at that time are to be elected to hold office for a
term of three years, and until their respective successors are elected and
qualified, so that the term of one class of directors expires at each such
annual meeting. The Company intends to maintain the composition of the Board of
Directors so that there will be no more than seven directors, with a majority of
Independent Directors at all times after the closing of the Offering, each of
whom shall serve on the Audit and/or Compensation Committees. In the case of any
vacancy on the Board of Directors, including a vacancy created by an increase in
the number of directors, the vacancy may be filled by election of the Board of
Directors or the stockholders, with the director so elected to serve until the
next annual meeting of stockholders (if elected by the Board of Directors) or
for the remainder of the term of the director being replaced (if elected by the
stockholders). Any newly-created directorships or decreases in directorships are
to be assigned by the Board of Directors so as to make all classes as nearly
equal in number as possible. Directors may be removed only for cause and then
only by vote of a majority of the combined voting power of stockholders entitled
to vote in the election for directors.
The Amended and Restated Articles of Incorporation may be amended by the
vote of a majority of the combined voting power of stockholders, provided that
amendments to the article dealing with directors may only be amended if it is
advised by at least two-thirds of the Board of Directors and approved by vote of
at least two-thirds of the combined voting power of stockholders. The effect of
the foregoing and other provisions in the Company's Amended and Restated
Articles of Incorporation, which restrict stock ownership to 9.8% in value of
the aggregate of the outstanding shares of Capital Stock or in excess of 9.8% of
the aggregate of the outstanding shares of the Company's Common Stock, as well
as the control share and business acquisitions statutes under Maryland law, may
discourage takeover attempts and make attempts by stockholders to change
management more difficult. Prospective investors are encouraged to review the
Amended and Restated Articles of Incorporation and Bylaws in their entirety. See
"Description of Capital Stock -- Repurchase of Shares and Restrictions on
Transfer," "-- Control Share Acquisitions" and "-- Business Acquisitions
Statutes."
The Bylaws of the Company provide that, except in the case of a vacancy, a
majority of the members of the Board of Directors will at all times be
Independent Directors. Independent Directors are defined as directors who are
not officers or employees of the Company or any affiliate or subsidiary of the
Company. Vacancies occurring on the Board of Directors among the Independent
Directors may be filled by a vote of a majority of the remaining directors,
including a majority of the remaining Independent Directors. Officers are
elected annually and serve at the discretion of the Board of Directors. There
are no family relationships between the executive officers or directors.
86
<PAGE> 94
COMMITTEES OF THE BOARD
AUDIT COMMITTEE.
The Company has established an Audit Committee composed of three
Independent Directors. The Audit Committee will make recommendations concerning
the engagement of independent auditors, review with the independent auditors the
plans and results of the audit engagement, approve professional services
provided by the independent auditors, review the independence of the independent
auditors, consider the range of audit and non-audit fees and review the adequacy
of the Company's internal accounting controls.
COMPENSATION COMMITTEE.
The Company has established a Compensation Committee composed of two
Independent Directors and John Fry, Chairman of the Board. The Compensation
Committee will determine the compensation of the Company's executive officers.
OTHER COMMITTEES.
The Board of Directors may establish other committees as deemed necessary
or appropriate from time to time, including, but not limited to, an Executive
Committee of the Board of Directors.
COMPENSATION OF DIRECTORS
The Company pays Independent Directors of the Company $10,000 per year plus
$500 for each meeting attended in person. Independent Directors of the Company
also receive automatic stock options pursuant to the Company's Stock Option
Plan. See "-- Executive Compensation -- 1998 Stock Option Plan -- Automatic
Grants to Independent Directors." In addition, each Independent Director will be
granted options to purchase 5,000 shares of Common Stock at the Price to Public
upon the closing of the Offering. In addition, each Independent Director will
receive options to purchase 2,500 shares of Common Stock at the fair market
value of the Common Stock on the day after each annual meeting of stockholders.
All directors receive reimbursement of reasonable out-of-pocket expenses
incurred in connection with meetings of the Board of Directors. No Director who
is an employee of the Company will receive separate compensation for services
rendered as a Director.
COMPENSATION COMMITTEE INTERLOCKS
No interlocking relationship exists between the Company's Board of
Directors or officers responsible for compensation decisions and the board of
directors or compensation committee of any other company, nor has any such
interlocking relationship existed in the past.
EXECUTIVE COMPENSATION
The objective of the Compensation Committee in constructing the
compensation packages of the Company is to align the interests of management as
closely as possible with those of the stockholders. This is accomplished by
basing a large percentage of senior management's compensation on the
profitability of the Company (measured by return on stockholders' equity or
"ROE") and the Common Stock price.
87
<PAGE> 95
BASE COMPENSATION
The base compensation packages for Messrs. Fry, Mott, McMurray and Passey
for 1996 and 1997 has been and for 1998 will be as follows pursuant to the terms
of their employment agreements (described below), unless subsequently amended by
the Compensation Committee:
<TABLE>
<CAPTION>
LONG TERM COMPENSATION
----------------------------------------------------
ALL OTHER
AWARDS PAYOUTS COMPENSATION
ANNUAL COMPENSATION(1) --------------------------- ------- ------------
----------------------------------------- SECURITIES
OTHER ANNUAL RESTRICTED UNDERLYING LTIP
NAME AND PRINCIPAL POSITION YEAR SALARY BONUS(2) COMPENSATION STOCK AWARDS OPTIONS/SARS PAYOUTS
--------------------------- ---- -------- -------- ------------ ------------ ------------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
John D. Fry.................... 1996 $ 32,500 $ -0- $ -0- $-0- $ -0- $-0- $ -0-
Chairman of the Board and 1997 $172,500 $ -0- $ -0- -0- -0- -0- -0-
Chief Executive Officer 1998 $250,000 $ (3) $ -0- -0- 126,874 -0- 12,000(4)
Terry L. Mott.................. 1996 $ 16,000 $ -0- $ -0- -0- -0- -0- -0-
Executive Vice President and 1997 $138,997 $107,834 $ -0- -0- -0- -0- -0-
Director 1998 $200,000 $ (5) $ -0- -0- 39,537 -0- -0-
John P. McMurray............... 1996 $ -0- $ -0- $ -0- -0- -0- -0- -0-
Executive Vice President of 1997 $ -0- $ -0- $ -0- -0- -0- -0- -0-
Secondary Marketing and 1998 $200,000 $ 40,000(6) $ -0- -0- 30,000 -0- -0-
Asset Liability Management
Steven K. Passey............... 1996 $ -0- $ -0- $ -0- -0- -0- -0- -0-
Senior Vice President and 1997 $ 22,195 $ -0- $ -0- -0- 5,399 -0- -0-
Chief Financial Officer 1998 $120,000 $ (7) $ -0- -0- 5,000 -0- -0-
</TABLE>
- ---------------
(1) The base compensation packages for 1998 and thereafter will be as presented
for the three- or five-year term of their employment agreements (described
below), unless subsequently amended by the Compensation Committee.
(2) For the fiscal year ended December 31, 1997. For 1998 and beyond, subject to
the Bonus Incentive Plan.
(3) Pursuant to his employment agreement, Mr. Fry will receive 33% of the annual
bonus payable under the Bonus Incentive Compensation Plan (the "Annual
Bonus").
(4) Representing a monthly car allowance of $1,000.
(5) Pursuant to his employment agreement, Mr. Mott will receive 20% of the
Annual Bonus.
(6) For 1998, payable upon closing of the Offering. For 1999 and thereafter, Mr.
McMurray will receive 20% of the Annual Bonus.
(7) Pursuant to his employment agreement, Mr. Passey will receive 7% of the
Annual Bonus.
BONUS INCENTIVE COMPENSATION PLAN
Upon closing of the Offering, a Bonus Incentive Compensation Plan will be
established for certain executive and key officers of the Company and its
subsidiaries. The annual bonus pursuant to the Bonus Incentive Compensation Plan
(the "Annual Bonus") will be paid one-half in cash and one-half in shares of
Common Stock, annually, following receipt of the audit for the related fiscal
year. This program will award bonuses annually to those officers out of a total
pool determined by stockholder ROE as follows:
<TABLE>
<CAPTION>
ROE(1) IN EXCESS OF BASE RATE(2) BY: ANNUAL BONUS AS PERCENT OF AVERAGE NET WORTH(3) OUTSTANDING
- ------------------------------------ -----------------------------------------------------------
<S> <C>
Zero or less 0%
Greater than 0% but less than 6% 10% * (Actual ROE - Base Rate)
Greater than 6% (10% * 6%) + 15% * (Actual
ROE - (Base Rate + 6%))
</TABLE>
- ---------------
(1) "ROE" is determined for the fiscal year by averaging the monthly ratios
calculated each month by dividing (i) the Company's monthly Net Income
(adjusted to an annual rate) by (ii) its Average Net Worth for such month.
For such calculations, the "Net Income" of the Company means the net income
or net loss of the Company determined according to GAAP, after deducting any
dividends paid or
88
<PAGE> 96
payable with respect to preferred stock and before giving effect to the
bonus incentive compensation or any valuation allowance adjustment to
stockholders' equity. The definition "ROE" is used only for purposes of
calculating the bonus incentive compensation payable pursuant to the Bonus
Incentive Compensation Plan, and is not related to the actual distributions
received by stockholders. The bonus payments will be made before any income
distributions are made to stockholders.
(2) "Base Rate" is the average for each month of the 10-Year U.S. Treasury Rate,
plus 4%.
(3) "Average Net Worth" for any month means the arithmetic average of the sum of
(i) the net proceeds from all offerings of equity securities by the Company
since formation including exercise of warrants and stock options and
pursuant to the DRP (but excluding any offerings of preferred stock
subsequent to the Offering), after deducting any underwriting discounts and
commissions and other expenses and costs relating to the Offering, plus (ii)
the Company's retained earnings (without taking into account any losses
incurred in prior fiscal years, after deducting any amounts reflecting
taxable income to be distributed as dividends and without giving effect to
any valuation allowance adjustment to stockholders' equity) computed by
taking the daily average of such values during such period.
Of the amount so determined, one-half will be deemed contributed to the
total pool in cash and the other half deemed contributed to the total pool in
the form of shares of Common Stock, with the number of shares to be calculated
based on the average price per share during the preceding year. Pursuant to
their respective employment agreements, the Company has agreed to pay to Messrs.
Fry, Mott, McMurray and Passey an aggregate of 70% of the Annual Bonus. See
"-- Executive Compensation -- Base Compensation." The remaining Annual Bonus
will be distributed as determined by the Board of Directors or the Compensation
Committee.
EMPLOYMENT AGREEMENTS
The Company has entered into employment agreements with Messrs. Fry, Mott,
McMurray and Passey. The employment agreements with Mr. Fry and Mr. Mott provide
for a five-year term through December, 2002, and the employment agreements with
Mr. McMurray and Mr. Passey provide for a three-year term through December,
2000. Each of the employment agreements will be automatically extended for an
additional year at the end of the initial term and each annual renewal, unless
either party provides a prescribed prior written notice to the contrary. Each
employment agreement provides for the annual base salary set forth in the
compensation table above and for participation by the subject officer in the
Bonus Incentive Compensation Plan. Each employment agreement provides for the
subject officer to receive his annual base salary and bonus compensation to the
date of the termination of employment by reason of death, disability or
resignation and to receive base compensation to the date of the termination of
employment by reason of a termination of employment for cause, as defined in the
agreement. The employment agreements of Messrs. Fry, Mott and McMurray also
provide for Messrs. Fry, Mott and McMurray to receive, if Messrs. Fry, Mott and
McMurray are terminated without cause after a "Change in Control" of the Company
as such term is defined in the agreement, an amount, 50% payable immediately and
50% payable in monthly installments over the succeeding 12 months, equal to
three times their respective combined maximum base salary and actual bonus
compensation for the preceding year, subject in each case to a maximum amount of
one percent of the Company's book equity value (exclusive of valuation
adjustments) but in no case less than three times their respective base
compensation. In addition, all outstanding options granted to the subject
officer under the 1998 Stock Option Plan shall immediately vest. "Change of
Control" for purposes of the agreements would include a merger or consolidation
of the Company, a sale of all or substantially all of the assets of the Company,
changes in the identity of a majority of the members of the Board of Directors
of the Company (other than due to the death, disability or age of a director) or
acquisitions of more than 25% of the combined voting power of the Company's
capital stock, subject to certain limitations. If the Company terminates any
officer's employment without cause, or, with respect to Mr. Fry, if he resigns
for "good reason," the officer receives a severance amount. The severance
amount, which varies from six-months' base salary to one-year's full base and
bonus compensation, is payable immediately, subject in each case to a maximum
amount of one percent of the Company's book value (exclusive of valuation
adjustments). If the officer resigns for any other
89
<PAGE> 97
reason, there is no severance payment. Each of the officers is prohibited from
competing with the Company for a period of two years following any termination
of employment, except upon termination by the Company without cause.
The employment agreements, and the non-competition provisions thereof, are
unlikely to be enforceable by the Company against the employees since state law
and public policy generally prohibit forced employment and severely restrict the
scope of non-competition provisions. As a result, there can be no assurance that
such employees will remain with the Company and that they will not compete after
termination.
1996 STOCK OPTION PLAN
The Board of Directors adopted CMG Funding Corp.'s 1996 Stock Option Plan
(the "1996 Stock Option Plan") pursuant to which options to purchase an
aggregate of 226,905 shares of CMG Funding Corp.'s common stock (prior to the
reverse stock split described below) can be granted to officers, directors and
employees, and to consultants, vendors, customers and others expected to provide
significant services to CMG Funding Corp. or its subsidiaries. Upon closing of
the Offering, the Company will adopt CMG Funding Corp.'s 1996 Stock Option Plan
and will convert such options into options to purchase Company Common Stock. If
an option granted under the 1996 Stock Option Plan expires or terminates, the
shares subject to any unexercised portion of that option will again become
available for the issuance of further options under the applicable plan. Options
may be granted under the 1996 Stock Option Plan which are intended to qualify as
"incentive stock options" under Section 422 of the Code ("ISOs") or,
alternatively, as stock options which will not so qualify ("NQSOs"). The plans
will terminate on December 16, 2006, and no more options may be granted under
the 1996 Stock Option Plan once it has been terminated. The Board or a committee
designated by the Board is empowered to determine the terms and conditions of
each option granted under the 1996 Stock Option Plan. However, the exercise
price of an ISO cannot be less than the fair market value of the Common Stock on
the date of grant (110% if granted to an employee who owns 10% or more of the
Common Stock), and the exercise price of an NQSO option cannot be less than 85%
of the fair market value on the date of grant. No option can have a term in
excess of ten years (five years if granted to an employee owning 10% or more of
the Common Stock), and no ISO can be granted to anyone other than a full-time
employee of the Company or its subsidiaries. As of the date hereof, options to
purchase 79,500 shares of CMG Funding Corp. common stock at an exercise price of
$3.96 per share have been granted under the 1996 Stock Option Plan. Such options
will be reverse split and converted into options to purchase 42,925 shares of
Company Common Stock upon the closing of the Offering at an exercise price of
$7.33 per share. In addition, options to purchase 30,000 shares (post-split) at
an exercise price of $15.00 per share have been granted under the 1996 Stock
Option Plan.
1998 STOCK OPTION PLAN
General. The Company's 1998 Stock Option Plan (the "1998 Stock Option
Plan") provides for the grant of ISOs and NQSOs.
Purpose. The 1998 Stock Option Plan is intended to provide a means of
performance-based compensation in order to attract and retain qualified
personnel and to afford additional incentive to others to increase their efforts
in providing significant services to the Company.
Administration. The 1998 Stock Option Plan will be administered by the
Compensation Committee, which shall be comprised of the two Independent
Directors and John D. Fry. Independent Directors are eligible to receive only
NQSOs pursuant to automatic grants of stock options discussed below.
Options and Awards. Stock options granted under the 1998 Stock Option Plan
will become exercisable in accordance with the terms of grant made by the
Compensation Committee. Awards will be subject to the terms and restrictions of
the awards made by the Compensation Committee. Stock option and award recipients
shall enter into a written stock option agreement with the Company. The
Compensation Committee has discretionary authority to select participants from
among eligible persons and to determine at the time a stock option or award is
granted when and in what increments shares covered by the stock option or award
may be purchased or will vest and, in the case of options, whether it is
intended to be an ISO or a NQSO
90
<PAGE> 98
provided, however, that certain restrictions applicable to ISOs are mandatory,
including a requirement that ISOs not be issued for less than 100% of the then
fair market value of the Common Stock (110% in the case of a grantee who holds
more than 10% of the outstanding Common Stock) and a maximum term of 10 years
(five years in the case of a grantee who holds more than 10% of the outstanding
Common Stock). Fair market value means as of any given date, with respect to any
stock option or award granted, at the discretion of the Board of Directors or
the Compensation Committee, (i) the closing sale price of the Common Stock on
such date as reported in the Western Edition of the Wall Street Journal or (ii)
the average of the closing price of the Common Stock on each day of which it was
traded over a period of up to 20 trading days immediately prior to such date, or
(iii) if the Common Stock is not publicly traded (e.g., prior to an initial
public offering), the fair market value of the Common Stock as otherwise
determined by the Board of Directors or the Compensation Committee in the good
faith exercise of its discretion.
Vesting of Options and Awards. The Stock Options granted under the 1998
Stock Option Plan shall vest on the following terms. For each annual period over
a five-year period that the Company delivers a total return (stock price
appreciation, warrant value, appreciation and dividends) to investors in the
Offering equal to or exceeding 20%, one-third of the stock options will vest,
until all such stock options have vested. Alternatively, if at any time prior to
the end of the five-year period the total return to investors equals or exceeds
100%, all of the stock options will vest.
For purposes of calculating the returns to such investors, the term "fiscal
period" will refer to each of five periods, the first commencing with the last
closing of the Offering and ending on December 31, 1999, and each succeeding
fiscal period extending for 12 months and ending on each December 31. The term
"return" for each fiscal period will mean the sum of (on a per share of Capital
Stock basis) (a) all cash dividends paid during (or declared with respect to)
such fiscal period per share of Common Stock, (b) any increase or decrease in
the price per share of Common Stock during such fiscal period, measured by using
the price per share of Capital Stock to investors in the Offering, and using the
average public trading price during the last 90 days of each succeeding fiscal
period for such succeeding periods, and (c) any increase or decrease in the
price per Warrant during such fiscal period, determined in the same manner as in
(b) above. For purposes of the fiscal period 20% return test, the total return
for a given period will be equal to the sum of (a), (b) and (c) will all be
measured from the beginning of the first fiscal period. The amount of that
"return" will then be measured as a percentage of the investors' investment in
the Units (on a per share of Capital Stock basis) without regard to timing of
receipt of dividends or timing of increases in per share or per Warrant prices.
Automatic grants of stock options to the Independent Directors vest 25% on
the anniversary date in the year following the date of the grant and 25% on each
anniversary date thereafter.
Eligible Persons. Officers and directors and employees of the Company and
other persons expected to provide significant services to the Company are
eligible to participate in the 1998 Stock Option Plan. ISOs may be granted to
the officers and key employees of the Company. NQSOs may be granted to the
directors, officers, key employees, agents and consultants of the Company or any
of its subsidiaries.
Under current law, ISOs may not be granted to any director of the Company
who is not an employee, or to directors, officers and other employees of
entities unrelated to the Company. No options may be granted under the 1998
Stock Option Plan to any person who, assuming exercise of all options held by
such person, would own or be deemed to own more than 25% of the outstanding
shares of equity stock of the Company.
Shares Subject to the Plan. Subject to anti-dilution provisions for stock
splits, stock dividends and similar events, the 1998 Stock Option Plan
authorizes the grant of stock options to purchase an aggregate of up to 456,667
shares of the Company's Common Stock. If an option granted under the 1998 Stock
Option Plan expires or terminates, the shares subject to any unexercised portion
of such Stock Option will again become available for the issuance of further
stock options under the 1998 Stock Option Plan. The maximum number of shares
covered by the 1998 Stock Option Plan will increase (from and after such time as
the number of outstanding shares of Common Stock exceeds the number of shares
outstanding after this Offering) to 10% of the Company's total outstanding
shares at any time.
91
<PAGE> 99
Term of the Plan. Unless previously terminated by the Board of Directors,
the 1998 Stock Option Plan will terminate on April 1, 2008, and no options may
be granted under the 1998 Stock Option Plan thereafter, but existing options
remain in effect until the options are exercised or terminated by their terms.
Term of Options. Each stock option must terminate no more than ten years
from the date it is granted (or five years in the case of ISOs granted to an
employee who is deemed to own an excess of 10% of the combined voting power of
the Company's outstanding equity stock). Stock options may be granted on terms
providing for exercise either in whole or in part at any time or times during
their restrictive terms, or only in specified percentages at stated time periods
or intervals during the term of the stock option.
Option Exercise. The exercise price of any stock option granted under the
1998 Stock Option Plan is payable in full in cash, or its equivalent as
determined by the Compensation Committee. The Company may make loans available
to option holders to exercise stock options evidenced by a promissory note
executed by the option holder and secured by a pledge of Common Stock with fair
value at least equal to the principal of the promissory note unless otherwise
determined by the Compensation Committee.
Automatic Grants to Independent Directors. Each Independent Director of the
Company is automatically granted NQSOs to purchase 5,000 shares of Common Stock
upon becoming a director of the Company, and is also automatically granted NQSOs
to purchase 2,500 shares of Common Stock the day after each annual meeting of
stockholders upon re-election to or continuation on the Board. Such automatic
grants of stock options vest 25% on the anniversary date in the year following
the date of the grant and 25% on each anniversary date thereafter. The exercise
price for such automatic grants of stock options is the fair market value of the
Common Stock on the date of grant, and is required to be paid in cash.
Amendment and Termination of Stock Option Plan. The Board of Directors may,
without affecting any outstanding stock options, from time to time revise or
amend the 1998 Stock Option Plan, and may suspend or discontinue it at any time.
However, no such revision or amendment may, without stockholder approval,
increase the number of shares subject to the 1998 Stock Option Plan, modify the
class of participants eligible to receive options granted under the 1998 Stock
Option Plan or extend the maximum option term under the 1998 Stock Option Plan.
Outstanding Options. Under the Company's 1998 Stock Option Plan, options to
acquire 407,569 shares will be granted upon closing of this Offering. Of these
stock options, 15,000 will be granted to the three Independent Directors and
will vest 25% on the closing of this Offering and 25% on each anniversary of
such date thereafter. All stock options granted to employees and directors upon
closing of this Offering are exercisable at the Price to Public. The 1998 Stock
Option Plan provides that, in connection with any reorganization, merger,
consolidation, recapitalization, stock split or similar transaction, the
Compensation Committee shall appropriately adjust the number of shares of Common
Stock subject to outstanding Stock Options and the total number of shares for
which stock options may be granted under the Plan.
92
<PAGE> 100
STOCK OPTION GRANTS
The following table sets forth information concerning all stock options
granted during 1997 and to date in 1998 to each member of the Board of Directors
and Executive Officers.
INDIVIDUAL GRANTS
<TABLE>
<CAPTION>
POTENTIAL REALIZABLE VALUE
AT
ASSUMED ANNUAL RATES OF
STOCK
APPRECIATION FOR
PERCENT OF TOTAL OPTIONS EXERCISE PLAN OPTION TERM
GRANTED TO EMPLOYEES OR BASE PICE ---------------------------
NAME GRANT DURING THE YEAR(1) ($/SHARE) DATE 5% ($) 10% ($)
---- ------- ------------------------ ------------- -------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
John D. Fry.......... 126,874 36.4% $ (2) 04/01/98 $1,196,856 $3,033,067
Terry L. Mott........ 39,537 11.4% $ (2) 04/01/98 $ 372,969 $ 945,177
John P. McMurray..... 30,000* 8.6% $15.00 04/01/98 $ 283,003 $ 717,184
Steven K. Passey..... 5,399* 1.6% $ 7.33 10/27/97 $ 24,888 $ 63,072
5,000 1.4% $ (2) 04/01/98 $ 47,167 $ 119,531
Carter E. Jones...... 5,000 1.4% $ (2) 04/01/98 $ 47,167 $ 119,531
Jeff K. Thredgold.... 5,000 1.4% $ (2) 04/01/98 $ 47,167 $ 119,531
Daniel W. Campbell... 5,000 1.4% $ (2) 04/01/98 $ 47,167 $ 119,531
</TABLE>
- ---------------
* Granted under the 1996 Stock Option Plan.
(1) Calculation of the percentages excludes Stock Options to purchase 126,667
shares of the Company's Common Stock granted to ContiFinancial Corporation
in April, 1998.
(2) Exercise price equals the Price to Public.
93
<PAGE> 101
STRUCTURE AND FORMATION TRANSACTIONS
The following discussion is qualified in its entirety by the description of
the potential effects of the 1999 Budget Plan set forth above under
"Business -- Industry Developments."
STRUCTURE OF THE COMPANY
Initially, the Company will conduct its operations through at least two
entities, (i) RealTrust Asset Corporation, a newly-formed Maryland corporation
that will elect REIT status (for purposes of this discussion, sometimes referred
to as "RealTrust"), and (ii) CMG Funding Corp., a Delaware corporation, that
will not elect REIT status (for purposes of this discussion, sometimes referred
to as the "Taxable Subsidiary"). See "Business -- Industry Developments." The
structure is designed primarily to permit RealTrust to acquire the ownership of
95% of the economic interest of the Taxable Subsidiary (including the right to
95% of all dividend distributions) while qualifying for REIT status. See
"Federal Income Tax Considerations -- Qualification as a REIT -- Nature of
Assets."
REALTRUST ASSET CORPORATION
RealTrust Asset Corporation will acquire a portfolio of Mortgage Assets
using the net proceeds of the Offering and the net proceeds of borrowings and
structured debt vehicles. It is anticipated that RealTrust's assets will consist
primarily of Mortgage Assets and the preferred stock of the Taxable Subsidiary.
On April 15, 1998, the Founders contributed shares of CMG Funding Corp.
preferred stock and common stock for shares of Capital Stock of RealTrust, while
retaining a portion of their shares of the Taxable Subsidiary common stock. The
shares of the Taxable Subsidiary capital stock held by RealTrust were then
recapitalized into shares of non-voting preferred stock, such that RealTrust
owned all of the non-voting preferred stock of the Taxable Subsidiary
representing 95% of the economic interest. The shares of voting common stock of
the Taxable Subsidiary retained by the Founders represent five percent of the
economic interest. RealTrust will not control the Taxable Subsidiary.
Accordingly, the purchase of Units in the Offering will not own an interest in
any entity that control the Taxable Subsidiary. See "Risk Factors -- Conflicts
of Interest May Result in Decisions That Do Not Fully Reflect the Stockholders'
Best Interests -- Investors Will Have No Voting Control of the Taxable
Subsidiary."
RealTrust will conduct the investment portfolio operations of the Company.
Specifically, RealTrust will determine which Mortgage Loans will be held for
long-term investment, will establish underwriting guidelines for the Mortgage
Loans, will arrange financing for the investment portfolio (including the
issuance of structured debt offerings), will administer the capital allocation
guidelines and other risk management policies, and will supervise the servicing
operations of third-party servicers.
For 1998 and thereafter, RealTrust intends to qualify and elect to be taxed
as a REIT. As a REIT, RealTrust generally will not be taxed on its earnings to
the extent that such earnings are distributed as dividends to its stockholders.
See "Dividend Policy and Distributions" and "Federal Income Tax
Considerations -- Taxation of the Company."
RealTrust owns all of the preferred stock of the Taxable Subsidiary,
representing 95% of the economic interest thereof, but will generally have no
right to control the affairs of the Taxable Subsidiary (other than to approve
certain fundamental transactions such as mergers, consolidations, sales of all
or substantially all of the assets, and voluntary liquidation) because the
preferred stock is non-voting. Instead, the Founders and ContiFinancial
Corporation, as the holders of all of the common stock of the Taxable
Subsidiary, control the operations and affairs of the Taxable Subsidiary. See
"Risk Factors -- Conflicts of Interest May Result in Decisions That Do Not Fully
Reflect the Stockholders' Best Interests -- Conflicts of Interest with and
Dependence Upon ContiFinancial Corporation May Not Be in the Stockholders' Best
Interests." This ownership structure is required because, as a REIT, RealTrust
generally may not own more than 10% of the voting securities of any other
issuer. See "Federal Income Tax Considerations -- Qualification as a REIT --
Nature of Assets" and "Risk Factors -- President's 1999 Budget Plan, If Enacted,
Would Adversely Affect
94
<PAGE> 102
Results of Operations." Accordingly, the purchasers of the Units in the Offering
will not own an interest in any entity that controls the Taxable Subsidiary.
THE TAXABLE SUBSIDIARY
The Taxable Subsidiary is taxable as a "C" corporation. The Taxable
Subsidiary will not be making a REIT election. The Taxable Subsidiary will
perform those tasks and engage in those lines of business that would result in a
loss of REIT status or the imposition of taxation if RealTrust were to engage in
them. In particular, the Taxable Subsidiary will originate, sell and service
Mortgage Loans and will serve as a source of Mortgage Loans for RealTrust. See
"Risk Factors -- President's 1999 Budget Plan, If Enacted, Would Adversely
Affect Results of Operations."
The Taxable Subsidiary will conduct the mortgage lending operations of the
Company. The Taxable Subsidiary will establish and maintain the wholesale,
retail and correspondent channels of production, will perform all underwriting
and quality control processes, will sell all Mortgage Loans that RealTrust does
not desire to hold for long-term investment (either through whole loan sales or
securitizations) and will maintain all necessary state mortgage lending
licenses.
The Taxable Subsidiary will make dividend distributions to the extent
consistent with RealTrust's qualification as a REIT. For purposes of receiving
dividends, there is no difference between a share of the preferred stock of the
Taxable Subsidiary and a share of the common stock of the Taxable Subsidiary so
that the preferred stock of the Taxable Subsidiary will have no dividend rate or
preference over the common stock of the Taxable Subsidiary. Instead, dividend
distributions by the Taxable Subsidiary will be made in the same amount per
share of the preferred stock and common stock of the Taxable Subsidiary.
FORMATION TRANSACTIONS AND POST-CLOSING TRANSACTIONS
FORMATION TRANSACTIONS
Immediately prior to or upon the closing of this Offering, the following
transactions (the "Formation Transactions") will be consummated:
- As of April 15, 1998, the stockholders of the Taxable Subsidiary have
contributed 95% of their capital stock of the Taxable Subsidiary to
RealTrust in exchange for shares of RealTrust Capital Stock;
- The capital stock of the Taxable Subsidiary will be recapitalized such
that RealTrust will own non-voting preferred stock representing 95% of
the economic interest of the Taxable Subsidiary and the Founders and
ContiFinancial Corporation will own common stock representing five
percent of the economic interest of the Taxable Subsidiary (reflecting
their respective percentage ownership of the Taxable Subsidiary's entire
capital stock);
- The outstanding shares of preferred stock of RealTrust, owned by
ContiFinancial Corporation, John Fry and Terry Mott, and all of the
shares of Common Stock of RealTrust held by the Founders and
ContiFinancial Corporation will be converted into an aggregate of
1,295,807 shares of Common Stock of RealTrust, par value $.001 per share
(the "Common Stock"); except the 410,581 shares of Class B Redeemable
Preferred Stock owned by ContiFinancial Corporation which will be
redeemed after the closing of the Offering (see "Conflicts of Interest
and Related Party Transactions -- ContiFinancial Corporation" and "Use
of Proceeds");
- The Company will amend its Articles of Incorporation to adopt provisions
necessary for qualification as a REIT;
- The Company will sell 5,000,000 Units in this Offering (assuming no
exercise of the Underwriters' over-allotment option); and
- The Company will grant the Representative's Warrants.
95
<PAGE> 103
POST-CLOSING TRANSACTIONS
Following the closing of the Offering, the following transactions will be
consummated (the "Post-Closing Transactions"):
- The Company will elect to be taxed as a REIT;
- The Company will conduct certain aspects of its mortgage lending
operations through the Taxable Subsidiary. The Company will own all of
the shares of non-voting preferred stock of the Taxable Subsidiary,
which shares shall represent 95% of the economic interest of the Taxable
Subsidiary. See "Risk Factors -- President's 1999 Budget Plan, If
Enacted, Would Adversely Affect Results of Operations";
- The Founders will own approximately 68% and ContiFinancial Corporation
will own approximately 32% of the voting common stock of the Taxable
Subsidiary, which shares shall represent five percent of the economic
interest of the Taxable Subsidiary;
- The Company will redeem the 410,581 shares of Class B Redeemable
Preferred Stock held by ContiFinancial Corporation for $2,000,000, plus
dividends accrued since January 1, 1998, at the rate of 18% per annum;
and
- In addition to the options to purchase 72,925 shares of Common Stock
granted to officers, directors and employees under the 1996 Stock Option
Plan, the Company will also grant to officers, directors and employees
(including ContiFinancial Corporation) options to purchase an aggregate
of 407,569 shares of Common Stock under the 1998 Stock Option Plan.
CONSEQUENCES OF FORMATION TRANSACTIONS AND POST-CLOSING TRANSACTIONS
The consummation of the Formation Transactions and the Post-Closing
Transactions will have the following consequences:
- The purchasers of Units in the Offering will own 79.4% of the
outstanding shares of Common Stock (assuming no exercise of the
Warrants, the Representative's Warrants, the over-allotment option or
outstanding stock options) and will own all of the Warrants, except the
Representative's Warrants;
- The Founders and ContiFinancial Corporation will collectively own 20.6%
of the outstanding shares of Common Stock outstanding (assuming no
exercise of the Warrants, the Representative's Warrants, the
over-allotment option or outstanding stock options);
- In addition to options granted to officers, directors and employees of
the Company to purchase 72,526 shares of Common Stock at exercise prices
ranging from $7.33 to $15.00, officers, directors and employees of the
Company and ContiFinancial Corporation will be granted options to
purchase an aggregate of 407,569 shares of Common Stock, subject to
certain vesting provisions, at an exercise price equal to the Price to
Public;
- The Company will own all of the non-voting preferred stock of the
Taxable Subsidiary, which shares will represent 95% of the economic
interest of the Taxable Subsidiary; and
- The Founders and ContiFinancial Corporation will own all of the voting
shares of common stock of the Taxable Subsidiary, which stock will
represent five percent of the economic value and voting control of the
Taxable Subsidiary.
CONFLICTS OF INTEREST AND RELATED PARTY TRANSACTIONS
CONTIFINANCIAL CORPORATION
The Taxable Subsidiary and the Company have entered into the following
transactions with ContiFinancial Corporation:
Stock Ownership. Immediately prior to the closing of the Offering,
ContiFinancial Corporation will own 546,883 shares of Common Stock, 252,117
shares of Class A Convertible Preferred Stock and 410,581 shares of Class B
Redeemable Preferred Stock, which in the aggregate represents approximately
43.0% of the
96
<PAGE> 104
outstanding shares of Capital Stock (approximately 42.0% on a fully diluted
basis). Immediately prior to the closing of this Offering, each share of Class A
Convertible Preferred Stock, including those owned by ContiFinancial
Corporation, will be converted into one share of Common Stock. All of the
outstanding shares of Common Stock will be reverse split into an aggregate of
1,295,807 shares of Common Stock. As a result, immediately prior to the closing
of the Offering, ContiFinancial Corporation will own 431,418 shares of Common
Stock, representing 33.3% of the outstanding shares (32.4% on a fully diluted
basis). Upon closing of the Offering, the Company intends to redeem the Class B
Redeemable Preferred.
The redemption price for all shares of the Class B Redeemable Preferred
Stock equals the original purchase price of $2,000,000, plus dividends accrued
from January 1, 1998 at the rate of 18% per annum, for a total redemption price
of $2,180,000, assuming redemption occurs on June 30, 1998. The Class B
Redeemable Preferred Stock is also entitled to a liquidation preference of
$2,000,000 plus accrued dividends. The Class B Redeemable Preferred Stock is not
convertible into Common Stock.
Agreements to Sell Mortgage Loans. Upon the closing of the Offering until
December 31, 2001, the Taxable Subsidiary has agreed to sell to ContiFinancial
Corporation not less than 75% of the fixed rate Subprime Mortgage Loans
originated or acquired by the Taxable Subsidiary in each month. The purchase
price for such Subprime Mortgage Loans shall be the fair market value for such
Mortgage Loans as determined by the best published rate sheet at ContiMortgage
Corporation, an affiliate of ContiFinancial Corporation. In any month, the
Taxable Subsidiary may substitute adjustable-rate Subprime Mortgage Loans for up
to 50% of the amount required to be offered for sale to ContiFinancial
Corporation. To the extent that the Taxable Subsidiary offers to sell less than
75% of the monthly fixed rate Subprime Mortgage Loan production, the Taxable
Subsidiary has agreed to pay ContiFinancial Corporation a fee equal to 40 basis
points multiplied by the amount of the principal shortfall.
Warehouse, Standby and Working Capital Financing Agreements. The Taxable
Subsidiary currently has a warehouse facility with ContiFinancial Corporation in
the principal amount of $50.0 million and a working capital facility in the
maximum principal amount of $2.0 million. As of March 31, 1998, the Taxable
Subsidiary had outstanding borrowings under such lines of $40.3 million and $2.0
million, respectively. The Company anticipates that, immediately after the
closing of this Offering, the Taxable Subsidiary will repay all amounts borrowed
under the working capital facility. See "Use of Proceeds." The Taxable
Subsidiary may continue to finance the acquisition of Mortgage Loans under the
warehouse facility. Although the Taxable Subsidiary anticipates that it will be
able to obtain financing on terms more favorable than those provided by the
warehouse facility after the closing of the Offering, the Taxable Subsidiary
believes that the warehouse facility is currently on terms not less favorable to
the Taxable Subsidiary than those available from independent third parties in
arm's-length transactions.
Warrants to Purchase Capital Stock. The Taxable Subsidiary has granted to
ContiFinancial Corporation two warrants to purchase shares of common stock. If
the amount of principal and interest due under the working capital facility is
not repaid in full by January 1, 1999, the first warrant allows ContiFinancial
Corporation to purchase, for a nominal amount, shares of common stock
representing up to five percent of the outstanding shares (on a fully diluted
basis) of the Taxable Subsidiary. If the Taxable Subsidiary repays in full the
working capital facility, the warrant is not exercisable and automatically
terminates. The Taxable Subsidiary anticipates that the working capital facility
will be repaid upon closing of the Offering from the net proceeds thereof. See
"Use of Proceeds."
The Taxable Subsidiary has also granted ContiFinancial Corporation a
warrant to purchase, for a nominal amount, shares of common stock representing
one percent of the outstanding shares (on a fully diluted basis) for each
quarter ending prior to the closing of the Offering in which the Taxable
Subsidiary does not attain at least 90% of its pre-tax net income target. Such
warrant automatically expires and may not be exercised by ContiFinancial
Corporation after the closing of this Offering. The Taxable Subsidiary has
established the pre-tax net income targets.
Structured Debt Placement Agent/Underwriter. Until December 2001, the
Company has appointed ContiFinancial Corporation as its exclusive placement
agent for structured debt offerings and other securitizations and has agreed to
pay to ContiFinancial Corporation a fee of 25 basis points of the principal
amount of
97
<PAGE> 105
any such structured debt public offering and 50 basis points of the gross
proceeds of any such structured debt private offering. These fees are payable to
ContiFinancial Corporation for financial advisory services to be rendered
pursuant to an Investment Banking Services Agreement and will not be reduced by
any fees payable or paid to others, including the underwriters, the placement
agent or to other agents or advisors, if any, in connection with any structured
debt offering. Such combined fees may exceed those available from a single third
party. See "Risk Factors -- Conflicts of Interest, May Result in Decisions That
Do Not Fully Reflect the Stockholders' Best Interest."
CAPSTONE INVESTMENTS, INC.
In March, 1998 and April, 1998, the Taxable Subsidiary borrowed an
aggregate of $850,000 from Capstone Investments, Inc., a Nevada corporation, the
sole shareholders of which are David and Sarah Ferradino, who are Founders. The
loan is evidenced by a Convertible Secured Promissory Note (the "Note") bearing
simple interest at 9% per annum and maturing upon the earlier of the following
to occur: (i) January 1, 1999, or (ii) the completion of the Offering. The Note
is secured by a pledge of Company Common Stock by certain of the Founders. Upon
completion of this Offering, Capstone Investments, Inc. will have the option to
convert all or any portion of the Note into a number of Units offered in the
Offering. The number of Units will be determined by dividing the amount to be
converted by the Price to Public. The Company also has granted Capstone warrants
to purchase 50,000 shares of the Company's Common Stock. The warrants have an
exercise price equal to the Price to Public and expire three years from their
grant date. The Company believes that the terms of the Note and warrants are no
less favorable to the Company than those available from an independent third
party in an arm's-length transaction.
CONTROL OF TAXABLE SUBSIDIARY
Although RealTrust will be entitled to 95% of the economic benefits of the
Taxable Subsidiary, it will not own any voting securities. All voting securities
will be owned by the Founders and ContiFinancial Corporation. As a result, the
Founders and ContiFinancial Corporation can conduct the affairs of the Taxable
Subsidiary in a manner that may not be in the best interests of the stockholders
of RealTrust. See "Risk Factors -- Conflicts of Interest May Result in Decisions
That Do Not Fully Reflect the Stockholders' Best Interests."
FORMATION TRANSACTIONS
The Formation Transactions that will occur on or prior to the closing of
the Offering will benefit the Founders of the Company. The Post-Closing
Transactions will occur on or after the closing of the Offering. See "Structure
and Formation Transactions."
EMPLOYMENT AGREEMENTS
The Company has entered into employment agreements with each of Messrs.
Fry, Mott, McMurray and Passey. Such employment agreements will provide for an
initial term of five years for Messrs. Fry and Mott and three years for Messrs.
McMurray and Passey, among other benefits. See "Management -- Executive
Compensation -- Employment Agreements." During the term of the employment
agreements, each of such employees has agreed not to compete with the Company.
98
<PAGE> 106
PRINCIPAL STOCKHOLDERS
The following table sets forth certain information regarding the beneficial
ownership of the Company's Common Stock as of April 1, 1998, adjusted to give
effect to the Formation Transactions, of: (i) each of the Company's directors
and executive officers, (ii) each person who beneficially owns more than five
percent of the outstanding shares of Capital Stock, and (iii) all directors and
officers of the Company as a group. Unless otherwise indicated, the address of
each named beneficial owner is the same as that of the Company's principal
executive office located at 2855 East Cottonwood Parkway, Suite 500, Salt Lake
City, Utah 84121.
<TABLE>
<CAPTION>
PERCENTAGE OF SHARES OF COMMON
NUMBER OF SHARES STOCK BENEFICIALLY OWNED
OF COMMON STOCK ---------------------------------------
NAME BENEFICIALLY OWNED(1) BEFORE OFFERING AFTER OFFERING(1)(2)
---- --------------------- --------------- --------------------
<S> <C> <C> <C>
ContiFinancial Corporation(3)........ 431,418 33.3% 6.9%
277 Park Avenue
New York, NY 10172
John D. Fry.......................... 392,798 30.3% 6.2%
Terry L. Mott........................ 122,406 9.4% 1.9%
David and Sara Ferradino(4).......... 106,641 7.9% 1.7%
1601 North Rancho Drive
Las Vegas, NV 89106
John P. McMurray(5).................. 30,000 2.3% *
Steven K. Passey(6).................. 5,399 * *
All executive officers and directors
as................................. 520,603 40.2% 8.3%
a group (4 persons)
</TABLE>
- ---------------
* Less than one percent.
(1) Unless otherwise noted, the Company believes that each person named in the
table has sole voting and investment power with respect to all Common Stock
owned by it. A person is deemed to be the beneficial owner of securities
that can be acquired by such person within 60 days from the date of this
Prospectus upon the exercise of warrants or options. Each beneficial owner's
percentage ownership is determined by assuming that options or warrants that
are held by such person (but not those held by any other person) and which
are exercisable within 60 days from the date of this Prospectus have been
exercised. None of the outstanding options to acquire Common Stock of the
Company are exercisable within 60 days of this Prospectus.
(2) Assuming no exercise of outstanding Warrants or the Representative's
Warrants.
(3) Excludes 410,581 shares of Class B Redeemable Preferred Stock which the
Company intends to redeem upon the closing of this Offering. See "Conflicts
of Interest and Related Party Transactions -- ContiFinancial Corporation."
(4) Includes warrants to purchase 50,000 shares of Common Stock exercisable at a
price per share equal to the Price to Public which are immediately
exercisable. Excludes 56,667 Units in the Offering issuable upon conversion
of the $850,000 convertible note Capstone Investments, Inc.
(5) Includes options to purchase 30,000 shares of Common Stock exercisable at
$15.00 per share granted under the 1996 Stock Option Plan which are
immediately exercisable.
(6) Includes options to purchase 5,399 shares of Common Stock exercisable at
$7.33 per share granted under the 1996 Stock Option Plan which are
immediately exercisable.
99
<PAGE> 107
DESCRIPTION OF CAPITAL STOCK
GENERAL
Upon the closing of the Offering, the authorized capital stock of the
Company will consist of 100,000,000 shares of Common Stock, of which 6,295,807
will be outstanding and 5,000,000 shares of preferred stock, none of which will
be outstanding.
HISTORICAL CAPITAL STRUCTURE
Prior to the closing of this Offering and the consummation of the Formation
Transactions (see "Structure and Formation Transactions"), the Company was
authorized to issue 4,484,508 shares of Common Stock, of which 1,546,983 were
outstanding, 1,263,472 shares of Class A Convertible Preferred Stock, of which
852,891 were outstanding and 410,581 shares of Class B Redeemable Preferred
Stock, all of which were outstanding. In addition, the Company had granted
options to purchase 79,500 shares of Common Stock at an exercise price of $3.96
per share and options to purchase 30,000 shares at an exercise of $15.00 per
share. As a result of the Formation Transactions, the outstanding shares of
Class A Convertible Preferred Stock will be converted on a one-for-one basis
into shares of Common Stock and such shares of Class A Convertible Preferred
Stock will be cancelled. The total number of outstanding shares of Common Stock,
including the options granted under the 1996 Stock Option Plan, at such time
will be 2,469,374. The Common Stock will then be reverse split at a ratio of
approximately .54 shares for 1 immediately prior to the closing. As a result of
such split, the number of shares owned by the Founders, including shares
issuable upon exercise of the options granted under the 1996 Stock Option Plan
but excluding the Class B Redeemable Preferred Stock, after this Offering will
be 1,368,732 shares. Immediately after the closing, the Class B Redeemable
Preferred Stock will be redeemed for $2,000,000, plus accrued dividends.
The following summary of the respective rights of the Common Stock and the
preferred stock is qualified in its entirety by reference to the Company's
Amended and Restated Articles of Incorporation.
COMMON STOCK
VOTING
Each holder of Common Stock is entitled to one vote for each share of
record on each matter submitted to a vote of holders of Capital Stock of the
Company. The Company's Amended and Restated Articles of Incorporation do not
provide for cumulative voting and, accordingly, the holders of a majority of the
outstanding shares of Capital Stock have the power to elect all directors to be
elected each year.
Annual meetings of the stockholders of the Company will be held, and
special meetings may be called by any member of the Board of Directors, by the
President or generally by stockholders holding at least 20% of the outstanding
shares of Capital Stock entitled to be voted at the meeting. The Amended and
Restated Articles of Incorporation of the Company may be amended in accordance
with Maryland law, subject to certain limitations set forth in the Amended and
Restated Articles of Incorporation.
DIVIDENDS; LIQUIDATION; OTHER RIGHTS
The holders of shares of Common Stock are entitled to receive dividends
when, as, and if declared by the Board of Directors out of funds legally
available therefor. In the event of liquidation, dissolution or winding up of
the Company, the holders of Common Stock will share ratably in all assets of the
Company remaining after the payment of liabilities and after payment of the
liquidation preference of any shares or series of preferred stock that may be
issued. There are no preemptive or other subscription rights, conversion rights
or redemption or sinking fund provisions with respect to shares of Common Stock.
PREFERRED STOCK
The Company's Board of Directors is authorized by the charter to fix or
alter the rights, preferences, privileges and restrictions of any series of
preferred stock, including the dividend rights, original issue price,
100
<PAGE> 108
conversion rights, voting rights, terms of redemption, liquidation preferences
and sinking fund terms thereof, and the number of shares of such series
subsequent to the issuance of shares of such series (but not below the number of
shares outstanding). As the terms of the preferred stock can be fixed by the
Board of Directors without shareholder action, the Board of Directors may issue
preferred stock with terms calculated to defeat a proposed takeover of the
Company or to make the removal of management more difficult. The Board of
Directors, without shareholder approval, could issue preferred stock with
dividend, voting, conversion and other rights which could adversely affect the
rights of the holders of Common Stock. The Company's Board of Directors
currently has no plans to issue shares of preferred stock in the Company. See
"Risk Factors -- Issuances of Preferred Stock May Adversely Affect the Value of
Common Stock."
WARRANTS AND OPTIONS
Under the 1996 Stock Option Plan, the Company has granted options to
purchase an aggregate of 79,500 shares at an exercise price of $3.96 per share.
As a result of the reverse stock split described in "Structure and Formation
Transactions," such options will be converted into options to purchase a total
of 42,925 shares of Common Stock at an exercise price of $7.33 per share. In
addition, the Company has granted options to purchase 30,000 shares (post-split)
of Common Stock at an exercise price of $15.00 per share. All of such options
are immediately exercisable.
Under the 1998 Stock Option Plan, the Company will issue options to
purchase a total of 407,569 shares of Common Stock at a price equal to the Price
to Public. None of such options are currently exercisable, and are subject to
the vesting provisions set forth in the Company's 1998 Stock Option Plan. See
"Management -- Executive Compensation -- 1998 Stock Option Plan."
Each Unit consists of one share of Common Stock and one Warrant. Prior to
automatic separation of the related Warrant, the Units will be represented by
the Common Stock, which will bear an endorsement representing beneficial
ownership of the related Warrants on deposit with the Warrant Agent (as defined
below) as custodian for the registered holders of the Common Stock. Prior to
automatic separation, transfer of a share of Common Stock to which the related
Warrant has not been exercised will also constitute transfer of a holder's
beneficial interest in the related Warrant. The Warrants to be issued to the
Representative will be evidenced by a Warrant Certificate at the time initially
issued. The Warrants are exercisable beginning six months following the closing
of this Offering and will remain exercisable until 5:00 p.m. Eastern Time on the
third anniversary of the date the Warrants first become exercisable (the
"Expiration Date"), at an exercise price equal to the Price to Public per share.
At 5:00 p.m. Eastern Time on the Expiration Date the Warrants will become wholly
void and of no value.
The Warrants will be issued pursuant to a warrant agreement (the "Warrant
Agreement") dated as of the date of this Prospectus between the Company and the
warrant agent (the "Warrant Agent"). The Company's stock transfer agent,
American Securities Transfer & Trust Incorporated, will initially act as Warrant
Agent. The following summary of certain provisions of the Warrant Agreement does
not purport to be complete and is qualified in its entirety by reference to the
Warrant Agreement including the definitions therein of certain terms used below.
A copy of the proposed form of Warrant Agreement is available from the Company
upon request and is filed as an exhibit to the Registration Statement of which
this Prospectus is a part. See "Additional Information.".
Each Warrant, when exercised, will entitle the holder thereof to receive
one share (subject to certain adjustments) of Common Stock at an exercise price
equal to the Price to Public (the "Exercise Price").
Initial delivery of the Securities from the Company to the Underwriters is
expected to occur through the book-entry facilities of The Depository Trust
Company ("DTC"). See "-- Book Entry Issuance" below. Thereafter, a beneficial
owner of such book-entry Securities (a "Beneficial Owner") will be entitled to
receive physical delivery of certificates representing its Securities only in
accordance with procedures established among DTC and its Direct and Indirect
Participants (as defined below), and in accordance with procedures, if any,
established between the Beneficial Owner and the Direct or Indirect Participant
through which the Beneficial Owner holds an interest in the Securities.
101
<PAGE> 109
The Warrants, held in certificated form, may be exercised by surrendering
to the Warrant Agent the definitive Warrant Certificate evidencing such
Warrants, with the accompanying form of election to purchase properly completed
and executed, together with payment of the exercise price which initially equals
the Price to Public, subject to adjustment (the "Exercise Price").
Warrants held in book-entry form may be exercised only in accordance with
procedures established among DTC and its Direct and Indirect Participants.
Pursuant thereto, a Beneficial Owner wishing to exercise a Warrant shall give
notice, through its Participant, to the Warrant Agent, and shall effect delivery
of the Warrant by causing the Direct Participant to transfer the Participant's
interest in the Warrant, on DTC's records, to the Warrant Agent. The requirement
for physical delivery of the Warrant Certificate in connection with the exercise
thereof will be deemed satisfied when the ownership rights in the Warrant are
transferred by Direct Participants on DTC's records and followed by a book-entry
credit of the tendered Warrant to the Warrant Agent's account.
Payment of the Exercise Price may be made (a) in the form of cash or by
certified or official bank check payable to the order of the Company, or (b) by
surrendering additional Warrants or shares of Common Stock for cancellation to
the extent the Company may lawfully accept shares of Common Stock, with the
value of such shares of Common Stock for such purpose to equal the average
trading price of the Common Stock during the 10 trading days preceding the date
surrendered and the value of the Warrants to equal the difference between the
value of a share of Common Stock and the Exercise Price, or (c) pursuant to such
other payment procedures as may be established by the Warrant Agent from time to
time in accordance with the Warrant Agreement. Upon surrender of the Warrant
Certificate and payment of the Exercise Price and any other applicable amounts,
the Warrant Agent will deliver or cause to be delivered, to or upon the written
order of such holder or its DTC Participant, stock certificates or DTC
book-entry positions representing the number of whole shares of Common Stock or
other securities or property to which such holder is entitled. If less than all
of the Warrants evidenced by a Warrant Certificate are to be exercised, a new
Warrant Certificate will be issued for the remaining number of Warrants.
Both (a) the initial sale of the Warrants, and (b) the issuance of the
underlying shares of Common Stock upon exercise of the Warrants, have been
registered by the Company under the Securities Act of 1933, as amended, pursuant
to the Registration Statement of which this Prospectus is a part. The Company
has applied to have the Warrants approved for listing on the American Stock
Exchange. If a market for the Warrants develops, a Warrant holder may choose to
sell the Warrants instead of exercising them. There can be no assurance that the
American Stock Exchange, or any other market, will list the Warrants or that a
market for the Warrants will develop or continue.
No fractional shares of Common Stock will be issued upon exercise of the
Warrants. The holders of the Warrants have no right to vote on matters submitted
to the stockholders of the Company and have no right to receive dividends. The
holders of the Warrants not yet exercised are not entitled to share in the
assets of the Company in the event of liquidation, dissolution or the winding up
of the affairs of the Company.
Additionally, in March, 1998, the Company granted warrants to purchase
50,000 shares of Common Stock to Capstone Investments, Inc. ("Capstone"), in
connection with Capstone's $850,000 loan to the Company. See "Use of Proceeds"
and "Conflicts of Interest and Related Party Transactions -- Capstone
Investments, Inc."
The Company has also agreed to issue, to the Representative, Warrants to
purchase shares of Common Stock equal to three percent of the Units sold in this
Offering at an exercise price equal to the Price to Public.
ADJUSTMENTS
The Exercise Price of the Warrants will be appropriately adjusted if the
Company (i) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock; (ii) subdivides its outstanding shares of Common
Stock into a greater number of shares, (iii) combines its outstanding shares of
Common Stock into a smaller number of shares, (iv) issues by reclassification of
its Common Stock any shares of its
102
<PAGE> 110
Capital Stock, or (v) issues shares of Capital Stock at a price below the
greater of (a) the Price to Public or (b) fair market value, provided that this
clause (v) shall not apply to firm underwriting offerings.
In case of certain consolidations or mergers of the Company, or the
liquidation of the Company or the sale of all or substantially all of the assets
of the Company to another corporation, each Warrant will thereafter be deemed
exercised for the right to receive the kind and amount of shares of stock or
other securities or property to which such holder would have been entitled as a
result of such consolidation, merger or sale had the Warrants been exercised
immediately prior thereto, less the Exercise Price.
BOOK-ENTRY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
The Depository Trust Company will act as securities depository for a
portion of the Securities. One or more fully registered Common Stock
certificates representing such Securities will be registered in the name of DTC
or its nominee. Upon the detachment of the related Warrants, one or more Warrant
Certificates will be issued in the name of DTC or its nominee.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations, and certain other organization ("Direct Participants"). DTC is
owned by a number of its Direct Participants and by the New York Stock Exchange,
the American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
Upon issuance of a Warrant Certificate in the name of DTC or its nominee,
DTC will credit on its book-entry registration and transfer system the number of
Warrants represented by such Warrant Certificate to the accounts of institutions
that have accounts with DTC. Ownership of beneficial interests in such a Warrant
Certificate will be limited to Participants or persons that may hold interests
through Participants. The ownership interest of each actual purchaser of such
Warrant ("Beneficial Owner") is in turn to be recorded on the Direct and
Indirect Participants' records. Beneficial Owners will not receive written
confirmation from DTC of their purchases, but Beneficial Owners are expected to
receive written confirmations providing details of the transactions, as well as
periodic statements of their holdings, from the Direct or Indirect Participants
through which the Beneficial Owners purchased Warrants. Transfers of ownership
interests in the Warrants are to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners.
DTC has no knowledge of the actual Beneficial Owners of such Warrants;
DTC's records reflect only the identity of the Direct Participants to whose
accounts such Warrants are credited, which may or may not be the Beneficial
Owners. The Participants will remain responsible for keeping account of their
holdings on behalf of their customers. So long as DTC, or its nominee, is the
owner of such Warrant Certificate, DTC or such nominee, as the case may be, will
be considered the sole owner and holder of record of the Warrants represented by
such Warrant Certificate for all purposes.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Company believes to be reliable but the
Company takes no responsibility for the accuracy of
103
<PAGE> 111
such information. In addition, the Company has no responsibility for the
performance by DTC or its Participants of their respective obligations as
described hereunder or under the rules and procedures governing their respective
operations.
REPURCHASE OF SHARES AND RESTRICTION ON TRANSFER
Two of the requirements for qualification for the tax benefits accorded by
the REIT provisions of the Code are that for all taxable years of the REIT after
the first taxable year for which its REIT election is made (1) during the last
half of each such taxable year not more than 50% in value of the outstanding
shares may be owned directly or indirectly by five or fewer individuals (the
"50%/5 stockholder test") and (2) there must be at least 100 stockholders on 335
days of each such taxable year of 12 months and during a proportionate part
during any such shorter taxable year.
In order that the Company may meet these requirements at all times, the
Amended and Restated Articles of Incorporation prohibit any person from
acquiring or holding, directly or indirectly, shares of Capital Stock in excess
of 9.8% in value of the aggregate of the outstanding shares of Capital Stock or
in excess of 9.8% (in value or in number of shares, whichever is more
restrictive) of the aggregate of the outstanding shares of Common Stock of the
Company. For this purpose, the term "ownership" is defined in accordance with
the REIT provisions of the Code and the constructive ownership provisions of
Section 544 of the Code, as modified by Section 856(h)(1)(B) of the Code.
For purposes of the 50%/5 stockholder test, the constructive ownership
provisions applicable under Section 544 of the Code attribute ownership of
securities owned by a corporation, partnership, estate or trust proportionately
to its stockholders, partners or beneficiaries, attribute ownership of
securities owned by family members and partners to other members of the same
family, treat securities with respect to which a person has an option to
purchase as actually owned by that person, and set forth rules as to when
securities constructively owned by a person are considered to be actually owned
for the application of such attribution provisions (i.e., "reattribution").
Thus, for purposes of determining whether a person holds shares of Capital Stock
in violation of the ownership limitations set forth in the Amended and Restated
Articles of Incorporation, many types of entities may own directly more than the
9.8% limit because such entities' shares are attributed to its individual
stockholders. On the other hand, a person will be treated as owning not only
shares of Capital Stock actually or beneficially owned, but also any shares of
Capital Stock attributed to such person under the attribution rules described
above. Accordingly, under certain circumstances, shares of Capital Stock owned
by a person who individually owns less than 9.8% of the shares outstanding may
nevertheless be in violation of the ownership limitations set forth in the
Amended and Restated Articles of Incorporation. Ownership of shares of the
Company's Capital Stock through such attribution is generally referred to as
constructive ownership. The 100 stockholder test is determined by actual, and
not constructive, ownership.
Notwithstanding any of the foregoing ownership limits, no holder may own or
acquire, either directly or constructively under the applicable attribution
rules of the Code, any shares of any class of the Company's Capital Stock if
such ownership or acquisition (i) would cause more than 50% in value of the
Company's outstanding stock to be owned, either directly or constructively under
the applicable attribution rules of the Code, by five or fewer individuals (as
defined in the Code to include certain tax-exempt entities, other than, in
general, qualified domestic pension funds), (ii) would result in the Company's
Capital Stock being beneficially owned by less than 100 persons (determined
without reference to any rules of attribution), or (iii) would otherwise result
in the Company failing to qualify as a REIT.
The Board of Directors may, subject to the receipt of certain
representations and a ruling from the Service or an opinion of counsel
satisfactory to it, waive the ownership restrictions with respect to a holder if
such waiver will not jeopardize the Company's status as a REIT. In addition,
under the Amended and Restated Articles of Incorporation, certain parties will
not be subject to the stock ownership limit in the event such parties (i)
deliver to the Company either a ruling from the Service or an opinion from
counsel satisfactory to the Company that such ownership will result in no
individual (as defined in the Code) beneficially or constructively owning in
excess of 9.8% of the outstanding common stock and (ii) represent to the Company
that it does not and will not own more than a 9.8% interest in any tenant of the
Company.
104
<PAGE> 112
If any stockholder purports to transfer Capital Stock to a person and
either the transfer would result in the Company failing to qualify as a REIT or
such transfer would cause the transferee to hold capital stock in excess of an
applicable ownership restriction, the purported transfer shall be null and void,
the intended transferee will acquire no rights or economic interest in the
capital stock and the stockholder will be deemed to have transferred the capital
stock to the Company in exchange for Excess Stock of the same class or classes
as were purportedly transferred, which Excess Stock will be deemed to be held by
the Company as trustee of a trust for the exclusive benefit of the person or
persons to whom the shares can be transferred without violating the ownership
restrictions. In addition, if any person owns, either directly or constructively
under the applicable attribution rules of the Code, shares of Capital Stock in
excess of an applicable ownership restriction, such person will be deemed to
have exchanged the shares of Capital Stock that cause the applicable ownership
restriction to be exceeded for an equal number of shares of Excess Stock of the
appropriate class, which will be deemed to be held by the Company as trustee of
a trust for the exclusive benefit of the person or persons to whom the shares
can be transferred without violating the ownership restrictions. A person who
holds or transfers shares such that shares of capital stock shall have been
deemed to be exchanged for Excess Stock will not be entitled to vote the Excess
Stock and will not be entitled to receive any dividends or distributions (any
dividend or distribution paid on shares of capital stock prior to the discovery
by the Company that such shares have been exchanged for Excess Shares shall be
repaid to the Company upon demand, and any dividend or distribution declared but
unpaid shall be rescinded). Such person shall have the right to designate a
transferee of such Excess Stock so long as consideration received for
designating such transferee does not exceed a price (the "Limitation Price")
that is equal to the lesser of (i) in the case of a deemed exchange for Excess
Stock resulting from a transfer, the price paid for such shares in the transfer
or, in the case of a deemed exchange for Excess Stock resulting from some other
event, the fair market value on the date of the deemed exchange, of the shares
deemed exchanged, or (ii) the fair market value of the shares for which such
Excess Stock will be deemed to be exchanged on the date of the designation of
the transferee (or, in the case of a purchase by the Company, on the date the
Company accepts the offer to sell). The shares of Excess Stock so transferred
will automatically be deemed reexchanged for the appropriate shares of capital
stock. In addition, the Company will have the right to purchase the Excess Stock
for a period of 90 days at a price equal to the Limitation Price.
If the foregoing transfer restrictions are determined to be void or invalid
by virtue of any legal decisions, statute, rule or regulation, then the intended
transferee of any Excess Stock may be deemed, at the option of the Company, to
have acted as an agent on behalf of the Company in acquiring such Excess Stock
and to hold such Excess Stock on behalf of the Company.
The Amended & Restated Articles of Incorporation further provide that if
any transfer of shares of Capital Stock occurs which, if effective, would result
in any person beneficially or constructively owning shares of Capital Stock in
excess or in violation of the above transfer or ownership limitations, then that
number of shares of Capital Stock the beneficial or constructive ownership of
which otherwise would cause such person to violate such limitations (rounded to
the nearest whole shares) shall be automatically transferred to a trustee (the
"Trustee") as trustee of a trust (the "Trust") for the exclusive benefit of one
or more charitable beneficiaries (the "Charitable Beneficiary"), and the
intended transferee shall not acquire any rights in such shares. Shares held by
the Trustee shall be issued and outstanding shares of Capital Stock. The
intended transferee shall not benefit economically from ownership of any shares
held in the Trust, shall have no rights to dividends, and shall not possess any
rights to vote or other rights attributable to the shares held in the Trust. The
Trustee shall have all voting rights and rights to dividends or other
distributions with respect to shares held in the Trust, which rights shall be
exercised for the exclusive benefit of the Charitable Beneficiary. Any dividend
or other distribution paid to the intended transferee prior to the discovery by
the Company that shares of Common Stock have been transferred to the Trustee
shall be paid with respect to such shares to the Trustee by the intended
transferee upon demand and any dividend or other distribution authorized but
unpaid shall be paid when due to the Trustee. The Board of Directors may, in
their discretion, waive these requirements on owning shares in excess of the
ownership limitations.
Within 20 days of receiving notice from the Company that shares of Capital
Stock have been transferred to the Trust, the Trustee shall sell the shares held
in the Trust to a person, designated by the Trustee, whose
105
<PAGE> 113
ownership of the shares will not violate the ownership limitations set forth in
the Charter. Upon such sale, the interest of the Charitable Beneficiary in the
shares sold shall terminate and the Trustee shall distribute the net proceeds of
the sale to the intended transferee and to the Charitable Beneficiary as
follows. The intended transferee shall receive the lesser of (1) the price paid
by the intended transferee for the shares or, if the intended transferee did not
give value for the shares in connection with the event causing the shares to be
held in the Trust (e.g., in the case of a gift, devise or other such
transaction), the market price (as defined in the Company's Amended and Restated
Articles of Incorporation) of the shares on the day of the event causing the
shares to be held in the Trust and (2) the price per share received by the
Trustee from the sale or other disposition of the shares held in the Trust. Any
net sales proceeds in excess of the amount payable to the intended transferee
shall be immediately paid to the Charitable Beneficiary. In addition, shares of
Capital Stock transferred to the Trustee shall be deemed to have been offered
for sale to the Company, or its designee, at a price per share equal to the
lesser of (i) the price per share in the transaction that resulted in such
transfer to the Trust (or, in the case of a devise or gift, the Market Price at
the time of such devise or gift) and (ii) the Market Price on the date the
Company, or its designee, accepts such offer. The Company shall have the right
to accept such offer until the Trustee has sold shares held in the Trust. Upon
such a sale to the Company, the interest of the Charitable Beneficiary in the
shares sold shall terminate and the Trustee shall distribute the net proceeds of
the sale to the intended transferee.
All certificates representing shares of Capital Stock will bear a legend
referring to the restrictions described above.
Every owner of more than five percent (or such lower percentage as required
by the Code or the regulations promulgated thereunder) of all classes or series
of the Company's stock, within 30 days after the end of each taxable year, is
required to give written notice to the Company stating the name and address of
such owner, the number of shares of each class and series of stock of the
Company beneficially owned and a description of the manner in which such shares
are held. Each such owner shall provide to the Company such additional
information as the Company may request in order to determine the effect, if any,
of such beneficial ownership on the Company's status as a REIT and to ensure
compliance with the ownership limitations.
Subject to certain limitations, the Board of Directors may increase or
decrease the ownership limitations. In addition, to the extent consistent with
the REIT provisions of the Code, the Board of Directors may waive the ownership
limitations for and at the request of certain purchasers in this Offering or
subsequent purchasers.
The provisions described above may inhibit market activity and the
resulting opportunity for the holders of the Company's Capital Stock and
Warrants to receive a premium for their shares or Warrants that might otherwise
exist in the absence of such provisions. Such provisions also may make the
Company an unsuitable investment vehicle for any person seeking to obtain
ownership of more than 9.8% of the outstanding shares of Capital Stock.
LIMITATION OF LIABILITY AND INDEMNIFICATION
The Maryland GCL permits the charter of a Maryland corporation to include a
provision limiting the liability of its directors and officers to the
corporation and its stockholder for money damages, except to the extent that (i)
it is proved that the person actually received an improper benefit or profit in
money, property or services, or (ii) a judgment or other final adjudication
adverse to the person is entered in a proceeding based on a finding that the
person's action, or failure to act, was the result of active and deliberate
dishonesty and was material to the cause of action adjudicated in the
proceeding. The Company's Amended and Restated Articles of Incorporation contain
such a provision, which eliminates the liability of a director or officer to the
Company or its stockholders for money damages to the fullest extent permitted by
Maryland law.
Additionally, the Company's Amended and Restated Articles of Incorporation
provide for indemnification of its officers and directors to the fullest extent
permitted by the Maryland General Corporation Law (the "Maryland GCL"). The
Maryland GCL also permits the Company to indemnify and advance expenses to any
person who served a predecessor of the Company in any of the capacities
described above and to any employee or agent of the Company or a predecessor of
the Company.
106
<PAGE> 114
Unless the corporation's charter provides otherwise, the Maryland GCL
requires a corporation to indemnify a director or officer who has been
successful, on the merits or otherwise, in the defense of any proceeding to
which he is made a party by reason of his service in that capacity. The Maryland
GCL permits a corporation to indemnify its present and former directors and
officers, among others, against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by them in connection with any proceeding
to which they may be made a party by reason their service in those or other
capacities unless it is established that (a) the act or omission of the director
or officer was material to the matter giving rise to the proceeding and (1) was
committed in bad faith or (2) was the result of active and deliberate
dishonesty, (b) the director or officer actually received an improper personal
benefit in money, property or services or (c) in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that the act
or omission was unlawful. However, a Maryland corporation may not indemnify for
an adverse judgment in a suit by or in the right of the corporation. In
addition, the Maryland GCL requires the Company, as a condition to advancing
expenses, to obtain (a) a written affirmation by the director or officer of his
good faith belief that he has met the standard of conduct necessary for
indemnification by the Company as authorized by the bylaws and (b) a written
undertaking by or on his behalf to repay the amount paid or reimbursed by the
Company if it shall ultimately be determined that the standard of conduct was
not met. A corporation may not indemnify a director unless the proposed
indemnification has been authorized for a specific proceeding pursuant to a
determination by the board of directors, special counsel (as may be appointed
for such purpose) or the stockholders that indemnification is permissible
because the director satisfied the requisite standard of conduct. Unless
otherwise provided by a corporation's charter, bylaws or board resolution
consistent with law, a corporation may not indemnify an officer or any other
person unless the proposed indemnification has been authorized for a specific
proceeding pursuant to a determination by the board of directors, special
counsel (as may be appointed for such purpose) or the stockholders that
indemnification is permissible because the officer or such other person
satisfied the requisite standard of conduct. The Company expects to enter into
indemnification agreements with its officers and directors which will provide
for the indemnification of such officers and directors to the fullest extent
permitted under Maryland law.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
CONTROL SHARE ACQUISITIONS
The Maryland GCL provides that "control shares" of a Maryland corporation
acquired in a "control share acquisition"have no voting rights except to the
extent approved by a vote of two-thirds of the votes entitled to be cast on the
matter, excluding shares of stock owned by the acquiror or by officers or
directors who are employees of the corporation. "Control shares" are voting
shares of stock which, if aggregated with all other shares of stock owned by
such a person, would entitle the acquiror to exercise voting power in electing
directors within one of the following ranges of voting power: (i) one-fifth or
more but less than one third, (ii) one-third or more but less than a majority,
or (iii) a majority or more of all voting power. "Control shares" do not include
shares of stock the acquiring person is then entitled to vote as a result of
having owned stockholder approval. A "control share acquisition" means, subject
to certain exceptions, the acquisition of, ownership of, or the power to direct
the exercise of voting power with respect to, control shares.
A person who has made or proposes to make a "control share acquisition,"
upon satisfaction of certain conditions (including an undertaking to pay
expenses), may compel the Board of Directors to call a special meeting of
stockholders to be held within 50 days of demand to consider the voting rights
of the shares. If no request for a meeting is made, the corporation may itself
present the question at any stockholders' meeting. If voting rights are not
approved at the meeting or if the acquiring person does not deliver an acquiring
person statement as permitted by the statute, then, subject to certain
conditions and limitations, the corporation may redeem any or all of the
"control shares" (except those for which voting rights have previously been
approved) for fair value determined, without regard to absence of voting rights,
as of the date of the last control share acquisition or of any meeting of
stockholders at which the voting rights of such shares are considered and not
107
<PAGE> 115
approved. If voting rights for "control shares" are approved at a stockholders
meeting and the acquiror becomes entitled to vote a majority of the shares
entitled to vote, all other stockholders may exercise appraisal rights. The fair
value of the stock, as determined for purposes of such appraisal rights, may not
be less than the highest price per share paid in the control share acquisition,
and certain limitations and restrictions otherwise applicable to the exercise of
dissenters rights do not apply in the context of "control share acquisitions."
The "control share acquisition" statute does not apply to stock acquired in
a merger, consolidation or share exchange if the corporation is a party to the
transaction, or to acquisitions approved or exempted by a provision of the
articles of incorporation or bylaws of the corporation adopted prior to the
acquisition of the shares. The Company has adopted a provision in its Bylaws
that exempts the Company's shares of Capital Stock from application of the
control share acquisition statute. No assurance can be given, however, that such
Bylaw provision may not be removed at any time by amendment of the Bylaws.
BUSINESS ACQUISITIONS STATUTES
Under the Maryland GCL, certain "business combinations" (including a
merger, consolidation, share exchange, or, in certain circumstances, an asset
transfer or issuance or reclassification of equity securities) between a
Maryland corporation and any person who beneficially owns ten percent or more of
the voting power of the corporations shares or an affiliate of the corporation
which, at any time within the two-year period prior to the date in question, was
the beneficial owner of 10% or more of the voting power of the then-outstanding
voting stock of the corporation (an "Interested Stockholder") or an affiliate
thereof are prohibited for five years after the most recent date on which the
Interested Stockholder became an Interested Stockholder. Thereafter, any such
business combination must be recommended by the board of directors of such
corporation and approved by the affirmative vote of at least (a) 80% of the
votes entitled to be cast by holders of outstanding voting shares of the
corporation and (b) two-thirds of the votes entitled to be cast by holders of
outstanding voting shares of the corporation other than shares held by the
Interested Stockholder with whom the business combination is to be effected,
unless, among other things, the corporation's stockholders receive a minimum
price (as defined in the Maryland GCL) for their shares and the consideration is
received in cash or in the same form as previously paid by the Interested
Stockholder for its shares. These provisions of Maryland law do not apply,
however, to business combinations that are approved or exempted by the board of
directors of the corporation prior to the time that the Interested Stockholder
becomes an Interested Stockholder. No assurance can be given that such provision
will not be amended or eliminated at any point in the future with respect to
business combinations not involving a purchaser of Units.
TRANSFER AGENT AND REGISTRAR
American Securities Transfer & Trust Incorporated will initially act as
transfer agent and registrar with respect to the Common Stock.
108
<PAGE> 116
SHARES ELIGIBLE FOR FUTURE SALE
GENERAL
Upon the closing of the Offering, the Company will have outstanding
6,295,807 shares of Common Stock (assuming the over-allotment option is not
exercised), 5,000,000 shares of Common Stock reserved for the Warrants
(5,750,000 shares if the over-allotment option is exercised) and 150,000 shares
of Common Stock (172,500 shares if the over-allotment option is exercised)
reserved for the Representative's Warrants. The Units issued in this Offering
will be freely tradable immediately after this Offering, and the Warrants and
Common Stock issued in this Offering will be freely tradable six months after
this Offering, in each case by persons other than "affiliates" of the Company
without restriction under the Securities Act, subject to the limitations on
ownership set forth in the charter. See "Description of Capital Stock." The
Common Stock to be owned by the Founders and ContiFinancial Corporation
(collectively, the "Restricted Stock"), will be "restricted securities" within
the meaning of Rule 144 promulgated under the Securities Act ("Rule 144") and
may not be sold except pursuant to registration under the Securities Act or
pursuant to an exemption from registration, including exemptions contained in
Rule 144. As described below under "Registration Rights," the Company has
granted certain holders registration rights with respect to their Common Stock.
See "-- Registration Rights."
In general, under Rule 144 as currently in effect, if one year has elapsed
since the later of the date of acquisition of Restricted Stock from the Company
or any "affiliate" of the Company, as that term is defined under the Securities
Act, the acquirer or subsequent holder thereof is entitled to sell within any
three-month period a number of shares of Common Stock that does not exceed the
greater of one percent of the then outstanding Common Stock or the average
weekly trading volume of the Common Stock during the four calendar weeks
preceding the date on which notice of the sale is filed with the Commission.
Sales under Rule 144 are also subject to certain manner of sale provisions,
public information requirements and notice requirements. After one year has
elapsed since the date of acquisition of Restricted Stock from the Company or
from any "affiliate" of the Company, and the acquirer or subsequent holder
thereof is deemed not to have been an "affiliate" of the Company at any time
during the 90 days preceding a sale, such person would be entitled to sell such
shares in the public market under Rule 144(k) without regard to the volume
limitation, manner of sale, public information or notice requirements.
Prior to the date of this Prospectus, there has been no public market for
the Units. Trading of the Units on the American Stock Exchange is expected to
commence effective upon the closing of this Offering. Sales of substantial
amounts of Common Stock or Warrants (including shares issued upon the exercise
of stock options), or the perception that such sales occur, could adversely
affect prevailing market prices of the Units, the Common Stock and Warrants. See
"Risk Factors -- Failure to Develop a Trading Market May Result in Depressed
Common Stock Price."
The Company has reserved for issuance an aggregate of 72,925 shares of
Common Stock to be issued upon exercise of the stock options granted under the
1996 Stock Option Plan. All of such options have vested and are immediately
exercisable. The Company has reserved for issuance an aggregate of 456,667
shares of Common Stock to be issued pursuant to the exercise of Stock Options to
be granted under the 1998 Stock Option Plan. All stock options granted pursuant
to the 1998 Stock Option Plan will be contingent, with vesting based upon the
financial performance of the Company and such other criteria as the Compensation
Committee determines to be appropriate. See "Management -- Executive
Compensation -- 1998 Stock Option Plan."
For a description of certain restrictions on transfers of Common Stock held
by the Founders, see "Underwriting."
REGISTRATION RIGHTS
Pursuant to a registration rights agreement, the Company has granted the
Founders (except for ContiFinancial Corporation) certain additional registration
rights. Under such agreement, the Founders may request, on any two occasions on
or after one year after the closing of the Offering, that the Company file a
109
<PAGE> 117
shelf registration on Form S-3 with respect to the number of registrable shares
requested by the Founders, with the Company paying all registration expenses in
connection with the first such shelf registration and the Founders paying all
registration expenses for the second such shelf registration. In addition, in
the event the Company proposes to register any of its Securities under the
Securities Act, whether for its own account or otherwise, the Founders are
entitled to notice of such registration and are entitled to include their
registrable shares, subject to certain conditions and limitations.
Pursuant to a registration rights agreement, the Company has granted
ContiFinancial Corporation certain registration rights. Under such agreement,
ContiFinancial Corporation may request, on any three occasions after the
Offering that the Company register such shares as ContiFinancial Corporation may
request, provided that such shares amount to at least five percent of the
Company's Common Stock then outstanding and that such request comes at least one
year after the effective date of a registration statement filed by the Company
covering a firm commitment underwritten public offering in which ContiFinancial
Corporation shall have been entitled to join. In addition, in the event the
Company proposes to register any of its Securities under the Securities Act,
whether for its own account or otherwise, ContiFinancial Corporation shall be
entitled to notice of such registration shall be entitled to include their
registrable shares, subject to certain conditions and limitations.
110
<PAGE> 118
FEDERAL INCOME TAX CONSIDERATIONS
THE FOLLOWING DISCUSSION SUMMARIZES THE MATERIAL FEDERAL INCOME TAX
CONSIDERATIONS THAT MAY BE RELEVANT TO A PROSPECTIVE PURCHASER OF UNITS. THIS
DISCUSSION IS BASED ON CURRENT LAW. THE FOLLOWING DISCUSSION IS NOT EXHAUSTIVE
OF ALL POSSIBLE TAX CONSIDERATIONS. IT DOES NOT GIVE A DETAILED DISCUSSION OF
ANY STATE, LOCAL OR FOREIGN TAX CONSIDERATIONS, NOR DOES IT DISCUSS ALL OF THE
ASPECTS OF FEDERAL INCOME TAXATION THAT MAY BE RELEVANT TO A PROSPECTIVE
INVESTOR IN LIGHT OF SUCH INVESTOR'S PARTICULAR CIRCUMSTANCES OR TO CERTAIN
TYPES OF INVESTORS (INCLUDING INSURANCE COMPANIES, CERTAIN TAX-EXEMPT ENTITIES,
FINANCIAL INSTITUTIONS, BROKER/DEALERS, FOREIGN CORPORATIONS AND PERSONS WHO ARE
NOT CITIZENS OR RESIDENTS OF THE UNITED STATES) SUBJECT TO SPECIAL TREATMENT
UNDER FEDERAL INCOME TAX LAWS.
EACH PROSPECTIVE PURCHASER OF UNITS IS URGED TO CONSULT WITH HIS OR HER OWN
TAX ADVISOR REGARDING THE SPECIFIC CONSEQUENCES TO HIM OR HER OF THE PURCHASE,
OWNERSHIP AND SALE OF UNITS, INCLUDING THE FEDERAL, STATE, LOCAL, FOREIGN AND
OTHER TAX CONSIDERATIONS OF SUCH PURCHASE, OWNERSHIP AND SALE AND THE POTENTIAL
CHANGES IN APPLICABLE TAX LAWS.
GENERAL
The Code provides special tax treatment for organizations that qualify and
elect to be taxed as REITs. The discussion below summarizes the material
provisions applicable to the Company as a REIT for federal income tax purposes
and to its stockholders in connection with their ownership of shares of stock of
the Company. However, it is impractical to set forth in this Prospectus all
aspects of federal, state, local and foreign tax law that may have tax
consequences with respect to an investor's purchase of Units. The discussion of
various aspects of federal taxation contained herein is based on the Code,
administrative regulations, judicial decisions, administrative rulings and
practice, all of which are subject to change. In brief, if certain detailed
conditions imposed by the Code are met, entities that invest primarily in real
estate assets, including Mortgage Loans, and that otherwise would be taxed as
corporations, with certain limited exceptions, are not taxed at the corporate
level on their taxable income that is currently distributed to their
stockholders. This treatment eliminates most of the "double taxation" (at the
corporate level and then again at the stockholder level when the income is
distributed) that typically results from the use of corporate investment
vehicles. A qualifying REIT, however, may be subject to certain excise and other
taxes, as well as normal corporate tax, on Taxable Income that is not currently
distributed to its stockholders. See "-- Taxation of the Company."
The Company intends to elect to be taxed as a REIT under the Code
commencing with its taxable year ending December 31, 1998.
OPINION OF COUNSEL
Jeffers, Wilson, Shaff & Falk, LLP, counsel to the Company ("Counsel"), has
advised the Company in connection with the Offering of Units and the Company's
election to be taxed as a REIT. Based on existing law and certain factual
representations made to Counsel by the Company and assuming that the Company
operates in the manner described in this Prospectus, in the opinion of Counsel,
commencing with the Company's taxable year ending December 31, 1998, RealTrust
has been organized in conformity with the requirements for qualification as a
REIT under the Code and the Company's proposed method of operation described in
this Prospectus and as represented by the Company to Counsel will enable
RealTrust to qualify as a REIT. The Company's organization and proposed method
of operation described in this Prospectus is the same in all material respects
as represented to Counsel. However, whether RealTrust will in fact so qualify
will depend on actual operating results and compliance with the various tests
for qualification as a REIT relating to its income, assets, distributions,
ownership and certain administrative matters, the results of which may not be
reviewed by Counsel. Moreover, certain aspects of RealTrust's method of
operations have not been considered by the courts or the Service. There can be
no assurance that the courts or the Service will agree with this opinion. In
addition, qualification as a REIT depends on future transactions and events that
cannot be known
111
<PAGE> 119
at this time. Accordingly, Counsel is unable to opine whether RealTrust will in
fact qualify as a REIT under the Code in all events. In the opinion of Counsel,
the section of the Prospectus entitled "Federal Income Tax Considerations"
identifies and fairly summarizes the federal income tax considerations that are
likely to be material to a holder of the Units and to the extent such summaries
involve matters of law, such statements of law are correct under the Code.
Counsel's opinions are based on various assumptions and on the factual
representations of RealTrust concerning its business and assets. Accordingly, no
assurance can be given that the actual results of RealTrust's operation for any
one taxable year will satisfy such requirements. See "-- Termination or
Revocation of REIT Status."
The opinions of Counsel are based upon existing law including the Internal
Revenue Code of 1986, as amended, existing Treasury Regulations, Revenue
Rulings, Revenue Procedures, proposed regulations and case law, all of which is
subject to change either prospectively or retroactively. Moreover, relevant laws
or other legal authorities may change in a manner that could adversely affect
RealTrust or its stockholders.
In the event that RealTrust does not qualify as a REIT in any year, it will
be subject to federal income tax as a domestic corporation and its stockholders
will be taxed in the same manner as stockholders of ordinary corporations. To
the extent that RealTrust would, as a consequence, be subject to potentially
significant tax liabilities, the amount of earnings and cash available for
distribution to its stockholders would be reduced. See "-- Termination or
Revocation of REIT Status."
QUALIFICATION AS A REIT
To qualify for tax treatment as a REIT under the Code, the Company must
meet certain tests which are described immediately below.
OWNERSHIP OF STOCK
The Company's shares of stock must be transferable and, for all taxable
years after the first taxable year for which a REIT election is made, must be
held by a minimum of 100 persons for at least 335 days of a 12 month year (or a
proportionate part of a short tax year), and at all times during the second half
of each taxable year, no more than 50% in value of the shares of any class of
the stock of the Company may be owned directly or indirectly by five or fewer
individuals. In determining whether the Company's shares are held by five or
fewer individuals, the attribution rules of Section 544 of the Code (as modified
by the REIT provisions of the Code) apply. For a description of these
attribution rules, see "Description of Capital Stock." Failure of the Company to
comply with such test may be waived if the failure was unintentional and the
Company otherwise complied with the requirements for monitoring stockholders.
See "-- Recordkeeping Requirement." The Company's Amended and Restated Articles
of Incorporation impose certain transfer restrictions to avoid more than 50% by
value of any class of the Company's stock being held by five or fewer
individuals (directly or constructively) at any time during the last half of any
taxable year. Such transfer restrictions will not cause the stock not to be
treated as "transferable" for purposes of qualification as a REIT. The Company
intends to satisfy both the 100 stockholder and 50%/5 stockholder individual
ownership limitations described above for as long as it seeks qualification as a
REIT. See "Description of Capital Stock." Even if the Company were to
inadvertently violate one of the stock ownership tests, the Company would not
lose its status as a REIT for tax purposes provided the Company exercised
reasonable diligence in attempting to comply with these requirements. The
Company uses the calendar year as its taxable year for income tax purposes.
NATURE OF ASSETS
On the last day of each calendar quarter at least 75% of the value of the
Company's assets must consist of Qualified REIT Assets, government securities,
cash and cash items (the "75% of assets test"). The Company expects that
substantially all of its assets, other than the preferred stock of the Company's
Taxable Subsidiary, will be "Qualified REIT Assets" or "Qualified Hedges."
Qualified REIT Assets include interests in real property, interests in Mortgage
Loans secured by real property and interests in REMICs. Qualified Hedges are
discussed under "-- Sources of Income -- The 95% Test" below.
On the last day of each calendar quarter, of the investments in securities
not included in the 75% of assets test, the value of any one issuer's equity and
debt securities may not exceed five percent by value of the Company's total
assets and the Company may not own more than 10% of any one issuer's outstanding
voting
112
<PAGE> 120
securities. See "Business -- Industry Developments." Pursuant to its compliance
guidelines, the Company intends to monitor closely (on not less than a quarterly
basis) the purchase and holding of the Company's assets in order to comply with
the above assets tests. In particular, as of the end of each calendar quarter
the Company intends to limit and diversify its ownership of securities of any
Taxable Subsidiary of the Company, hedging contracts and other mortgage
securities that do not constitute Qualified REIT Assets to less than 25%, in the
aggregate, by value of its portfolio, to less than five percent by value as to
any single issuer, including the stock of any Taxable Subsidiary of the Company,
and to less than 10% of the voting stock of any single issuer (collectively the
"25% of assets limits"). If such limits are ever exceeded, the Company intends
to take appropriate remedial action to dispose of such excess assets within the
30 day period after the end of the calendar quarter, as permitted under the
Code. In order to help maintain compliance with the requirement that it limit
the value of the securities of any issuer to less than five percent of the value
of the Company's assets, the Company expects to obtain an appraisal report from
a qualified independent business appraiser, to ensure that the value of the
assets contributed to the Taxable Subsidiary is less than five percent of the
gross value of the Company's assets.
When purchasing mortgage-related securities, the Company may rely on
opinions of counsel for the issuer or sponsor of such securities given in
connection with the offering of such securities, or statements made in related
offering documents, for purposes of determining whether and to what extent those
securities (and the income therefrom) constitute Qualified REIT Assets (and
income) for purposes of the 75% of assets test (and the source of income tests
discussed below). If the Company invests in a partnership, the Company will be
treated as receiving its share of the income and loss of the partnership and
owning a proportionate share of the assets of the partnership and any income
from the partnership will retain the character that it had in the hands of the
partnership.
SOURCES OF INCOME
The Company must meet two separate income-based tests for each year in
order to qualify as a REIT.
1. The 75% Test. At least 75% of the Company's gross income (the "75% of
income test") for the taxable year must be derived from the following sources
among others: (i) interest (other than interest based in whole or in part on the
income or profits of any person) on obligations secured by mortgages on real
property or on interests in real property, (ii) gains from the sale or other
disposition of interests in real property and real estate mortgages, other than
gain from property held primarily for sale to customers in the ordinary course
of the Company's business ("dealer property"), (iii) income from the operation,
and gain from the sale, of property acquired at or in lieu of a foreclosure of
the mortgage secured by such property or as a result of a default under a lease
of such property ("foreclosure property"), (iv) income received as consideration
for entering into agreements to make loans secured by real property or to
purchase or lease real property (including interests in real property and
interests in mortgages on real property) (for example, commitment fees), (v)
rents from real property, and (vi) income attributable to stock or debt
instruments acquired with the proceeds from the sale of stock or certain debt
obligations ("new capital") of the Company received during the one-year period
beginning on the day such proceeds were received ("qualified temporary
investment income"). The investments that the Company intends to make (as
described under "Business -- Mortgage Investment Portfolio") will give rise
primarily to mortgage interest qualifying under the 75% of income test.
2. The 95% Test. In addition to deriving 75% of its gross income from the
sources listed above, at least an additional 20% of the Company's gross income
for the taxable year must be derived from those sources, or from dividends,
interest or gains from the sale or disposition of stock or other securities that
are not dealer property (the "95% of income test"). Income attributable to
assets other than Qualified REIT Assets, such as income from or gain on the
disposition of Qualified Hedges, that the Company holds, dividends on non-REIT
stock (including any dividends from the Taxable Subsidiary), interest on any
other obligations not secured by real property, and gains from the sale or
disposition of stock or other securities that are not Qualified REIT Assets or
Qualified Hedges will constitute qualified income for purposes of the 95% of
income test only, and will not be qualified income for purposes of the 75% of
income test. Income from mortgage servicing, loan guarantee fees (or other
contracts under which the Company would earn fees for performing services) and
hedging (other than from Qualified REIT Assets) will not qualify for either the
95% or 75% of income tests.
113
<PAGE> 121
Income from Qualified Hedges (including gain on the sale of Qualified Hedges)
qualifies for the 95% of income test. The Code defines a Qualified Hedge as a
swap, cap or similar financial instrument entered into by a REIT to reduce
interest rate risks with respect to debt that the REIT incurred to acquire or
carry real estate assets, such as Mortgage Loans. The Company intends to
severely limit its acquisition of any assets or investments the income from
which does not qualify for purposes of the 95% of income test. Moreover, in
order to help ensure compliance with the 95% of income test and the 75% of
income test, the Company intends to limit substantially all of the assets that
it acquires (other than the shares of the preferred stock of any Taxable
Subsidiary and Qualified Hedges) to Qualified REIT Assets. The policy of the
Company to maintain REIT status may limit the type of assets, including hedging
contracts, that the Company otherwise might acquire.
For purposes of determining whether the Company complies with the 75% of
income test and the 95% of income test detailed above, gross income does not
include gross income from "prohibited transactions." A "prohibited transaction"
is one involving a sale of dealer property, other than foreclosure property. Net
income from "prohibited transactions" is subject to a 100% tax. See "-- Taxation
of the Company."
The Company intends to maintain its REIT status by carefully monitoring its
income, including income from hedging transactions, futures contracts and sales
of Mortgage Assets to comply with the 75% of income test and the 95% of income
test. See "-- Taxation of the Company" for a discussion of the potential tax
cost of the Company's selling certain Mortgage Assets on a regular basis. In
order to help insure its compliance with the REIT requirements of the Code, the
Company has adopted guidelines the effect of which will be to limit the
Company's ability to earn certain types of income, including income from
hedging, other than hedging income from Qualified REIT Assets and from Qualified
Hedges. See "Business -- Interest Rate Risk Management."
If the Company fails to satisfy one or both of the 75% or 95% of income
tests for any year, it may face either (a) assuming such failure was for
reasonable cause and not willful neglect, and a schedule is submitted to the
Service setting forth the nature and amount of each item of the Company's gross
income qualifying under the 75% or 95% income tests, a 100% tax on the greater
of the amounts of income by which it failed to comply with the 75% test of
income or the 95% of income test, reduced by estimated related expenses or (b)
loss of REIT status. There can be no assurance that the Company will always be
able to maintain compliance with the gross income tests for REIT qualification
despite the Company's periodic monitoring procedures. Moreover, there is no
assurance that the relief provisions for a failure to satisfy either the 95% or
the 75% of income tests will be available in any particular circumstance.
DISTRIBUTIONS
The Company must distribute to its stockholders on a pro rata basis each
year an amount equal to (i) 95% of its Taxable Income before deduction of
dividends paid and excluding net capital gain, plus (ii) 95% of the excess of
the net income from foreclosure property over the tax imposed on such income by
the Code, less (iii) any "excess noncash income' (the "95% distribution test").
See "Dividend Policy and Distributions." The Company intends to make
distributions to its stockholders in amounts sufficient to meet this 95%
distribution requirement. Such distributions must be made in the taxable year to
which they relate, or during January of the subsequent taxable year when
declared during the last quarter of such taxable year and payable to
shareholders of record on a specified date during such quarter, or, if declared
before the timely filing of the Company's tax return for such year and paid not
later than the first regular dividend payment after such declaration, in the
following taxable year. A nondeductible excise tax, equal to four percent of the
excess of such required distributions over the amounts actually distributed will
be imposed on the Company for each calendar year to the extent that the sum of
the dividends paid during the year (or declared during the last quarter of the
year and paid during January of the succeeding year) and any tax imposed on the
REIT taxable income or capital gains of the Company is less than the sum of (i)
85% of the Company's "ordinary income," (ii) 95% of the Company's capital gain
net income, and (iii) income not distributed in earlier years.
If the Company fails to meet the 95% distribution test as a result of an
adjustment to the Company's tax returns by the Service, the Company by following
certain requirements set forth in the Code, may pay a deficiency dividend within
a specified period which will be permitted as a deduction in the taxable year to
114
<PAGE> 122
which the adjustment is made. The Company would be liable for interest based on
the amount of the deficiency dividend. A deficiency dividend is not permitted if
the deficiency is due to fraud with intent to evade tax or to a willful failure
to file timely tax returns.
TAXATION OF THE COMPANY
In any year in which the Company qualifies as a REIT, it generally will not
be subject to federal income tax on that portion of its taxable income or net
capital gain which is distributed to its stockholders. The Company will,
however, be subject to tax at normal corporate rates upon any net income or net
capital gain not distributed. The Company intends to distribute substantially
all of its taxable income to its stockholders on a pro rata basis in each year.
See "Dividend Policy and Distributions." If the Company recognizes net income at
a time when its cash receipts from Mortgage Assets are subject to the claims of
creditors, such as counterparties on reverse repurchase agreements, the Company
may be compelled to borrow to distribute dividends and avoid the imposition of
corporate level tax.
In addition, the Company will also be subject to a tax of 100% of net
income from any prohibited transaction and will be subject to a 100% tax on the
greater of the amount by which it fails either the 75% or 95% of income tests,
reduced by approximated expenses, if the failure to satisfy such tests is due to
reasonable cause and not willful neglect and if certain other requirements are
met. The Company may be subject to the alternative minimum tax on certain items
of tax preference.
If the Company acquires any real property as a result of foreclosure, or by
a deed in lieu of foreclosure, the Company may elect to treat such real property
as "foreclosure property." Net income from the sale of foreclosure property is
taxable at the maximum federal corporate rate, currently 35%. Income from
foreclosure property will not be subject to the 100% tax on prohibited
transactions. The Company will determine whether to treat such real property as
foreclosure property on the tax return for the fiscal year in which such
property is acquired.
The Company will finance Mortgage Loans and sell such Mortgage Loans
through one or more Taxable Subsidiaries. However, if the Company itself were to
sell such Mortgage Assets on a regular basis, there is a substantial risk that
they would be deemed "dealer property" and that all of the profits from such
sales would be subject to tax at the rate of 100% as income from prohibited
transactions. The Taxable Subsidiary will not be subject to this 100% tax on
income from prohibited transactions, which is only applicable to REITs, rather,
it will be subject to tax on such income at regular corporate rates. See
"Business -- Industry Developments" for a discussion of the possible effect of a
recent proposal, if enacted, on such proposed activities of the Company.
The Company will also be subject to the nondeductible four percent excise
tax discussed above if it fails to make timely dividend distributions for each
calendar year. See "-- Qualification as a REIT -- Distributions." The Company
intends to declare its fourth regular annual dividend during the final quarter
of the year and to make such dividend distribution no later than thirty-one (31)
days after the end of the year in order to avoid imposition of the excise tax.
Such a distribution would be taxed to the stockholders in the year that the
distribution was declared, not in the year paid. Imposition of the excise tax on
the Company would reduce the amount of cash available for distribution to the
Company's stockholders.
TAXATION OF TAXABLE SUBSIDIARY
The Company may cause the creation and sale of Mortgage Assets or conduct
certain hedging activities through one or more Taxable Subsidiaries. The Company
and one or more persons or entities will own all of the capital stock of such
Taxable Subsidiary. In order to ensure that the Company will not violate the
prohibition on ownership of more than 10% of the voting stock of a single issuer
and the prohibition on investing more than five percent of the value of its
assets in the stock or securities of a single issuer, the Company will own only
shares of nonvoting preferred stock of the Taxable Subsidiary and will not own
any of the Taxable Subsidiary's common stock. The Company will monitor the value
of its investment in the Taxable Subsidiary on a quarterly basis to limit the
risk of violating any of the tests that comprise the 25% of assets limits. In
addition, the dividends that the Taxable Subsidiary pays to the Company will not
qualify as income from Qualified REIT Assets for purposes of the 75% of income
test, and in all events would have to be limited,
115
<PAGE> 123
along with the Company's other interest, dividends, gains on the sale of
securities, hedging income, and other income not derived from Qualified REIT
Assets to less than 25 percent of the Company's gross revenues in each year.
Before the Company forms any such Taxable Subsidiary, the Company intends to
obtain an opinion of counsel to the effect that the formation and contemplated
operation of such a corporation will not cause the Company to fail the REIT
asset and income tests. See "-- Qualification as a REIT -- Nature of Assets" and
"-- Qualification as a REIT -- Sources of Income." The Taxable Subsidiary will
not elect REIT status, will be subject to income taxation on its net earnings
and will generally be able to distribute only its net after-tax earnings to its
stockholders, including the Company, as dividend distributions. If the Taxable
Subsidiary creates a taxable mortgage pool, such pool itself will constitute a
separate taxable subsidiary of the Taxable Subsidiary. The Taxable Subsidiary
would be unable to offset the income derived from such a taxable mortgage pool
with losses derived from any other activities.
TERMINATION OR REVOCATION OF REIT STATUS
The Company's election to be treated as a REIT will be terminated
automatically (i) if the Company fails to meet the requirements described above
or (ii) if the President's 1999 Budget Plan is adopted, as presently proposed.
See "Risk Factors." In that event, the Company will not be eligible again to
elect REIT status until the fifth taxable year which begins after the year for
which the Company's election was terminated unless all of the following relief
provisions apply: (i) the Company did not willfully fail to file a timely return
with respect to the termination taxable year, (ii) inclusion of incorrect
information in such return was not due to fraud with intent to evade tax, and
(iii) the Company establishes that failure to meet requirements was due to
reasonable cause and not willful neglect. The Company may also voluntarily
revoke its election, although it has no intention of doing so, in which event
the Company will be prohibited, without exception, from electing REIT status for
the year to which the revocation relates and the following four taxable years.
If the Company fails to qualify for taxation as a REIT in any taxable year,
and the relief provisions do not apply, the Company would be subject to tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates. Distributions to stockholders of the Company with
respect to any year in which the Company fails to qualify as a REIT would not be
deductible by the Company nor would they be required to be made. Failure to
qualify as a REIT would result in the Company's reduction of amounts available
for distribution to its stockholders in order to pay the resulting taxes. If,
after forfeiting REIT status, the Company later qualifies and elects to be taxed
as a REIT again, the Company could face significant adverse tax consequences.
TAXATION OF THE COMPANY'S STOCKHOLDERS
GENERAL
For any taxable year in which the Company is treated as a REIT for federal
income tax purposes, amounts distributed by the Company to its stockholders out
of current or accumulated earnings and profits will be includible by the
stockholders as ordinary income for federal income tax purposes unless properly
designated by the Company as capital gain dividends. In the latter case, the
distributions will be taxable to the stockholders as long-term capital gains.
Additionally, the Company may elect to retain and pay taxes on all or a
portion of its net long-term capital gains for any taxable year, in which case,
the stockholders would include in their income as long-term capital gains their
proportionate share of such undistributed capital gains. The stockholders would
be treated as having paid their proportionate share of any taxes paid by the
Company on any undistributed capital gains, which proportionate amounts would be
credited or refunded to the stockholders.
Distributions of the Company will not be eligible for the dividends
received deduction for corporations. Stockholders may not deduct any net
operating losses or capital losses of the Company.
Any loss on the sale or exchange of shares of the stock of the Company held
by a stockholder for six months or less will be treated as a long-term capital
loss to the extent of any capital gain dividend received, or undistributed
capital gains treated as received, on the stock held by such stockholders.
If the Company makes distributions to its stockholders in excess of its
current and accumulated earnings and profits, those distributions will be
considered first a tax-free return of capital, reducing the tax basis of a
116
<PAGE> 124
stockholder's shares until the tax basis is zero. Such distributions in excess
of the tax basis will be taxable as gain realized from the sale of the Company's
shares.
The Company (exclusive of its Taxable Subsidiary) does not expect to
acquire or retain residual interests issued by REMICs. Such residual interests,
if acquired by a REIT, would generate excess inclusion income. Excess inclusion
income cannot be offset by net operating losses of a stockholder. If the
stockholder is a Tax-Exempt Entity, the excess inclusion income is fully taxable
as UBTI. If allocated to a foreign stockholder, the excess inclusion income is
subject to Federal income tax withholding without reduction pursuant to any
otherwise applicable tax treaty. Excess inclusion income realized by a Taxable
Subsidiary is not passed through to stockholders of the Company. Potential
investors, and in particular Tax Exempt Entities, are urged to consult with
their tax advisors concerning this issue.
The Company intends to finance the acquisition of Mortgage Assets by
entering into reverse repurchase agreements, which are essentially loans secured
by the Company's Mortgage Assets. The Company expects to enter into master
repurchase agreements with secured lenders known as "counterparties." Typically,
such master repurchase agreements have cross-collateralization provisions that
afford the counterparty the right to foreclose on the Mortgage Assets pledged as
collateral. If the Service were to successfully take the position that the
cross-collateralization provisions of the master repurchase agreements result in
the Company having issued debt instruments (the reverse repurchase agreements)
with differing maturity dates secured by a pool of Mortgage Loans, a portion of
the Company's income could be characterized as "excess inclusion income."
Counsel has advised the Company that it is more likely than not that the
cross-collateralization provisions of the master repurchase agreements will not
cause the Company to realize excess inclusion income. Nevertheless, in the
absence of any definitive authority on this issue, Counsel cannot give complete
assurance.
The Company will notify stockholders after the close of the Company's
taxable year as to the portions of the distributions which constitute ordinary
income, return of capital and capital gain. Dividends and distributions declared
in the last quarter of any year payable to stockholders of record on a specified
date in such month will be deemed to have been received by the stockholders and
paid by the Company on December 31 of the record year, provided that such
dividends are paid before February 1 of the following year.
WARRANTS
Upon the exercise of a Warrant, a holder will not recognize gain or loss
and will have a tax basis in the Common Stock received equal to the tax basis in
such holder's Warrant plus the exercise price thereof. The holding period for
the Common Stock purchased pursuant to the exercise of a Warrant will begin on
the day following the date of exercise and will not include the period that the
holder held the Warrant.
Upon a sale or other disposition of a Warrant, a holder will recognize
capital gain or loss in an amount equal to the difference between the amount
realized and the holder's tax basis in the Warrant. Such a gain or loss will be
long-term if the holding period is more than one year. In the event that a
Warrant lapses unexercised, a holder will recognize a capital loss in an amount
equal to his tax basis in the Warrant. Such loss will be long-term if the
Warrant has been held for more than one year.
ADJUSTMENTS TO EXERCISE PRICE OF THE WARRANTS
Adjustments in the Exercise Price (or the failure to make such adjustments)
pursuant to the anti-dilution provisions of the Warrants or otherwise may result
in constructive distributions to the holder of Warrants that could, under
certain circumstances, be taxable to them as dividends pursuant to Section 305
of the Code. If such a constructive distribution were to occur, a holder of
Warrants could be required to recognize ordinary income for tax purposes without
receiving a corresponding distribution of cash.
TAXATION OF TAX-EXEMPT ENTITIES
In general, a Tax-Exempt Entity that is a stockholder of the Company is not
subject to tax on distributions. The Service has ruled that amounts distributed
by a REIT to an exempt employees' pension trust do not constitute UBTI and thus
should be nontaxable to such a Tax-Exempt Entity. Based on that ruling, but
subject to the discussion of excess inclusion income set forth under the heading
"Taxation of the Company's Stockholders," Counsel is of the opinion that
indebtedness incurred by the Company in connection
117
<PAGE> 125
with the acquisition of real estate assets such as Mortgage Loans will not cause
dividends of the Company paid to a stockholder that is a Tax-Exempt Entity to be
UBTI, provided that the Tax-Exempt Entity has not financed the acquisition of
its stock with "acquisition indebtedness" within the meaning of the Code. Under
certain conditions, if a tax-exempt employee pension or profit sharing trust
were to acquire more than 10% of the Company's stock, a portion of the dividends
on such stock could be treated as UBTI.
For social clubs, voluntary employee benefit associations, supplemental
unemployment benefit trusts, and qualified group legal services plans exempt
from federal income taxation under Code Sections 501(c)(7), (c)(9), (c)(17) and
(c)(20), respectively, income from an investment in the Company, including gain
realized on the sale of such an investment, will constitute UBTI unless the
organization is able to properly deduct amounts set aside or placed in reserve
for certain purposes so as to offset the UBTI generated by its investment in the
Company. Such entities should review Code Section 512(a)(3) and should consult
their own tax advisors concerning these "set aside" and reserve requirements.
FOREIGN INVESTORS
The preceding discussion does not address the federal income tax
consequences to foreign investors (non-resident aliens and foreign corporations
as defined in the Code) of an investment in the Company. In general, foreign
investors will be subject to special withholding tax requirements on income and
capital gains distributions attributable to their ownership of the Company's
stock. Foreign investors in the Company should consult their own tax advisors
concerning the federal income tax consequences to them of a purchase of shares
of the Company's stock including the federal income tax treatment of
dispositions of interests in, and the receipt of distributions from, REITs by
foreign investors. In addition, federal income taxes must be withheld on certain
distributions by a REIT to foreign investors unless reduced or eliminated by an
income tax treaty between the United States and the foreign investor's country.
A foreign investor eligible for reduction or elimination of withholding must
file an appropriate form with the Company in order to claim such treatment.
RECORDKEEPING REQUIREMENT
A REIT is required to maintain records regarding the actual and
constructive ownership of its shares, and other information, and within 30 days
after the end of its taxable year, to demand statements from persons owning
above a specified level of the REIT's shares (e.g., if the Company has over 200
but fewer than 2,000 stockholders of record, from persons holding one percent or
more of the Company's outstanding shares of stock and if the Company has 200 or
fewer stockholders of record, from persons holding 1/2% or more of the stock)
regarding their ownership of shares. The Company must maintain, as part of the
Company's records, a list of those persons failing or refusing to comply with
this demand. Stockholders who fail or refuse to comply with the demand must
submit a statement with their tax returns setting forth their actual stock
ownership and other information. The Company intends to maintain the records and
demand statements as required by these regulations.
BACKUP WITHHOLDING
The Code imposes a modified form of "backup withholding" for payments of
interest and dividends. This withholding applies only if a stockholder, among
other things, (i) fails to furnish the Company with a properly certified
taxpayer identification number, (ii) furnishes the Company with an incorrect
taxpayer identification number, (iii) fails properly to report interest or
dividends from any source, or (iv) under certain circumstances fails to provide
the Company or the stockholder's securities broker with a certified statements,
under penalty of perjury, that he or she is not subject to backup withholding.
The backup withholding rate is 31% of "reportable payments," which include
the Company's dividends. Stockholders should consult their tax advisors as to
the procedure for insuring that Company distributions to them will not be
subject to backup withholding.
The Company will report to its stockholders and the Service the amount of
dividends paid during each calendar year and the amount of tax withheld, if any.
118
<PAGE> 126
RECENT LEGISLATIVE PROPOSALS
The President's 1999 Budget Plan, as presented to Congress on February 2,
1998, contains several provisions which affect REITs. One such provision, if
enacted, could have a potential adverse effect on the way that the Company
intends to operate its mortgage conduit operations. That provision would
prohibit the ownership by a REIT of more than 10% the stock of another
corporation, by vote or value. The rules currently in place for qualification as
a REIT limit (i) a REIT to owning less than 10% of the outstanding voting
securities of another corporation and (ii) the value of a REIT's ownership of
the securities of any one issuer to less than five percent of the value of the
REIT's assets. (See "Qualification as a REIT -- Nature of Assets" above). By
limiting a REIT's ownership of the securities of another corporation to 10% of
the value of the issuing corporation, the proposal, if enacted, could cause the
Company to have to divest itself of most of the preferred stock of the Taxable
Subsidiary that the Company currently owns. In such an event the Company would
not receive the dividends that the Company expects to earn from the Taxable
Subsidiary, which could have a material adverse effect on the Company's net
profits after such divestiture. If that proposal is enacted in substantially the
form proposed, the Company would originate and acquire only those Mortgage Loans
that it intends to retain for investment. See "Business -- Industry
Developments" for a more detailed discussion of the budget proposal.
STATE AND LOCAL TAXES
State and local tax laws may not correspond to the federal income tax
principles discussed in this section. Accordingly, prospective stockholders
should consult their tax advisers concerning the state and local tax
consequences of an investment in the Company's stock.
ERISA CONSIDERATIONS
In considering an investment in the Common Stock of the Company, a
fiduciary of a profit-sharing, pension stock bonus plan, or individual
retirement account, including a plan for self-employed individuals and their
employees or any other employee benefit plan subject to prohibited transaction
provisions of the Code or the fiduciary responsibility provisions of ERISA (an
"ERISA Plan") should consider (a) whether the ownership of Common Stock is in
accordance with the documents and instruments governing such ERISA Plan, (b)
whether the ownership of Common Stock is consistent with the fiduciary's
responsibilities and satisfies the requirements of Part 4 of Subtitle B of Title
I of ERISA (where applicable) and, in particular, the diversification, prudence
and liquidity requirements of Section 404 of ERISA, (c) ERISA's prohibitions in
improper delegation of control over, or responsibility for, "plan assets" and
ERISA's imposition of co-fiduciary liability on a fiduciary who participates in,
permits (by action or inaction) the occurrence of, or fails to remedy a known
breach of duty by another fiduciary, and (d) the need to value the assets of the
ERISA Plan annually.
In regard to the "plan assets" issue noted in clause (c) above, Counsel is
of the opinion that, effective as of the date of the closing of this Offering
and the listing of the shares of Common Stock on the American Stock Exchange,
and based on certain representations of the Company, the Common Stock should
qualify as a "publicly-offered security," and, therefore, the acquisition of
such Common Stock by ERISA Plans should not cause the Company's assets to be
treated as assets of such investing ERISA Plans for purposes of the fiduciary
responsibility provisions of ERISA or the prohibited transaction provisions of
the Code. Fiduciaries of ERISA Plans and IRA's should consult with and rely upon
their own advisors in evaluating the consequences under the fiduciary provisions
of ERISA and the Code of an investment in Common Stock in light of their own
circumstances.
119
<PAGE> 127
UNDERWRITING
Under the terms of and subject to the conditions contained in the
underwriting agreement (the "Underwriting Agreement") between the Company and
the Underwriters named below (the "Underwriters"), for whom Stifel, Nicolaus &
Company, Incorporated is acting as representative (the "Representative"), the
Underwriters have severally agreed to purchase from the Company and the Company
has agreed to sell to the Underwriters severally the respective number of Units
set forth opposite its name below:
<TABLE>
<CAPTION>
NUMBER OF UNITS
TO BE
UNDERWRITER PURCHASED
----------- ---------------
<S> <C>
Stifel, Nicolaus & Company, Incorporated....................
Total............................................. 5,000,000
=========
</TABLE>
In the Underwriting Agreement, the Underwriters have severally agreed,
subject to the terms and conditions set forth therein, to purchase all of the
Units being sold pursuant to the Underwriting Agreement (other than those
covered by the over-allotment option described below). In the event of a default
by any Underwriter, the Underwriting Agreement provides that, in certain
circumstances, the purchase commitments of the nondefaulting Underwriters may be
increased or the Underwriting Agreement may be terminated.
The Company has been advised by the Representative that the Underwriters
propose to offer the Units in part to the public at the Price to Public set
forth on the cover page of this Prospectus, and in part to certain securities
dealers (who may include Underwriters) at such price less a concession not in
excess of $ per Unit, and that the Underwriters and such dealers may reallow
to certain dealers, a discount not in excess of $ per Unit. After
commencement of the public offering, the Price to Public, concessions to
selected dealers and the discount to other dealers may be changed by the
Representatives.
The Company has granted an option to the Underwriters, exercisable during
the 30-day period after the date of this Prospectus, to purchase, at the Price
to Public less the underwriting discount set forth on the cover page of this
Prospectus, up to 750,000 additional Units. The Underwriters may exercise such
option only to cover over-allotments, if any, made in connection with the
Offering of the Units offered hereby. To the extent the Underwriters exercise
such option, each of the Underwriters will become obligated, subject to certain
conditions, to purchase approximately the same percentage of such option Units
as it was obligated to purchase pursuant to the Underwriting Agreement.
The Company and certain of its affiliates have agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Federal securities laws, or to contribute to payments which the Underwriters may
be required to make in respect thereof. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to officers,
directors or persons controlling the Company, the Company has been informed that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
The Company, the Founders and ContiFinancial Corporation have agreed with
the Underwriters that, for a period of one year following the closing of the
Offering, they will not offer, sell, contract to sell or otherwise dispose of
any shares of Common Stock or rights to acquire such shares without the prior
written consent of the Representatives. See "Shares Eligible For Future Sale."
120
<PAGE> 128
The Company has agreed to grant to the Representative warrants to purchase
150,000 (172,500 if the over-allotment option is exercised) shares of Common
Stock at an exercise price equal to the Price to Public of the Units (the
"Representative's Warrants"). The Representative's Warrants are exercisable for
a period of three years beginning six months after the initial closing of the
Offering. The Representative's Warrants and, if exercised, the underlying
securities, may not be sold, transferred, assigned, pledged or hypothecated for
a period of one year following the effective date of the Offering except to any
officer or partner of a Representative or by operation of law. The
Representative's Warrants contain anti-dilution provisions providing for
appropriate adjustment upon the occurrence of certain events. See "Description
of Capital Stock."
The Representative has informed the Company that it does not expect the
Underwriters to confirm sales of Units offered by this Prospectus to any
accounts over which they exercise discretionary authority.
The Company intends to apply for listing of the Units, the Warrants and the
Common Stock on the American Stock Exchange. See "Prospectus Summary -- The
Offering."
Prior to the closing of the Offering, there has been no public market for
the Units. Accordingly, the Price to Public for the Units has been determined by
negotiations between the Company and the Representative. Among the factors which
were considered in determining the Price to Public were the Company's future
prospects, the experience of its management, the economic condition of the
financial services industry in general, the general condition of the equity
securities market, the demand for similar securities of companies considered
comparable to the Company and other relevant factors.
The Price to Public set forth on the cover page of this Prospectus should
not be considered an indication of the actual value of the Units. Such price is
subject to change as a result of market conditions and other factors and no
assurance can be given that the Units can be resold at the Price to Public of
the Units after the closing of this Offering.
Until the distribution of the Units is completed, rules of the Commission
may limit the ability of the Underwriters and certain selling group members to
bid for and purchase the Units. As an exception to these rules, the
Representative is permitted to engage in certain transactions that stabilize the
prices of the Units. Such transactions consist of bids or purchases for the
purpose of pegging, fixing or maintaining the price of such securities. If the
Underwriters create a short position in the Units in connection with this
Offering, i.e., if they sell a greater number of Units than is set forth in the
cover page of this Prospectus, then the Lead Underwriters may reduce that short
position by purchasing Units in the open market. The Representative may also
elect to reduce any short position by exercising all or part of the
over-allotment option described herein. The Representative may also impose a
penalty bid on certain Underwriters and selling group members. This means that
if the Representative purchases Units in the open market to reduce the
Underwriters' short position or to stabilize the price of the Units, it may
reclaim the amount of the selling concession from the Underwriters and selling
group members who sold those securities as part of the Offering. In general,
purchases of a security for the purpose of stabilization or to reduce a short
position could cause the price of the security to be higher than it might be in
the absence of such purchases. The imposition of a penalty bid might also have
an effect on the price of a security to the extent that it were to discourage
resales of the security. These transactions may be effected on the American
Stock Exchange or otherwise. Neither the Company nor any of the Underwriters
makes any representation or prediction as to the direction or magnitude of any
effect that the transactions described above may have on the prices of the
Units. In addition, neither the Company nor any of the Underwriters makes any
representation that the Representative will engage in such transactions, or that
such transactions, once commenced, will not be discontinued without notice.
LEGAL MATTERS
The validity of the Securities offered hereby and certain tax matters will
be passed on by Jeffers, Wilson, Shaff & Falk, LLP, Irvine, California.
Christopher A. Wilson, Esq. and Michael E. Shaff, Esq., partners of Jeffers,
Wilson, Shaff & Falk, LLP, have been granted options to purchase 2,700 and 1,080
shares of Common
121
<PAGE> 129
Stock, respectively. Certain legal matters will be passed upon for the
Underwriters by O'Melveny & Myers LLP, San Francisco, California.
EXPERTS
The balance sheet of RealTrust Asset Corporation as of April 1, 1998 and
financial statements of CMG Funding Corp. (formerly Continental Mortgage Group,
L.C.) as of December 31, 1997 and 1996, and for the year ended December 31, 1997
and the period from February 7, 1996 (date of inception) to December 31, 1996,
have been included herein and in the registration statement in reliance upon the
reports of KPMG Peat Marwick LLP, independent certified public accountants
appearing elsewhere herein, and upon the authority of said firm as experts in
accounting and auditing.
ADDITIONAL INFORMATION
The Company has filed with the Commission, Washington, D.C. 20549, a
Registration Statement (the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to the Units offered
hereby. Copies of the Registration Statement and the exhibits thereto are on
file at the offices of the Commission in Washington, D.C. and may be obtained at
rates prescribed by the Commission upon request to the Commission and inspected,
without charge, at the offices of the Commission. Prior to the Offering, the
Company has not been required to file reports under the Exchange Act. However,
following the closing of this Offering, the Company will be required to file
reports and other information with the Commission pursuant to the Exchange Act.
Such reports and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's regional offices at Northwestern
Atrium Center, 500 West Madison Street (Suite 1400), Chicago, Illinois 60661 and
7 World Trade Center, New York, New York 10048. Copies of such material can also
be obtained from the Commission at prescribed rates through its Public Reference
Section at 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission
maintains a Web site that contains reports, proxy, information statements and
other information regarding registrants that file electronically with the
Commission. The Web site is located at http://www.sec.gov. Statements contained
in this Prospectus as to the contents of any contract or any contract or other
document referred to are not necessarily complete, and in each instance
reference is made to the copy of such contract or other document filed as an
exhibit to the Registration Statement, each such statement being qualified in
all respect by such reference.
122
<PAGE> 130
GLOSSARY
As used in this Prospectus, the capitalized and other terms listed below
have the meanings indicated.
"Affiliated Person" means of any entity: (i) any person directly or
indirectly owning, controlling, or holding with the power to vote, five percent
or more of the outstanding securities of such entity; (ii) any person five
percent or more of whose outstanding voting securities are directly or
indirectly owned, controlled, or held with power to vote, by such entity; (iii)
any person directly or indirectly controlling, controlled by, or under common
control with, such entity; or (iv) any officer, director or employee of such
entity or any person set forth in (i), (ii) or (iii) above. Any person who owns
beneficially, either directly or through one or more controlled companies, more
than twenty-five percent (25%) of the voting securities of any entity shall be
presumed to control such entity. Any person who does not so own more than
twenty-five percent (25%) of the voting securities of any entity shall be
presumed not to control such entity. A natural person shall be presumed not to
be a controlled entity.
"Agency" means FNMA, FHLMC or GNMA.
"Agency Certificates" means pass-through certificates guaranteed by FNMA,
FHLMC or GNMA.
"ARM" means a Mortgage Loan (including any Mortgage Loan underlying a
Mortgage Security) that features adjustments of the underlying interest rate at
predetermined times based on an agreed margin to an established index. An ARM is
usually subject to periodic interest rate and/or payment caps and a lifetime
interest rate cap.
"Beneficial Owner" means any actual purchaser of a Warrant.
"CAG" means Capital Allocation Guidelines.
"Capital Stock" means the shares of capital stock issuable by the Company
under its Amended and Restated Articles of Incorporation, and includes Common
Stock and preferred stock.
"Capstone" means Capstone Investments, Inc., a Nevada corporation.
"Charitable Beneficiary" means one or more charitable beneficiaries for the
exclusive benefit of which Capital Stock is transferred, where absent such
transfer the intended transferee of such Capital Stock would beneficially or
constructively own more than a 9.8% interest in any tenant of the Company.
"CMO" or "Collateralized Mortgage Obligations" means adjustable or
short-term fixed-rate debt obligations (bonds) that are collateralized by
Mortgage Loans and issued by private institutions or issued or guaranteed by
GNMA, FNMA or FHLMC.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitments" means commitments issued by the Company which will obligate
the Company to purchase Mortgage Assets from the holders of the commitment for a
specified period of time, in a specified aggregate principal amount and at a
specified price.
"Common Stock" means one share of the Company common stock, par value
$.001.
"Company" means RealTrust Asset Corporation, a Maryland corporation, and
includes any subsidiaries thereof when the context otherwise requires.
"ContiFinancial Corporation" means ContiFinancial Corporation and each of
its affiliates, including ContiMortgage Corporation, ContiTrade Services L.L.C.,
and ContiFinancial Services Corporation.
"Direct Participant" means Participants which are securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations.
"DRP" means a Dividend Reinvestment Plan the Company intends to adopt
following this Offering.
"DTC" means the Depository Trust Company.
"ERISA" means the Employee Retirement Income Security Act of 1974.
123
<PAGE> 131
"ERISA Plan" or "Plan" means a pension, profit-sharing, retirement or other
employee benefit plan which is subject to ERISA.
"excess inclusion income" means income recognized by the holder of a REMIC
residual (or a residual from a taxable mortgage pool) which exceeds 120% of the
long-term applicable federal interest rate.
"Excess Shares" means the number of shares of Capital Stock of the Company
held by any person or group of persons in excess of 9.8% of the outstanding
shares.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exercise Price" means the price equal to the Price to Public.
"Expiration Date" means the date and time after which the Warrants are no
longer exercisable or 5:00 p.m. Eastern Time on the third anniversary of the
date the Warrants first become exercisable.
"FHA" means the United States Federal Housing Administration.
"FHLMC" means the Federal Home Loan Mortgage Corporation.
"First Lien Mortgage Loans" means Mortgage Loans secured by first mortgages
or deeds of trust.
"FNMA" means the Federal National Mortgage Association.
"Formation Transaction" means the transactions and actions to be taken by
the Company prior to this Offering.
"Founders" means the stockholders of the Taxable Subsidiary prior to this
Offering, excluding ContiFinancial Corporation. The Founders are John D. Fry,
Terry L. Mott, William J. Reed, Shauna L. Reimann, Patrick W. Craghan, David and
Sara Ferradino, Kent G. Bills and Brenda Colson.
"GAAP" means generally accepted accounting principles.
"GNMA" means the Government National Mortgage Association.
"HUD" means the Department of Housing and Urban Development.
"Independent Directors" means a director of the Company who is not an
officer or employee of the Company or any affiliate or subsidiary of the
Company.
"Indirect Participants" means Participants which are securities brokers and
dealers, banks and trust companies that clear through or maintain a custodial
relationship with a Direct Participant, either directly or indirectly.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"IOs" means interest only Mortgage Securities.
"IRAs" means Individual Retirement Accounts.
"ISOs" means qualified incentive stock options granted under the Stock
Option Plan which meet the requirements of Section 422 of the Code.
"Keogh Plans" means H.R. 10 Plans.
"LIBOR" means London Inter-Bank Offered Rate.
"Limitation Price" means the price for which any holder of Excess Stock may
designate a transferee of such Excess Stock, which price is equal to the lesser
of (i) in the case of a deemed exchange for Excess Stock resulting from a
transfer, the price paid for such shares in the transfer or, in the case of a
deemed exchange for Excess Stock resulting from some other event, the fair
market value on the date of the deemed exchange, of the shares deemed exchanged,
or (ii) the fair market value of the shares for which such Excess Stock will be
deemed to be exchanged on the date of the designation of the transferee (or, in
the case of a purchase by the Company, on the date the Company accepts the offer
to sell).
124
<PAGE> 132
"LTV" means loan-to-value ratio which is the percentage obtained by
dividing the principal amount of a loan by the lower of the sales price or
appraised value of the mortgaged property when the loan is originated.
"Maryland GCL" means the Maryland General Corporation Law as in effect on
the date hereof, or as subsequently amended and revised.
"Mortgage Assets" means (i) Mortgage Loans and (ii) Mortgage Securities.
"Mortgage Loans" means mortgage loans which are secured by mortgages or
deeds of trust on single-family (one to four unit) residences, and includes
Subprime Mortgage Loans and Prime Mortgage Loans.
"Mortgage Securities" means CMOs and securities (or interests therein)
which are Qualified REIT Assets evidencing undivided ownership interests in a
pool of Mortgage Loans, the holders of which receive a "pass-through" of the
principal and interest paid in connection with the underlying Mortgage Loans in
accordance with the holders' respective, undivided interests in the pool.
"Ownership Limit" means 9.8% of the outstanding shares of each class of
stock, as may be increased or reduced by the Board of Directors of the Company.
"Participants" means participants in the DTC.
"POs" means principal only Mortgage Securities.
"Post-closing Transactions" means the transaction and actions to be taken
by the Company subsequent to this Offering.
"Prime Mortgage Loans" means Mortgage Loans that either comply with
requirements for inclusion in credit support programs sponsored by FHLMC or FNMA
or are FHA or VA Loans, all of which are secured by first mortgages or deeds of
trust on single-family (one to four units) residences.
"Purchase Agreement" means the Mortgage Loan Purchase Agreement between the
Company and the Taxable Subsidiary.
"Qualified Hedge" means a hedging contract that has each of the following
attributes: (a) a financial instrument; (b) entered into by the Company to hedge
any variable rate indebtedness of the Company incurred or to be incurred to
acquire or carry real estate assets; (c) the Company will not treat as a
Qualified Hedge any hedging instrument acquired to hedge an asset of the
Company; and (d) the Company will only treat as a Qualified Hedge a hedging
instrument acquired to hedge a variable rate indebtedness secured by a variable
rate asset that itself is subject to periodic or lifetime interest rate caps, or
a variable rate indebtedness that is subject to a different interest rate index
from that of the Company's asset securing such variable rate indebtedness.
"Qualified REIT Assets" means pass-through certificates, Mortgage Loans,
Agency Certificates and other assets of the type described in Code Section
856(c)(5)(B).
"Qualified REIT Subsidiary" means a corporation whose stock is entirely
owned by the REIT. The income and assets of a Qualified REIT Subsidiary are
treated as those of the Company for tax purposes.
"Qualifying Interests" means "mortgages and other liens on and interests in
real estate," as defined in Section 3(c)(5)(C) under the Investment Company Act.
"RealTrust" means RealTrust Asset Corporation, a newly formed Maryland
corporation.
"REIT" means Real Estate Investment Trust as defined under Section 856 of
the Code.
"REMIC" means Real Estate Mortgage Investment Conduit as defined under
Section 860D of the Code.
"Representative" means Stifel, Nicolaus & Company, Incorporated.
"Representative's Warrants" means the Warrants to purchase 150,000 shares
of Common Stock (172,500 shares if the over-allotment option is exercised)
granted to the Representative.
125
<PAGE> 133
"Reverse Repurchase Agreement" means a borrowing device evidenced by an
agreement to sell securities or other assets to a third-party and a simultaneous
agreement to repurchase them at a specified future date and price, the price
difference constituting the interest on the borrowing.
"Second Lien Mortgage Loans" means Mortgage Loans secured by second
mortgages or deeds of trust.
"Securities Act" means the Securities Act of 1933, as amended.
"Strategic Alliance" means the certain strategic alliance between the
Company and ContiFinancial Corporation.
"Subordinated Mortgage Securities" means a class of Mortgage Securities
that is subordinated to one or more of classes of Mortgage Securities, all of
which classes share the same collateral.
"Subprime Mortgage Loans" means Mortgage Loans that do not conform to one
or more underwriting criteria of FHLMC and FNMA (other than the mortgage loan
limits) for participation in one or more of such agencies' mortgage loan
programs, and may also exceed the maximum loan limits
"Tax-Exempt Entity" means a qualified pension, profit-sharing or other
employee retirement benefit plan, Keogh Plans, bank commingled trust funds for
such plans, IRAs and other similar entities intended to be exempt from Federal
income taxation.
"Taxable Income" means for any year the taxable income of the Company for
such year (excluding any net income derived either from property held primarily
for sale to customers or from foreclosure property) subject to certain
adjustments provided in Section 857 of the Code.
"Taxable Subsidiary" means CMG Funding Corp., a Delaware corporation.
"UBTI" means "unrelated trade or business income" as defined in Section 512
of the Code.
"Unit" means one share of Common Stock and one Warrant.
"Warrant" means a warrant to purchase one share of Common Stock at the
Price to Public, and included in the Unit.
"Warrant Agent" means the warrant agent named in the Warrant Agreement,
which initially shall be the American Securities Transfer & Trust Incorporated.
"Warrant Agreement" means the warrant agreement pursuant to which the
Warrants will be issued.
"Warrant Share" means a Warrant to purchase one share of Common Stock.
126
<PAGE> 134
TABLE OF CONTENTS TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
REALTRUST ASSET CORPORATION
Independent Auditors' Report................................ F-2
Balance Sheet as of April 1, 1998......................... F-3
Note to Balance Sheet..................................... F-4
CMG FUNDING CORP.
Independent Auditors' Report................................ F-5
Financial Statements as of December 31, 1997 and 1996 and
for the year ended December 31, 1997 and the period from
February 7, 1996 (date of inception) to December 31, 1996:
Balance Sheets............................................ F-6
Statements of Operations.................................. F-7
Statements of Stockholders' Equity........................ F-8
Statements of Cash Flows.................................. F-9
Notes to Financial Statements............................. F-10
Unaudited Financial Statements as of March 31, 1998 and for
the three months ended March 31, 1998 and 1997:
Balance Sheet (unaudited)................................. F-20
Statements of Operations (unaudited)...................... F-21
Statements of Cash Flow (unaudited)....................... F-22
Note to Financial Statements.............................. F-23
</TABLE>
F-1
<PAGE> 135
INDEPENDENT AUDITORS' REPORT
To The Board of Directors
RealTrust Asset Corporation
We have audited the accompanying balance sheet of RealTrust Asset
Corporation as of April 1, 1998 (date of inception). This financial statement is
the responsibility of the Company's management. Our responsibility is to express
an opinion on this financial statement based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the balance sheet is free of material
misstatement. An audit of a balance sheet includes examining, on a test basis,
evidence supporting the amounts and disclosures in the balance sheet. An audit
of a balance sheet also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
balance sheet presentation. We believe that our audit of the balance sheet
provides a reasonable basis for our opinion.
In our opinion, the balance sheet referred to above presents fairly, in all
material respects, the financial position of RealTrust Asset Corporation as of
April 1, 1998, in conformity with generally accepted accounting principles.
KPMG PEAT MARWICK LLP
Salt Lake City, Utah
May 4, 1998
F-2
<PAGE> 136
REALTRUST ASSET CORPORATION
BALANCE SHEET
APRIL 1, 1998
ASSETS
<TABLE>
<S> <C>
Cash........................................................ $1,000
======
STOCKHOLDERS' EQUITY
Class A Convertible Preferred Stock, par value $.001;
1,263,472 shares authorized;
no shares issued and outstanding.......................... $ --
Class B Redeemable Preferred Stock, par value $.001; 410,581
shares authorized;
no shares issued and outstanding.......................... --
Common Stock, par value $.001; 2,810,455 shares authorized;
66 shares issued and outstanding.......................... --
Additional paid-in capital.................................. 1,000
------
$1,000
======
</TABLE>
See accompanying note to balance sheet at F-4.
F-3
<PAGE> 137
REALTRUST ASSET CORPORATION
NOTE TO BALANCE SHEET
APRIL 1, 1998
BUSINESS DESCRIPTION
RealTrust Asset Corporation (the "Company") was incorporated in the state
of Maryland on April 1, 1998. The Company's business activities will consist of
(i) investing in Mortgage Loans acquired from CMG Funding Corp. and independent
mortgage brokers and banks; (ii) investing in Mortgage Securities, and (iii)
owning preferred stock investment in CMG Funding Corp., which it will account
for on the equity basis of accounting. The Company will operate in a manner that
permits it to elect, and intends to elect, REIT status for Federal income tax
purposes. The Company intends to distribute at least 95% or more of its taxable
income to its holders of Common Stock on a quarterly basis each year so as to
comply with the REIT provisions of the Internal Revenue Code.
In connection with its formation, the Company has filed a registration
statement for the sale of 5,000,000 units. Each unit consists of one share of
Common Stock, par value $.001 per share, and one Common Stock Purchase Warrant.
There has been no public market for the Units and the Company has not yet
commenced operations. Upon the closing of the Offering of the Units, the Company
will use substantially all of the net proceeds of the Offering to provide
funding for investing in Mortgage Loans and Mortgage Securities.
F-4
<PAGE> 138
INDEPENDENT AUDITORS' REPORT
The Board of Directors
CMG Funding Corp.:
We have audited the accompanying balance sheets of CMG Funding Corp.
(formerly Continental Mortgage Group, L.C.) as of December 31, 1997 and 1996,
and the related statements of operations, stockholders' equity, and cash flows
for the year ended December 31, 1997 and the period from February 7, 1996 (date
of inception) to December 31, 1996. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these 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 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 financial statements referred to above present fairly,
in all material respects, the financial position of CMG Funding Corp. as of
December 31, 1997 and 1996, and the results of its operations and its cash flows
for the year ended December 31, 1997 and the period from February 7, 1996 (date
of inception) to December 31, 1996, in conformity with generally accepted
accounting principles.
KPMG PEAT MARWICK LLP
Salt Lake City, Utah
March 10, 1998
F-5
<PAGE> 139
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
BALANCE SHEETS
DECEMBER 31, 1997 AND 1996
ASSETS
<TABLE>
<CAPTION>
1997 1996
----------- -----------
<S> <C> <C>
Cash and cash equivalents................................... $ 708,962 272,308
Mortgage loans held for sale................................ 54,451,067 24,147,713
Receivables................................................. 1,379,878 120,731
Furniture, fixtures, and equipment, net..................... 1,325,969 500,570
Other real estate owned..................................... -- 147,740
Deposits.................................................... 86,549 56,762
Restricted cash............................................. 56,478 90,009
Organization costs, net of accumulated amortization of
$6,824 at December 31, 1997 and $2,573 at December 31,
1996...................................................... 38,669 16,105
Prepaid expense............................................. 500,174 6,114
Other assets................................................ 319,557 --
----------- -----------
$58,867,303 25,358,052
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts payable............................................ $ 377,110 207,442
Accrued interest and other liabilities...................... 796,376 536,026
Warehouse and revolving working capital lines of credit..... 55,603,021 23,996,471
Notes payable............................................... 188,690 250,000
Obligations under capital leases............................ 366,687 233,982
Dividends payable........................................... 73,188 --
----------- -----------
Total liabilities................................. 57,405,072 25,223,921
Stockholders' equity:
Class A convertible preferred stock, $.001 par value.
1,268,950 shares authorized, 1,263,472 issued, and
outstanding............................................ 1,263 --
Common stock, $.001 par value. 2,609,407 shares
authorized, 1,546,983 issued, and outstanding.......... 1,547 --
Additional paid-in capital.................................. 2,953,493 --
Members' capital.......................................... -- 1,439,997
Accumulated deficit....................................... (1,494,072) (1,305,866)
----------- -----------
Total stockholders' equity........................ 1,462,231 134,131
----------- -----------
$58,867,303 25,358,052
=========== ===========
</TABLE>
See accompanying notes to financial statements.
F-6
<PAGE> 140
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
STATEMENTS OF OPERATIONS
YEAR ENDED DECEMBER 31, 1997 AND PERIOD FROM FEBRUARY 7, 1996
(DATE OF INCEPTION) TO DECEMBER 31, 1996
<TABLE>
<CAPTION>
1997 1996
----------- -----------
<S> <C> <C>
Revenues:
Interest.................................................. $ 3,756,870 621,601
Gain-on-sale of mortgage loans, net....................... 5,967,647 446,771
Mortgage servicing fees................................... 38,826 --
Other..................................................... 269,248 92,063
----------- -----------
10,032,591 1,160,435
----------- -----------
Expenses:
Salaries and employee benefits............................ 4,474,357 390,018
General operating......................................... 4,313,236 1,285,156
Interest.................................................. 2,965,685 731,519
Other..................................................... 53,624 59,608
----------- -----------
11,806,902 2,466,301
----------- -----------
Net loss.......................................... $(1,774,311) (1,305,866)
=========== ===========
</TABLE>
See accompanying notes to financial statements.
F-7
<PAGE> 141
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
STATEMENTS OF STOCKHOLDERS' EQUITY
YEAR ENDED DECEMBER 31, 1997 AND PERIOD FROM FEBRUARY 7, 1996
(DATE OF INCEPTION) TO DECEMBER 31, 1996
<TABLE>
<CAPTION>
CLASS A
CONVERTIBLE ADDITIONAL TOTAL
PREFERRED COMMON PAID-IN MEMBERS' ACCUMULATED STOCKHOLDERS'
STOCK STOCK CAPITAL CAPITAL DEFICIT EQUITY
----------- ------- ---------- ---------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Balances at February 7, 1996
(date of inception)....... $ -- -- -- -- -- --
Members' capital
contribution.............. -- -- -- 1,562,664 -- 1,562,664
Members' withdrawals........ -- -- -- (122,667) -- (122,667)
Net loss.................... -- -- -- -- (1,305,866) (1,305,866)
------ ----- ---------- ---------- ----------- -----------
Balances at December
31,1996................... -- -- -- 1,439,997 (1,305,866) 134,131
Transfer of Continental
Mortgage Group L.C.
accumulated deficit at
March 7, 1997 (see note
1)........................ -- -- (1,833,694) -- 1,833,694 --
Conversions of members'
capital to Class A
convertible preferred
stock (600,774 shares) and
common stock (1,000,100
shares)................... 601 1,000 1,438,396 (1,439,997) -- --
Issuance of Class A
convertible preferred
stock (252,117 shares).... 252 -- 499,748 -- -- 500,000
Conversion of subordinated
debt to common stock
(546,883 shares).......... -- 547 849,453 -- -- 850,000
Conversion of $2,000,000
revolving working capital
line of credit to Class A
convertible preferred
stock (410,581 shares).... 410 -- 1,999,590 -- -- 2,000,000
Cumulative dividend -- Class
A convertible preferred
stock..................... -- -- -- -- (247,589) (247,589)
Net loss.................... -- -- -- -- (1,774,311) (1,774,311)
------ ----- ---------- ---------- ----------- -----------
Balances at December 31,
1997...................... $1,263 1,547 2,953,493 -- (1,494,072) 1,462,231
====== ===== ========== ========== =========== ===========
</TABLE>
See accompanying notes to financial statements.
F-8
<PAGE> 142
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
STATEMENTS OF CASH FLOWS
YEAR ENDED DECEMBER 31, 1997 AND PERIOD FROM FEBRUARY 7, 1996
(DATE OF INCEPTION) TO DECEMBER 31, 1996
<TABLE>
<CAPTION>
1997 1996
------------- -------------
<S> <C> <C>
Cash flows from operating activities:
Net loss.................................................. $ (1,774,311) $ (1,305,866)
Adjustments to reconcile net loss to net cash used in
operating activities:
Depreciation and amortization........................... 248,395 54,283
Proceeds from mortgage loans held for sale.............. 462,824,615 148,300,974
Increase in mortgage loans held for sale................ (487,160,322) (172,174,656)
Gain on sales of mortgage loans, net.................... (5,967,647) (446,771)
Write-down of other real estate owned................... -- 25,000
Gain on sale of other real estate owned................. (8,874) --
Changes in operating assets and liabilities:
Increase in receivables.............................. (1,259,147) (120,731)
Increase in deposits................................. (29,787) (56,762)
Decrease (increase) in restricted cash............... 33,531 (90,009)
Increase in organization costs....................... (42,310) (18,678)
Increase in prepaid expense.......................... (494,060) (6,114)
Increase in other assets............................. (319,557) --
Increase in accounts payable......................... 169,668 207,442
Increase in accrued interest and other liabilities... 260,350 536,026
------------- -------------
Net cash used in operating activities.............. (33,519,456) (25,095,862)
------------- -------------
Cash flows from investing activities:
Purchase of furniture, fixtures, and equipment............ (784,762) (256,858)
Proceeds from sale of land held for investment............ -- 177,734
Proceeds from sale of other real estate owned............. 156,614 --
------------- -------------
Net cash used in investing activities.............. (628,148) (79,124)
------------- -------------
Cash flows from financing activities:
Proceeds from warehouse and revolving working capital
lines of credit, net.................................... 33,606,550 23,996,471
Proceeds from notes payable............................... 200,000 250,000
Payments on notes payable................................. (261,310) (65,000)
Payments on obligations under capital leases.............. (136,581) (48,726)
Proceeds from subordinated debt........................... 850,000 --
Proceeds from issuance of preferred stock................. 500,000 --
Members' capital contributions, net of withdrawals........ -- 1,314,549
Dividends paid............................................ (174,401) --
------------- -------------
Net cash provided by financing activities.......... 34,584,258 25,447,294
------------- -------------
Net increase in cash and cash equivalents................... 436,654 272,308
Cash and cash equivalents at the beginning of period........ 272,308 --
------------- -------------
Cash and cash equivalents at end of period.................. $ 708,962 $ 272,308
============= =============
SUPPLEMENTAL SCHEDULE OF CASH FLOW INFORMATION
Interest paid............................................... $ 2,599,437 599,020
SUPPLEMENTAL SCHEDULE OF NONCASH ACTIVITIES
Transfer from mortgage loans held for sale to other real
estate owned.............................................. $ -- 172,740
Land contributed by member, net of note payable in amount of
$65,000................................................... -- 112,734
Office machinery and equipment contributed by member........ -- 12,714
Capital lease obligations incurred for furniture, fixture,
and equipment............................................. 269,286 282,708
Conversion of members capital to preferred, common stock,
and additional paid-in capital............................ 1,439,997 --
Conversion of subordinated debt to common stock and
additional paid-in capital................................ 850,000 --
Conversion of revolving working capital line of credit to
Class A convertible preferred stock and additional paid-in
capital................................................... 2,000,000 --
Dividends payable on cumulative Class A convertible
preferred stock........................................... 73,188 --
</TABLE>
See accompanying notes to financial statements.
F-9
<PAGE> 143
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
NOTES TO FINANCIAL STATEMENTS
YEAR ENDED DECEMBER 31, 1997 AND PERIOD FROM FEBRUARY 7, 1996
(DATE OF INCEPTION) TO DECEMBER 31, 1996
(1) DESCRIPTION OF BUSINESS
CMG Funding Corp. (the Company) was incorporated on December 12, 1996,
under the laws of the State of Delaware and began operations on March 7, 1997.
Prior to this, the Company was organized on February 7, 1996, in the State of
Utah as a limited liability company and operated as Continental Mortgage Group.
The Company is engaged in mortgage banking activities located throughout the
United States.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Basis of Financial Statement Presentation
The financial statements have been prepared in conformity with generally
accepted accounting principles. In preparing the financial statements,
management is required to make estimates and assumptions that affect the
reported amounts of assets and liabilities as of the date of the balance sheet
and revenues and expenses for the period. Actual results could differ from those
estimates.
(b) Cash and Cash Equivalents
Cash and cash equivalents include cash on hand and highly liquid
investments with original maturities of three months or less. The carrying
amount of cash equivalents approximates their value.
The Company has cash in a financial institution which is insured by the
Federal Deposit Insurance Corporation (FDIC) up to $100,000 per institution. As
of December 31, 1997, the Company had amounts on deposit with the financial
institution in excess of FDIC limits. The Company limits its risk by placing its
cash in a high quality financial institution.
At December 31, 1997 and 1996, restricted cash includes $56,478 and
$90,009, respectively, representing cash restricted for the purpose of warehouse
loan fundings.
(c) Mortgage Loans Held for Sale
Mortgage loans held for sale are valued at the lower of cost or estimated
market value as determined by outstanding commitments from investors or current
investor yield requirements calculated on a loan-by-loan basis. Mortgage loans
held for sale include loan premiums of $1,322,339 and $242,553 at December 31,
1997 and 1996, respectively.
The Company has limited its exposure to credit losses on its mortgage loans
held for sale by performing an in-depth due diligence on every loan originated
and purchased. The due diligence encompasses the borrowers credit, the
enforceability of the documents, and the value of the mortgage property. The
Company has not experienced any credit losses to date.
(d) Loan Origination Fees and Related Costs
Loan origination fees and certain direct loan origination costs are
deferred, and the net fee or cost is recognized in income using the interest
method over the contractual life of the loans, adjusted for estimated
prepayments based on the Company's historical prepayment experience. The net
deferred loan fee or cost is used in calculating the Company's gain or loss when
the related loans are sold to investors.
F-10
<PAGE> 144
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
YEAR ENDED DECEMBER 31, 1997 AND PERIOD FROM FEBRUARY 7, 1996
(DATE OF INCEPTION) TO DECEMBER 31, 1996
(e) Furniture, Fixtures, and Equipment
Furniture, fixtures, and equipment are stated at cost. Depreciation and
amortization are computed using the straight-line method based on the estimated
useful lives of the related assets. Useful lives range from five to seven years,
with the exception of leasehold improvements which are amortized over the lease
term or estimated useful life, whichever is less. Software is amortized over a
three-year life.
Furniture and equipment under capital lease is stated at the present value
of minimum lease payments at the inception of the lease. Depreciation under
capital leases is computed using the straight-line method over the estimated
useful life of the underlying asset.
(f) Organization Costs
Organization costs associated with the organization of the Company are
amortized on a straight-line basis over five years.
(g) Gain/Loss on Sale of Mortgage Loans
When loans are sold, a gain or loss is recognized to the extent that the
sales proceeds exceed or are less than the net book value of the loans. Net
deferred loan fees or costs are included in calculating gains and losses from
sales on loans.
(h) Mortgage Servicing Fees
Mortgage servicing fees represent the fees earned for servicing mortgage
loans under servicing agreements with the Federal National Mortgage Association
(FNMA). The fees are based on a fixed amount per loan and are recorded as income
when received.
(i) Income Taxes
Prior to March 7, 1997, the Company was a limited liability company (LLC)
under the provisions of the Internal Revenue Code. As a result, the Company paid
no federal or state income taxes, and the elements of income or loss were
includable in the individual members' income tax returns.
Upon the merger of CMG Funding Corp. into Continental Mortgage Group LLC,
with CMG Funding, a "C" Corporation, the survivor, the Company became subject to
income taxes which are recognized using the asset and liability method. Under
the asset and liability method, deferred tax assets and deferred tax liabilities
are recognized for the future tax consequences attributable to differences
between the financial statement carrying amounts of existing assets and
liabilities and their respective tax bases and operating loss and tax credit
carryforwards. Deferred tax assets and deferred tax liabilities are measured
using enacted tax rates expected to apply to taxable income in the years in
which those temporary differences are expected to be recovered or settled. The
effect on deferred tax assets and deferred tax liabilities of a change in tax
rates is recognized in operations in the period that includes the enactment
date.
(j) Recent Accounting Pronouncements
On March 7, 1997, the Company adopted Statement of Financial Accounting
Standards (Statement) No. 123, Accounting for Stock-Based Compensation, which
permits entities to recognize as expense over the vesting period, the fair value
of all stock-based awards on the date of the grant. Alternatively, Statement No.
123 also allows entities to continue to apply the provisions of APB Opinion No.
25 and provide pro forma
F-11
<PAGE> 145
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
YEAR ENDED DECEMBER 31, 1997 AND PERIOD FROM FEBRUARY 7, 1996
(DATE OF INCEPTION) TO DECEMBER 31, 1996
earnings (loss) and pro forma earnings (loss) per share disclosure for employee
stock option grants made in 1995 and future years as if the fair-value-based
method defined in Statement No. 123 had been applied. The Company has elected to
apply the provisions of APB Opinion No. 25 and provide the pro forma disclosure
provisions of Statement No. 123.
Statement No. 125, Accounting for Transfers and Servicing of Financial
Assets and Extinguishments of Liabilities, as amended by Statement No. 127, is
effective for all transfers and servicing of financial assets and
extinguishments of liabilities occurring after December 31, 1996, except for
secured borrowings and collateral, repurchase agreements, dollar rolls,
securities lending, and similar transactions, which transfers will be effective
for transactions occurring after December 31, 1996. This statement provides
accounting and reporting standards for transfers and servicing of financial
assets and extinguishments of liabilities based on consistent application of
financial-components approach that focuses on control. It distinguishes
transfers of financial assets that are sales from transfers that are secured
borrowings. Under the financial-components approach, after a transfer of
financial assets, an entity recognizes all financial and servicing assets it
controls and liabilities it has incurred and derecognizes financial assets it no
longer controls and liabilities that have been extinguished. Many of these
assets and liabilities are components of financial assets that existed prior to
the transfer. If a transfer does not meet the criteria for a sale, the transfer
is accounted for as a secured borrowing with a pledge of collateral.
(k) Financial Statement Presentation
The Company prepares its financial statements using an unclassified balance
sheet presentation as is customary in the mortgage banking industry. A
classified balance sheet presentation would have aggregated current assets,
current liabilities, and net working capital (deficit) as follows as of December
31:
<TABLE>
<CAPTION>
1997 1996
----------- ----------
<S> <C> <C>
Current assets............................................. $57,040,081 24,636,875
Current liabilities........................................ 55,227,715 24,901,914
----------- ----------
Net working capital (deficit).............................. $ 1,812,366 (265,039)
=========== ==========
</TABLE>
(l) Reclassification
Certain balances in 1996 have been reclassified to conform to the 1997
presentation
(3) RECEIVABLES
Receivables as of December 31, 1997 and 1996, consist of the following:
<TABLE>
<CAPTION>
1997 1996
---------- ----------
<S> <C> <C>
Mortgage payments........................................... $ 831,547 40,721
Accrued interest............................................ 463,720 71,616
Investor bonus.............................................. 79,134 --
Other receivables........................................... 5,477 8,394
---------- ----------
$1,379,878 120,731
========== ==========
</TABLE>
F-12
<PAGE> 146
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
YEAR ENDED DECEMBER 31, 1997 AND PERIOD FROM FEBRUARY 7, 1996
(DATE OF INCEPTION) TO DECEMBER 31, 1996
(4) FURNITURE, FIXTURES, AND EQUIPMENT
Furniture, fixtures, and equipment at December 31, 1997 and 1996, consist
of the following:
<TABLE>
<CAPTION>
USEFUL LIVES 1997 1996
------------ ----------- -------
<S> <C> <C> <C>
Furniture and fixtures............................ 7 years $ 323,105 146,836
Office machinery and equipment.................... 5 - 7 years 438,544 112,989
Computers......................................... 5 years 514,957 186,591
Software.......................................... 3 years 265,912 92,396
Leasehold improvements............................ 2 - 5 years 63,809 13,468
----------- -------
1,606,327 552,280
Less accumulated depreciation and amortization.... 280,358 51,710
----------- -------
$ 1,325,969 500,570
=========== =======
</TABLE>
(5) WAREHOUSE AND REVOLVING WORKING CAPITAL LINES OF CREDIT
The Company had the following lines of credit for the periods ending
December 31, 1997 and 1996:
<TABLE>
<CAPTION>
1997 1996
----------- ----------
<S> <C> <C>
2,000,000 revolving working capital line of credit with a
finance company, maturing in January of 1999, with
interest on outstanding balance accruing at LIBOR plus
4.5% to 8.5%, secured by general assets (note 15)......... $ 1,785,225 200,000
7,000,000 warehousing line of credit with a finance company,
maturing in June of 1997, with interest on outstanding
balance accruing at the bank's prime rate plus 0.25%,
payable monthly, secured by loans and servicing rights in
loans warehoused.......................................... -- 6,888,713
12,000,000 warehousing line of credit with a financial
institution, matures in July of 1997, with interest
accruing on outstanding balance ranging from LIBOR plus
2.15% to 2.75%, payable monthly, secured by loans
warehoused and associated servicing rights................ -- 10,248,546
4,000,000 warehousing line of credit with a financial
institution, maturing in April of 1997, with interest on
outstanding balance accruing at the bank's prime rate plus
0.50%, payable monthly, secured by loans warehoused and
associated servicing rights............................... -- 2,590,759
50,000,000 warehousing line of credit with a finance
company, maturing in January of 1999, with interest on
outstanding balance accruing at LIBOR plus 2.25%, payable
monthly, secured by loans warehoused and associated
servicing rights (note 15)................................ 31,692,828 4,068,453
10,000,000 warehousing line of credit with a financial
institution, maturing in May of 1998, with interest
accruing on outstanding balance ranging from LIBOR plus 2%
to 3%, payable monthly, secured by loans warehoused and
associated servicing rights............................... 57,362 --
100,000,000 reverse repurchase agreement with a finance
company, maturing in October of 1998, with interest on
outstanding balance ranging from LIBOR plus 1.10% to
3.25%..................................................... 22,067,606 --
----------- ----------
Total warehouse and revolving working capital
lines of credit................................. $55,603,021 23,996,471
=========== ==========
</TABLE>
F-13
<PAGE> 147
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
YEAR ENDED DECEMBER 31, 1997 AND PERIOD FROM FEBRUARY 7, 1996
(DATE OF INCEPTION) TO DECEMBER 31, 1996
The average interest rates pertaining to outstanding short-term borrowings
at December 31, 1997 and 1996, was 7.91 percent and 8.38 percent, respectively.
Effective November 24, 1997, the $2 million revolving line of credit was
renewed and amended to provide $4 million of revolving credit, maturing August
1, 1998. In connection therewith the Company issued a common stock warrant to
the finance company (note 15). The terms of the warrant provided that it could
only be exercised if the Company did not repay in full, the outstanding balance
on the line of credit. If exercised, the warrant entitled the finance company to
purchase for one dollar a number of shares equivalent to a maximum of 13 percent
of the Company's equity on a fully-diluted basis.
Effective December 31, 1997, the finance company converted $2 million of
the $4 million revolving line of credit for 410,581 shares of Class A
convertible preferred stock. Further, the revolving line of credit was renewed
and amended to provide a $2 million revolving credit, maturing January 1, 1999.
In connection with the above noted conversion, the Company granted to the
finance company two warrants to purchase shares of common stock. The first
warrant allows the finance company to purchase, for a nominal amount, up to five
percent of the Company's outstanding common shares (on a fully-diluted basis) if
all principal and interest due under the revolving line of credit is not repaid
on or prior to January 1, 1999. This warrant, if it becomes exercisable, will
remain exercisable for a period of ten years. The second warrant entitles the
finance company to purchase, for a nominal amount, one percent of the Company's
outstanding stock (on a fully-diluted basis) for each calendar quarter during
1998 in which, the Company fails to attain at least 90 percent of a pretax
income target described in the agreement. Entitlements under this warrant may be
exercised prior to the earlier of repayment or January 1, 1999.
Additionally, the warrant issued to the finance company in November 1997
was canceled upon the granting of the two warrants described above.
The Company's warehousing and revolving working capital line of credit
agreements referred to above contain both financial and nonfinancial covenants.
As of December 31, 1997, the Company, with the exception of the $10 million
warehouse line of credit, was in compliance with all covenants under the credit
agreements.
(6) NOTES PAYABLE
Notes payable consisted of the following at December 31:
<TABLE>
<CAPTION>
1997 1996
-------- --------
<S> <C> <C>
Note payable to a related party, unsecured, with interest on
outstanding balance accruing at 12.0%, paid quarterly,
principal due on December 31, 2000........................ $150,000 --
Note payable to a financial institution, maturing March
2000, with interest on outstanding balance accruing at
11.5%, payable monthly, secured by furniture and
equipment................................................. 38,690 --
Note payable to a financial institution, at a fixed rate of
10.25%, due February 1997................................. -- 250,000
-------- --------
$188,690 250,000
======== ========
</TABLE>
(7) SUBORDINATED DEBT
On December 17, 1996, the Company entered into a subordinated debt
agreement with a finance company that permitted the Company to borrow $850,000
at 15 percent interest if certain origination volumes
F-14
<PAGE> 148
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
YEAR ENDED DECEMBER 31, 1997 AND PERIOD FROM FEBRUARY 7, 1996
(DATE OF INCEPTION) TO DECEMBER 31, 1996
were met as described in the agreement; otherwise, the interest rate was 18
percent. The subordinated debt was originally convertible into 429,293 shares of
convertible preferred stock, at the option of the finance company, for a
conversion price of $1.98 per share.
Effective, November 24, 1997, the Company and the finance company modified
the agreement providing for a conversion privilege to common stock. In
accordance with such modifications, the finance company exercised its conversion
privilege by converting the subordinated debt into 546,883 shares of common
stock.
(8) CAPITAL STOCK
The Company's convertible preferred stock entitles the stockholder to
receive a dividend at the annual rate of 18 percent of the original issue price,
of $1.98 per share. The dividends are cumulative and are payable quarterly, in
arrears on the last day of each quarter end. The dividends accrue whether or not
the Company has earnings, funds are legally available for payment, and dividends
are declared. In addition, each share is convertible to common stock at any time
subsequent to issuance, at the option of the stockholder, as determined by
dividing the original issue price by the conversion price defined in the
Certification of Incorporation of the Company.
During December 1996, the Company adopted a stock option plan (the Plan),
which provides for grants of incentive and nonqualified stock options. Under
this Plan, the Company has granted nonqualified stock options to officers,
directors, and other key individuals providing significant services to the
Company. The number of shares, terms, and exercise periods are determined by the
Board of Directors on an option-by-option basis. All options granted have a
ten-year exercise period and vest over a three-year period. An aggregate of
226,905 shares have been authorized for issuance under this plan. None of the
options outstanding as of December 31, 1997 are exercisable.
A summary of the activity for the year ended December 31, 1997 under this
Plan follows:
<TABLE>
<CAPTION>
WEIGHTED-AVERAGE
SHARES EXERCISE PRICE
------ ----------------
<S> <C> <C>
Outstanding at beginning of period.......................... -- $ --
Granted..................................................... 97,000 3.96
------ -----
Outstanding at end of period................................ 97,000 $3.96
====== =====
Weighted-average:
Fair value of options granted during the period........... $ 0.68
Remaining contractual life................................ 8.96years
</TABLE>
The Company accounts for the Plan according to APB 25, under which
compensation cost will be recognized over the expected life of the options for
the difference between the exercise price and the related fair value. Inasmuch
as the Company's Board of Directors and management believes, the exercise price
to reflect the fair value of the options at date of grant, no compensation cost
was recorded for the year ended December 31, 1997. Had compensation cost for the
Plan been determined consistent with Statement No. 123, the Company's December
31, 1997 net loss would have been increased as follows:
<TABLE>
<S> <C>
Net loss:
As reported............................................... $1,774,311
Pro forma................................................. 1,786,661
</TABLE>
F-15
<PAGE> 149
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
YEAR ENDED DECEMBER 31, 1997 AND PERIOD FROM FEBRUARY 7, 1996
(DATE OF INCEPTION) TO DECEMBER 31, 1996
The effect that calculating compensation cost for stock-based compensation
under Statement No. 123 has on the pro forma net loss as presented above may not
be representative of the effects on reported net earnings or losses for future
years.
The fair value of each option grant is estimated on the date of grant using
an option pricing model with the following weighted-average assumptions: risk
free interest rate of six percent; expected dividend yields of zero percent; and
expected lives of three years.
Subsequent to December 31, 1997, the Company canceled 27,500 options to
employees and a director to acquire shares of common stock at an exercise price
of $3.96.
(9) LOAN SERVICING
For the year ended December 31, 1997, the Company was servicing
approximately eight loans, owned by investors, aggregating $993,384. In
connection with its loan administration activities, the Company makes certain
payments of property taxes, insurance premiums, and guaranteed payments in
advance of collecting them from specific mortgagors.
(10) EMPLOYEE BENEFIT PLANS
The Company has a qualified 401(k) retirement plan for all employees who
have completed three months of service and have attained the age of 21.
Participants are able to contribute, on a pre-tax basis, up to 15 percent of
their earnings to the plan. Employer matching contributions are discretionary,
to be set prior to the end of the plan year, computed quarterly, and allocated
based on the ratio of the participants' compensation to total participants'
compensation.
(11) INCOME TAXES
As discussed in note 2, the Company became subject to income taxes
following the merger on March 7, 1997. There is no income tax subsequent to that
date due to operating losses. The difference between the expected tax benefit
and the actual benefit is primarily attributable to the effect of net operating
losses being offset by the Company's valuation allowance.
The tax effect of temporary differences that give rise to significant
portions of the deferred tax assets and deferred tax liabilities at December 31,
1997, are presented below:
<TABLE>
<S> <C>
Deferred tax asset:
Net operating loss carryforwards.......................... $472,150
Mark to market adjustment................................. 8,750
Other..................................................... 4,000
--------
Total gross deferred tax assets................... 484,900
Deferred tax liabilities -- furniture, fixtures, and
equipment due to differences in depreciation.............. 40,000
--------
Net deferred tax asset before valuation allowance........... 444,900
Less valuation allowance.................................... 444,900
--------
Net deferred tax asset............................ $ --
========
</TABLE>
Subsequently recognized tax benefits relating to the valuation allowance
for deferred tax assets will be allocated as an income tax benefit to be
reported in the statements of operations. At December 31, 1997, the
F-16
<PAGE> 150
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
YEAR ENDED DECEMBER 31, 1997 AND PERIOD FROM FEBRUARY 7, 1996
(DATE OF INCEPTION) TO DECEMBER 31, 1996
Company had tax net operating losses approximately of $1,269,000, which can be
carried forward to reduce federal income taxes.
(12) LEASES
The Company is obligated under operating leases for furniture, equipment,
and office space. In addition, the Company leases certain office equipment under
agreements that are recorded as capital leases. Future minimum lease payments
under noncancelable operating leases (with initial or remaining lease terms in
excess of one year) and minimum capital lease payments as of December 31, 1997,
are as follows:
<TABLE>
<CAPTION>
CAPITAL OPERATING
LEASES LEASES
-------- ----------
<S> <C> <C>
Period ending December 31:
1998...................................................... $216,835 $ 763,387
1999...................................................... 160,310 705,032
2000...................................................... 48,544 627,884
2001...................................................... 5,701 595,820
2002...................................................... 2,315 155,272
-------- ----------
Total minimum lease payments...................... 433,705 $2,847,395
==========
Less amount representing interest........................... 67,018
--------
Present value of net minimum lease payments....... $366,687
========
</TABLE>
Furniture and equipment held under capital leases and the related
accumulated amortization at December 31, 1997, is as follows:
<TABLE>
<S> <C>
Furniture and fixtures...................................... $111,114
Office machinery and equipment.............................. 363,416
Computers................................................... 68,093
--------
542,623
Less accumulated amortization............................... 109,586
--------
$433,037
========
</TABLE>
Rental expense under operating leases was $648,314 and $277,377 for the
year ending December 31, 1997 and the period from February 7, 1996 (date of
inception) to December 31, 1996, respectively.
(13) FAIR VALUE OF FINANCIAL INSTRUMENTS
The following disclosure of the estimated fair value of financial
instruments is made using amounts that have been determined using available
market information and appropriate valuation methodologies. However,
considerable judgment is required to interpret market data to develop the
estimates of fair value. Accordingly, the estimates presented herein are not
necessarily indicative of the amounts that could be realized in a current market
exchange. The use of the different market assumptions or estimation
methodologies could have a material impact on the estimated fair value amounts.
F-17
<PAGE> 151
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
YEAR ENDED DECEMBER 31, 1997 AND PERIOD FROM FEBRUARY 7, 1996
(DATE OF INCEPTION) TO DECEMBER 31, 1996
The estimated fair values of the Company's financial instruments are as
follows:
<TABLE>
<CAPTION>
DECEMBER 31, 1997 DECEMBER 31, 1996
------------------------ -----------------------
CARRYING ESTIMATED CARRYING ESTIMATED
AMOUNT FAIR VALUE AMOUNT FAIR VALUE
----------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Financial assets:
Cash and cash equivalents..................... $ 708,962 708,962 272,308 272,308
Mortgage loans held for sale.................. 54,451,067 56,127,600 24,147,713 24,402,600
Receivables................................... 1,379,878 1,379,878 120,731 120,731
Deposits...................................... 86,549 86,549 56,762 56,762
Restricted cash............................... 56,478 56,478 90,009 90,009
Financial liabilities:
Accounts payable.............................. $ 377,110 377,110 207,442 207,442
Accrued interest and other liabilities........ 796,376 796,376 536,026 536,026
Warehouse and revolving working capital lines
of credit.................................. 55,603,021 55,603,021 23,996,471 23,996,471
Notes payable................................. 188,690 188,690 250,000 250,000
</TABLE>
The carrying amounts reported in the balance sheets for cash and cash
equivalents, receivables, deposits, restricted cash, accounts payable, accrued
interest, and other liabilities approximate fair value because of the immediate
or short-term maturity of these financial instruments. The fair value of
mortgage loans held for sale is estimated based on quoted marked prices from
dealers and brokers for similar types of mortgage loans. The warehouse and
revolving working capital lines of credit are variable-rate debt which reprice
with the change in market rates, as such, their carrying amounts are deemed to
approximate fair value.
(14) COMMITMENTS AND CONTINGENCIES
The Company is involved in various claims and legal actions arising in the
ordinary course of business. In the opinion of management, the ultimate
disposition of these matters will not have a material adverse effect on the
Company.
(15) CONCENTRATIONS OF CREDIT RISK
A significant portion of loans originated and purchased, and held for sale
are single family residence mortgage loans.
For the year ended December 31, 1997, mortgage loans purchased and
originated by the Company were geographically concentrated in Utah, Florida,
Georgia, and California. The Company has no other significant concentration of
credit risk. The Company manages its credit risk through diversification of
markets in which the Company originates and purchases mortgage loans.
F-18
<PAGE> 152
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
YEAR ENDED DECEMBER 31, 1997 AND PERIOD FROM FEBRUARY 7, 1996
(DATE OF INCEPTION) TO DECEMBER 31, 1996
(16) RELATED PARTY
One of the Company's holders of 662,698 shares Class A convertible
preferred stock and 546,883 shares common stock is a finance company from which
the Company has borrowings as follows as of December 31, 1997 and 1996,
respectively (notes 5 and 7):
<TABLE>
<CAPTION>
1997 1996
----------- ----------
<S> <C> <C>
Warehouse line of credit................... $31,692,828 $4,068,453
=========== ==========
Revolving working capital line of credit... $ 1,785,225 $ 200,000
=========== ==========
</TABLE>
The Company is obligated to offer to sell to the finance company 75 percent
of the principal balance of all subprime mortgage loan monthly production by the
Company for 1997 and 1996, 50 percent in 1998, and 25 percent thereafter until
2000. For the periods ended December 31, 1997 and 1996, the Company sold, under
this agreement, loan production in the amounts of $98,042,000 and $16,140,000,
respectively.
F-19
<PAGE> 153
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
BALANCE SHEET
<TABLE>
<CAPTION>
MARCH 31, 1998
--------------
<S> <C>
ASSETS
Cash and cash equivalents................................... $ 968,954
Mortgage loans held for sale................................ 53,306,731
Receivables................................................. 1,599,465
Furniture, fixtures, and equipment, net..................... 1,308,996
Deposits.................................................... 92,466
Restricted Cash............................................. 49,573
Organization costs, net of accumulated amortization of
$9,099 March 31, 1998 and $6,824 at December 31, 1997..... 36,394
Prepaid expense............................................. 543,064
Other assets................................................ 513,804
-----------
Total assets........................................... $58,419,447
===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities
Accounts payable............................................ $ 274,909
Accrued interest and other liabilities...................... 746,872
Warehouse and revolving working capital lines of credit..... 54,715,517
Notes payable............................................... 534,866
Obligations under capital leases............................ 339,701
Dividends payable........................................... 185,763
-----------
Total liabilities...................................... 56,797,628
Stockholders' Equity
Class A Convertible Preferred Stock, $.001 par value,
1,268,950 shares authorized; 1,263,472 issued and
outstanding............................................... 1,263
Common Stock, $.001 par value, 2,609,407 shares authorized;
1,546,983 issued and outstanding.......................... 1,547
Additional paid-in capital.................................. 2,953,493
Accumulated deficit......................................... (1,334,484)
-----------
Total stockholders' equity............................. 1,621,819
-----------
Total liabilities and stockholders' equity............. $58,419,447
===========
</TABLE>
See accompanying note to financial statements
F-20
<PAGE> 154
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
FOR THE THREE MONTHS
ENDED MARCH 31,
------------------------
1998 1997
---------- ----------
<S> <C> <C>
Revenues:
Interest.................................................. $1,723,714 $ 218,321
Gain-on-sale of mortgage loans, net....................... 1,971,551 644,701
Mortgage servicing fees................................... 1,886 37,028
Other..................................................... 269,296 68
---------- ----------
3,966,447 900,118
Expenses:
Salaries and employee benefits............................ 1,436,698 596,768
General operating......................................... 1,096,294 606,731
Interest.................................................. 1,133,174 400,558
Other..................................................... 7,658 15,184
---------- ----------
3,673,824 1,619,241
---------- ----------
Net income (loss) before income taxes....................... 292,623 (719,123)
---------- ----------
Income taxes.............................................. 20,460 --
---------- ----------
Net income (loss)........................................... $ 272,163 $ (719,123)
========== ==========
</TABLE>
See accompanying note to financial statements
F-21
<PAGE> 155
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
FOR THE THREE MONTHS
ENDED MARCH 31,
--------------------------
1998 1997
----------- -----------
<S> <C> <C>
Cash flows from operating activities:
Net income (loss)......................................... $ 272,163 $ (719,123)
Adjustments to reconcile net income (loss) to net cash
provided by operating activities:
Depreciation and amortization.......................... 56,563 20,834
Net increase in mortgage loans held for sale........... 3,115,887 8,287,856
Gain on sales of mortgage loans held for sale, net..... (1,971,551) (644,701)
Changes in operating assets and liabilities:
Increase in receivables.............................. (219,587) (197,017)
Increase in deposits................................. (5,917) 6,000
Decrease (increase) in restricted cash............... 6,905 56,607
Increase in organization costs....................... -- (23,447)
Increase in prepaid expense.......................... (42,890) 1,807
Increase in other assets............................. (194,247) --
Increase (decrease) in accounts payable.............. (49,504) 39,370
Increase (decrease) in accrued interest and other
liabilities......................................... (102,201) (205,286)
----------- -----------
Net cash provided by operating activities......... 865,621 6,622,900
----------- -----------
Cash flows from investing activities:
Purchase of furniture, fixtures, and equipment............ (37,315) (101,180)
----------- -----------
Net cash used in investing activities............. (37,315) (101,180)
----------- -----------
Cash flows from financing activities:
Proceeds from warehouse and revolving working capital
lines of credit, net................................... (887,504) (7,233,720)
Proceeds from issuance of notes payable................... 350,000
Payments on notes payable................................. (3,824) (250,000)
Payments on obligations under capital leases.............. (26,986) (42,383)
Proceeds from subordinated debt........................... -- 850,000
Proceeds from issuance of preferred stock................. -- 500,000
----------- -----------
Net cash used in financing activities............. (568,314) (6,176,103)
----------- -----------
Net increase in cash and cash equivalents................... 259,992 345,617
Cash and cash equivalents at the beginning of the period.... 708,962 272,308
----------- -----------
Cash and cash equivalents at end of the period.............. $ 968,954 $ 617,925
=========== ===========
SUPPLEMENTAL SCHEDULE OF NONCASH ACTIVITIES
Capital lease obligations incurred for furniture, fixture,
and equipment............................................. $ -- $ 118,013
Conversion of members capital to preferred, common stock,
and additional paid-in capital............................ -- 1,438,396
Transfer of Continental Mortgage Group L.C. accumulated
deficit to additional paid-in capital..................... -- 1,833,694
</TABLE>
See accompanying note to financial statements
F-22
<PAGE> 156
CMG FUNDING CORP.
(FORMERLY CONTINENTAL MORTGAGE GROUP L.C.)
NOTE TO FINANCIAL STATEMENTS
BASIS OF PRESENTATION
The unaudited financial statements have been prepared in accordance with
generally accepted accounting principles for interim financial information.
Accordingly, they do not include all of the information and footnotes
required by generally accepted accounting principles for complete financial
statements. In the opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation have been
included.
F-23
<PAGE> 157
======================================================
NO DEALER, SALES REPRESENTATIVE OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS OFFERING
OTHER THAN THOSE CONTAIN IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH OTHER
INFORMATION AND REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR THE UNDERWRITERS. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF
ANY TIME SUBSEQUENT TO ITS DATE. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE
REGISTERED SECURITIES TO WHICH IT RELATES. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY
CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary.................... 1
Risk Factors.......................... 19
The Company........................... 40
Use of Proceeds....................... 40
Dividend Policy and Distributions..... 41
Dividend Reinvestment Plan............ 42
Dilution.............................. 43
Capitalization........................ 44
Selected Financial Data of RealTrust
Asset Corporation and CMG Funding
Corp. .............................. 47
Management's Discussion and Analysis
of Financial Condition and Results
of
Operations.......................... 48
Business.............................. 53
Management............................ 84
Structure and Formation
Transactions........................ 94
Conflicts of Interest and Related
Party Transactions.................. 96
Principal Stockholders................ 99
Description of Capital Stock.......... 100
Shares Eligible for Future Sale....... 109
Federal Income Tax Considerations..... 111
Underwriting.......................... 120
Legal Matters......................... 121
Experts............................... 122
Additional Information................ 122
Glossary.............................. 123
Table of Contents to Financial
Statements.......................... F-1
- --------------------------------------------
UNTIL , 1998, ALL DEALERS
EFFECTING TRANSACTIONS IN THE UNITS, WHETHER
OR NOT PARTICIPATING IN THIS DISTRIBUTION,
MAY BE REQUIRED TO DELIVER A PROSPECTUS.
THIS DELIVERY REQUIREMENT IS IN ADDITION TO
THE OBLIGATION OF DEALERS TO DELIVER A
PROSPECTUS WHEN ACTING AS UNDERWRITERS AND
WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
============================================
</TABLE>
======================================================
realtrust logo
5,000,000 UNITS
REALTRUST ASSET
CORPORATION
CONSISTING OF
ONE SHARE OF COMMON STOCK
AND ONE STOCK
PURCHASE WARRANT
------------------------
PROSPECTUS
MAY , 1998
------------------------
STIFEL, NICOLAUS & COMPANY
INCORPORATED
======================================================
<PAGE> 158
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 30. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
Not applicable.
ITEM 31. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Registrant in connection
with the sale of Common Stock being registered. All amounts are estimates except
the SEC registration fee and the American Stock Exchange ("AMEX") filing fee.
<TABLE>
<CAPTION>
AMOUNT
TO BE
PAID
------
<S> <C>
SEC Registration Fee........................................ $ 55,094.71
AMEX filing fee............................................. $ 55,000.00
NASD filing fee............................................. $ 8,000.00
Printing and engraving expenses............................. $ 150,000.00
Legal fees and expenses..................................... $ 300,000.00
Accounting fees and expenses................................ $ 300,000.00
Blue Sky fees and expenses.................................. $ 50,000.00
Transfer agent and custodian fee............................ $ 5,000.00
Miscellaneous............................................... $ 176,902.29
-------------
Total............................................. $1,100,000.00
=============
</TABLE>
- ---------------
* To be filed by amendment
All amounts estimated except for Securities and Exchange Commission
registration fee.
ITEM 32. SALES TO SPECIAL PARTIES.
See Item 33 for description of securities of the Company issued to
affiliates of the Company for cash and other consideration.
II-1
<PAGE> 159
ITEM 33. RECENT SALES OF UNREGISTERED SECURITIES.
Issuance to CMG Funding Shareholders
On April 15, 1998, the shareholders of the Taxable Subsidiary contributed
certain shares of the Taxable Subsidiary capital stock to RealTrust in exchange
for the issuance of identical classes and number of RealTrust shares. This
issuance was contemplated as part of the Formation Transaction, and is described
in the Prospectus. Set forth below are the names of each stockholder of the
Taxable Subsidiary receiving shares and the number of shares (after giving
effect to the stock split anticipated to occur immediately prior to the
closing).
<TABLE>
<CAPTION>
NO. OF
RECIPIENT RELATIONSHIP TO COMPANY SHARES
--------- ----------------------- -------
<S> <C> <C>
John D. Fry............................. Chairman, Chief Executive Officer & President 392,798
Terry L. Mott........................... Executive Vice President & Director 122,406
Patrick Croghan......................... Vice President 95,409
Shauna Reimann.......................... Vice President 95,409
William Reed............................ Vice President 63,606
David and Sara Ferradino................ None -- accredited investor 56,641
Brenda Colson........................... Employee 19,060
Kent Bills.............................. Secretary 19,060
ContiFinancial Corporation.............. None -- accredited investor 683,535
410,581*
</TABLE>
* Shares of the Company's Class B Preferred Stock, which are expected to be
redeemed after the closing of this Offering.
All of such shares were issued pursuant to exemptions from registration
provided by Section 4(2) and Rule 506 of Regulation D. The sale was made to nine
persons, most of whom are accredited investors either as a result of their
financial status and degree of sophistication or as a result of their position
as an officer or director of the Registrant. The consideration paid in all cases
was the capital stock of the Taxable Subsidiary.
Issuance to Capstone Investments, Inc.
On March 18, 1998, RealTrust issued to Capstone Investments, Inc., a
corporation controlled by stockholders David and Sara Ferradino, a Convertible
Secured Promissory Note in the principal amount of $850,000 and warrants to
purchase 50,000 shares of Registrant's Common Stock at an exercise price equal
to the Price to Public in this offering. The Note is convertible into Units to
be issued in this offering at a conversion price equal to the Price to Public.
The consideration paid was $850,000 of cash, without any discount or
commissions. The issuance was exempt from registration pursuant to the
exemptions provided by Section 4(2) and Rule 505 of Regulation D. The Registrant
believes that the one investor is accredited under Rule 501.
ITEM 34. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Maryland GCL provides that a Maryland corporation may indemnify any person
who is or was serving at the request of the corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise or employee benefit plan
("director"), that is made a party to any proceeding by reason of service in
that capacity unless it is established that the act or omission of the director
was material to the matter giving rise to the proceeding and was committed in
bad faith or was the result of active and deliberate dishonesty; or the director
actually received an improper personal benefit in money, property or services;
or, in the case of any criminal proceeding, the director had reasonable cause to
believe that the act or omission was unlawful. Indemnification may be against
judgments, penalties, fines, settlements, and reasonable expenses actually
incurred by the director in connection with the proceeding, but if the
proceeding was won by or in the right of the corporation, indemnification may
not be made in respect of any proceeding in which the director shall be adjudged
to be liable to the corporation. Such
II-2
<PAGE> 160
indemnification may not be made unless authorized for a specific proceeding
after a determination has been made, in a manner prescribed by law, that
indemnification is permissible in the circumstances because the director has met
the applicable standard of conduct. The director must be indemnified for
expenses, however, if he has been successful in the defense of the proceeding or
as otherwise ordered by a court. The law also prescribes the circumstances under
which a corporation may advance expenses to, or obtain insurance or similar
coverage for directors.
The Company's Amended and Restated Articles of Incorporation provide for
indemnification of the officers and directors of the Company and eliminate the
liability of a director or officer to the Company or its stockholders for money
damages to the fullest extent permitted by Maryland law.
ITEM 35. TREATMENT OF PROCEEDS FROM STOCK BEING REGISTERED.
Not applicable.
ITEM 36. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements
(b) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
*** 1.1 Underwriting Agreement with Stifel, Nicolaus & Company,
Incorporated.
*** 3.1 Amended and Restated Articles of Incorporation.
* 3.2 Bylaws.
* 4.1 Specimen Stock Certificate for Common Stock of RealTrust
Asset Corporation.
* 4.2 Warrant Agreement.
* 4.3 1996 Stock Option Plan of CMG Funding Corp.
*** 4.4 Form of 1996 Stock Option Agreement.
* 4.5 1998 Stock Option Plan of RealTrust Asset Corporation.
*** 4.6 Form of 1998 Stock Option Agreement.
*** 4.7 Form of Registration Rights Agreement.
* 4.8 Warrant Agreement No. 2 with ContiFinancial Corporation.
* 4.9 Warrant Agreement No. 3 with ContiFinancial Corporation.
* 4.10 Warrant Agreement with Capstone Investments, Inc.
* 4.11 Convertible Secured Note in favor of Capstone Investments,
Inc.
* 4.12 Contribution Agreement with stockholders of CMG Funding
Corp. and RealTrust Asset Corporation.
* 4.13 Bonus Incentive Plan of RealTrust Asset Corporation.
* 5.1 Opinion of Jeffers, Wilson, Shaff & Falk, LLP regarding
legality of Securities.
** 8.1 Opinion of Jeffers, Wilson, Shaff & Falk, LLP regarding
certain tax matters.
*10.1 Employment Agreement with John D. Fry.
*10.2 Employment Agreement with Terry L. Mott.
**10.3 Employment Agreement with John P. McMurray.
*10.4 Employment Agreement with Steven K. Passey.
*10.5 Investment Banking Service Agreement with ContiFinancial
Corporation, as amended.
**10.6 Loan Servicing Agreement with Advanta Mortgage Corp USA for
CMG Funding Corp., as amended.
</TABLE>
II-3
<PAGE> 161
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
**10.7 Loan Servicing Agreement with Nomura Asset Capital
Corporation for CMG Funding Corp.
*10.8 Purchase and Sale Agreement between ContiTrade Services LLC
and CMG Funding Corp., as amended.
**10.9 Master Repurchase Agreement Governing Purchase and Sales of
Mortgage Loans with Nomura Asset Capital Corporation.
*10.10 Standby and Working Capital Agreement between ContiTrade
Services LLC and CMG Funding Corp., as amended.
*10.11 Conversion Letter No. 1 from ContiFinancial Corporation.
*10.12 Conversion Letter No. 2 from ContiFinancial Corporation.
*10.13 Registration Rights Agreement with ContiFinancial
Corporation.
**10.14 Mortgage Loan Purchase Agreement between RealTrust Asset
Corporation and CMG Funding Corp.
*21.1 List of subsidiaries.
*23.1 Consent of Counsel (included in Exhibit (5.1).
**23.2 Consents of independent auditors.
*23.3 Consents of Independent Directors.
24.1 Power of Attorney (included in signature page).
*27.1 Financial Data Schedule.
</TABLE>
- ---------------
* Previously Filed.
** Filed herewith.
*** To be filed by amendment.
ITEM 37. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising after
the effective date to the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
Provided, however, that paragraphs A(1)(i) and A(1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in the periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the Registration Statement
(2) That, for the purpose of determining liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof;
II-4
<PAGE> 162
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
II-5
<PAGE> 163
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-11 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Salt Lake City, Utah, on the 28th day of May, 1998.
REALTRUST ASSET CORPORATION
By: /s/ JOHN D. FRY
------------------------------------
John D. Fry
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John D. Fry and Terry L. Mott, and each of them,
his true and lawful attorneys-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, and in any and all capacities, to
sign any and all amendments (including post-effective amendments) to the
Registration Statement to which this power of attorney is attached, as well as
any registration statement (or amendment thereto) relating to one or more of the
offerings covered hereby filed pursuant to Rule 462(b) promulgated under the
Securities Act of 1933, as amended, and to file the same and all exhibits to
them and other documents to be filed in connection with them, with the
Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities as Directors and Officers of RealTrust Asset Corporation on the date
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
/s/ JOHN D. FRY Chairman, Chief Executive May 28, 1998
- ----------------------------------------------------- Officer and President
John D. Fry
/s/ STEVEN K. PASSEY Chief Financial Officer May 28, 1998
- ----------------------------------------------------- and Treasurer
Steven K. Passey (principal accounting officer)
/s/ TERRY L. MOTT Director May 28, 1998
- -----------------------------------------------------
Terry L. Mott
/s/ CARTER E. JONES Director May 28, 1998
- -----------------------------------------------------
Carter E. Jones
</TABLE>
II-6
<PAGE> 164
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------- ----------- ------------
<C> <S> <C>
*** 1.1 Underwriting Agreement with Stifel, Nicolaus & Company,
Incorporated.
*** 3.1 Amended and Restated Articles of Incorporation.
* 3.2 Bylaws.
* 4.1 Specimen Stock Certificate for Common Stock of RealTrust
Asset Corporation.
* 4.2 Warrant Agreement.
* 4.3 1996 Stock Option Plan of CMG Funding Corp.
*** 4.4 Form of 1996 Stock Option Agreement.
* 4.5 1998 Stock Option Plan of RealTrust Asset Corporation.
*** 4.6 Form of 1998 Stock Option Agreement.
*** 4.7 Form of Registration Rights Agreement.
* 4.8 Warrant Agreement No. 2 with ContiFinancial Corporation.
* 4.9 Warrant Agreement No. 3 with ContiFinancial Corporation.
* 4.10 Warrant Agreement with Capstone Investments, Inc.
* 4.11 Convertible Secured Note in favor of Capstone Investments,
Inc.
* 4.12 Contribution Agreement with stockholders of CMG Funding
Corp. and RealTrust Asset Corporation.
* 4.13 Bonus Incentive Plan of RealTrust Asset Corporation.
* 5.1 Opinion of Jeffers, Wilson, Shaff & Falk, LLP regarding
legality of Securities.
** 8.1 Opinion of Jeffers, Wilson, Shaff & Falk, LLP regarding
certain tax matters.
*10.1 Employment Agreement with John D. Fry.
*10.2 Employment Agreement with Terry L. Mott.
**10.3 Employment Agreement with John P. McMurray.
*10.4 Employment Agreement with Steven K. Passey.
*10.5 Investment Banking Service Agreement with ContiFinancial
Corporation, as amended.
**10.6 Loan Servicing Agreement with Advanta Mortgage Corp USA for
CMG Funding Corp., as amended.
**10.7 Loan Servicing Agreement with Nomura Asset Capital
Corporation for CMG Funding Corp.
*10.8 Purchase and Sale Agreement between ContiTrade Services LLC
and CMG Funding Corp., as amended.
**10.9 Master Repurchase Agreement Governing Purchase and Sales of
Mortgage Loans with Nomura Asset Capital Corporation.
*10.10 Standby and Working Capital Agreement between ContiTrade
Services LLC and CMG Funding Corp., as amended.
*10.11 Conversion Letter No. 1 from ContiFinancial Corporation.
*10.12 Conversion Letter No. 2 from ContiFinancial Corporation.
*10.13 Registration Rights Agreement with ContiFinancial
Corporation.
**10.14 Mortgage Loan Purchase Agreement between RealTrust Asset
Corporation and CMG Funding Corp.
*21.1 List of subsidiaries.
</TABLE>
<PAGE> 165
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------- ----------- ------------
<C> <S> <C>
*23.1 Consent of Counsel (included in Exhibit (5.1).
**23.2 Consents of independent auditors.
*23.3 Consents of Independent Directors.
24.1 Power of Attorney (included in signature page).
*27.1 Financial Data Schedule.
</TABLE>
- ---------------
* Previously Filed.
** Filed herewith.
*** To be filed by amendment.
<PAGE> 1
EXHIBIT 8.1
JEFFERS, WILSON, SHAFF & FALK, LLP
ATTORNEYS AT LAW
18881 VON KARMAN AVENUE
SUITE 1400
IRVINE, CALIFORNIA 92612
TELEPHONE: (949) 660-7700
FACSIMILE: (949) 660-7799
May 12, 1998
RealTrust Asset Corporation.
2855 East Cottonwood Parkway, Suite 500
Salt Lake City, Utah 84121
RE: INITIAL PUBLIC OFFERING
Gentlemen:
This is an opinion (the "Opinion") which you have requested as to (a)
the discussion entitled "Federal Income Tax Considerations" and (b) the
discussion entitled "ERISA Investors," both as set forth in the Prospectus (the
"Prospectus"), contained in the Registration Statement on Form S-11 of RealTrust
Asset Corporation (the "Company"), Registration No. 333-48653, as amended, filed
by the Company, in connection with the issuance (the "Offering") of 5,750,000
shares of Units, each comprised of one share of Common Stock the Company (the
"Shares") and one warrant to purchase one Share of Common Stock.
The Company is a Maryland corporation that is intended to qualify as a
real estate investment trust ("REIT") under the Code. Capitalized terms used in
this Opinion and not otherwise defined are as defined in the Prospectus. Our
Opinion is based on existing law, including the Code, existing Treasury
Regulations, Revenue Rulings, Revenue Procedures, U.S. Department of Labor
regulations and administrative interpretations, proposed regulations and case
law, all of which are subject to change either prospectively or retroactively.
No assurance can be given that such existing law may not change in a manner that
would modify the conclusions expressed in this Opinion. Moreover, relevant laws
could change in a manner that could adversely affect the Company or its
stockholders. We have no obligation to inform you of any such change in the law.
We have not been requested to opine, and we have not opined, as to any issues
other than those expressly set forth herein. We are admitted to practice law in
the State of California and the Opinion is limited to federal law. The Opinion
extends only to questions under the Code and ERISA. We express no opinion with
respect to any other law or the laws of any other jurisdiction.
The Opinion is based upon certain statements, factual representations
and warranties made by the Company as to factual matters regarding the Company's
assets, business and Common Stock as set forth in the Prospectus and in the
Company's letter, dated May 12, 1998, to us, and we have assumed that such
statements, representations and warranties are true and accurate. As
<PAGE> 2
RealTrust Asset Corporation
May 12, 1998
Page 2
to such factual matters material to our Opinion, we have relied solely upon such
statements, factual representations and warranties of the Company. We have
assumed the authenticity of all documents submitted to us, the genuineness of
all signatures, the legal capacity of all natural persons, the conformity to the
originals of all documents submitted to us as copies and the due execution and
delivery of all documents where due execution and delivery are prerequisites to
the effectiveness thereof. No facts have come to our attention, however, that
would cause us to question the accuracy in a material way of any documents,
letters, statements, representations or warranties of the Company.
1. Federal Income Tax Considerations. We have acted as tax counsel to
the Company in connection with the Company's Offering of the Units. In that
connection, we have reviewed the section of the Prospectus entitled "Federal
Income Tax Considerations" and in our opinion such section identifies and fairly
summarizes the federal income tax considerations that are likely to be material
to a holder of the Units and to the extent that such summaries involve matters
of law, we are of the opinion that such statements of law are correct under the
Code. We expressly confirm that all of the opinions attributed to Tax Counsel in
the section of the Prospectus entitled "Federal Income Tax Considerations,"
specifically (a) that the Company has been organized in conformity with the
requirements for qualification as a REIT under the Code and, commencing with the
Company's taxable year ending December 31, 1998, the Company's proposed method
of operation described in the Prospectus and the facts as represented by the
Company to us will enable RealTrust to qualify as a REIT, (b) that it is more
likely than not that the cross-collateralization provisions of the master
repurchase agreements will not cause the Company to realize excess inclusion
income, and (c) that the section of the Prospectus entitled "Federal Income Tax
Considerations," accurately reflects our opinion on the outcome of each issue
that is likely to be material to a holder of the Units if challenged by the
Service.
The Company's qualification as a REIT under the Code will depend upon
the Company's ability to meet, through actual operating results, distribution
levels, diversity of stock ownership and the various income and asset
qualification tests imposed under the Code. Such operating results may not be
reviewed by us as Counsel. Moreover, certain aspects of the Company's operations
have not been considered by the courts or the Service. There can be no assurance
that the courts or the Service will agree with this Opinion. In addition,
qualification as a REIT depends on future transactions and events that cannot be
known at this time.
2. ERISA Investors. The Company has requested our opinion as to whether
the Shares will constitute "publicly-offered securities" under regulations (the
"Regulations") issued by the U.S. Department of Labor so that the assets of the
Company will not be deemed to constitute "plan assets" for purposes of ERISA or
for purposes of Code Section 4975 following an investment in the Shares by an
ERISA Plan.
<PAGE> 3
RealTrust Asset Corporation
May 12, 1998
Page 3
The Regulations generally provide that, in the case of an ERISA Plan's
investment in an equity interest of an entity, the ERISA Plan's assets include
both the equity investment and an undivided interest in each of the underlying
assets of the entity unless the entity can satisfy at least one of a number of
exceptions set forth in the Regulations. One exception to such plan assets
treatment is for an equity interest that is a "publicly-offered security."
The Regulations provide that a security is a "publicly-offered security"
if it is (a) "freely transferable," (b) part of a class of securities that is
"widely held" (namely, owned by 100 or more investors independent of the issuer
and of one another ("Independent Investors")), and (c) either (1) part of a
class of securities that is registered under Section 12(b) or 12(g) of the
Securities Exchange Act of 1934, or (2) sold to the ERISA Plan as part of an
offering to the public pursuant to an effective registration statement under the
Securities Act of 1933, and the class of securities of which it is part is
registered under the Securities Exchange Act of 1934 within a specified period
of time (generally 120 days) after the end of the entity's fiscal year in which
the offering occurs.
The Company has represented that the Shares will be timely registered
with the Securities and Exchange Commission pursuant to Section 12(b) of the
Securities Exchange Act of 1934. Assuming that the Shares will be properly
registered under the Securities Exchange Act of 1934 within the time period
specified in the Regulations and that the initial closing of the sale of Shares
out of escrow pursuant to the terms of the Offering will not take place unless
and until the Company has properly determined (a) that the Shares would be
acquired by at least 150 purchasers who are Independent Investors and (b) that
the Shares will be widely held after the initial offering, the assets of the
Company will not be deemed to be plan assets of an ERISA Plan if the Shares are
freely transferable within the meaning of the Regulations.
The Regulations provide that a determination as to whether a security is
freely transferable is inherently factual in nature and must be made on the
basis of all relevant facts and circumstances. The Regulations provide that if a
security is part of an offering in which the minimum investment is $10,000 or
less (as is the case with the Shares since there is no minimum investment
required for the Shares), certain restrictions on transfer or assignment
enumerated in the Regulations (the "Enumerated Restrictions") ordinarily will
not, alone or in combination, affect a finding that such securities are freely
transferable.
The preamble to the Regulations (the "Preamble") (which is not primary
legal authority) goes one step further, providing that if the minimum investment
amount is not exceeded and if a security has no restrictions other than the
Enumerated Restrictions, the security in effect will be presumed to be freely
transferable. However, even if a security is not entitled to this presumption,
it may nevertheless be considered to be "freely transferable" if the facts and
circumstances so
<PAGE> 4
RealTrust Asset Corporation
May 12, 1998
Page 4
indicate. The Regulations and the Preamble provide little additional guidance as
to what restrictions would cause a security to fail to be freely transferable.
We have examined the Prospectus and copies that the Company has provided
to us of a specimen certificate of the Common Stock, the Company's Articles of
Incorporation and the Company's Bylaws, and have determined that the Shares
contain no restriction that is not permitted under the Enumerated Restrictions.
The Company has represented that the Shares are not subject to any restrictions
on transferability other than those described in the section of the Prospectus
entitled "Description of Capital Stock." Based on the foregoing, in our opinion,
the Shares are freely transferable within the meaning of the Regulations. The
Company has represented to us that the closing of the purchase of the Shares
will not take place unless the Shares would be held by 150 or more Independent
Investors immediately after such closing.
Consequently, assuming that (i) the Shares are properly registered for
securities purposes under the requirements discussed above, and (ii) at least
150 Independent Investors purchase Shares in the initial public offering, in our
opinion, the Shares will constitute "publicly-offered securities" so that the
assets invested in the Company by an ERISA Plan will not constitute plan assets.
We have not opined concerning whether the requirements of any of the alternative
exemptions to plan assets treatment would be satisfied by the Company.
3. Consent. We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the references to this firm under
the captions "Federal Income Tax Considerations," "ERISA Investors" and "Legal
Matters" in connection with this opinion.
Very truly yours,
JEFFERS, WILSON, SHAFF & FALK, LLP
MES: gml
<PAGE> 1
EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), dated as of the 13th day of
April, 1998, is entered into by and between John P. McMurray ("Executive") and
RealTrust Asset Corporation, a Maryland corporation ("Company"), and is
effective as of the date of execution hereof.
WHEREAS, the Company desires to establish its right to the continued
services of the Executive, in the capacity described below, on the terms and
conditions and subject to the rights of termination hereinafter set forth, and
the Executive is willing to accept such employment on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, the Executive and the Company have agreed and do hereby agree as
follows:
1. Employment by the Company. The Company does hereby employ, engage and hire
the Executive as Executive Vice President of Capital Markets and Asset Liability
Management of the Company, and the Executive does hereby accept and agree to
such hiring, engagement and employment. The Executive's duties shall be such
executive and managerial duties as the Board of Directors of the Company or its
subsidiaries shall from time to time prescribe and as provided in the bylaws of
the Company. The terms of this Agreement shall be subject to the personnel
policies of the Company as determined by the Board of Directors from time to
time, except to the extent that any such policy would have a material adverse
effect on the rights of the Executive under the terms of this Agreement. The
Executive shall devote such time, energy and skill to the performance of his
duties for the Company and for the benefit of the Company as may be necessary or
required for the effective conduct and operation of the Company's business. The
Executive agrees, during the Term of this Agreement and any extension of this
Agreement, to devote his entire business and professional time, attention, and
energies exclusively to the business of the Company as shall be necessary,
advisable or required to perform the duties of the Executive's position, and to
conform to the rules, regulations, instructions, personnel practices and
policies of the Company, as existing and amended from time to time by the
Company or its Board. Furthermore, the Executive and the Company shall exercise
due diligence and care in the performance of their duties under this Agreement.
2. Term of Agreement. The term ("Term") of this Agreement shall commence as of
the date of execution hereof (the "Effective Date") and shall continue through
April 13, 2003 unless employment is terminated under Section 6, 7 or 8;
provided, however, that on each April 13 commencing April 13, 2003 the Term of
the Agreement shall automatically be extended for one additional year unless,
not later than three months prior to any such April 13, either party shall have
given written notice to the other that it does not wish to extend the Term of
the Agreement.
1
<PAGE> 2
3. Compensation.
a. Base Salary. The Company shall pay the Executive, and the Executive
agrees to accept from the Company, in payment for his services to the Company, a
base salary at the rate per annum to be determined by the Compensation Committee
of the Board of Directors and provided to the Executive in writing ("Base
Salary"), which is subject to increase upon thirty (30) days' notice and shall
initially be set at a minimum of Two Hundred Thousand Dollars ($200,000.00) and
is subject to Annual Review by the Board of Directors. Base Salary is payable in
equal biweekly installments or at such other time or times as the Executive and
Company agree.
b. Performance Bonus. Commencing with fiscal year ending December 31,
1999, the Executive shall be entitled to receive an incentive performance bonus
equal to 20% of the Bonus Incentive Compensation Plan established by the Company
("Bonus"), which, during the initial Term of this Agreement, shall substantially
reflect the provisions set forth in Exhibit A. For the fiscal year ending
December 31, 1998, Executive shall receive a cash bonus of $75,000 upon
completion of the Company's IPO (as defined below).
c. Incentive Stock Options. At the Effective Date, the Company shall
grant Executive options to purchase 30,000 shares of the Company's Common Stock
at an exercise price equal to the common stock price effective at the Company's
planned initial public offering of 5,750,000 Units each consisting of one share
of Common Stock and One Stock Purchase Warrant ("IPO"). Such options shall
immediately vest and become exercisable as provided in the Company's 1996 Stock
Option Plan and have a minimum term of exercisability of ten years.
d. Annual Review. The Compensation Committee of the Company's Board of
Directors shall, at least annually, review the Executive's entire compensation
package to determine whether it continues to meet the Company's compensation
objectives. Such annual review will include a determination of whether to
increase (i) the Base Salary set forth in Section 3(a) and (ii) the Bonus to be
awarded in accordance with Section 3(b).
4. Fringe Benefits. The Executive shall be entitled to participate in any
benefit programs adopted from time to time by the Company for the benefit of its
executive employees at an appropriate level for the duties of the officer, and
the Executive shall be entitled to receive such other fringe benefits as may be
granted from time to time by the Company's Board of Directors or its
Compensation Committee.
a. Benefit Plans. The Executive shall be entitled to participate in any
benefit plans relating to stock options, stock purchases, pension, thrift,
profit sharing, life insurance, medical coverage, education or other retirement
or employee benefits available to other executive employees of the Company at an
appropriate level for the duties of the office, subject to any restrictions
(including waiting periods) specified in such plans. The Company shall obtain
medical and disability insurance, and such other forms of insurance as the Board
of Directors shall determine, for its employees.
b. Vacation. The Executive shall be entitled to four (4) weeks of paid
vacation per calendar year and to compensation for earned but unused vacation
days, with such vacation to be
2
<PAGE> 3
scheduled and taken in accordance with the Company's standard vacation policies.
Executive shall also be entitled to all paid holidays given by the Company to
its employees and key management Executives.
5. Expenses.
a. Business Expenses. The Company shall promptly reimburse the Executive
for any and all necessary, customary and usual expenses, properly receipted in
accordance with Company policies, incurred by the Executive on behalf of the
Company.
b. Relocation Expenses. The Company shall bear, or promptly reimburse
the Executive for, the following expenses incurred by Executive in moving from
Seattle, Washington, his current principal place of business, to the vicinity of
Salt Lake City, Utah. Such relocation expenses shall be:
i. Reasonable closing costs incurred on acquisition of a
residence in the Salt Lake City area;
ii. Reasonable monthly rent and utilities for temporary housing
in a corporate apartment with kitchen facilities (Pinehurst Union Creek) for up
to four (4) months after the closing of the Company's IPO;
iii. Three trips (via coach class air) for the purpose of
locating a principal residence for Executive's immediate family to the Salt
Lake City area from Seattle, Washington; and travel costs (via coach class air)
for three trips by Executive from Seattle, Washington per month until relocation
of Employee for up to four (4) months after the closing of the Company's IPO;
iv. The reasonable costs of moving Executive's personal property
from Seattle, Washington to Salt Lake City, Utah.
v. The reasonable sales expenses including taxes incurred on the
sale of Executive's principal residence in Bellevue, Washington.
6. Termination of Executive's Employment
a. Death. If the Executive dies while employed by the Company, his
employment shall immediately terminate. The Executive's compensation and
benefits shall be determined in accordance with Section 8 below.
b. Disability.
(i) If, as a result of the Executive's incapacity due to physical
or mental illness ("Disability"), Executive shall have been absent from the
full-time performance of his duties with the Company for six (6) consecutive
months, and, within thirty (30) days after written notice is provided to him by
the Company, he shall not have returned to the full-time performance of his
duties, the Executive's employment under this Agreement may be terminated by the
Company for Disability. During any period prior to such termination during which
the Executive is absent from the full-time performance of his duties with the
Company due to
3
<PAGE> 4
Disability, the Company shall continue to pay the Executive his Base Salary and
Bonus at the rate in effect at the commencement of such period of Disability.
Subsequent to such termination, the Executive's compensation and benefits upon
termination by Disability shall be determined in accordance with Section 8
below.
(ii) If, however, as a result of the Executive's partial
incapacity due to physical or mental illness in which Executive shall not have
been absent from his duties for six consecutive months and shall have returned
to work on a full-time basis but is not able to perform at the same level as
when hired and/or is not able to perform the same functions for which originally
hired ("Partial Disability"), the Company shall make reasonable efforts to
accommodate the Executive's Partial Disability by modifying his job description
appropriately, together with a commensurate adjustment in compensation;
provided, however, the Company shall be required to so continue the employment
of the Executive in the event of a Partial Disability of the Executive only if
the Company determines, in its sole discretion, that it can create a position
for which the Executive would be suited and that would be economically
advantageous to the Company.
c. Termination by the Company for Cause. The Company may terminate the
Executive's employment under this Agreement for "Cause," at any time prior to
expiration of the Term of the Agreement, only in the event of (i) acts or
omissions constituting gross negligence, recklessness or willful misconduct on
the part of the Executive in respect of his fiduciary obligations or otherwise
relating to the business of the Company, (ii) the Executive's material breach of
this Agreement, or (iii) the Executive's conviction or entry of a plea of nolo
contendere for fraud, misappropriation or embezzlement. In such a case, the
Executive's employment under this Agreement may be terminated immediately
without any advance written notice, and the Company's obligation to pay the
Executive's Base Salary will cease and the Company shall have no obligation to
pay any Bonus or Fringe Benefits which may have accrued or vested as of the
termination date.
d. Termination by the Executive. The Executive may at any time during
the Term of this Agreement terminate his employment hereunder for any reason or
no reason by giving the Company notice in writing in advance of such
termination. Except as may be provided in Sections 11 and 12, the Executive
shall have no further obligations to the Company after the effective date of
termination, as set forth in the notice. In the event of a termination by the
Executive under this paragraph, the Company will pay only the portion of Base
Salary or previously awarded Bonus unpaid as of the termination date. Fringe
benefits which have accrued and/or vested on the termination date will continue
in effect according to their terms, but no additional accrual or vesting will
take place.
7. Compensation Upon Termination by the Company After Change in Control Other
than for Cause. Notwithstanding the provisions of Section 8 below, if the
Executive's employment shall be terminated by the Company after a Change in
Control (as defined in Section 10) by the Company other than for Cause, the
Executive shall be entitled to the following benefits:
4
<PAGE> 5
a. Payment of Unpaid Base Salary. The Company shall immediately pay the
Executive any portion of the Executive's Base Salary or previously awarded Bonus
not paid prior to the termination date.
b. Severance Payment. The Company shall pay the Executive an amount (the
"Change in Control Severance Amount") equal to three times the Executive's
combined current year Base Salary and actual Bonus compensation for the
preceding fiscal year; provided, however, the Change in Control Severance Amount
shall not be less than Six Hundred Thousand Dollars ($600,000.00) nor more (once
the minimum is reached) than one percent (1.0%) of the book value of the Company
(i.e., the amount reported on the Company's balance sheet prepared in accordance
with generally accepted accounting principles as stockholders' equity). The
Change in Control Severance Amount shall be payable fifty percent (50%) within
five (5) days after the termination date and the remaining fifty percent (50%)
shall be payable in twelve (12) equal consecutive monthly installments beginning
on the first day of the month following the termination date.
c. Immediate Vesting of Stock Options. The Company shall take all
appropriate action to ensure that all stock options on the Company's stock owned
by the Executive as of the Effective Date and which have not been exercised
prior to the termination date become immediately exercisable by the Executive,
whether or not the right to exercise such stock options would otherwise then be
vested in the Executive. The provisions of this Section 7(c) shall constitute an
amendment to any existing stock option agreements of the Company as of the
Effective Date. All other stock options owned by the Executive as of the
termination date shall be exercisable in accordance with the Company's stock
option plan and the applicable stock option agreements.
d. Continuation of Fringe Benefits. From and after termination of the
Executive's employment, the Company shall continue to provide the Executive with
all life insurance and medical coverage fringe benefits set forth in Section 4
as if the Executive's employment under the Agreement had not been terminated
until the earlier to occur of (i) such time as the Executive finds full-time
employment or (ii) the expiration of three years. Notwithstanding the
immediately preceding sentence, if, as the result of termination of the
Executive's employment, the Executive and/or his otherwise eligible dependents
or beneficiaries shall become ineligible for benefits under any one of the
Company's benefit plans or the cost of providing such benefits exceeds two
hundred percent (200%) of the cost of providing such benefits to other members
of senior management, the Company, at the Company's option, shall (i) continue
to provide the Executive and his eligible dependents or beneficiaries with
benefits at a level at least equivalent to the level of benefits for which the
Executive and his dependents and beneficiaries were eligible under such plans
immediately prior to the termination date or (ii) for any fringe benefit not so
provided, the Company shall pay the Executive 200% of the cost of providing such
fringe benefit to other members of senior management.
8. Compensation upon Termination by the Company upon Death, Disability or
Without Cause. If the Executive's employment shall be terminated (i) by
Executive's death, (ii) upon Executive's Disability or (iii) without cause, the
Executive shall be entitled to the following benefits:
5
<PAGE> 6
a. Payment of Base Salary. The Company shall immediately pay the
Executive any portion of the Executive's Base Salary or previously awarded Bonus
not paid prior to the termination date.
b. Severance Payment. The Company shall pay the Executive an amount (the
"Severance Amount") equal to the Executive's combined current year Base Salary
and any actual Bonus compensation for the preceding fiscal year; provided,
however, that the Severance Amount shall not be less than Two Hundred Thousand
Dollars ($200,000.00) nor more (once the minimum is reached) than one percent
(1.0%) of the book value of the Company (i.e., the amount reported on the
Company's balance sheet prepared in accordance with generally accepted
accounting principles as stockholders' equity). The Severance Amount shall be
payable immediately upon the termination date.
c. Stock Options. Stock options owned by the Executive as of the
termination date shall be exercisable in accordance with the Company's stock
option plan and the applicable stock option agreements and this Agreement.
d. Continuation of Fringe Benefits. From and after termination of the
Executive's employment, other than Executive's Death, the Company shall continue
to provide the Executive with all life insurance and medical coverage fringe
benefits set forth in Section 4 as if the Executive's employment under the
Agreement had not been terminated until the earlier to occur of (i) such time as
the Executive finds full-time employment or (ii) the expiration of one (1) year.
Notwithstanding the immediately preceding sentence, if, as the result of
termination of the Executive's employment, the Executive and/or his otherwise
eligible dependents or beneficiaries shall become ineligible for benefits under
any one of the Company's benefit plans or the cost of providing such benefits
exceeds two hundred percent (200%) of the cost of providing such benefits to
other members of senior management, the Company, at the Company's option, shall
(i) continue to provide the Executive and his eligible dependents or
beneficiaries with benefits at a level at least equivalent to the level of
benefits for which the Executive and his dependents and beneficiaries were
eligible under such plans immediately prior to the termination date or (ii) for
any fringe benefit not so provided, the Company shall pay the Executive 200% of
the cost of providing such fringe benefit to other members of senior management.
9. No Mitigation Required; No other Entitlement to Benefits under Agreement. The
Executive shall not be required in any way to mitigate the amount of any payment
provided for in Section 7 or 8, including, but not limited to, by seeking other
employment, nor shall the amount of any payment provided for in Sections 5, 7,
or 8 be reduced by any compensation earned by the Executive as a result of
employment with another employer after the termination date of employment, or
otherwise. Except as set forth in Sections 5, 7 or 8 following a termination
governed by Section 7 or 8, the Executive shall not be entitled to any other
compensation or benefits set forth in this Agreement, except as may be
separately negotiated by the parties and approved by the Board of Directors of
the Company in writing in conjunction with the termination of Executive's
employment under Section 7 or 8.
10. Change in Control. A "Change in Control" shall be deemed to have occurred if
the conditions set forth in any one of the following paragraphs shall have been
satisfied.
6
<PAGE> 7
a. Any "person," as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") (other than the Company;
any trustee or other fiduciary holding securities under an Executive benefit
plan of the Company; or any company owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of the stock of the Company), is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of the
securities of the Company (not including in the securities beneficially owned by
such person, any securities acquired directly from the Company or from a
transferor in a transaction expressly approved or consented to by the Board of
Directors) representing more than 25% of the combined voting power of the
Company's then outstanding securities; or
b. During any period of two consecutive years (not including any period
prior to the execution of this Agreement), individuals who at the beginning of
such period constitute the Board of Directors and any new director (other than a
director designated by a person who has entered into an agreement with the
Company to effect a transaction described in clause (a), (c) or (d) of this
section), (i) whose election by the Board of Directors or nomination for
election by the Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election was
previously so approved or (ii) whose election is to replace a person who ceases
to be a director due to death, disability or age, cease for any reason to
constitute a majority thereof; or
c. The shareholders of the Company approve a merger or consolidation of
the Company with another corporation, other than (i) a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity), in combination with the ownership of any trustee or other fiduciary
holding securities under an Executive benefit plan of the Company, at least 75%
of the combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation, or
(ii) a merger or consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no person acquires more than 50% of
the combined voting power of the Company's then outstanding securities; or
d. The shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets.
11. Proprietary Information.
a. Executive acknowledges that certain technological and other
information may from time to time be disclosed to Executive by Company during
the continuance hereof. Executive hereby acknowledges that all such information
and technology, whether currently existing or hereafter developed by Company
through or involving the services and efforts of Executive hereunder, shall at
all times consist of and be preserved by Executive as valuable trade secrets and
confidential information which is proprietary to and owned exclusively by
Company, and that
7
<PAGE> 8
Executive does not have, and shall not have or hereafter acquire, any rights in
or to any of such information and technology, including without limitation any
patents, inventions, discoveries, know-how, trademarks or trade names used or
adopted by Company in connection with the design, development, manufacture, or
marketing of any financial or mortgage products which at any time during the
continuation hereof may be offered or sold by Company. Executive further
warrants and agrees that he shall not at any time, whether during the
continuance of this Agreement or after its expiration or earlier termination,
whether by Executive or by Company, in any manner or form, directly or
indirectly, use, disclose, duplicate, license, sell, reveal, divulge, publish or
communicate any portion of any such information or technology, nor use,
disclose, duplicate, license, sell, reveal, divulge, publish or communicate any
other confidential information concerning Company, or any customers or products
of Company, to any person, firm or entity.
b. Executive acknowledges that the Company possesses information
obtained from its customers and clients ("Customer Confidences"). Executive
agrees never to make use of Customer Confidences for any use not expressly
authorized by the Customer whose Customer Confidences are in question.
c. The Executive agrees that all styles, designs, lists, materials,
books, files, reports, correspondence, records and other documents ("Company
Materials") used, prepared or made available to the Executive, shall be and
shall remain the property of the Company. Upon the termination of employment or
the expiration of this Agreement, all Company Materials shall be returned
immediately to the Company, and the Executive shall not make or retain any
copies thereof.
d. Executive agrees that the terms of this Section 11 will survive the
term of this Agreement and will continue in full force and effect throughout his
tenure with the Company in any capacity, whether as an employee, officer,
director or outside consultant.
e. Company acknowledges that Executive possesses information,
technology, know-how, contacts and skills as a result of education and
experience prior to and outside of his association with the Company. This
Agreement shall not prevent, preclude or in any way impede the Executive from
utilizing information, technology, know-how, contacts or skills actually or
constructively possessed by the Executive prior to or outside of his association
with the Company.
12. Competition. During the Term hereof, Executive shall not, without the
Company's prior written consent, directly or indirectly engage in any business
activity, or have any interest in any person, firm or other entity engaged in
any business activity, in which Company at the time is engaged or is actively
planning to engage. During the Term hereof and for a period of two (2) years
thereafter, Executive shall not directly or indirectly: (a) divert or take away
or attempt to divert or take away any of Company's customers, including without
limitation those customers with whom Executive became acquainted while retained
by Company; (b) employ, or knowingly permit any business entity controlled by
Executive to employ, any person who during the period of twelve (12) months
immediately preceding such time has been employed by Company; (c) solicit or
otherwise seek to induce any employee of Company to leave his or her employment
8
<PAGE> 9
with the Company; or (d) undertake planning for or organization of any business
activity that will directly injure Company's business, or conspire with
employees of Company for the purpose of organizing any such injurious business
activity. Executive agrees that the terms of this Section 12 will survive the
term of this Agreement and will continue in full force and effect throughout his
tenure with the Company in any capacity, whether as an employee, officer,
director or outside consultant. However, this Section 12 shall not continue
after termination of employment in the event that the Company terminates
Executive without Cause or if the Company does not promptly fulfill any
obligation, warranty or representation under this Agreement.
13. Notices. All notices and other communications under this Agreement shall be
in writing and shall be given by fax or first class mail, certified or
registered with return receipt requested, and shall be deemed to have been duly
given three (3) days after mailing or twenty-four (24) hours after transmission
of a fax to the respective persons named below:
If to Company: RealTrust Asset Corporation
Attn: Board of Directors
2855 E. Cottonwood Parkway
Salt Lake City, UT 84121
Phone: (801) 365-3000
Fax: (801) 365-3125
If to Executive: John P. McMurray
826 103rd Ave SE
Bellevue, WA 98004-6702
Either party may change such party's address for notices by notice duly given
pursuant hereto.
14. Termination of Prior Agreements. CMG Funding Corp. ("CMG") has
unconditionally guaranteed the timely performance of all the Company's
obligations hereunder. The Company and CMG jointly and severally warranted that
they possess the financial, legal and operational capacity to perform all
obligations under this Agreement. This guarantee has been fully secured by
Company and CMG assets. In addition to these warranties and guarantees, the
Company and CMG also represented that each company has and will continue to
comply with all laws, prepare their financial statements in accordance with
GAAP. Except for the guarantee, warranties and representations identified under
this heading which the Company and CMG acknowledge and which remain in full
force and effect, this Agreement terminates and supersedes any and all prior
agreements and understandings between the parties with respect to employment or
with respect to the compensation of the Executive by the Company.
15. Assignment; Successors. This Agreement is personal in its nature and neither
of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder; provided that,
in the event of the merger, consolidation, transfer, or sale of all or
substantially all of the assets of the Company with or to any other individual
or entity, this Agreement shall, subject to the provisions hereof, be binding
upon and inure to the benefit of
9
<PAGE> 10
such successor and such successor shall discharge and perform all the promises,
covenants, duties, and obligations of the Company hereunder.
16. Entire Agreement; Headings. This Agreement embodies the entire agreement of
the parties respecting the matters within its scope and may be modified only in
writing. Section headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this Agreement for any
other purpose.
17. Waiver; Modification. Failure to insist upon strict compliance with any of
the terms, covenants or conditions hereof shall not be deemed a waiver of such
term, covenant or condition, nor shall any waiver or relinquishment of, or
failure to insist upon strict compliance with, any right or power hereunder at
any one or more times be deemed a waiver or relinquishment of such right or
power at any other time or times. This Agreement shall not be modified in any
respect except by a writing executed by each party hereto.
18. Severability. In the event that a court of competent jurisdiction determines
that any portion of this Agreement is in violation of any statute or public
policy, only the portions of this Agreement that violate such statute or public
policy shall be stricken. All portions of this Agreement that do not violate any
statute or public policy shall continue in full force and effect. Further, any
court order striking any portion of this Agreement shall modify the stricken
terms as narrowly as possible to give as much effect as possible to the
intentions of the parties under this Agreement.
19. Indemnification. The Company shall indemnify and hold Executive harmless to
the maximum extent permitted by Maryland Law and the Bylaws of the Company. The
Company shall continuously maintain adequate officers' insurance during the Term
of the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
"Company" "Executive"
RealTrust Asset Corporation, John P. McMurray
a Maryland corporation and
CMG Funding Corp.,
A Delaware corporation
By: ________________________________ _________________________________
John D. Fry John P. McMurray
President and Chief Executive Officer
10
<PAGE> 11
EXHIBIT A
BONUS INCENTIVE COMPENSATION PLAN
The Bonus Incentive Compensation Plan shall be effective commencing upon
closing of the Company's initial public offering ("IPO"). The annual bonus
pursuant to the Bonus Incentive Compensation Plan will be paid one-half in cash
and one-half in shares of Common Stock of the Company, annually, following
receipt of the audit for the related fiscal year. This program will award
bonuses annually to those officers out of a total pool determined by shareholder
return on equity ("ROE") as follows:
ROE/(1)/ in Excess of Base Rate/(2) Bonus as % of Average Net Worth
/(3)/ Outstanding
Zero or less 0%
Greater than 0% but less than 6% 10% * (actual ROE - Base Rate)
Greater than 6% (10% * 6%) + 15% * (Actual
ROE - (Base Rate + 6%))
Of the amount so determined, one-half will be deemed contributed to the
total pool in cash and the other half deemed contributed to the total pool in
the form of shares of Common Stock, with the number of shares to be calculated
based on the average price per share during the preceding year.
- ----------
/(1) /"ROE" is determined for the fiscal year by averaging the monthly ratios
calculated each month by dividing the Company's monthly Net Income (adjusted to
an annual rate) by its Average Net Worth for such month. For such calculations,
the "Net Income" of the Company means the net income or net loss of the Company
determined according to GAAP, but after deducting any dividends paid or payable
on preferred stock issued after the IPO and before giving effect to the bonus
incentive compensation or any valuation allowance adjustment to stockholders'
equity. The definition "ROE" is used only for purposes of calculating the bonus
incentive compensation payable pursuant to the Bonus Incentive Compensation
Plan, and is not related to the actual distributions received by stockholders.
The bonus payments will be made before any income distributions are made to
stockholders.
/(2) /"Base Rate" is the average for each month of the Ten-Year U.S. Treasury
Rate, plus 4%.
/(3) /"Average Net Worth" for any month means the arithmetic average of the sum
of (i) the net proceeds from all offerings of equity securities by the Company
since formation (but excluding any offerings of preferred stock subsequent to
the IPO), after deducting any underwriting discounts and commissions and other
expenses and costs relating to the offerings, plus (ii) the Company's retained
earnings (without taking into account any losses incurred in prior fiscal years,
11
<PAGE> 12
after deducting any amounts reflecting taxable income to be distributed as
dividends and without giving effect to any valuation allowance adjustment to
stockholders' equity) computed by taking the daily average of such values during
such period.
12
<PAGE> 1
EXHIBIT 10.6
CMG FUNDING CORP.
OWNER
AND
ADVANTA MORTGAGE CORP. USA
SERVICER
LOAN SERVICING AGREEMENT
Dated as of October 10, 1997
Fixed and Adjustable Rate Non-Conforming Mortgage Loans
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I DEFINITIONS ........................................................... 1
Section 1.1 Definition of Terms ....................................... 1
ARTICLE II DELIVERY OF MORTGAGE LOAN FILES & SERVICING STANDARDS ................ 5
Section 2.1 Transfer of Mortgage Loan Files ........................... 5
Section 2.2 Agreement to Service Mortgage Loans ....................... 5
Section 2.3 Sub-Servicers ............................................. 5
ARTICLE III REPRESENTATIONS AND WARRANTIES ...................................... 6
Section 3.1 Representations and Warranties of the Servicer ............ 6
Section 3.2 Representations and Warranties of the Owner ............... 7
ARTICLE IV ACCOUNTING AND REPORTING ............................................. 9
Section 4.1 Collection of Mortgage Loan Payments ...................... 9
Section 4.2 Interest Calculations ..................................... 9
Section 4.3 Application of Mortgage Loan Payments ..................... 9
Section 4.4 Establishment of Collection Account; Deposits in Collection
Account ................................................... 9
Section 4.5 Withdrawals from the Collection Account ................... 10
Section 4.6 Establishment of Escrow Account; Deposits in Escrow Account 11
Section 4.7 Withdrawals From Escrow Account ........................... 12
Section 4.8 Servicing Advances ........................................ 12
Section 4.9 Monthly Remittance and Reports ............................ 12
Section 4.10 Servicing Compensation ................................... 13
ARTICLE V ADMINISTRATION AND SERVICING OF MORTGAGE LOANS ........................ 13
Section 5.1 Enforcement of Due-On-Sale Clause; Assumption ............. 13
Section 5.2 Maintenance of Insurance .................................. 14
Section 5.3 Cancellation of Mortgage Insurance ........................ 15
Section 5.4 Reserved For Future Use ................................... 15
Section 5.5 Liquidation of Defaulted Mortgage Loans ................... 15
Section 5.6 Deed-in-Lieu of Foreclosure ............................... 16
Section 5.7 Real Estate Owned ......................................... 16
Section 5.8 Possession of Mortgage Files by Servicer .................. 17
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C>
ARTICLE VI MISCELLANEOUS PROVISIONS ............................................. 17
Section 6.1 Owner to Cooperate ........................................ 17
Section 6.2 Assignment ................................................ 17
Section 6.3 Access to Certain Documentation Regarding the Loans ....... 18
Section 6.4 Default By Servicer ....................................... 18
Section 6.5 Default by Owner .......................................... 18
Section 6.6 Reserved for Future Use ................................... 19
Section 6.7 Indemnification By Owner .................................. 19
Section 6.8 Fidelity Bond and Errors and Omissions Insurance .......... 20
Section 6.9 Indemnification by Servicer ............................... 20
Section 6.10 Amendment ................................................ 21
Section 6.11 Governing Law ............................................ 21
Section 6.12 Notices .................................................. 21
Section 6.13 Severability of Provisions ............................... 21
Section 6.14 Document Deficiencies .................................... 21
Section 6.15 Termination .............................................. 22
Section 6.16 Continued Cooperation .................................... 22
Section 6.17 Master Servicer .......................................... 22
Section 6.18 Attorneys' Fees .......................................... 23
Section 6.19 No Solicitation .......................................... 23
Section 6.20 Counterparts ............................................. 24
</TABLE>
<PAGE> 4
This Servicing Agreement, dated as of October 10, 1997 is entered into
by and between CMG Funding Corp., as owner of the Mortgage Loans that are
referred to herein (the "Owner") and Advanta Mortgage Corp. USA, as Servicer
(together with its permitted successors and assigns, the "Servicer").
WHEREAS, the Owner is the owner of certain first and second lien, fixed
and adjustable rate, non-conforming residential mortgage loans; and
WHEREAS, the Owner desires to deliver to Servicer certain Mortgage
Loans, from time to time, to be serviced by Servicer in accordance with the
terms and conditions of the Mortgage Loans and this Agreement; and
WHEREAS, it is the intent of the parties that certain Mortgage Loans,
described in Exhibit A attached hereto, are to be delivered for servicing
concurrent with this Agreement and thereafter Owner may deliver additional
Mortgage Loans for Servicing pursuant to the terms hereof; and
NOW, THEREFORE, in consideration of the foregoing and mutual agreements
contained herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definition of Terms
Whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
"Accepted Servicing Practices": With respect to any Mortgage Loan, those usual
and customary mortgage servicing practices of prudent residential mortgage
lending institutions which service mortgage loans of the same type as such
Mortgage Loan in the jurisdiction where the related Mortgage Property is
located.
"Additional Servicing Compensation": Incidental fees or charges provided for in
the applicable Note and/or Mortgage that are customarily charged by the Servicer
in the ordinary course of performing its obligations herein including but not
limited to late payment charges, prepayment charges/penalties, assumption
processing charges and assumption fees, modification charges, demand fees,
insufficient funds fees and reconveyance charges,
"Agreement": This Loan Servicing Agreement, including all exhibits hereto, and
all amendments hereof and supplements hereto.
"Borrower": The individual or individuals obligated to repay the applicable
Mortgage Loan.
"Business Day": Any day other than (i) a Saturday or Sunday, or (ii) a day in
which banking or savings and loan institutions in San Diego, California or
Wilmington, Delaware are authorized or obligated by law or executive order to be
closed.
1
<PAGE> 5
"Collection Account": The trust account or accounts which are created and
maintained by Servicer specifically for the collection of principal and
interest, Insurance Proceeds, Liquidation Proceeds and other amounts received
with respect to the Mortgage Loans.
"Eligible Account": An account that is established and maintained by Servicer
with an institution whose deposits are insured by the Bank Insurance Fund or the
Savings Association Insurance Fund of the FDIC and which is either a federal
savings and loan association or national banking association duly organized,
validly existing and in good standing under federal banking laws.
"Errors and Omissions Policy": An insurance policy insuring against losses
caused by errors and omissions of the Servicer and its personnel, including, but
not limited to, losses caused by the failure to pay insurance premiums or taxes,
to record or perfect liens, or to properly service Mortgage Loans in accordance
with this Agreement.
"Escrow Account": For each Mortgage Loan, an account maintained by the Servicer
specifically for the payment of real estate tax assessments and insurance
premiums against Mortgaged Property.
"Escrow Payments": All funds collected by the Servicer to cover expenses of the
Borrower required to be paid under the Mortgage Loan Documents, including Hazard
Insurance and Flood Insurance, tax assessments and mortgage insurance premiums.
"Event of Default": Any one of the conditions or circumstances enumerated in
Sections 6.4 and 6.5.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any successor thereto.
"Fidelity Bond": An insurance policy insuring against losses caused by negligent
or unlawful acts of the Servicer's personnel.
"Flood Insurance Policy": An insurance policy insuring against flood damage to a
Mortgaged Property, required by loan originators for Mortgaged Properties
located in "flood hazard" areas identified by the Secretary of HUD or the
Director of the Federal Emergency Management Agency.
"Flood Zone Service Contract": A transferable contract maintained for the
Mortgaged Property with a nationally recognized flood zone service provider for
the purpose of obtaining the current flood zone status relating to such
Mortgaged Property.
"FNMA": The Federal National Mortgage Association, or any successor thereto.
"Hazard Insurance Policy": A fire and casualty extended coverage insurance
policy insuring against loss or damage from fire and other perils covered within
the scope of standard extended hazard coverage, together with all riders and
endorsements thereto.
"Insurance Policy": Any insurance policy for a Mortgage Loan referred to in this
Agreement, including Mortgage Insurance Policy, Hazard Insurance Policy, Flood
Insurance Policy, and Title Insurance Policy, including all riders and
endorsements thereto,
2
<PAGE> 6
"Liquidation Proceeds": Net proceeds received in connection with the liquidation
of a defaulted Mortgage Loan, whether through the sale or assignment of the
Mortgage Loan, trustee's sale, foreclosure sale, sale of the Mortgaged Property
or otherwise.
"Mortgage Insurance Policy": Insurance which insures the holder of the Note
against covered losses in the event the Borrower defaults under the Note or the
Security Instrument, including all riders and endorsements thereto.
"Mortgage Insurer": A mortgage guaranty insurance company that has issued a
Mortgage Insurance Policy in respect of a Mortgage Loan.
"Mortgage Loan": The individual mortgage loan which is the subject of this
Agreement delivered from time to time being identified by a Mortgage Loan
Schedule. To the extent applicable and as the context so permits, any and all
references to "Mortgage Loan" or "Mortgage Loans" herein shall be deemed to
include any Mortgage Loan that has become an REO Property.
"Mortgage Loan Documents": Any and all documents related to a Mortgage Loan,
including the Note, Security Instrument and insurance policies.
"Mortgage Loan Schedule": The schedule of Mortgage Loans in the form of Exhibit
A, attached hereto, delivered to Servicer on each Transfer Date, such schedule
setting forth the information as to each Mortgage Loan in form and substance
agreed to by the Servicer and the Owner.
"Mortgaged Property": The property securing a Note and subject to the lien of
the related Security Instrument, which property consists of a single parcel of
real property on which is located a one-to four-family detached residential
dwelling, condominium or attached townhouse or rowhouse.
"Nonrecoverable Advance": Any previously made or proposed servicing advance, in
the Servicer's good faith determination, that will not or would not be
ultimately recoverable from the related insurance proceeds or Liquidation
Proceeds.
"Note": A manually executed written instrument evidencing the Borrower's promise
to repay a stated sum of money, plus interest, to the noteholder by a specific
date according to a schedule of principal and interest payments.
"Owner": CMG Funding Corp.
"Permitted Investments": Any one or more of the investments detailed on Exhibit
B attached hereto.
"Person": Any individual, corporation, partnership, joint venture, limited
liability company, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof.
"Principal Prepayment": Any payment or other recovery of principal on a Mortgage
Loan which is received in advance of its scheduled due date, net of any
prepayment penalty or premium thereon which is retained by the Servicer, and is
not accompanied by an amount of interest
3
<PAGE> 7
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
"Remittance Date": The date each month on which Servicer distributes to the
Owner the Owner's portion of the collections on the Mortgage Loans. The
Remittance Date shall be the twenty-fifth (25th) day of each calendar month, or
the next succeeding Business Day if the twenty-fifth (25th) day of the month is
not a Business Day.
"Remittance Reports": Those monthly reports specified in Section 4.9.
"REO Property": Mortgaged Property the title to which is acquired on behalf of
the Owner through foreclosure or deed-in-lieu of foreclosure.
"Security Instrument": A written instrument creating a valid lien on the related
Mortgaged Property. A Security Instrument may be in the form of a mortgage, deed
of trust, deed to secure debt or security deed, including any riders and addenda
thereto.
"Servicer": Advanta Mortgage Corp. USA, its affiliates or its permitted
successors and permitted assigns.
"Servicing Advance": All customary, reasonable and necessary "out of pocket"
costs and expenses incurred in the performance by the Servicer of its servicing
obligations and not part of the Servicer's general and administrative expenses,
including but not limited to, the cost of (a) the preservation, restoration and
protection of the Mortgaged Property, (b) any enforcement or judicial
proceedings, including foreclosures, relating to Mortgage Loans or Mortgaged
Properties (c) the management and liquidation of the Mortgaged Property if the
Mortgaged Property is acquired in satisfaction of the Mortgage, and (d) the
maintenance of hazard insurance, payment of property taxes (including tax
penalties) or mortgage insurance premiums.
"Servicing Fee": For each Mortgage Loan, the compensation due the Servicer each
month.
"Servicing File": With respect to each Mortgage Loan all documents detailed in
Exhibit C, attached hereto and delivered to the Servicer, including photocopies
of the Note and Security Instrument and any other documents necessary for the
Servicer to service the Mortgage Loans in accordance with the terms of this
Agreement.
"Tax Service Contract": A transferable contract maintained for the Mortgaged
Property with a tax servicer provider for the purpose of obtaining current
information from local taxing authorities relating to such Mortgaged Property.
"Title Insurance Policy": An American Land Title Association (ALTA) mortgage
loan title policy form 1970, or other form of lender's title insurance policy,
insuring the lien priority of the Security Instrument on the Mortgaged Property.
"Transfer Date": For each Mortgage Loan, the date on which such Mortgage Loan is
delivered to Servicer for servicing hereunder.
4
<PAGE> 8
ARTICLE II
DELIVERY OF MORTGAGE LOAN FILES & SERVICING STANDARDS
Section 2.1 Transfer of Mortgage Loan Files
On or prior to each Transfer Date, and from time to time thereafter in a
manner the parties mutually agree to (generally, in accordance with the "XYZ
Mortgage Company Sub Servicing Guide," as amended from time to time, a copy of
which is attached hereto), the Owner shall deliver the Servicing Files, to the
Servicer at the Owner's expense. Such delivery shall be effected at the
Servicer's facilities currently designated by Servicer as Advanta Mortgage Corp.
USA, 16875 West Bernardo Drive, San Diego, California, 92127, Attention: Dept.
402. Each Servicing File shall be held in trust by Servicer exclusively for the
benefit of the Owner for the purpose of servicing the related Mortgage Loan. The
Servicer shall maintain custody of all documents constituting the Servicing
Files in accordance with Accepted Servicing Practices.
Section 2.2 Agreement to Service Mortgage Loans
(a) Servicer agrees to service and administer the Mortgage Loans on the
Owner's behalf, in accordance with the terms of this Agreement, the Mortgage
Loans and Accepted Servicing Practices, giving due consideration to customary
and usual standards of practice of prudent institutional residential mortgage
loan servicers of comparable Mortgage Loans and with a view to the maximization
of timely recovery of principal and interest on the Mortgage Loans, but without
regard to: (i) any relationship that Servicer or any of its affiliates may have
with any Borrower or affiliate or manager thereof, (ii) Servicer's obligations
to make advances or to incur servicing expenses with respect to the Mortgage
Loans, or (iii) Servicer's right to receive compensation for its services
hereunder.
(b) Subject to the provisions of Section 2.2(a), above, Servicer shall
have full power and authority to do or cause to be done any and all things in
connection with such servicing and administration which Servicer may deem
necessary or desirable. In accordance with this Agreement, the Owner will
provide Servicer upon request with any powers of attorney necessary to undertake
the duties of Servicer. Servicer agrees to use its best efforts to service and
administer the Mortgage Loans in accordance with applicable state and federal
law.
(c) Without limiting the generality of the foregoing, the Servicer shall
and is hereby authorized and empowered by the Owner to: (i) execute and deliver,
on behalf of the Owner, any and all instruments of satisfaction or cancellation,
or of partial or full release or discharge, with respect to the Mortgage Loans
and with respect to the related Mortgaged Property, (ii) consent to any
modification of the terms of the Note if the effect of any such modification
will not materially or adversely affect the security afforded by the related
Mortgaged Property, (iii) institute foreclosure proceedings or obtain a
deed-in-lieu of foreclosure on behalf of the Owner, (iv) execute subordination
agreements affecting the lien priority of the Security Instrument and (v) take
title in the name of the Owner to any Mortgaged Property upon such foreclosure
or delivery of deed in lieu of foreclosure.
Section 2.3 Sub-Servicers
The Servicer may perform its servicing responsibilities through agents
or independent contractors acting as sub-servicers, but shall not thereby be
released from any of its
5
<PAGE> 9
responsibilities hereunder, and the Servicer shall diligently pursue all of its
rights against such sub-servicer. Notwithstanding any agreement with a
sub-servicer, any of the provisions of this Agreement relating to agreements or
arrangements between the Servicer and a sub-servicer or reference to actions
taken through a sub-servicer or otherwise, the Servicer shall remain obligated
and liable to the Owner for the servicing and administering of the Mortgage
Loans in accordance with the provisions of this Agreement without diminution of
such obligation or liability by virtue of such sub-servicing agreements or
arrangements or by virtue of indemnification from the sub-servicer for any acts
and omissions and to the same extent and under the same terms and conditions as
if the Servicer alone were servicing and administering the Mortgage Loans and
any other transactions or services relating to the Mortgage Loans involving the
sub-servicer shall be deemed to be between the sub-servicer and the Servicer
alone and the Owner shall have no obligations, duties or liabilities with
respect to the subservicer including no obligation, duty or liability of the
Owner to pay sub-servicer's fees and expenses. For purposes of this Agreement,
the Servicer shall be deemed to have received payments on Mortgage Loans when
the sub-servicer has received such payments. The Servicer shall pay all fees and
expenses of the sub-servicer from its own funds, the Servicing Fee or other
amounts permitted to be retained by or reimbursed to the Servicer hereunder.
Notwithstanding the foregoing, Servicer may in its sole judgment
delegate specific servicing obligations to computer bureaus, credit bureaus,
real estate tax service companies, real estate brokers or agents, attorneys,
trustees, and others, provided Servicer remains responsible for all action taken
or not taken by such companies, agents, representatives and others throughout
the term of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Servicer
Servicer represents and warrants to, and covenants with, the Owner that:
(a) Servicer is, and throughout the term of this Agreement will remain
(i) a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and (ii) duly qualified and in good standing
to transact any and all of its business, including the duties under this
Agreement;
(b) The execution, delivery and performance of this Agreement have been
duly authorized by all necessary corporate action and the execution and delivery
of this Agreement by Servicer in the manner contemplated and the performance of
and compliance with the terms will not violate, contravene or create a default
under any applicable federal, state or local laws, licenses or permits;
(c) The execution and delivery of this Agreement by Servicer and the
performance of and compliance with its obligations and covenants do not require
the consent or approval of any governmental authority or, if such consent or
approval is required, it has been or will be obtained prior to such becoming
required;
6
<PAGE> 10
(d) Assuming the due authorization and valid execution and delivery of
this Agreement by Owner, this Agreement, when executed and delivered by
Servicer, will constitute a valid, legal and binding obligation of Servicer,
enforceable against Servicer in accordance with its terms, except as the
enforcement thereof may be limited by applicable debtor relief laws and except
as certain equitable remedies may be available regardless of whether enforcement
is sought in equity or law; and
(e) There is no litigation pending or, to Servicer's knowledge
threatened, which, if determined adversely to Servicer, would adversely affect
the execution, delivery or enforceability of this Agreement or Servicer's
ability to perform its obligations hereunder.
Section 3.2 Representations and Warranties of the Owner
As of the date of this Agreement and each Transfer Date, Owner
represents and warrants to, and covenants with, the Servicer that:
(a) The Owner owns, without limitation, (i) all right, title and
interest in the Mortgage Loans (including, without limitation, the security
interest created thereby), (ii) all the rights as a lender under any Insurance
Policy relating to a Mortgaged Property securing a Mortgage Loan for the benefit
of the owner of such Mortgage Loan, and (iii) all proceeds derived from any of
the foregoing;
(b) Owner is, and throughout the term of this Agreement will remain (i)
a corporation duly organized, validly existing and in good standing under the
laws of the state of its incorporation and (ii) duly qualified and in good
standing to transact any and all of its business;
(c) The execution, delivery and performance of this Agreement have been
duly authorized by all necessary corporate action and the execution and delivery
of this Agreement by Owner in the manner contemplated and the performance of and
compliance with the terms hereof by it will not violate, contravene or create a
default under any charter document or bylaw of the Owner or any contract,
agreement, or instrument to which the Owner is a party or by which Owner or any
of its property is bound;
(d) The execution and delivery of this Agreement by Owner and the
performance of and compliance with its obligations and covenants do not require
the consent or approval of any governmental authority or, if such consent or
approval is required, it has been or will be obtained prior to such becoming
required;
(e) Assuming the due authorization and valid execution and delivery of
this Agreement by Servicer, this Agreement, when executed and delivered by
Owner, will constitute a valid, legal and binding obligation of Owner,
enforceable against Owner in accordance with its terms, except as the
enforcement may be limited by applicable debtor relief laws and except as
certain equitable remedies may be available regardless of whether enforcement is
sought in equity or law;
(f) There is no litigation pending or, to Owner's knowledge, threatened,
which, if determined adversely by Owner, would adversely affect the execution,
delivery or enforceability of this Agreement or Owner's ability to perform its
obligations;
7
<PAGE> 11
(g) Owner holds legal right, title and interest to the Mortgage Loans
and no other party has the right to collect payments with respect thereto and
the Owner has the full power and authority to assign the servicing functions to
Servicer;
(h) All information provided to Servicer by Owner, including any copies
of Mortgage Loan Documents, information relating to the origination of such
Mortgage Loan, the prior servicing experience and any and all of the Mortgage
Loan balances and identification of any litigation affecting a contract or the
servicing thereof is true, correct and complete in all material respects;
(i) The information set forth in each Mortgage Loan Schedule is true and
correct in all material respects as of each Transfer Date;
(j) Each Security Instrument is a valid lien on the related Mortgaged
Property;
(k) To the Owner's best knowledge, no Mortgage Loan is subject to any
offset, defense or counterclaim;
(l) To the Owner's best knowledge, the physical property subject to each
Security Instrument is free of material damage;
(m) Each Mortgage Loan at the time it was made complied in all material
respects with applicable state and federal laws and regulations, including,
without limitation, usury, equal credit opportunity and disclosure laws and
regulations;
(n) The Owner has not received a written notice of default of any senior
mortgage loan related to a Mortgage Loan which has been cured by a party other
than such Owner;
(o) To the Owner's best knowledge, no Mortgage Loan is subject to (i)
any mechanics lien or claim for work, labor or material of which the Owner has
received written notice and that is or may be a lien prior to, or equal or
coordinate with, the lien of the related Security Instrument, or (ii) any
delinquent tax or assessment lien against the related Mortgage Property;
(p) A lender's title insurance policy or binder, or other assurance of
title customary in the relevant jurisdiction, is in full force and effect with
respect to each Mortgage Property;
(q) Each Mortgage Loan is covered by appropriate Hazard Insurance and,
if applicable, Flood Insurance;
(r) Each Mortgage Loan is covered by a Tax Service Contract which is
assignable to Servicer or, for each Mortgage Loan not covered by such Tax
Service Contract, the Owner agrees to purchase such Tax Service Contract; and
(s) Each Mortgage Loan is covered by a Flood Zone Service Contract which
is assignable to Servicer or, for each Mortgage Loan not covered by such Flood
Zone Service Contract, the Owner agrees to purchase such Flood Zone Service
Contract.
8
<PAGE> 12
ARTICLE IV
ACCOUNTING AND REPORTING
Section 4.1 Collection of Mortgage Loan Payments
(a) Continuously from the date hereof until the principal and interest
on the Mortgage Loans is paid in full, Servicer agrees to proceed diligently to
collect all payments called for under the terms and provisions of the Mortgage
Loans, and shall follow such collection procedures mutually agreed to and as may
be amended from time to time by Owner and Servicer with respect to Mortgage
Loans to the extent such procedures are consistent with this Agreement and the
terms of any Insurance Policy and in accordance with Accepted Servicing
Practices.
(b) The Servicer may in its sole discretion (i) waive late payment
charges, prepayment penalties/charges, assumption fees, charges for checks
returned insufficient funds or other fees which may be collected in the ordinary
course of servicing the Mortgage Loans; or (ii) if a Borrower is in default (as
defined in the Mortgage Loan), arrange with the Borrower a schedule for the
payment of delinquent payments due on the related Mortgage Loan.
Section 4.2 Interest Calculations
Monthly interest calculations for periods of a full month must be based
on a 30-day month and 360-day year, if permitted by the Note or by the law.
Interest calculations for periods of less than a full month (such as for a
Liquidation) must be calculated on the basis of actual days elapsed in a month
and a 365-day year unless otherwise provided by applicable federal or state law.
Section 4.3 Application of Mortgage Loan Payments
A payment from the Borrower will normally consist of interest, principal
and, if applicable, deposits for insurance and taxes and late charges. Payments
received from Borrowers shall be applied in the following order unless otherwise
required by, the Mortgage Loan Documents, applicable state and federal
requirements or by a Mortgage Insurer:
(a) Deposits for taxes and insurance;
(b) Required monthly interest;
(c) Required monthly principal; and
(d) All other fees or penalties.
Section 4.4 Establishment of Collection Account; Deposits in Collection Account
(a) The Servicer shall establish and maintain a Collection Account, (the
"Collection Account"), which shall be an Eligible Account and may be interest
bearing, titled "Advanta Mortgage Corp. USA" in trust for the Owner.
9
<PAGE> 13
(b) The Servicer shall deposit in the Collection Account within two (2)
Business Days of receipt, and retain therein the following payments and
collections received or made with respect to the Mortgage Loans:
(i) all principal collections;
(ii) all interest collections;
(iii) all Liquidation Proceeds net of expenses;
(iv) all proceeds received by the Servicer under any Insurance
Policy, other than proceeds to be held in the Escrow Account and applied
to the restoration or repair of the Mortgaged Property or released to
the Borrower in accordance with Accepted Servicing Procedures; and
(v) all awards or settlements in respect of condemnation
proceedings or eminent domain affecting any Mortgaged Property which are
not released to the Borrower in accordance with Accepted Servicing
Practices.
(c) The Servicer may invest all or a portion of the funds in the
Collection Account in Permitted Investments in the name of the Servicer. The
Servicer shall receive as Additional Servicing Compensation all income and gain
realized from any such Permitted Investment. If any principal losses are
incurred in respect of any Permitted Investments, Servicer shall reimburse and
restore to the Collection Account the amount of any such principal losses out of
Servicer's own funds immediately as realized. Notwithstanding the foregoing,
Servicer's right to invest funds in the Collection Account shall in no way limit
the rights of Servicer to be compensated for its services as provided in this
Agreement.
(d) The requirements in this Section 4.4 for deposit in the Collection
Account shall be exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments in the nature of assumption
processing charges, modification charges, demand fees, insufficient funds fees
and reconveyance fees need not be deposited by the Servicer in the Collection
Account.
Section 4.5 Withdrawals from the Collection Account
The Servicer shall, from time to time, withdraw funds from the
Collection Account for the following purposes:
(a) to reimburse itself for unreimbursed Servicing Advances, and for
accrued and unpaid Servicing Fees, the Servicer's right to reimburse itself
pursuant to this subclause (a) with respect to any Mortgage Loan being limited
to related Liquidation Proceeds, condemnation proceeds, REO Disposition
Proceeds, amounts representing proceeds of any Insurance Policy related to such
Mortgage Loan and such other amounts as may be collected by the Servicer from
the Borrower or otherwise relating to the Mortgage Loan, it being understood
that, in the case of any such reimbursement, the Servicer's right thereto shall
be prior to the rights of Owner;
(b) to reimburse itself for expenses incurred by and reimbursable to it
pursuant to Sections 4.10, 6.7, 6.15 and 6.16;
10
<PAGE> 14
(c) to pay to itself any interest earned on funds deposited in the
Collection Account;
(d) to withdraw any amounts inadvertently deposited in the Collection
Account or not required to be deposited therein;
(e) to make payments to the Owner in the amounts and in the manner
provided herein; and
(f) to clear and terminate the Collection Account upon the termination
of this Agreement.
If after receipt and application of Liquidation Proceeds in accordance
with the foregoing, the Servicer has sustained an unrecovered loss in connection
with a Servicing Advance, the amount of unrecovered loss shall be reimbursed to
the Servicer, first, from amounts in the Collection Account, or if such funds
are insufficient, by payment to the Servicer by the Owner within ten (10)
Business Days of the receipt of notice by such Owner of such amount.
The Servicer shall distribute that portion of collections on the
Mortgage Loans due to the Owner in the amounts and in the manner provided herein
on each Remittance Date.
Section 4.6 Establishment of Escrow Account; Deposits in Escrow Account
(a) The Servicer shall establish and maintain an Escrow Account, in the
form of a time deposit or demand account, which may be interest bearing, titled,
with respect to Escrow Payments actually held by the Servicer, "Advanta Mortgage
Corp. USA in trust for Borrowers' Escrow Payments". Such Escrow Account shall be
established with a commercial bank, a savings bank or a savings and loan
association selected by Servicer in accordance with Accepted Servicing
Practices. The Escrow Account shall be drawable upon by the Servicer as provided
herein.
(b) The Servicer shall deposit in the Escrow Account within two (2)
Business Days of receipt or earlier if so required by law and retain therein:
(i) all Escrow Payments collected on account of the Mortgage Loans, for the
purpose of effecting timely payment of any such items as required under the
terms of this Agreement, and (ii) all amounts representing proceeds of any
Insurance Policy which are to be applied to the restoration or repair of any
Mortgaged Property. To the extent required by law, the Servicer shall at its
sole expense pay interest on escrowed funds to the Borrower notwithstanding that
the Escrow Account may not bear interest.
(c) The Servicer may invest the funds in an Escrow Account in Permitted
Investments which shall be in the name of the Servicer or its nominee, in either
case in the trust capacity in which the related Escrow Account is held. The
Servicer shall receive as Additional Servicing Compensation an amount equal to
all income and gain realized from any such Permitted Investment, but only to the
extent such gain to Servicer is (i) not prohibited by applicable law and (ii) in
excess of amounts necessary to make any interest payments required by the
Mortgage Loan Documents or applicable law to be made to the applicable Borrower.
If any losses are incurred in respect of any Permitted Investments, Servicer
shall immediately reimburse and restore to the applicable Escrow Account the
amount of any such losses out of Servicer's own funds as realized.
Notwithstanding the foregoing, Servicer's right to invest
11
<PAGE> 15
funds in the Escrow Account shall in no way limit the rights of Servicer to be
compensated for its services as provided in this Agreement.
Section 4.7 Withdrawals From Escrow Account
Withdrawals from the Escrow Account shall be made by the Servicer, only
(a) to effect timely payment of taxes, mortgage insurance premiums,
flood, fire and hazard insurance premiums or other items constituting Escrow
Payments for the related Mortgage Loan;
(b) to reimburse the Servicer for any Servicing Advance made by the
Servicer to effect the payment of taxes or insurance required under the terms of
the related Mortgage Loan, but only from amounts received on the related
Mortgage Loan which represent late payments or collections of Escrow Payments
thereunder;
(c) to refund to any Borrower any funds found to be in excess of the
amounts required under the terms of the related Mortgage Loan or applicable law;
(d) for application to restoration or repair of the Mortgaged Property;
(e) to pay to the Borrower, to the extent required by law, any interest
paid on the funds deposited in the Escrow Account;
(f) to pay to itself any interest earned on funds deposited in the
Escrow Account;
(g) to remove any deposits made in error; or
(h) to clear and terminate the Escrow Account upon termination of this
Agreement.
Section 4.8 Servicing Advances
As required, Servicer agrees to make Servicing Advances for the
preservation of any Mortgaged Property, including the payment of accrued and
unpaid taxes, forced placed hazard insurance and repayment of senior liens. It
is understood that Servicer's obligation to make such Servicing Advances shall
continue until (i) the payment in full of the Mortgage Loan or (ii) the date on
which the Mortgaged Property is liquidated; provided however, Servicer shall
have no obligation to make Servicing Advances if, in the sole determination of
Servicer, such Servicing Advance would constitute a Nonrecoverable Advance.
Section 4.9 Monthly Remittance and Reports
(a) The Servicer shall service the Mortgage Loans on an actual/actual
remittance basis with the accounting cutoff with respect to each Remittance Date
of the last day of the month immediately preceding such Remittance Date.
(b) Not later than the fifteenth (15th) day of each calendar month, or
the succeeding business day should the fifteenth not be a business day, the
Servicer shall prepare and deliver the following reports with respect to
activity for the most recently ended prior calendar month:
12
<PAGE> 16
(i) a trial balance report including all Mortgage Loans;
(ii) a monthly remittance report;
(iii) a report setting forth any Mortgage Loans added or
deleted;
(iv) a report setting forth curtailment or prepayments; and
(v) reports setting forth delinquency detail (including
bankruptcy, foreclosure and REO status).
Section 4.10 Servicing Compensation
(a) As compensation for its activities hereunder, the Servicer shall be
entitled to retain as to each Mortgage Loan, a Servicing Fee of 0.25% per annum
(twenty-five basis points) with respect to each fixed rate Mortgage Loan and
0.37.5% per annum (thirty-seven and one-half basis points) with respect to each
adjustable rate Mortgage Loan which shall be retained by Servicer from the
interest portion of the Mortgage Loan payments as received from a Borrower and
from Liquidation Proceeds, as applicable.
(b) Servicer shall be entitled to retain the Additional Servicing
Compensation.
(c) In addition, Owner shall pay Servicer a set-up fee of $50.00 per
Mortgage Loan for each Mortgage Loan transferred to Servicer and serviced
hereunder. At such time as Owner is delivering 200 or more Mortgage Loans per
month pursuant to this Agreement for servicing, Servicer and Owner shall
diligently pursue implementation of a system of "electronic boarding" in order
to reduce the time required to set-up Mortgage Loans for servicing on Servicer's
loan servicing system. Owner shall not be charged a set-up fee in excess of the
amount set forth above for this service. Furthermore, in the event no "lifetime"
tax contracts are presently in force which are assignable to Servicer, Owner
agrees to reimburse Servicer the cost of purchasing a tax contract for each
Mortgage Loan in this category. Servicer shall furnish Owner with a monthly
statement detailing the Mortgage Loan set-up fees incurred and/or tax contracts
purchased during the immediately preceding month. Servicer shall have the right
to withdraw on a monthly basis from the Collection Account all accrued and
unpaid set-up fees and tax contract charges incurred in the prior month.
ARTICLE V
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 5.1 Enforcement of Due-On-Sale Clause; Assumption
The Servicer is required to enforce any due-on-sale clause in the Note
or Security Instrument to the extent permitted by applicable law upon the
transfer of title to the Mortgaged Property unless (i) the Mortgage Loan
Documents, including riders or addenda permit such a transfer or (ii)
enforcement of the due-on-sale clause will jeopardize the Mortgage Insurance
coverage, if any, on such Mortgage Loan. In all circumstances of unapproved
transfer initiated by the Borrower, the Servicer is required to promptly notify
the Mortgage Insurer, if any, of
13
<PAGE> 17
such transfer, and obtain written approval from the Mortgage Insurer (if
required under the applicable Mortgage Insurance Policy) before initiating
enforcement proceedings.
Notwithstanding the preceding paragraph, Owner authorizes Servicer to
waive, in the sole discretion of Servicer, the enforcement of a due-on-sale
clause on any Mortgage Loan and permit the assumption of such Mortgage Loan,
subject to the following conditions:
(a) No material term of the Note, including, but not limited to, the
rate of interest on the Note and the remaining term to maturity, may be changed
in connection with such assumption, provided however, such limitation shall not
apply to interest rate, payment or amortization changes otherwise provided for
under the terms of the Note, such as in the case of an adjustable rate mortgage;
(b) The Servicer has performed a credit review of the new borrower and
determined that the new borrower is a prudent credit risk in the sole opinion of
the Servicer. Owner hereby authorizes Servicer to apply more liberal credit
standards and underwriting in connection with a request for an assumption of a
Mortgage Loan than Servicer would apply for comparable new loans which Servicer
is then originating for its own account, if Servicer in its sole discretion,
reasonably believes there is a risk of foreclosure on the Mortgage Loan in the
event the assumption is denied;
(c) The Mortgage Insurer has approved in writing the assumption of the
Mortgage Loan by the new borrower and such Mortgage Loan will continue to be
insured by such Mortgage Insurer;
(d) The new borrower executes documents assuming all the obligations of
the Borrower under the Mortgage Loan Documents;
(e) The Mortgage Loan will continue to be secured, and insured with a
Title Insurance Policy, if any, by a valid security interest upon the Mortgaged
Property of the same lien priority as existed immediately prior to such
assumption;
(f) The Servicer has determined that the estimated net realizable value
of the Mortgaged Property, in the sole judgment of the Servicer, is less than
the then unpaid principal balance of the related Note, plus accrued interest to
the estimated date of the closing of the sale of Mortgaged Property to the new
borrower; and
(g) The Servicer shall provide the Owner the original assumption
agreement following execution thereof.
Subject to the terms of the Note and Security Instrument, and applicable
law or regulation, the Servicer may charge a reasonable and customary assumption
fee, and the Servicer may retain such fee as Additional Servicing Compensation.
Section 5.2 Maintenance of Insurance
(a) The Servicer shall cause to be maintained with respect to each
Mortgage Loan a Hazard Insurance Policy with a generally acceptable carrier that
provides for fire and extended coverage, and for a recovery of any insurance
proceeds relating to such Mortgage Loan by the Servicer on behalf of the Owner.
14
<PAGE> 18
(b) If the Mortgage Loan relates to a Mortgaged Property identified at
origination in the Federal Register by the Federal Emergency Management Agency
as having a special flood hazard, the Servicer will cause to be maintained with
respect thereto a Flood Insurance Policy with a generally acceptable carrier
which provides for a recovery of any insurance proceeds relating to such
Mortgage Loan by the Servicer on behalf of the Owner.
(C) With respect to each Mortgage Loan that provides for the collection
of escrow funds for the payment of fire and hazard insurance or flood insurance,
the Servicer shall effect the payment thereof prior to the applicable policy
termination date employing for such purpose deposits in the Escrow Account which
shall have been estimated and accumulated by the Servicer in the amounts
sufficient for such purposes. To the extent a Mortgage Loan does not provide for
escrow payments and the Borrower fails to maintain any required insurance
coverage, the Servicer shall by a Servicing Advance make the payment required to
effect the applicable in-force policy for the related Mortgaged Property.
(d) Notwithstanding the preceding paragraphs, the Servicer at its option
may obtain and maintain, with respect to all or any portion of the Mortgage
Loans, a blanket insurance policy with extended coverage insuring against fire,
hazard and flood, as applicable. The Servicer shall be deemed conclusively to
have satisfied its obligations with respect to Hazard Insurance and Flood
Insurance coverage under this Section if such blanket policy names the Servicer
as "Loss Payee" and provides coverage in an amount equal to the aggregate unpaid
principal balance of the Mortgage Loans without co-insurance.
Section 5.3 Cancellation of Mortgage Insurance
If a Borrower requests cancellation of the Mortgage Insurance Policy,
the Servicer shall ensure that the FNMA guidelines governing cancellation are
followed in connection with any cancellation.
Section 5.4 Reserved For Future Use
Section 5.5 Liquidation of Defaulted Mortgage Loans
(a) The Servicer, on behalf of the Owner, shall foreclose upon or
otherwise take title, in the name of Owner, to Mortgaged Property (such as by a
deed in lieu of foreclosure) for any Mortgage Loan which is in default and as to
which no satisfactory arrangements, in the sole reasonable opinion of Servicer,
can be made for collection of delinquent payments. In connection with such
foreclosure or other transfer of title, the Servicer shall exercise the rights
and powers vested in it hereunder, and use the same degree of care and skill in
such exercise or use, as prudent servicers would exercise or use under similar
circumstances in the conduct of their own affairs, including, but not limited
to, making Servicing Advances for the payment of taxes, amounts due with respect
to senior liens, and insurance premiums.
(b) In determining whether or not to foreclose upon or otherwise
comparably transfer title to such Mortgaged Property, the Servicer shall take
into account the existence of any condition upon or impacting the Mortgaged
Property in the nature of hazardous substances, hazardous wastes, infectious
waste, toxic substance, solid wastes and so forth, as such terms now or in the
future are defined or listed in, or otherwise classified pursuant to, or
regulated by, any applicable environmental laws, including but not limited to
all present and future federal, state or local laws, ordinances, rules,
regulations, decisions and other
15
<PAGE> 19
requirements of governmental authorities relating to the environment or to any
hazardous substance.
Section 5.6 Deed-in-Lieu of Foreclosure
If the Owner and, if applicable, the Mortgage Insurer have approved the
liquidation of a Mortgage Loan by accepting a deed-in-lieu of foreclosure, the
Servicer may accept such deed provided that:
(a) Marketable title, as evidenced by a Title Insurance Policy, can be
conveyed to and acquired by the Owner or its designee;
(b) The transaction complies with all requirements of each Mortgage
Insurer, if any, and does not and will not violate or contravene any restriction
or prohibition of any Mortgage Insurance Policy, if any, or otherwise result in
any loss of or reduction in the coverage of benefits under such policies;
(c) No cash consideration is paid to the Borrower;
(d) The Mortgaged Property is vacant at the time of the Borrower's
conveyance thereof, unless occupancy has been approved by each Mortgage Insurer,
if any; and
(e) The Servicer has obtained from the Borrower a written acknowledgment
that the deed is being accepted as an accommodation to the Borrower and on the
condition that the Mortgaged Property will be transferred to the Owner that owns
such Mortgage Loan free and clear of all claims, liens, encumbrances,
attachments, reservations or restrictions except for those to which the
Mortgaged Property were subject at the time the Mortgaged Property became
subject to the lien of the Security Instrument.
Upon acquisition of any such Mortgaged Property, the Servicer shall
promptly advise the Owner and each Mortgage Insurer by letter, indicating the
details of the transaction and reasons for the conveyance and providing such
other information as is required by each Mortgage Insurer. Title shall be
conveyed directly from the Borrower to the Owner, or to such other Person
designated by the Owner.
Section 5.7 Real Estate Owned
Title, Management and Disposition of REO Property.
(a) In the event that title to the Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Owner. The Owner agrees to cooperate with
Servicer and take such actions as shall be necessary for the Servicer to take
title to the Mortgaged Property in the name of the Owner.
(b) Notwithstanding the generality of the foregoing provision, the
Servicer shall manage, conserve, protect and operate each REO Property for the
Owner solely for the purpose of its prompt disposition and sale. Pursuant to its
efforts to sell such REO Property, the Servicer shall either itself or through
an agent selected by the Servicer protect and conserve such REO Property in the
same manner and to such extent as is customary in the locality where such REO
Property is located and may, but shall not be obligated to, incident to its
conservation and protection of the interests of the Owner, rent the same, or any
part
16
<PAGE> 20
thereof, as the Servicer deems to be in the best interests of the Owner for the
period prior to the sale of such REO Property. The Servicer shall attempt to
sell the same on such terms and conditions as the Servicer deems to be in the
best interest of the Owner.
(c) The Servicer shall cause to be deposited within two (2) Business
Days of receipt in the Collection Account all revenues received with respect to
the conservation and disposition of each REO Property and shall be permitted to
retain from such revenues funds necessary for the proper operation, management
and maintenance of the REO Property, including reimbursement for its Servicing
Advances and fees of any managing agent acting on behalf of the Servicer.
Section 5.8 Possession of Mortgage Files by Servicer.
From time to time in connection with the servicing of the Mortgage Loans
hereunder, the Servicer may take possession of all or a portion of the documents
relating to the Mortgage Loans as may be held by the Owner. Such documents shall
be held in trust by the Servicer for the benefit of the Owner as the owner
thereof and the Servicer's possession of such document or documents is at the
will of the Owner for the sole purpose of servicing the related Mortgage Loan,
and such retention and possession by the Servicer is in a custodial capacity
only.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1 Owner to Cooperate
From time to time and as appropriate in the servicing of any Mortgage
Loan, including without limitation, the payment in full of any Mortgage Loan,
notification that payment in full will be escrowed, foreclosure or other
comparable conversion of a Mortgage or collection under any applicable Insurance
Policy, the Owner, upon request of the Servicer shall, within three (3) Business
Days, release or cause the release and delivery of the related Mortgage Loan
Documents to the Servicer. Owner acknowledges that proper servicing of the
Mortgage Loans in accordance with Accepted Servicing Practices and applicable
law is dependent upon Servicer's ability to obtain Mortgage Loan Documents in a
timely manner.
Section 6.2 Assignment of Agreement
(a) Servicer agrees to not sell, transfer, pledge or otherwise dispose
of its right to receive all or any portion of the Servicing Fees, and any such
attempted sale, transfer, pledge or disposition shall be void, unless such
transfer is made to a successor servicer with the prior written consent of the
Owner.
(b) Owner agrees to not transfer its rights and obligations under this
Agreement to a new owner without the prior written consent of Servicer. Any
transfer in violation of this Section 6.2(b) shall be a default under the terms
of this Agreement and Servicer shall have no obligation pursuant to Section 4.5
or 4.9 to make payments or provide reports to the new owner.
17
<PAGE> 21
Section 6.3 Access to Certain Documentation Regarding the Loans
Upon reasonable advance notice, Servicer shall provide reasonable access
during normal business hours at its offices to the Owner, or any agents or
representatives thereof, to any reports and to information and documentation
regarding the Mortgage Loans.
Section 6.4 Default By Servicer
Owner may terminate this Agreement upon the happening of any one or more
of the following events:
(a) Falsity in any material respect of any representation of warranty of
Servicer contained in this Agreement and failure of Servicer to cure the
condition or event causing any such representation or warranty to be false
within sixty (60) days after the Servicer's receipt of written notice from Owner
specifying such falsity and requesting that it be cured or corrected;
(b) Failure of Servicer to duly observe or perform in any material
respect any other covenant, condition, or agreement in this Agreement for a
period of forty-five (45) days after receipt of written notice by Servicer from
Owner, specifying such failure and requesting that it be remedied; provided,
however, if the failure stated in the notice cannot be corrected within the
applicable period, Owner shall consent to a reasonable extension of time if
corrective action is instituted by Servicer within the applicable period and is
diligently pursued until corrected;
(c) Decree or order of a court, agency or supervisory authority having
jurisdiction in the premises appointing a trustee, conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceeding affecting Servicer or any of its properties
utilized in connection with the performance of servicing, or for resolving the
liquidation of the affairs of Servicer, if such decree or order shall have
remained in force undischarged or unstayed for a period of ninety (90) days;
(d) Commencement by Servicer as debtor of any case or proceeding under
any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar
law;
(e) Consent by Servicer to the appointment of a trustee, conservator,
receiver or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities, or similar proceeding affecting Servicer or
substantially all of its properties; or
(f) Admission in writing by Servicer of its inability to pay debts
generally as they mature, or the making of an assignment for the benefit of
creditors.
If any of the events specified in (c) through (f) above shall occur,
Servicer shall give written notice of such occurrence to Owner within ten (10)
days of the happening of such event. Any such termination shall be effective as
of the date stated in a written notice delivered to Servicer.
Section 6.5 Default by Owner
Servicer may terminate this Agreement upon the happening of any one or
more of the following events:
18
<PAGE> 22
(a) Falsity in any material respect of any representation or warranty of
Owner contained in this Agreement and failure of Owner to cure the condition or
event causing such representation or warranty to be false within sixty (60) days
after Owner's receipt of written notice from Servicer specifying such falsity
and requesting that it be cured or corrected;
(b) Such other breach of this Agreement by Owner which materially and
adversely affects Servicer, which breach shall continue for a period of sixty
(60) days after receipt of written notice by Owner from Servicer, specifying
such breach and requesting that it be remedied; provided however, if the breach
stated in the notice cannot be remedied within the applicable period, Servicer
shall consent to a reasonable extension of time if corrective action is
instituted by Owner within the applicable period and is diligently pursued until
corrected;
(c) Decree or order of a court, agency or supervisory authority having
jurisdiction in the premises appointing a trustee, conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceeding affecting Owner or any of its properties
utilized in connection with the performance of Servicer's duties hereunder, or
the winding up or liquidation of the affairs of Owner, if such decree or order
shall have remained in force undischarged or unstayed for a period of ninety
(90) days;
(d) Commencement by Owner as debtor of any case or proceeding under any
bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law;
(e) Consent by Owner to the appointment of a trustee, conservator,
receiver or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities, or similar proceeding affecting Owner or substantially
all of its properties; or
(f) Admission in writing by Owner of its inability to pay debts
generally as they mature, or the making of an assignment for the benefit of
creditors.
If any of the events specified in (c) through (f) above shall occur,
Owner shall give written notice of such occurrence to Servicer within ten (10)
days of the happening of such event. Any such termination shall be effective as
of the date stated in a written notice delivered to Owner.
Section 6.6 Reserved for Future Use
Section 6.7 Indemnification By Owner
Owner shall indemnify and hold Servicer harmless from and shall
reimburse Servicer for any losses, damages, deficiencies, claims, penalties,
forfeitures, causes of action or expenses of any nature (including reasonable
attorneys' fees) incurred by Servicer which arise out of or result from:
(a) The inaccuracy of any representation of Owner contained in this
Agreement or material breach of any warranty, covenant or agreement made or to
be performed by Owner pursuant to this Agreement;
(b) the failure of the originator of any Mortgage Loan to originate such
Mortgage Loan in accordance with applicable law;
19
<PAGE> 23
(c) the failure of any prior servicer to service the Mortgage Loan in
accordance with any applicable law;
(d) any matters that occurred prior to the Transfer Date for the
Mortgage Loan involved or any incomplete or incorrect Mortgage Loan data,
records or information provided in connection with the origination or prior
servicing of any Mortgage Loan;
(e) Owner's failure to fulfill the servicing responsibilities not
assumed by Servicer or otherwise resulting from Owner preventing, hampering or
impeding Servicer's performance of its duties and responsibilities under this
Agreement; or
(f) Any litigation or claim with respect to the Mortgage Loans,
including any litigation relating to ARM Loans, not arising out of, or resulting
from, Servicer's failure to observe the terms and covenants of the Mortgage
Loans or this Agreement.
It is understood and agreed that the indemnification set forth in this
Section 6.7 shall survive termination of this Agreement. The Servicer shall
promptly notify the Owner if a claim is made by a third party with respect to
this Agreement or the Mortgage Loans, and the Servicer at its option may assume
the defense of any such claim. The Owner shall, within ten (10) Business Days
of receiving a statement of amounts advanced by the Servicer in connection with
the defense of any such claim, reimburse the Servicer for all amounts advanced
by it pursuant to this Section 6.7, except to the extent that such claim is
caused by the Servicer's failure to service the Mortgage Loans in compliance
with the terms of this Agreement.
Section 6.8 Fidelity Bond and Errors Omissions Insurance
Servicer agrees to obtain and maintain at its expense and shall keep in
full force and effect throughout the term of this Agreement, a blanket fidelity
bond and an errors and omissions insurance policy covering its officers and
employees and other persons acting on its behalf in connection with the
servicing activities hereunder. The amount of coverage shall be at least equal
to the corresponding amounts required by FNMA in the FNMA Servicing Guide or by
FHLMC in the FHLMC Sellers' and Servicers' Guide. In the event that any such
bond or policy ceases to be in effect, Servicer agrees to obtain a comparable
replacement bond or policy with equivalent coverage. No provision of this
Section shall operate to diminish or restrict or otherwise impair the Servicer's
responsibilities and obligations set forth in this Agreement.
Section 6.9 Indemnification by Servicer
Servicer shall indemnify and hold Owner harmless from and shall
reimburse Owner for any losses, damages, deficiencies, claims, penalties,
forfeitures, causes of action or expenses of any nature (including reasonable
attorneys' fees) incurred by Owner which arise out of or result from:
(a) The inaccuracy of any representation of Servicer contained in this
Agreement or material breach of any warranty, covenant or agreement made or to
be performed by Servicer pursuant to this Agreement;
(b) Any litigation or claim arising out of, or resulting from,
Servicer's failure to observe the terms and covenants of this Agreement;
20
<PAGE> 24
(c) The failure of the Servicer to service such Mortgage Loan in
accordance with applicable law.
It is understood and agreed that the indemnification set forth in this
Section 6.9 shall survive termination of this Agreement.
Section 6.10 Amendment
This Agreement may be amended from time to time by written Agreement
signed by the Owner and the Servicer.
Section 6.11 Governing Law
This Agreement shall be construed in accordance with the laws of the
State of California, without regard to the conflict of laws or rules thereof,
and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
Section 6.12 Notices
(a) All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by registered mail, postage prepaid, to (i) in case of the Servicer,
Advanta Mortgage Corp. USA, 16875 West Bernardo Drive, San Diego, California
92127, Attention: SVP Loan Servicing and (ii) in the case of the Owner, CMG
Mortgage Corp., 2855 E. Cottonwood Parkway, Suite 500, Salt Lake City, Utah
84121, Attention: Bill Reed, Senior Vice President or such other addressee as
the Owner or the Servicer may hereafter furnish.
(b) Any party may alter the address to which communications or copies
are to be sent by giving notice of such change of address in conformity with the
provisions of this Paragraph for giving of notice.
Section 6.13 Severability of Provisions
If any one or more of the covenants, agreements, provision or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions and terms of this Agreement and
shall in no way affect the validity or enforceability of the remaining
provisions of this Agreement.
Section 6.14 Document Deficiencies
The Servicer shall have no obligations to (i) address or any
deficiencies in Mortgage Loan documents transferred to it, (ii) seek any
document missing from any assignments relating to the transfer of any Mortgage
Loan to or from the Owner. The Servicer's responsibility is solely limited to
notifying the Owner as to any missing or document deficiency of which it becomes
aware.
21
<PAGE> 25
Section 6.15 Termination
(a) The obligations and responsibilities of the Servicer shall terminate
with respect to each particular Mortgage Loan upon the earlier of (i) the
execution of a Pooling and Servicing Agreement with respect to a securitization
involving the Mortgage Loans, but only with respect to the Mortgage Loans
covered by such Pooling and Servicing Agreement, (ii) the whole loan sale of any
Mortgaged Loans by Owner, but only with respect to the Mortgage Loans covered in
the whole loan sale agreement, (iii) the final payment or other liquidation of
the last Mortgage Loan or (iv) the disposition of all property acquired upon
realization of any Mortgage Loan and the remittance of all funds due thereunder.
(b) Either Owner or Servicer may, at any time and in its sole
discretion, terminate this Agreement upon at least ninety (90) days prior
written notice to the other party; provided if the Owner terminates this
Agreement, Owner shall pay the Servicer a termination fee of $100.00 for each of
the terminated Mortgage Loans as of the last day of the related remittance
period. If Servicer terminates this Agreement it shall be liable to pay all
customary and reasonable costs associated with the transfer of Mortgage Loans to
a successor servicer.
(c) If Owner transfers servicing of some of the Mortgage Loans to
another servicer without terminating this Agreement, Owner shall pay to Servicer
$100.00 per Mortgage Loan transferred.
(d) The termination fees set forth in Sections 6.15(b) & (c) above shall
not be payable (i) upon termination of this Agreement pursuant to Section 6.4 or
(ii) with respect to those Mortgage Loans for which Servicer's obligations and
responsibilities under this Agreement terminate pursuant to Section 6.15(a)(i)
or (ii) concurrently with the engagement of Servicer as master servicer or
servicer pursuant to a pooling and servicing agreement or a whole loan sale
agreement. If payable, Servicer may deduct the termination fee from the
Collection Account on the first Remittance Date following the transfer of
servicing of each Mortgage Loan.
Section 6.16 Continued Cooperation
Servicer shall cooperate with Owner in Owner's future efforts to pool
the Mortgage Loans for securitization pursuant to which Servicer will be engaged
as a master servicer. Such cooperation shall include the Servicer's execution
and delivery of the appropriate pooling and servicing agreement. Servicer shall
furnish historical delinquency statistics evidenced by appropriate comfort
letters for Mortgage Loans serviced and administered by Servicer, estoppel
certificates and other information reasonably requested by Owner. Owner shall
bear all out-of-pocket expenses, including legal/professional expenses incurred
in connection with such securitizations and all other reasonable internal costs
of the Servicer for any services requested under this Section which are
significantly in excess of other services which the Servicer has agreed to
provide in this Agreement. Servicer shall have the right to withdraw from the
Collection Account all costs described in this Section 6.16.
Section 6.17 Master Servicer
(a) Owner and Servicer agree and acknowledge that the Owner shall
designate Servicer to act as master servicer for Mortgage Loans sold into a
securitization. Subsequent to the securitization, all Mortgage Loans which have
been securitized shall be serviced in
22
<PAGE> 26
accordance with the terms of the related pooling and servicing agreement,
including but not limited to, the Servicer's obligation to:
(i) pay delinquency advances;
(ii) pay servicing advances;
(iii) dispose of any REO property within applicable REMIC
provision guidelines; and
(iv) provide applicable reports to the trustee.
(b) As compensation for its activity pursuant to this Section 6.17,
Servicer shall be entitled to retain or withdraw from the related trust
Collection Account as to each Mortgage Loan, a Servicing Fee of 0.25%
(twenty-five basis points) per annum for each fixed rate Mortgage Loan and
0.37.5% (thirty-seven and one-half basis points) per annum for each adjustable
rate loan serviced pursuant to the related pooling and servicing agreement. The
Servicing Fee shall be calculated and payable monthly and shall be computed on
the basis of the same principal amount and for the period respecting which any
related interest payment on a Mortgage Loan is computed.
Section 6.18 Attorneys' Fees
In the event any party hereto brings an action to enforce any of the
provisions of this Agreement, the party against whom judgment is rendered in
such action shall be liable to the others for reimbursement of their costs,
expenses and attorneys' fees, including such costs, expenses and fees as may be
incurred on appeal.
Section 6.19 No Solicitation
Unless specifically permitted by the Owner in advance, the Servicer
agrees not to use Servicer's records to specifically solicit any Borrower with
respect to the refinancing of a Mortgage Loan. Servicer agrees that it will not
take, permit or cause any action to be taken, directly or indirectly, to solicit
any Borrower to refinance the related Mortgage Loan or to purchase any financial
or insurance product or service, without the prior written consent of Owner;
provided, however, all promotions of any kind directed to the general public
derived from marketing lists of any nature shall not be considered solicitation
pursuant to this section and shall be permitted provided such marketing list
shall not have been generated from Servicer's servicing records. Furthermore,
Servicer shall not be prohibited from responding to unsolicited requests or
inquiries made by a Mortgagor.
23
<PAGE> 27
Section 6.20 Counterparts
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers, all as of the day and year first
above mentioned.
Advanta Mortgage Corp. USA CMG Funding Corp.
By: BY: /s/ VICTOR CALANDRA
------------------------------- -------------------------------
Name: William P. Garland Name: Victor Calandra
Title: Senior Vice President Title: Senior Vice President,
Correspondent Lending
24
<PAGE> 28
Exhibit A
Schedule of Mortgage Loans
Prepared by:______________________________
Date: ______________________________
<TABLE>
<CAPTION>
Next Original Current Lien
Borrower Due Principal Principal Escrow Per Diem PMI Position
Loan # Name Date Balance Balance Balance Interest (Y/N) (1st/2nd)
- ------ ---- ---- ------- ------- ------- -------- ----- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
Totals __________________ ___________ ______________ __________________
Number of Loans Total UPB Total Escrow Total Interest
_____________________ Received by:____________________
Total Wire
(Total Wire = Total Escrow + Total Interest) Date:___________________________
<PAGE> 29
EXHIBIT B
Permitted Investments
(a) Direct general obligations of the United States or the obligation of
any agency or instrumentality of the United States fully and unconditionally
guaranteed, the timely payment or the guarantee of which constitutes a full
faith and credit obligation of the United States.
(b) Federal Housing Administration debentures.
(c) FHLMC participation certificates and senior debt obligations.
(d) Federal Home Loan Banks consolidated senior debt obligations.
(e) FNMA mortgage-backed securities (other than stripped mortgage
securities which are valued greater than par on the portion of unpaid principal)
and senior debt obligations.
(f) Federal funds, certificates of deposit, time and demand deposits;
and bankers acceptances (having original maturities of not more than 365 days)
of any domestic bank, the short-term debt obligations of which have been rated
A-1 or better by Standard & Poor's ("S&P") and P-1 by Moody's Investment
Services ("Moody's").
(g) Investment agreements approved by the Owner provided:
(i) The agreement is with a bank or insurance company which
has an unsecured, uninsured and unguaranteed obligation (or
claims-paying ability) rated Aa2 or better by Moody's and AA or
better by S&P, or is the lead bank of a parent bank holding
company with an uninsured, unsecured and unguaranteed obligation
meeting such rating requirements, and
(ii) Moneys invested thereunder may be withdrawn without any
penalty, premium or charge upon not more than one day's notice
(provided such notice may be amended or canceled at any time
prior to the withdrawal date), and
(iii) The agreement is not subordinated to any other
obligations of such insurance company or bank, and
(iv) The same guaranteed interest rate will be paid on any
future deposits made pursuant to such agreement, and
(v) The Owner receives an opinion of counsel that such
agreement is an enforceable obligation of such insurance company
or bank.
(h) Commercial paper (having original maturities of not more than 365
days) rated A-1 or better by S&P and P-1 or better by Moody's.
i
<PAGE> 30
(i) Investments in money market funds rated AAAm or AAAm-G by S&P and
P-1 by Moody's.
(j) Investments approved in writing by the Owner and Servicer.
Provided that no instrument described above is permitted to evidence
either the right to receive (a) only interest with respect to obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provided a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations;
and provided further, that no instrument described above may be purchased at a
price greater than par if such instrument may be prepaid or called at a price
less than its purchase price prior to stated maturity.
ii
<PAGE> 31
EXHIBIT C
SERVICING FILE
LOAN #: PREPARED BY:
------------------------------- ----------------------------
BORROWER NAME: DATE:
------------------------ -----------------------------------
LEFT SIDE
[ ] Loan Transaction History (if applicable)
[ ] Copy of Original Note
[ ] Copy of Original Recorded Security Instrument
(or copy of original RSI pending recordation)
[ ] Copy of Riders (if applicable)
[ ] ARM Rider
[ ] Balloon Rider
[ ] Prepayment Rider
[ ] Copy of W-9s
[ ] Copy of TransAmerica Tax Contract Transfer Notice
(if applicable)
[ ] Notice of Impounds
[ ] Initial Escrow Disclosure
[ ] Escrow Information Worksheet
[ ] PMI Certificate
[ ] Evidence of Hazard Insurance
(60 or 90 day Binder, Policy or Declarations Page)
[ ] Pinnacle Life of Loan Flood Certification/Determination
[ ] Evidence of Flood Insurance (if applicable)
[ ] Copy of Truth-In-Lending Disclosure (Reg Z)
[ ] Copy of Good Faith (itemization of amount financed)
[ ] Copy of HUD-1
RIGHT SIDE
[ ] Typed copy of 1003 (for all borrowers)
[ ] Copy of Appraisal (w/o pictures)
[ ] Copy of Borrower Notice of Servicing Transfer Letter
[ ] Copy of Lender Loss Payee Letter
(Hazard & Flood)
[ ] Copy of PMI Transfer Notice Letter
[ ] Copy of Original Title Policy
(or copy of Prelim until original Title Policy is rec'd.)
[ ] Verification of First Mortgage
(if loan is a second mortgage)
PLACE DOCUMENTS ON THE LEFT AND RIGHT SIDES OF THE FILE IN THE ABOVE
STACKING ORDER, USING SIDE TAB FOLDERS WITH DOUBLE ACCOS.
<PAGE> 1
EXHIBIT 10.7
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-1
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
SERVICING AGREEMENT
Dated and effective as of ____________ 1, 1995
between
NOMURA ASSET CAPITAL CORPORATION
(Owner)
and
(Servicer)
Fixed Rate and Adjustable Rate
Residential Mortgage Loans
<PAGE> 2
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-2
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01. Representations, Warranties and Covenants of the Servicer .......... 9
Section 2.02. Representations, Warranties and Covenants of the Owner ............. 10
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Servicer to Act as Servicer ........................................ 12
Section 3.02. Liquidation of Mortgage Loans ...................................... 13
Section 3.03. Collection of Mortgage Loan Payments ............................... 13
Section 3 04. Establishment of Custodial Account, Deposits in Custodial Account .. 13
Section 3.05. Withdrawals From the Custodial Account ............................. 15
Section 3.06. Establishment of Escrow Account; Deposits in Escrow Account ........ 16
Section 3.07. Withdrawals From Escrow Account .................................... 17
Section 3.08. Payment of Taxes, Insurance and Other Charges ...................... 18
Section 3.09. Transfer of Accounts ............................................... 18
Section 3.10. Maintenance of Hazard Insurance and Primary Mortgage Insurance ..... 18
Section 3.11. Fidelity Bond; Errors and Omissions Insurance ...................... 20
Section 3.12. Title, Management and Disposition of REO Property .................. 21
Section 3.13. Liquidation Reports ................................................ 22
</TABLE>
<PAGE> 3
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-3
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 3.14. Possession of Mortgage Files by Servicer ........................... 22
Section 3.15. Superior Liens ..................................................... 22
ARTICLE IV
PAYMENTS TO THE OWNER
Section 4.01. Distributions ...................................................... 24
Section 4.02. Statements to the Owner ............................................ 24
Section 4.03. Advances by the Servicer ........................................... 25
Section 4.04. Additional Reports to the Owner .................................... 26
ARTICLE V
GENERAL SERVICING PROCEDURES
Section 5.01. Assumption Agreements .............................................. 27
Section 5.02. Satisfaction of Mortgages and Release of Mortgage Files ............ 27
Section 5.03. Servicing Compensation ............................................. 28
Section 5.04. Annual Statement as to Compliance .................................. 28
Section 5.05. Annual Independent Public Accountants' Servicing Report ............ 28
Section 5.06. Owner's Right to Examine Servicer Records .......................... 28
Section 5.07. Possession of Servicing Files ...................................... 29
ARTICLE VI
REPORTS TO BE PREPARED BY SERVICER
Section 6.01. Servicer Shall Provide Access and Information as Reasonably Required 30
Section 6.02. Financial Statements ............................................... 30
ARTICLE VII
THE SERVICER
Section 7.01. Indemnification; Third Party Claims ................................ 31
</TABLE>
<PAGE> 4
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-4
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 7.02. Merger or Consolidation of the Servicer ............................ 31
Section 7 03. Limitation on Liability of the Servicer and Others ................. 32
Section 7.04. Servicer Not to Resign ............................................. 32
ARTICLE VIII
DEFAULT
Section 8.01. Events of Default .................................................. 33
Section 8.02. Waiver of Defaults ................................................. 34
ARTICLE IX
TERMINATION
Section 9.01. Termination ........................................................ 35
Section 9.02. Termination Without Cause .......................................... 35
Section 9.03. Termination With Cause ............................................. 35
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Successor to the Servicer ......................................... 36
Section 10.02. Amendment ......................................................... 37
Section 10 03. Recordation of Agreement .......................................... 37
Section 10.04. Duration of Agreement ............................................. 37
Section 10.05. Governing Law ..................................................... 37
Section 10.06. General Interpretive Principles ................................... 37
Section 10.07. Reproduction of Documents ......................................... 38
Section 10.08. Notices ........................................................... 38
Section 10.09. Severability of Provisions ........................................ 38
Section 10.10. No Partnership .................................................... 39
</TABLE>
<PAGE> 5
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-5
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 10.11. Execution; Successors and Assigns ................................. 39
Section 10.12. Reconstitution Agreements ......................................... 39
</TABLE>
<PAGE> 6
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-6
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
EXHIBITS
<TABLE>
<S> <C>
EXHIBIT A CONTENTS OF MORTGAGE FILES
EXHIBIT B CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT C CUSTODIAL ACCOUNT LETTER AGREEMENT
EXHIBIT D ESCROW ACCOUNT CERTIFICATION
EXHIBIT E ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT F CUSTODIAL AGREEMENT
EXHIBIT G MORTGAGE LOAN SCHEDULE
EXHIBIT H FORM OF DELINQUENCY REPORT (LOAN-BY-LOAN)
EXHIBIT I FORM OF DELINQUENCY REPORT (AGGREGATE)
EXHIBIT J FORM OF STATUS DETAIL REPORT
EXHIBIT K FORM OF FORECLOSURE LOG
EXHIBIT L FORM OF FINANCIAL REPORT
</TABLE>
<PAGE> 7
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-7
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
This is a Servicing Agreement dated and effective as of __________1 , 1995,
and is executed between Nomura Asset Capital Corporation, as Owner
(hereinafter, the "Owner") and _________________________, as servicer (the
"Servicer").
WHEREAS, the Owner is the owner of certain residential, single-family,
first and second lien mortgage and deed of trust loans (the "Mortgage Loans")
identified on the Mortgage Loan Schedule attached hereto, as revised from time
to time; and
WHEREAS, the Owner desires to have the Servicer service and administer the
Mortgage Loans for the Owner and the Servicer desires to service and administer
the Mortgage Loans for the Owner in accordance with the terms and conditions as
set forth herein; and
WHEREAS, the Owner and the Servicer wish to prescribe the management,
servicing and control of the Mortgage Loans:
THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the Owner and the Servicer agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
"Accounting Cut-off Date": With respect to each Remittance Date, the last
Business Day of the month immediately preceding the related Remittance Date.
"Adjustment Date": With respect to each adjustable rate Mortgage Loan, the
date set forth in the related Mortgage Note on which the Mortgage Interest Rate
may change and each annual or semi-annual anniversary of such date, or such
other dates described in the related Mortgage Note as dates on which the
Mortgage Interest Rate may change. The first Adjustment Date as to each
adjustable rate Mortgage Loan is set forth in the Mortgage Loan Schedule.
"Advance": As to any Mortgage Loan, an advance made by the Servicer
pursuant to Section 4.03.
"Agreement": This Servicing Agreement, including all exhibits hereto, and
all amendments hereof and supplements hereto.
"Assignment of Mortgage": An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to
reflect of record the sale of the related Mortgage Loan to the Owner.
"Appraised Value": As to any Mortgaged Property, the lesser of (i) the
appraised value of such Mortgaged Property based upon the appraisal made at the
time of the origination of the related Mortgage Loan, and (ii) the sales price
of the Mortgaged Property at such time of organization, except in the case of a
Mortgaged
<PAGE> 8
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL EXHIBIT M
PAGE M-8
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
Property securing a refinanced or modified Mortgage Loan, as to which such term
shall mean either the appraised value as determined (if no appraisal is
obtained) above or the appraisal value determined in an appraisal at the time
of refinancing or modification, as the case may be.
"Business Day": Any day other than (i) a Saturday or Sunday, or (ii) a day
on which banking or savings and loan institutions in ______________________ or
New York, New York are authorized or obligated by law or executive order to be
closed.
"Custodial Account": The separate account or accounts created and
maintained pursuant to Section 3.04.
"Custodial Agreement". The agreement for the retention of each Mortgage
Note, Mortgage, Assignment of Mortgage and other documents, which agreement is
initially in the form annexed hereto as Exhibit F.
"Custodian": The custodian under the Custodial Agreement, or its successor.
"Customary Servicing Procedures": Procedures (including collection
procedures) that the Servicer customarily employs and exercises in servicing
and administering mortgage loans for its own account and, in the absence of
anything in this Agreement to the contrary, which are in accordance with the
servicing procedures for Mortgage Backed Securities pursuant to the FNMA
Selling and Servicing Guide, Special Servicing Option, under the
Scheduled/Scheduled accounting and reporting method.
"Determination Date": With respect to each Remittance Date, the second
Business Day prior to such Remittance Date.
"Due Date": The day of the month on which each Monthly Payment is due on a
Mortgage Loan, exclusive of any days of grace.
"Due Period": With respect to each Remittance Date, the applicable Due
Period shall be the period beginning on the second day of the month preceding
the month of such Remittance Date, and ending on the first day of the month of
such Remittance Date.
"Eligible Account": Either (i) an account or accounts maintained with a
depository institution acceptable to FNMA as a depository for custodial
accounts at the time any amounts are held in deposit therein, the deposits of
which are at all times insured by the FDIC to the limits established by such
corporation, (ii) an account or accounts the deposits in which are at all times
fully insured by the FDIC or (iii) a trust account or accounts maintained with
a federal or state chartered depository institution or trust company with trust
powers acting in its fiduciary capacity. Each such account must be maintained
at a banking institution rated at least "75" by IDC or C/D by Thompson
Bankwatch. Eligible Accounts may bear interest.
"Escrow Account": The separate account or accounts created and maintained
pursuant to Section 3.06.
"Escrow Payments": The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard
insurance premiums and other payments required to be escrowed by the Mortgagor
with the mortgage pursuant to any Mortgage Loan.
<PAGE> 9
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-9
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
"Event of Default": Any one of the conditions or circumstances
enumerated in Section 8.01.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"FHLMC": The Federal Home Loan Mortgage Corporation or any successor.
"Fidelity Bond": A fidelity bond to be obtained by the Servicer
pursuant to Section 3.11.
"FNMA": The Federal National Mortgage Association or any successor.
"Gross Margin": With respect to each adjustable rate Mortgage Loan,
the fixed amount set forth in the related Mortgage Note to be added to the
Index on each Adjustment Date in accordance with the terms of the related
Mortgage Note, which fixed amount is used to determine the Mortgage Interest
Rate for such Mortgage Loan. The Gross Margin as to each Mortgage Loan will be
set forth on the Mortgage Loan Schedule.
"Index": With respect to each adjustable rate Mortgage Loan, the
index used for calculating the related Mortgage Interest Rate as set forth in
the Mortgage Loan Schedule.
"Liquidation Proceeds": Cash (other than REO Disposition Proceeds)
received in connection with the liquidation of a defaulted Mortgage Loan whether
through the sale or assignment of the Mortgage Loan, trustee's sale, foreclosure
sale, sale of the Mortgaged Property or otherwise.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, the
original principal balance of such Mortgage Loan divided by the Appraised Value
of the related Mortgaged Property.
"Maximum Rate": With respect to each adjustable rate Mortgage Loan
the amount set forth in the Mortgage Note as the maximum Mortgage Interest
Rate thereunder.
"Minimum Rate": With respect to each adjustable rate Mortgage Loan,
the amount set forth in the Mortgage Note as the minimum Mortgage Interest Rate
thereunder.
"Monthly Payment": The scheduled monthly payment of principal and
interest on a Mortgage Loan which is payable by a Mortgagor under the related
Mortgage Note.
"Mortgage": The mortgage, deed of trust or other instrument creating
a first or second lien on or first or second priority ownership interest in an
estate in fee simple or a leasehold interest in real property securing a
Mortgage Note.
"Mortgage File": The items pertaining to a particular Mortgage Loan
which are identified on Exhibit A hereto and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
"Mortgage Interest Rate": With respect to any Mortgage Loan the
annual rate, which in the case of adjustable rate Mortgage Loans may change
from time to time, at which interest accrues on such Mortgage Loan in accordance
with the provisions of the related Mortgage Note.
<PAGE> 10
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-10
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
"Mortgage Loan": An individual mortgage loan which is the subject of this
Agreement, each mortgage loan subject to this Agreement from time to time being
identified on the Mortgage Loan Schedule, including without limitation the
contents of the Mortgage File, the Monthly Payments, Principal Prepayments,
Liquidation Proceeds, insurance proceeds, condemnation proceeds, REO
Disposition Proceeds and all other rights, benefits, proceeds and obligations
arising from or in connection with such mortgage loan. To the extent applicable
and as the context so permits, any and all references to "Mortgage Loan" or
"Mortgage Loans" herein shall be deemed to include any Mortgage Loan that has
become an REO Property.
"Mortgage Loan Remittance Rate": As to each Mortgage Loan, the annual rate
of interest remitted to the Owner, which shall be equal to the Mortgage
Interest Rate minus the applicable Servicing Fee Rate.
"Mortgage Loan Schedule": The schedule of Mortgage Loans attached hereto
as Exhibit G, as supplemented and amended from time to time, such schedule
setting forth the information as to each Mortgage Loan in form and substance
agreed to by the Servicer and the Owner.
"Mortgage Note": The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
"Mortgaged Property": The real property securing repaying of the debt
evidenced by a Mortgage Note, consisting of property considered to be real
estate under the law of the state in which it is located.
"Mortgagor": The obligor or obligors on a Mortgage Note.
"Nonrecoverable Advance": Any Advance or Servicing Advance which, in the
Servicer's good faith determination, if made with respect to a Mortgage Loan
would not be ultimately recoverable from any related payments or collections
on, or with respect to, such Mortgage Loan, as evidenced by an Officer's
Certificate detailing the reason for such determination and containing an
appraisal or comparative market analysis of the value of the related Mortgaged
Property.
"Officer's Certificate": A certificate signed by the President, a Vice
President, the Treasurer, the Secretary, an Assistant Treasurer or an Assistant
Secretary of the Servicer, and delivered to the Owner as required by this
Agreement.
"Opinion of Counsel": A written opinion of counsel, who may be in-house
counsel of the Servicer, reasonably acceptable to the Owner.
"Owner": Nomura Asset Capital Corporation and its successors and assigns.
"Periodic Rate Cap": The provision in each adjustable rate Mortgage Note
that limits permissible increases and decreases in the Mortgage Interest Rate
on any Adjustment Date.
"Permitted Instruments": Any one or more of the following:
direct obligations of, or obligations fully guaranteed as to principal and
interest by, the United States or any agency or instrumentality thereof,
provided such obligations are backed by the full faith and credit of the United
States;
<PAGE> 11
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-11
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
repurchase of obligations (the collateral for which is held by a third
party) with respect to any security described in clause (i) above, provided
that the long-term unsecured obligations of the party agreeing to repurchase
such obligations are at the time rated by each of the Rating Agencies in one of
its two highest long-term rating categories;
certificates of deposit, time deposits, demand deposits and bankers'
acceptances of any bank or trust company incorporated under the laws of the
United States or any state thereof or the District of Columbia, provided that
the short-term commercial paper of such bank or trust company (or, in the case
of the principal depository institution holding company, the long-term
unsecured debt obligations of the depository institution holding company) at
the date of acquisition thereof has been rated by each of the Rating Agencies
in its highest short-term rating;
commercial paper (having original maturities of not more than nine months)
of any corporation incorporated under the laws of the United States or any
state thereof or the District of Columbia which on the date of acquisition has
been rated by each of the Rating Agencies in its highest short-term rating; and
any other obligation or security acceptable to the Owner;
provided, that no such instrument shall be a Permitted Instrument if such
instrument evidences either (a) the right to receive interest only payments
with respect to the obligations underlying such instrument or (b) both
principal and interest payments derived from obligations underlying such
instrument where the principal and interest payments with respect to such
instrument provide a yield to maturity exceeding 120% of the yield to maturity
at par of such underlying obligation.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Principal Prepayment": Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date, net of
any prepayment penalty or premium thereon which is retained by the Servicer,
and is not accompanied by an amount of interest representing scheduled interest
due on any date or dates in any month or months subsequent to the month of
prepayment.
"Principal Prepayment in Full": Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
"Purchase Date": With respect to any Mortgage Loan, the date on which such
Mortgage Loan was acquired by the Owner.
"Rating Agency": Each of Standard & Poor's Ratings Group, Moody's
Investors Service, Inc. and Fitch Investors Service, Inc.
"Reconstitution Agreement": As defined in Section 10.12.
"REO Disposition": The final sale by the Servicer of a Mortgaged Property
acquired by the Servicer in foreclosure or by deed in lieu of foreclosure.
<PAGE> 12
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-12
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
"REO Disposition Proceeds": All amounts received with respect to an REO
Disposition pursuant to Section 3.12.
"REO Property": A Mortgaged Property acquired by the Servicer through
foreclosure, as described in Section 3.12.
"Remittance Date": The 25th day of each month, beginning ______ 1995, or
if such 25th day is not a Business Day, the immediately succeeding Business Day.
"Servicer" _________________, or its successor in interest or any
successor to the Servicer under this Agreement appointed as herein provided.
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Servicer of its
servicing obligations and not part of the Servicer's general and administrative
expenses, including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, (b) any enforcement or
judicial proceedings, including foreclosures, relating to Mortgage Loans or
Mortgaged Properties, (c) the management and liquidation of the Mortgaged
Property if the Mortgaged Property is acquired in satisfaction of the Mortgage,
and (d) the maintenance of hazard insurance, payment of property taxes
(including tax penalties) or mortgage insurance premiums.
"Servicing Fee": With respect to each Mortgage Loan, the amount of the
annual fee the Owner shall pay to the Servicer, which shall, for a period of
one full month, be equal to one-twelfth of the product of (a) the applicable
Servicing Fee Rate and (b) the outstanding principal balance of such Mortgage
Loan. Such fee shall be payable monthly, computed on the basis of the same
principal balance of such Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respecting which
any related interest payment on a Mortgage Loan is computed. The obligation of
the Owner to pay the Servicing Fee is limited to, and payable solely from, the
interest portion (including recoveries with respect to interest from
Liquidation Proceeds and REO Disposition Proceeds, to the extent permitted by
Section 3.05) of such Monthly Payments collected by the Servicer, or as
otherwise provided under Section 3.05.
"Servicing Fee Rate": With respect to each adjustable rate Mortgage Loan
___% per annum and with respect to each fixed rate Mortgage Loan___% per annum.
"Servicing File": With respect to each Mortgage Loan, items 10 through
45, inclusive, of the Mortgage File, including photocopies of the Mortgage Loan
documents retained by the Custodian, and any other documents necessary for the
Servicer to service the Mortgage Loans in accordance with the terms of this
Agreement.
"Stated Principal Balance": As to each Mortgage Loan and as of any date,
(i) the principal balance of the Mortgage Loan at the Purchase Date after
giving effect to payments of principal due on or before such date, whether or
not received, minus (ii) all amounts previously distributed to the Owner with
respect to the Mortgage Loan representing payments or recoveries of principal,
or advances in lieu thereof.
"Sub-Servicer": As defined in Section 3.01.
<PAGE> 13
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-12
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 2.01. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SERVICER.
The Servicer hereby represents and warrants to and covenants with the
Owner, as of the date hereof, that:
(a) The Servicer is a corporation duly organized, validly existing, and
in good standing under the laws of the State of __________ and has
all licenses necessary to carry on its business as now being conducted
and it or a Sub-Servicer is licensed, qualified and in good standing
in the states where the Mortgaged Property is located if the laws of
such state require licensing or qualification; the Servicer has
corporate power and authority to execute and deliver this Agreement
and to perform in accordance herewith; the execution, delivery and
performance of this Agreement by the Servicer and the consummation of
the transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and
enforceable obligation of the Servicer, subject to applicable law;
and all requisite corporate action has been taken by the Servicer to
make this Agreement valid and binding upon the Servicer in accordance
with its terms:
(b) No approval of the transactions contemplated by this Agreement from
any court or governmental agency or body having jurisdiction over the
Servicer is required or, if required, such approval has been or will,
prior to ________, 1995, be obtained:
(c) The consummation of the transactions contemplated by this Agreement
are in the ordinary course of business of the Servicer and will not
result in the breach of any term or provision of the charter or
by-laws of the Servicer or result in the breach of any term or
provision of, or conflict with or constitute a default under or
result in the acceleration of any obligation under, any agreement,
indenture or loan or credit agreement or other instrument to which
the Servicer or its property is subject, or result in the violation of
any law, rule, regulation, order, judgment or decree to which the
Servicer or its property is subject.
(d) There is no action, suit, proceeding or investigation pending or, to
the best knowledge of the Servicer, threatened against the Servicer
which, either individually or in the aggregate, would result in
any material adverse change in the business, operations, financial
condition, properties or assets of the Servicer, or in any material
impairment of the right or ability of the Servicer to carry on its
business substantially as now conducted or which would draw into
question the validity of this Agreement or the Mortgage Loans or of
any action taken or to be taken in connection with the obligations of
the Servicer contemplated herein, or which would materially impair
the ability of the Servicer to perform under the terms of this
Agreement.
(e) The Servicer does not believe, not does it have any reason or cause
to believe, that it cannot perform each and every covenant contained
in this Agreement either directly or through a Sub-Servicer;
<PAGE> 14
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-14
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
(f) The Servicer is an approved seller/servicer of mortgage loans for FNMA or
FHLMC, has the facilities, procedures and experienced personnel necessary
for the sound servicing of mortgage loans of the same type as the Mortgage
Loans. The Servicer is in good standing to sell and to service mortgage
loans for FNMA or FHLMC, and no event has occurred, including but not
limited to a change in insurance coverage, which would make the Servicer
unable to comply with FNMA OR FHLMC eligibility requirements or which
would require notification to either FNMA or FHLMC:
(g) Neither this Agreement nor any statement, report or other document
furnished or to be furnished pursuant to this Agreement or in connection
with the transaction contemplated hereby contains any untrue statement of
fact on the part of the Servicer.
(h) The collection practices to be used by the Servicer with respect to the
Mortgage Loans will be legal, proper, prudent and customary in the
mortgage servicing business.
(i) Each Mortgage Loan shall be serviced in accordance with the terms of the
related Mortgage Note and Mortgage and in accordance with applicable laws
and all interest rate adjustments shall be made in compliance with the
terms of the related Mortgage Note and Mortgage and all applicable laws;
and
(j) The Servicer has in effect, and shall cause to remain in effect for the
duration of this Agreement, all insurance policies and fidelity bonds
required to be maintained pursuant to Sections 3.10 and 3.11 hereof.
SECTION 2.02. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE OWNER.
The Owner hereby represents and warrants to and covenants with the
Servicer, as of the date hereof, that:
(a) The Owner is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware and has all licenses
necessary to carry on its business as now being conducted; the Owner has
corporate power and authority to execute and deliver this Agreement; the
execution, delivery and performance of this Agreement by the Owner and the
consummation of the transactions contemplated hereby have been duly and
validly authorized; this Agreement evidences the valid, binding and
enforceable obligation of the Owner, subject to applicable law; and all
requisite corporate action has been taken by the Owner to make this
Agreement valid and binding upon the Owner in accordance with its terms;
(b) No approval of the transactions contemplated by this Agreement from any
court or governmental agency or body having jurisdiction over the Owner is
required or, if required, such approval has been or will, prior to _______,
1995, be obtained;
(c) The consummation of the transactions contemplated by this Agreement are in
the ordinary course of business of the Owner and will not result in the
breach of any term or provision of the charter or by-laws of the Owner or
result in the breach of any term or provision of, or conflict with or
constitute a default under or result in the acceleration of any obligation
under, any agreement, indenture or loan or credit agreement or other
instrument to which the Owner or its
<PAGE> 15
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-15
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
property is subject, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Owner or its property
is subject; and
(d) There is no action, suit, proceeding or investigation pending or, to the
best knowledge of the Owner, threatened against the Owner which, either
individually or in the aggregate, would result in any material adverse
change in the business, operations, financial condition, properties or
assets of the Owner, or in any material impairment of the right or ability
of the Owner to carry on its business substantially as now conducted or
which would draw into question the validity of this Agreement or the
Mortgage Loans or of any action taken or to be taken or be taken in
connection with the obligations of the Owner contemplated herein, or which
would materially impair the ability of the Owner to perform under the terms
of this Agreement.
<PAGE> 16
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-16
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01. SERVICER TO ACT AS SERVICER.
The Servicer, as independent contract servicer, shall service and
administer the Mortgage Loans as servicer and shall have full power and
authority to do any and all things in connection with such servicing and
administration which the Servicer may deem necessary or desirable and
consistent with the terms of this Agreement.
Consistent with the terms of this Agreement and absent specific
instructions from the Owner, the Servicer may waive, modify or vary any term of
any Mortgage Loan or consent to the postponement of strict compliance with any
such term or in any manner grant indulgence to any Mortgagor provided, however,
that (unless the Mortgagor is in default with respect to the Mortgage Loan, or
such default is, in the judgment of the Servicer, imminent, and the Servicer
has the consent of the Owner) the Servicer may not, permit any modification
with respect to any Mortgage Loan that would change the Mortgage Interest Rate,
defer or forgive the payment of any principal or interest, change the
outstanding principal amount (except for actual payments of principal), make
any future advances or extend the final maturity date on such Mortgage Loan
with respect thereto. Without limiting the generality of the foregoing, the
Servicer is hereby authorized and empowered to execute and deliver on behalf of
itself, and the Owner, all instruments of satisfaction or cancellation, or of
partial or full release, discharge and all other comparable instruments, with
respect to the Mortgage Loans and the Mortgaged Properties. If reasonably
required by the Servicer, the Owner shall furnish the Servicer with such
limited powers of attorney and other documents necessary or appropriate to
enable the Servicer to carry out its servicing and administrative duties under
this Agreement.
The Servicer may perform its servicing responsibilities through agents
or independent contractors acting as sub-servicers hereunder (each, a
"Sub-Servicer"), but shall not thereby be released from any of its
responsibilities hereunder, and the Servicer shall diligently pursue all of its
rights against such Sub-Servicer. Notwithstanding any agreement with a
Sub-Servicer (a "Sub-Servicing Agreement"), any of the provisions of this
Agreement relating to agreements or arrangements between the Servicer and a
Sub-Servicer or reference to actions taken through a Sub-Servicer or otherwise,
the Servicer shall remain obligated and liable to the Owner for the servicing
and administering of the Mortgage Loans in accordance with the provisions of
this Agreement without diminution of such obligation or liability by virtue of
such Sub-Servicing Agreements or arrangements or by virtue of indemnification
from the Sub-Servicer for any acts and omissions and to the same extent and
under the same terms and conditions as if the Servicer alone were servicing and
administering the Mortgage Loans and any other transactions or services relating
to the Mortgage Loans involving the Sub-Servicer shall be deemed to be between
the Sub-Servicer and the Servicer alone and the Owner shall have no obligations,
duties or liabilities with respect to the Sub-Servicer including no obligation,
duty or liability of the Owner to pay Sub-Servicer's fees and expenses. For
purposes of this Agreement, the Servicer shall be deemed to have received
payments on Mortgage Loans when the Sub-Servicer has received such payments. The
Servicer shall pay all fees and expenses of the Sub-Servicer from its own funds,
the Servicing Fee or other amounts permitted to be retained by or reimbursed to
the Servicer hereunder.
In servicing and administering the Mortgage Loans, the Servicer shall
employ Customary Servicing Procedures.
<PAGE> 17
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-17
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
SECTION 3.02. LIQUIDATION OF MORTGAGE LOANS.
In the event that any payment due under any Mortgage Loan is not paid
when the same becomes due and payable, or in the event the Mortgagor fails to
perform any other covenant or obligation under the Mortgage Loan and such
failure continues beyond any applicable grace period, the Servicer shall take
such action as it shall deem to be in the best interest of the Owner and shall
not adversely affect the coverage of the related Insurance Agreement. In the
event that any payment due under any Mortgage Loan remains delinquent, the
Servicer shall commence foreclosure proceedings in accordance with Customary
Servicing Procedures, provided that prior to commencing foreclosure
proceedings, the Servicer shall notify the Owner in writing (which notice may
be given via facsimile) of the Servicer's intention to so do, and the Servicer
will not commence foreclosure proceedings if the Owner objects to such action
within two (2) Business Days of receiving such notice. In such connection, the
Servicer shall from its own funds make all necessary and proper Servicing
Advances unless such advance would be a Nonrecoverable Advance.
SECTION 3.03. COLLECTION OF MORTGAGE LOAN PAYMENTS.
Continuously from the date hereof until the principal and interest on
all Mortgage Loans are paid in full, the Servicer will proceed diligently to
collect all payments due under each of the Mortgage Loans when the same shall
become due and payable and will take reasonable care in ascertaining and
estimating annual ground rents, taxes, assessments, water rates, fire and hazard
insurance premiums and all other charges that, as provided in any Mortgage, will
become due and payable to the end that the installments payable by the
Mortgagors will be sufficient to pay such charges as and when they become due
and payable.
SECTION 3.04. ESTABLISHMENT OF CUSTODIAL ACCOUNT; DEPOSITS IN
CUSTODIAL ACCOUNT.
(a) The Servicer shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan separate and apart from any of its own
funds and general assets and shall establish and maintain one or more Custodial
Accounts (collectively, the "Custodial Account"), in the form of time deposit
or demand accounts, which may be interest bearing, titled "_____________________
in trust for the Owner under a Servicing Agreement dated as of _________________
1, 1995". Such Custodial Account shall be established with a commercial bank, a
savings bank or a savings and loan association. In any case, the Custodial
Account shall be an Eligible Account which may be drawn on by the Servicer. The
creation of any Custodial Account shall be evidenced by (a) a certification in
the form of Exhibit B hereto, in the case of an account established with the
Servicer, or (b) a letter agreement in the form of Exhibit C hereto, in the
case of an account held by a depository other than the Servicer. In either
case, a copy of such certification or letter agreement shall be furnished to
the Owner upon request.
(b) The Servicer shall deposit in the Custodial Account within two
(2) Business Days of receipt, and retain therein the following payments and
collections received or made with respect to the Mortgage Loans:
(i) all payments on account of principal, including Principal
Prepayments on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
<PAGE> 18
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-18
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
(iii) all Liquidation Proceeds and all REO Disposition Proceeds;
(iv) all proceeds received by the Servicer under any title, hazard,
primary mortgage guaranty or other insurance policy, including amounts required
to be deposited pursuant to Section 3.10, other than proceeds to be held in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with Customary Servicing
Procedures;
(v) all awards or settlements in respect of condemnation
proceedings or eminent domain affecting any Mortgaged Property which are not
released to the Mortgagor in accordance with Customary Servicing Procedures;
(vi) any amount required to be deposited in the Custodial Account
pursuant to Sections 3.04(c), 4.01, 4.03, 5.01 and 5.02; and
(vii) with respect to each Principal Prepayment in Full, an amount
(to be paid by the Servicer out of its own funds) which, when added to all
amounts allocable to interest received in connection with the Principal
Prepayment in Full, equals one month's interest on the amount of principal so
prepaid for the month of prepayment at the applicable Mortgage Loan Remittance
Rate; provided that, the Servicer's obligation to pay such amount in any one
month shall be limited to the aggregate Servicing Fee received by the Servicer
for such month.
(c) The Servicer may invest the funds in the Custodial Account in
Permitted Instruments, which, unless such Permitted Instruments are
withdrawable on demand, shall mature not later than two (2) Business Days prior
to the date on which such funds will be necessary to make withdrawals from the
Custodial Account for the purposes specified in Section 3.05 (except that if
such Permitted Instrument is an obligation of the institution that maintains
the Custodial Account, then such Permitted Instrument shall mature not later
than such withdrawal date) and shall not be sold or disposed of prior to its
maturity. In the absence of any such investment, the Servicer shall hold all
funds in the Custodial Account uninvested. All such Permitted Instruments shall
be made in the name of the Servicer in the trust capacity in which the
Custodial Account is held or its nominee. The Servicer shall receive as
additional servicing compensation an amount equal to all income and gain
realized from any such investment. The amount of any losses incurred in respect
of any such investments shall be deposited in the Custodial Account by the
Servicer out of its own funds immediately as realized.
(d) The requirements in this Section 3.04 for deposit in the
Custodial Account shall be exclusive, it being understood and agreed that,
without limiting the generality of the foregoing, payments in the nature of
late payment charges, prepayment charges and assumption fees need not be
deposited by the Servicer in the Custodial Account.
SECTION 3.05. WITHDRAWALS FROM THE CUSTODIAL ACCOUNT.
The Servicer shall, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(i) to make payments to the Owner in the amounts and in the manner
provided for in Section 4.01;
<PAGE> 19
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-19
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
(ii) to reimburse itself for unreimbursed Advances, the Servicer's
right to reimburse itself pursuant to this subclause (ii) being limited to
amounts received on the related Mortgage Loan which represent late payments of
principal and/or interest respecting which any such Advance was made;
(iii) to reimburse itself for unreimbursed Servicing Advances, for
unreimbursed Advances and for accrued and unpaid Servicing Fees, the Servicer's
right to reimburse itself pursuant to this subclause (iii) with respect to any
Mortgage Loan being limited to related Liquidation Proceeds, condemnation
proceeds, REO Disposition Proceeds, amounts representing proceeds of insurance
policies covering the related Mortgaged Property and such other amounts as may
be collected by the Servicer from the Mortgagor or otherwise relating to the
Mortgage Loan, it being understood that, in the case of any such reimbursement,
the Servicer's right thereto shall be prior to the rights of Owner;
(iv) to reimburse itself for expenses incurred by and reimbursable
to it pursuant to Section 7.01;
(v) to pay to itself any interest earned on funds deposited in the
Custodial Account, such withdrawal to be made monthly not later than the
Remittance Date;
(vi) to withdraw any amounts inadvertently deposited in the
Custodial Account or not required to be deposited therein; and
(vii) to clear and terminate the Custodial Account upon the
termination of this Agreement.
On each Remittance Date, the Servicer shall withdraw all funds from the
Custodial Account except for those amounts which, pursuant to Section 4.01, the
Servicer is not obligated to remit on such Remittance Date. The Servicer may
use such withdrawn funds only for the purposes described in this Section 3.05.
If after receipt and application of Liquidation Proceeds or REO
Disposition Proceeds in accordance with the foregoing the Servicer has
sustained an unrecovered loss in connection with a Servicing Advance or an
Advance, the amount of unrecovered loss shall be reimbursed to the Servicer
from amounts in the Custodial Account, or if such funds are insufficient, by
payment to the Servicer by the Owner within ten (10) Business Days of the
receipt of notice by such Owner of such amount. The Servicer shall reimburse
itself and demand reimbursement only if the Servicer has reasonably determined
that such reimbursements are in accordance with Customary Servicing Advances as
evidenced by an Officer's Certificate delivered to the Owner.
SECTION 3.06. ESTABLISHMENT OF ESCROW ACCOUNT; DEPOSITS IN ESCROW
ACCOUNT.
(a) The Servicer shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan which constitute Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one or more Escrow Accounts (collectively, the "Escrow
Account"), in the form of time deposit or demand accounts, which may be
interest bearing, titled, with respect to Escrow Payments actually held by the
Servicer, "_______________________ in trust for various Mortgagors, Taxes and
Insurance Escrow Funds". Such Escrow Account shall be established with a
commercial bank, a savings bank or a savings and loan association. The Escrow
Account shall be an Eligible Account and may be drawn on by the Servicer as
provided herein. The creation of any Escrow Account shall be evidenced by (a) a
certification in the form of Exhibit D hereto, in the case of an account
established with the Servicer, or (b) a letter agreement in the
<PAGE> 20
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-20
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
form of Exhibit E hereto, in the case of an account held by a depository other
than the Servicer. In either case, a copy of such certification or letter
agreement shall be furnished to the Owner upon request.
(b) The Services shall deposit in the Escrow Account within two (2)
Business Days of receipt or earlier if so required by law and retain therein:
(i) all Escrow Payments collected on account of the Mortgage Loans, for the
purpose of effecting timely payment of any such items as required under the
terms of this Agreement, and (ii) all amounts representing proceeds of any
hazard insurance policy which are to be applied to the restoration or repair of
any Mortgaged Property. The Servicer shall make withdrawals therefrom only in
accordance with Section 3.07 hereof. To the extent required by law, the Servicer
shall pay interest on escrowed funds to the Mortgagor notwithstanding that the
Escrow may not bear interest.
(c) The Servicer may invest the funds in an Escrow Account in
Permitted Instruments, which, unless such Permitted Instruments are withdrawable
on demand, shall mature not later than two (2) Business Days prior to the date
on which such funds will be necessary to make withdrawals from such Escrow
Account for the purposes specified in Section 3.07 (except that if such
Permitted Instrument is an obligation of the institution that maintains such
Escrow Account, then such Permitted Instrument shall mature not later than such
withdrawal date) and shall not be sold or disposed of prior to its maturity. In
the absence of any such investment, the Servicer shall hold all funds in the
Escrow Account uninvested. All such Permitted Instruments shall be made in the
name of the Servicer in the trust capacity in which the related Escrow Account
is held or its nominee. The Servicer shall receive as additional servicing
compensation an amount equal to all income and gain realized from any such
investment, to the extent in excess of amounts necessary to make any interest
payments required to be made to the applicable Mortgagor. The amount of any
losses incurred in respect of any such investment shall be deposited in the
related Escrow Account by the Servicer out of its own funds immediately as
realized.
SECTION 3.07. WITHDRAWALS FROM ESCROW ACCOUNT.
Withdrawals from the Escrow Account shall be made by the Servicer,
only (a) to effect timely payments of ground rents, taxes, assessments, water
rates, mortgage insurance premiums, fire and hazard insurance premiums or other
items constituting Escrow Payments for the related Mortgage, (b) to reimburse
the Servicer for any Servicing Advance made by the Servicer pursuant to Section
3.08 hereof with respect to a related Mortgage Loan, but only from amounts
received on the related Mortgage Loan which represent late payments or
collections of Escrow Payments thereunder, (c) to refund to any Mortgagor any
funds found to be in excess of the amounts required under the terms of the
related Mortgage Loan, (d) for transfer to the Custodial Account in accordance
with the terms of the related Mortgage Loan, (e) for application to restoration
or repair of the Mortgaged Property, for transfer to the Custodial Account in
accordance with the terms of the related Mortgage Loan, (e) for application to
restoration or repair of the Mortgaged Property, (f) to pay to the Mortgagor,
to the extent required by law, any interest paid on the funds deposited in the
Escrow Account, (g) to pay to itself any interest earned on funds deposited in
the Escrow Account (and not required to be paid to the Mortgagor), such
withdrawal to be made monthly not later than the Remittance Date, or (h) to
clear and terminate the Escrow Account upon the termination of this Agreement.
SECTION 3.08. PAYMENT OF TAXES, INSURANCE AND OTHER CHARGES.
With respect to each Mortgage Loan that provides for Escrow Payments,
the Servicer shall maintain accurate records reflecting the status of ground
rents, taxes, assessments, water rates and other charges
<PAGE> 21
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-21
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
which are or may become a lien upon the Mortgaged Property and the status of
fire and hazard insurance coverage and shall obtain, from time to time, all
bills for the payment of such charges (including renewal premiums) and shall
effect payment thereof prior to the applicable penalty or termination date and
at a time appropriate for securing maximum discounts allowable, employing for
such purpose deposits of the Mortgagor in the Escrow Account which shall have
been estimated and accumulated by the Servicer in amounts sufficient for such
purposes, as allowed under the terms of the Mortgage.
To the extent that a Mortgage does not provide for Escrow Payments,
the Servicer shall determine that any such payments are made by the Mortgagor
at the time they first become due. The Servicer assumes full responsibility for
the timely payment of all such bills and shall effect timely payments of all
such bills irrespective of each Mortgagor's faithful performance in the payment
of same of the making of the Escrow Payments and shall make advances from its
own funds to effect such payments.
SECTION 3.09. TRANSFER OF ACCOUNTS.
The Servicer may transfer the Custodial Account or the Escrow Account
to a different depository institution. Such transfer shall be made only upon
obtaining the consent of the Owner.
SECTION 3.10. MAINTENANCE OF HAZARD INSURANCE AND PRIMARY MORTGAGE
INSURANCE.
The Servicer shall cause to be maintained for each Mortgage Loan fire
and hazard insurance with extended coverage customary in the area where the
Mortgaged Property is located, in an amount which is as least equal to the
lesser of (i) the full insurable value of the Mortgaged Property and (ii) the
greater of (a) the outstanding principal balance owing on the Mortgage Loan and
(b) an amount such that the proceeds of such insurance shall be sufficient to
avoid the application to the Mortgagor or loss payee of any coinsurance clause
under the policy).
If the Mortgaged Property is in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards (and such flood insurance has been made available) the Servicer will
cause to be maintained a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of (i) the outstanding principal balance of the Mortgage Loan,
(ii) the full insurable value of the Mortgaged Property, or (iii) the maximum
amount of insurance available under the National Flood Insurance Act of 1968
and the Flood Disaster Protection Act of 1973, each as amended.
The Servicer shall also maintain on property acquired upon
foreclosure, or by deed in lieu of foreclosure, of any Mortgage Loan, fire and
hazard insurance with extended coverage in an amount which is at least equal to
the maximum insurable value of the improvements which are a part of such
property, liability insurance and, to the extent required and available under
the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act
of 1973, each as amended, flood insurance in an amount required above. Any
amounts collected by the Servicer under any such policies (other than amounts
to be deposited in the Escrow Account and applied to the restoration or repair
of the property subject to the related Mortgage or property acquired in
liquidation of the Mortgaged Loan, or to be released to the Mortgagor in
accordance with Customary Servicing Procedures) shall be deposited in the
Custodial Account, subject to withdrawal pursuant to Section 3.05. It is
understood and agreed that no earthquake or other additional insurance need be
required by the Servicer of any Mortgagor or maintained on property acquired in
respect of a Mortgage Loan, other than pursuant to such
<PAGE> 22
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-22
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
applicable laws and regulations as shall at any time be in force and shall
require such additional insurance. All policies required hereunder shall be
endorsed with standard mortgagee clauses with loss payable to the Servicer, and
shall provide for prior written notice of any cancellation, reduction in amount
or material change in coverage to the Servicer. The Servicer shall not
interfere with the Mortgagor's freedom of choice in selecting either his
insurance carrier or agent.
In the event that the Servicer shall obtain and maintain a blanket policy
insuring against fire and hazards of extended coverage on all of the Mortgage
Loans, then, to the extent such policy names the Servicer as loss payee and
provides coverage in an amount equal to the amount required under the preceding
paragraphs, and otherwise complies with the requirements of the preceding
paragraph, the Servicer shall be deemed conclusively to have satisfied its
obligations under the preceding paragraphs of this Section 3.10, it being
understood and agreed that such blanket policy may contain a deductible clause,
in which case the Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property a policy complying with the
preceding paragraphs, and there shall have been a loss which would have been
covered by such policy, deposit in the Custodial Account the difference, if any,
between the amount that would have been payable under a policy complying with
the preceding paragraph and the amount paid under such blanket policy. Upon the
request of the Owner, the Servicer shall cause to be delivered to the Owner a
certified true copy of such policy.
With respect to each Mortgage Loan which had a Loan-to-Value Ratio greater
than 85% at origination, and with respect to each Mortgage Loan which had a
Loan-to-Value Ratio between 80% and 85% at origination for which primary
mortgage insurance was required by the related originator, the Servicer will
maintain in full force and effect, a primary mortgage insurance policy issued by
a FNMA or FHLMC approved insurer qualified to do business in the jurisdiction in
which the related Mortgage Property is located which insures that portion of the
Mortgage Loan as required pursuant to the Nomura Residential Non-Conforming
Mortgage Loan Program. Such coverage may be terminated only if (a) the
Loan-to-Value Ratio of the related Mortgage Loan has been reduced to 75% or
less; (b) a request for termination of the primary mortgage insurance policy is
received from the Mortgagor; (c) the Mortgage Loan has a satisfactory payment
history for the twelve months preceding such termination; and (d) the Servicer
obtains, at the Mortgagor's expense, an updated appraisal indicating that the
loan-to-value ratio of the Mortgage Loan based on such appraisal and the then
current unpaid principal balance of the Mortgage Loan is 75% or less. The
Servicer will not cancel or refuse to renew any primary mortgage insurance
policy in effect on the Purchase Date that is required to be kept in force under
this Agreement unless a replacement primary mortgage insurance policy for such
cancelled or non-renewed policy is obtained from and maintained with an insurer
that is a FNMA or FHLMC approved insurer qualified to do business in the
jurisdiction in which the related Mortgaged Property is located. The Servicer
shall not take any action which would result in non-coverage under any
applicable primary mortgage insurance policy of any loss which, but for the
actions of the Servicer, would have been covered thereunder. In connection with
an assumption or substitution agreement entered into or to be entered into
pursuant to Section 5.01, the Servicer shall promptly notify the insurer under
the related primary mortgage insurance policy, if any, of such assumption or
substitution of liability in accordance with the terms of such policy and shall
take all actions which may be required by such insurer as a condition to the
continuation of coverage under the primary mortgage insurance policy. If such
primary mortgage insurance policy is terminated as a result of such assumption
or substitution of liability, the Servicer shall obtain a replacement primary
mortgage insurance policy as provided above at the Servicer's expense. Evidence
of such replacement coverage shall be forwarded to the Owner within thirty (30)
days of such cancellation.
<PAGE> 23
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-23
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
In connection with its activities as servicer, the Servicer agrees to
prepare and present, on behalf of itself and the Owner, claims to the insurer
under any primary mortgage insurance policy in a timely fashion in accordance
with the terms of such policies and, in this regard, to take such actions as
shall be necessary to permit recovery under any primary mortgage insurance
policy respecting a defaulted Mortgage Loan. Pursuant to Section 3.04, any
amounts collected by the Servicer under any primary mortgage insurance policy
shall be deposited in the Custodial Account, subject to withdrawal pursuant to
Section 3.05.
SECTION 3.11. FIDELITY BOND; ERRORS AND OMISSIONS INSURANCE.
The Servicer shall maintain with responsible companies, at its own
expense, a blanket fidelity bond and an errors and omissions insurance policy,
with broad coverage on all officers, employees or other persons acting in any
capacity requiring such persons to handle funds, money, documents or papers
relating to the Mortgage Loans ("Servicer Employees"). Any such fidelity bond
and errors and omissions insurance shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Servicer against losses,
including forgery, theft, embezzlement, fraud, errors and omissions, failure to
maintain any insurance policies required pursuant to this Agreement and
negligent acts of such Servicer Employees. Such fidelity bond shall also
protect and insure the Servicer against losses in connection with the release
or satisfaction of a Mortgage Loan without having obtained payment in full of
the indebtedness secured thereby. No provision of this Section 3.11 requiring
such fidelity bond and errors and omissions insurance shall diminish or relieve
the Servicer from its duties and obligations as set forth in this Agreement.
The minimum coverage under any such bond and insurance policy shall be at least
equal to the corresponding amounts required by FHLMC in the FHLMC Sellers' &
Servicers' Guide, as amended or restated from time to time. Upon the request of
the Owner, the Servicer shall cause to be delivered to the Owner a certified
true copy of such fidelity bond and insurance policy.
SECTION 3.12. TITLE, MANAGEMENT AND DISPOSITION OF REO PROPERTY.
In the event that title to the Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Servicer, as nominee for the Owner. The
Servicer agrees to take such actions as shall be necessary to hold the
Mortgaged Property in such capacity.
The Servicer shall manage, conserve, protect and operate each REO
Property solely for the purpose of its prompt disposition and sale. The
Servicer shall either itself or through an agent selected by the Servicer,
manage, conserve, protect and operate the REO Property in the same manner that
it manages, conserves, protects and operates other foreclosed property for its
own account, and in the same manner that similar property in the same locality
as the REO Property is managed. The Servicer shall attempt to sell the same on
such terms and conditions as the Servicer deems to be in the best interest of
the Owner.
The Servicer shall cause to be deposited within two (2) Business Days
of receipt in the Custodial Account all revenues received with respect to the
conservation and disposition of each REO Property and shall be permitted to
retain from such revenues funds necessary for the proper operation, management
and maintenance of the REO Property, including the cost of maintaining any
hazard insurance pursuant to Section 3.10 hereof and the fees of any managing
agent acting on behalf of the Servicer. Any disbursement related to the
preservation or restoration of a Mortgaged Property in excess of $1,000 shall
be made only with the written approval of the Owner.
<PAGE> 24
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL EXHIBIT M
PAGE M-24
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
The Servicer shall use its best efforts to dispose of the REO Property as
soon as possible and shall sell such REO Property in any event within one year
after title has been taken to such REO Property, unless the Servicer determines,
and gives an appropriate notice to the Owner, that a longer period is necessary
for the orderly liquidation of such REO Property. If a period longer than one
year is permitted under this Agreement and is necessary to sell any REO
Property, (i) the Servicer shall report monthly to the Owner as to the progress
being made in selling such REO Property and (ii) if, within the written consent
of the Owner, a purchase money mortgage is taken in connection with such sale,
such purchase money mortgage shall name the Servicer as mortgagee, and a
participation agreement among the Servicer and the Owner shall be entered into
with respect to such purchase money mortgage.
The disposition of REO Property shall be earned out by the Servicer only
with the prior written consent of the Owner (which consent shall not be
unreasonably withheld or delayed) and shall be made at such price, and upon such
terms and conditions, as the Servicer deems to be in the best interest of the
Owner. Notwithstanding the foregoing, in the event the sales price of an REO
Property is at least to 90% of the list price for such property the Owner's
prior written consent shall not be required. The proceeds of sale of the REO
Property shall be promptly deposited in the Custodial Account as soon as
practical thereafter and after the expenses of such sale have been paid.
Upon request, with respect to any REO Property, the Servicer shall furnish
to the Owner a statement covering the Servicer's efforts in connection with
the sale of that REO Property and any rental of the REO Property incidental to
the sale thereof for the previous month (together with an operating statement).
That statement shall be accompanied by such other information as the Owner
shall reasonably request.
SECTION 3.13 LIQUIDATION REPORTS.
The Servicer shall submit to the Owner monthly, at the time of the
remittance report required pursuant to Section 4.02, a liquidation report with
respect to each Mortgaged Property sold in a foreclosure sale and not previously
reported.
SECTION 3.14. POSSESSION OF MORTGAGE FILES BY SERVICER.
From time to time in connection with the servicing of the Mortgage Loans
hereunder, the Servicer may take possession of all or a portion of the
documents relating to the Mortgage Loans as may be held by the Owner or the
Custodian. Such documents shall be held in trust by the Servicer for the
benefit of the Owner as the owner thereof and the Servicer's possession of such
document or documents is at the will of the Owner for the sole purpose of
servicing the related Mortgage Loan, and such retention and possession by the
Servicer is in a custodial capacity only.
SECTION 3.15. SUPERIOR LIENS.
With respect to each Mortgage Loan which is secured by a second lien on the
related Mortgaged Property, the Servicer shall, for the protection of the
Owner's interest, file (or cause to be filed) of record a request for notice of
any action by a superior lienholder where permitted by local law and whenever
applicable state law does not require that a junior lienholder be named as a
party defendant in foreclosure proceedings in order to foreclose such junior
lienholder's equity of redemption. The Servicer shall also notify any superior
lienholder in
<PAGE> 25
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-25
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
writing of the existence of the Mortgage Loan and request notification of any
action (as described below) to be taken against the Mortgagor or the Mortgaged
Property by the superior lienholder.
If the Servicer is notified that any superior lienholder has
accelerated or intends to accelerate the obligations secured by the superior
lien, or has declared or intends to declare a default under the superior
mortgage or the promissory note secured thereby, or has filed or intends to
file an election to have the Mortgaged Property sold or foreclosed, the
Servicer shall take such actions as are consistent with Customary Servicing
Procedures to protect the interests of the Owner, and/or to preserve the
security of the related Mortgage Loan. The Servicer shall make a Servicing
Advance of the funds necessary to cure the default or reinstate the superior
lien, if the Servicer determines that such Servicing Advance would maximize the
net recovery to the Owner and would not be a Nonrecoverable Advance. The
Servicer shall thereafter take such action as is necessary to recover the
amount so advanced.
<PAGE> 26
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL EXHIBIT M
PAGE M-26
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
ARTICLE IV
PAYMENTS TO THE OWNER
SECTION 4.01. DISTRIBUTIONS.
On each Remittance Date the Servicer shall remit by wire transfer of
immediately available funds to the account designated in writing by Owner (a)
all amounts on deposit in the Custodial Account as of the close of business on
the preceding Determination Date (net of charges against or withdrawals from the
Custodial Account pursuant to Section 3.05), together with any additional
interest required to be deposited in the Custodial Account in connection with
Principal Payments in Full in accordance with Section 3.04(b)(vii), plus (b) all
amounts, if any, which the Servicer is obligated to distribute pursuant to
Section 4.03, minus (c) any amounts attributable to Principal Prepayments
received after the last day of the calendar month preceding the month of the
Remittance Date, which amounts shall be remitted on the following Remittance
Date, and minus (d) any amounts attributable to Monthly Payments collected but
due on a Due Date or Dates subsequent to the Due Period ending on the first day
of the month of the Remittance Date, which amounts shall be remitted on the
Remittance Date next succeeding the Due Period for such amounts.
With respect to any remittance received by the Owner after the Business
Day on which such payment was due, the Servicer shall pay to the Owner interest
on any such late payment at an annual rate equal to the rate of interest as is
publicly announced from time to time as its principal office by Chemical Bank,
New York, New York, as its prime lending rate, adjusted as of the date of each
change, plus three percentage points, but in no event greater than the maximum
amount permitted by applicable law. Such interest shall be paid by the Servicer
to the Owner on the date such late payment is made and shall cover the period
commencing with the Business Day on which such payment was due and ending with
the Business Day prior to which such payment is made, both inclusive. The
payment by the Servicer of any such interest shall not be deemed an extension
of time for payment or a waiver of any Event of Default by the Servicer.
SECTION 4.02. STATEMENTS TO THE OWNER.
By the tenth (10th) day of each month, or if such day is not a Business
Day, the immediately succeeding Business Day, the Servicer will furnish to the
Owner via its bulletin board system and by hard copy a statement setting forth
the following:
(i) the portion of the remittance that represents principal of the
Mortgage Loans, separately identifying (A) monthly amortization, (B) any
Principal Prepayments (other than any Principal Prepayment in Full) and
(C) any Principal Prepayments in Full;
(ii) the portion of the remittance that represents interest on the
Mortgage Loans;
(iii) the aggregate unpaid principal balance of the Mortgage Loans at
the close of business on the related Accounting Cut-off Date;
(iv) the portion of the remittance that represents Advances;
(v) the number of loans and unpaid principal balance of each Mortgage
Loan (a) delinquent one month, (b) delinquent two months, (c) delinquent
three or more months, or (d) as to which
<PAGE> 27
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-27
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
foreclosure proceedings have been commenced or which has become an REO
Property, together with reports of Exhibits H, I, J, K and L with respect
to each such loan or property, as of the last day of the immediately
preceding calendar month along with copies of all problem inspection
reports; and
(vi) the trial balance reconciling the actual and scheduled balances
of such Mortgage Loans.
In addition to the foregoing, upon request of the Owner at any time,
the Servicer shall prepare and deliver to the Owner a "trial balance" report
showing information as reasonably requested with respect to such Mortgage Loan
that is available on information systems maintained by the Servicer.
The Servicer shall prepare and file any and all reports required by
the Internal Revenue Service (the "IRS") covering Mortgagor interest payments
collected by the Servicer and any other reports incident to actions taken in
servicing the Mortgage Loans in accordance with IRS requirements.
SECTION 4.03. ADVANCES BY THE SERVICER.
On each Remittance Date, the Servicer shall deposit in the Custodial
Account an amount equal to all Monthly Payments (with interest adjusted to the
Mortgage Loan Remittance Rate) which were due on the Mortgage Loans during the
applicable Due Period and which were delinquent at the close of business on the
immediately preceding Determination Date, provided that, such obligation shall
cease with respect to any Mortgage Loan if the Servicer determines that such
advances would be Nonrecoverable Advances. The Servicer's obligation to make
such Advances as to any Mortgage Loan will continue through the last Monthly
Payment due prior to the payment in full of the Mortgage Loan, or through the
last Remittance Date prior to the Remittance Date for the distribution of all
Liquidation Proceeds and other payments or recoveries (including proceeds under
any title, hazard or other insurance policy, or condemnation awards) with
respect to the Mortgage Loan, provided, however, that such obligation shall
cease if title to the Mortgaged Property is acquired in foreclosure or by deed
in lieu of foreclosure.
The Servicer shall either (i) deposit in the Custodial Account from
its own funds an amount equal to the aggregate amount of such Advances, if any,
(ii) cause to be made an appropriate entry in the records of the Custodial
Account that amounts held for future distribution have been used by the
Servicer in discharge of any such Advance or (ii) make Advances in the form of
any combination of (i) or (ii) aggregating the total amount of Advances to be
made. Any amounts held for future distribution and so used shall be replaced by
the Servicer by deposit in the Custodial Account on or before any future
Remittance Date if funds in the Custodial Account on such Remittance Date shall
be less than payments to the Owner required to be made on the related Remittance
Date.
SECTION 4.04. ADDITIONAL REPORTS TO THE OWNER.
On the second (2nd) and sixteenth (16th) days of each month or if
such days are not Business Days, the next succeeding Business Day, the Servicer
shall furnish to the Owner via its bulletin board system a "master loan tape"
report showing, among other things, the actual balance of each Mortgage Loan
prepared as of the close of business on the last Business Day of the preceding
month and the close of business on the 15th day of such month, respectively.
<PAGE> 28
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-28
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
ARTICLE V
GENERAL SERVICING PROCEDURES
SECTION 5.01. ASSUMPTION AGREEMENTS.
The Servicer will use its best efforts, subject to requirements of
applicable law, to enforce any "due-on-sale" provision contained in any
Mortgage or Mortgage Note and to deny assumption by the person to whom the
Mortgaged Property has been or is about to be sold whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
liable on the Mortgage and Mortgage Note. When the Mortgaged Property has been
conveyed to the Mortgagor, the Servicer will, to the extent is has knowledge of
such conveyance, exercise its rights to accelerate the maturity of such
Mortgage Loan under the "due-on-sale" clause applicable thereto, provided,
however, the Servicer will not exercise such rights if prohibited by law from
doing so or if the exercise of such rights would impair or threaten to impair
any recovery under the related primary insurance policy, if any. If an
assumption fee is collected by the Servicer for entering into an assumption
agreement, such fee will be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, the outstanding principal
amount, the Monthly Payment and the Mortgage Interest Rate of the related
Mortgage Note shall not be changed, and the term of the Mortgage Loan will not
be increased or decreased. If an assumption is allowed pursuant to this Section
5.01, the Servicer with the prior consent of the private mortgage guaranty
insurer, if applicable, is authorized to enter into a substitution of liability
agreement with the purchaser of the Mortgaged Property pursuant to which the
original Mortgagor is released from liability and the purchaser of the
Mortgaged Property is substituted as Mortgagor and becomes liable under the
Mortgage Note.
SECTION 5.02. SATISFACTION OF MORTGAGES AND RELEASE OF MORTGAGE
FILES.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer will obtain the portion of the
Mortgage File that is in the possession of the Custodian and prepare and
process any required satisfaction or release of the Mortgage. The cost of
recording such satisfaction or release shall be reimbursable by the Owner.
In the event the Servicer grants a satisfaction or release of a
Mortgage without either having obtained payment in full of the indebtedness
secured by the Mortgage or the Owner's prior written approval, or should the
Servicer otherwise prejudice any right the Owner may have under the mortgage
instruments, the Servicer, upon written demand of the Owner, shall remit to the
Owner the Stated Principal Balance of the related Mortgage Loan together with
accrued and unpaid interest thereon at the Mortgage Loan Remittance Rate up to
the date of such remittance by deposit thereof in the Custodial Account. The
Servicer shall maintain the Fidelity Bond as provided for in Section 4.11
insuring the Servicer against any loss it may sustain with respect to any
Mortgage Loan not satisfied in accordance with the procedures set forth herein.
SECTION 5.03. SERVICING COMPENSATION.
As compensation for its services hereunder, the Servicer shall be
entitled to retain from interest payments on the Mortgage Loans the applicable
Servicing Fee. Additional servicing compensation in the form of assumption
fees, prepayment charges or late payment charges and other incidental fees or
charges shall be
<PAGE> 29
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-29
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
retained by the Servicer. The Servicer shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder and shall
not be entitled to reimbursement therefor except as specifically provided for
herein.
SECTION 5.04. ANNUAL STATEMENT AS TO COMPLIANCE
The Servicer will deliver to the Owner, on or before March 15 of
each year beginning March 15, 1996, an Officers' Certificate stating that (i)
the Servicer has fully complied with the provisions of Article III, (ii) a
review of the activities of the Servicer during the preceding calendar year and
of performance under this Agreement has been made under such officer's
supervision, and (iii) to the best of such officer's knowledge, based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof and the action being taken by the Servicer to cure
such default.
SECTION 5.05. ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT
On or before March 15 of each year beginning March 15, 1996, the
Servicer at its expense shall cause a firm of independent public accountants
which is a member of the American Institute of Certified Public Accountants to
furnish a statement to the Owner to the effect that such firm has, with respect
to the Servicer's overall servicing operations (i) performed applicable tests
in accordance with the compliance testing procedures as set forth in Appendix 3
of the Audit Guide for Audits of HUD Approved Nonsupervised Mortgagees or (ii)
examined such operations in accordance with the requirements of the Uniform
Single Audit Program for Mortgage Bankers, and in either case stating such
firm's conclusions relating thereto.
SECTION 5.06. OWNER'S RIGHT TO EXAMINE SERVICER RECORDS
The Owner shall have the right, at all reasonable times and as often
as reasonably required to examine and audit any and all of the books, records
or other information of the Servicer whether held by the Servicer or by another
on behalf of the Servicer, which may be relevant to the performance or
observance by the Servicer of the terms, covenants or conditions of this
Agreement. Any out-of-pocket expenses incurred by the Servicer in connection
with such audits shall be paid by the Owner.
SECTION 5.07. POSSESSION OF SERVICING FILES
The ownership of each Mortgage Note, each Mortgage and the contents
of each related Servicing File is hereby absolutely vested in the Owner and the
ownership of all records and documents pertaining to each Mortgage Loan
prepared by or which come into the possession of the Servicer shall immediately
vest in the Owner.
The portion of each Servicing File held by the Servicer in accordance
with the provisions of this Agreement are and shall be held, in original or
legible microfiche form, in trust by the Servicer for the benefit of the Owner.
The Servicer's possession of such documents and any other Mortgage File
documents which may come into the Servicer's possession shall be at the will of
the Owner for the sole purpose of servicing the related Mortgage Loan and such
possession by the Servicer shall be in a custodial capacity only.
The Servicing File and the portion of each Mortgage File held by the
Servicer shall be appropriately marked to clearly reflect the Owner's interest
in the related Mortgage Loan.
<PAGE> 30
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-30
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
The Servicer shall release its custody of any Mortgage File documents
only in accordance with written instructions from the Owner, provided, however,
that if such release is required as incidental to the Servicer's servicing of a
Mortgage Loan, written instructions shall not be required as a condition to
such release.
<PAGE> 31
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-31
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
ARTICLE VI
REPORTS TO BE PREPARED BY SERVICER
SECTION 6.01. SERVICER SHALL PROVIDE ACCESS AND INFORMATION AS
REASONABLY REQUIRED.
The Servicer shall provide to the Owner and its agents, accountants or
designees, access to any documentation regarding the Mortgage Loans without
charge, but only upon advance notice and reasonable request, during normal
business hours and at the offices of the Servicer.
In addition,, the Servicer shall furnish to the Owner, upon advance
notice and reasonable request, during the term of this Agreement such periodic,
special or other reports or information, whether or not provided for herein, as
shall be necessary, reasonable or appropriate with respect to the purposes of
this Agreement. All such reports or information shall be provided by and in
accordance with all reasonable instructions and directions the Owner may
require. Any out-of-pocket expenses incurred by the Servicer in connection with
furnishing information not generally furnished by the Servicer in its normal
course of business as servicer shall be paid by the Owner. The Servicer agrees
to execute and deliver all such instruments and take all such action as the
Owner, from time to time, may reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 6.02. FINANCIAL STATEMENTS.
The Servicer understands that, in connection with marketing the Mortgage
Loans, the Owner may make available to any prospective owner a Consolidated
Statement of Operations of the Servicer for the most recently completed three
(3) fiscal years for which such a statement is available as well as a
Consolidated Statement of Condition at the end of the last two fiscal years
covered by such Consolidated Statement of Operations. The Servicer will also
make available any comparable interim statements to the extent any such
statements have been prepared. The Servicer, if it has not already done so,
agrees to promptly furnish to Owner copies of the statements specified above.
The Servicer also agrees to make available, upon advance notice and
reasonable request, to any prospective owner a knowledgeable financial or
accounting officer for the purpose of answering questions respecting recent
developments affecting the Servicer and to permit any prospective owner to
inspect the Servicer's servicing facilities for the purpose of satisfying such
prospective owner that the Servicer has the ability to service the Mortgage
Loans in accordance with this Agreement and any applicable Reconstitution
Agreement.
<PAGE> 32
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-32
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
ARTICLE VII
THE SERVICER
SECTION 7.01. INDEMNIFICATION; THIRD PARTY CLAIMS.
The Servicer agrees to indemnify and hold harmless the Owner against any
and all claims, losses, penalties, fines, forfeitures, legal fees and related
costs, judgments, and any other costs, fees and expenses that the Owner may
sustain in any way related to the failure of the Servicer to perform its duties
and service the Mortgage Loans in strict compliance with the terms of this
Agreement. The Servicer shall immediately notify the Owner if a claim is made by
a third party with respect to this Agreement or the Mortgage Loans, and the
Servicer shall assume (with the consent of the Owner) the defense of any such
claim and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against the Servicer or the Owner in respect of such claim. The Owner shall
promptly reimburse the Servicer for all amounts advanced by it pursuant to the
preceding sentence except when the claim is directly caused by the Servicer's
the failure to service and administer the Mortgage Loans in strict compliance
with the terms of this Agreement.
SECTION 7.02. MERGER OR CONSOLIDATION OF THE SERVICER.
The Servicer will keep in full effect its existence, rights and
franchises, as a corporation, and will obtain and preserve its qualification to
do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform its
duties under this Agreement.
Any Person into which the Servicer may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Servicer shall be a party, or any Person succeeding to substantially all of the
business of the Servicer (whether or not related to loan servicing), shall be
the successor of the Servicer hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that the successor or
surviving Person shall be an institution (i) having a GAAP net worth of not less
than $15,000,000, (ii) the deposits of which are insured by the FDIC or which
is a HUD-approved mortgagee whose primary business is in origination and
servicing of first mortgage loans and (ii) who is a FNMA or FHLMC approved
seller/servicer in good standing.
SECTION 7.03. LIMITATION ON LIABILITY OF THE SERVICER AND OTHERS.
Neither the Servicer nor any of the officers, employees or agents of the
Servicer shall be under any liability to the Owner for any action taken or for
refraining from the taking of any action in good faith in connection with the
servicing of the Mortgage Loans pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the Servicer
or any such person against any breach of warranties or representations made
herein, or failure to perform its obligations in strict compliance with any
standard of care set forth in this Agreement, or any liability which would
otherwise be imposed by reason of any breach of the terms and conditions of this
Agreement. The Servicer and any officer, employee or agent of the Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Servicer
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duty, to service the Mortgage Loans in
<PAGE> 33
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-33
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
accordance with this Agreement and which in its opinion may involve it in any
expenses or liability; provided, however, that the Servicer may, with the
consent of the Owner, undertake any such action which it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for which
the Servicer shall be entitled to reimbursement therefor from the proceeds of
the Custodial Account, except when such expenses, costs and liabilities are
subject to the Servicer's indemnification hereunder.
SECTION 7.04. SERVICER NOT TO RESIGN.
The Servicer shall not assign this Agreement nor resign from the
obligations and duties hereby imposed on it except by mutual consent of the
Servicer and the Owner or upon the determination that the Services duties
hereunder are no longer permissible under applicable law and such incapacity
cannot be cured by the Servicer. Any such determination permitting the
resignation of the Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Owner, which Opinion of Counsel shall be in form and
substance acceptable to the Owner. No such resignation shall become effective
until a successor has assumed the Servicer's responsibilities and obligations
hereunder in accordance with Section 10.01 or, if no successor has been
appointed within ninety (90) days, then on the 90th day following the date of
the Servicer's resignation notice.
<PAGE> 34
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-34
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
ARTICLE VIII
DEFAULT
SECTION 8.01. EVENTS OF DEFAULT.
In case one or more of the following Events of Default by the Servicer
shall occur and be continuing, that is to say:
(i) any failure by the Servicer to remit to the Owner any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of two (2) Business Days after the date upon which written notice
of such failure, requiring the same to be remedied, shall have been given to the
Servicer by the Owner; or
(ii) failure by the Servicer to duly observe or perform, in any material
respect, any other covenants, obligations or agreements of the Servicer as set
forth in this Agreement or in the Custodial Agreement which failure continues
unremedied for a period of 60 days after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to the
Servicer by the Owner; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and such decree or order
shall have remained in force, undischarged or unstayed for a period of 60 days;
or
(iv) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or relating to the Servicer or
relating to all or substantially all of the Servicer's property; or
(v) the Servicer shall admit in writing its inability to pay its debts
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations;
then, and in each and every such case, so long as an Event of Default
shall not have been remedied, the Owner, by notice in writing to the Servicer,
may, in addition to whatever rights the Owner may have at law or equity to
damages, including injunctive relief and specific performance, commence
termination of all the rights and obligations of the Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof with respect
to the Owner. Upon receipt by the Servicer of a second written notice from the
Owner stating that it intends to terminate the Servicer as a result of such
Event of Default, all authority and power of the Servicer under this Agreement,
whether with respect to the Mortgage Loans or otherwise, shall pass to and be
vested in the successor appointed pursuant to Section 10.01. Upon written
request from the Owner, the Servicer shall prepare, execute and deliver to a
successor any and all documents and other instruments, place in such successor's
possession all Servicing Files, together with any other Mortgage File documents
in the Servicer's possession, and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, including, but not limited to, the transfer and endorsement or
assignment of the Mortgage Loans and related documents to the successor at the
Servicer's sole expense. The Servicer agrees to cooperate with the 0wner and
such successor in effecting the termination of the Servicer's responsibilities
and
<PAGE> 35
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-35
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
rights hereunder with respect to the Owner, including, without limitation, the
transfer of such successor for administration by it of all amounts which shall
at the time be credited by the Servicer to the Custodial Account or Escrow
Account or thereafter received with respect to the Mortgage Loans.
SECTION 8.02 WAIVER OF DEFAULTS.
The Owner may waive any default by the Servicer in the performance of
its obligations hereunder and its consequences. Upon any waiver of a past
default, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereto except to the extent expressly so waived.
<PAGE> 36
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-36
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
ARTICLE IX
TERMINATION
SECTION 9.01. TERMINATION.
This Agreement shall terminate upon either: (i) the later of the
distribution to the Owner of final payment or liquidation with respect to the
last Mortgage Loan (or advances of same by the Servicer), or the disposition of
all property acquired upon foreclosure or deed in lieu of foreclosure with
respect to the last Mortgage Loan and the remittance of all funds due
hereunder, or (ii) mutual consent of the Servicer and the Owner in writing.
SECTION 9.02. TERMINATION WITHOUT CAUSE.
The Owner may, at its sole option, terminate any rights the Servicer
may have hereunder without cause, upon 30 days written notice. Any such notice
of termination shall be in writing and delivered to the Servicer by registered
mail as provided in Section 10.09 of this Agreement. In connection with any
termination pursuant to this Section 9.02, the Servicer will cooperate with the
Owner in transferring the servicing of the related Mortgage Loans.
SECTION 9.03. TERMINATION WITH CAUSE.
The Owner may terminate any rights the Servicer may have hereunder
with cause at any time. In connection with any termination pursuant to this
Section 9.03, the Servicer will cooperate with the Owner in transferring
servicing.
<PAGE> 37
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-37
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. SUCCESSOR TO THE SERVICER.
Prior to termination of Servicer's responsibilities and duties under
this Agreement pursuant to Section 7.04, 8.01, 9.01(ii), 9.02 or 9.03, the
party designated by the Owner shall (i) succeed to and assume all of the
Servicer's responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor which shall succeed to all rights and
assume all of the responsibilities, duties and liabilities of the Servicer
under this Agreement prior to the termination of Servicer's responsibilities,
duties and liabilities under this Agreement. In connection with such
appointment and assumption, the party so designated may make such arrangements
for the compensation of such successor out of payments on Mortgage Loans as it
and such successor shall agree; provided, however, that no such compensation
shall be in excess of that permitted the Servicer under this Agreement without
the consent of the Owner. In the event that the Servicer's duties,
responsibilities and liabilities under this Agreement should be terminated
pursuant to the aforementioned Sections, the Servicer shall discharge such
duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date hereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of the Servicer pursuant to the aforementioned Sections shall not become
effective until a successor shall be appointed pursuant to this Section or, if
no successor has been appointed within ninety (90) days, then on the 90th day
following the date of the Servicer's resignation or removal notice, and shall in
no event relieve the Servicer of the representations and warranties made
pursuant to Article II.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Servicer and to the Owner an instrument
accepting such appointment, whereupon such successor shall become fully vested
with all the rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer, with like effect as if originally named as a party
to this Agreement. Any termination or resignation of the Servicer or this
Agreement pursuant to Section 7.04, 8.01, 9.01, 9.02 or 9.03 shall not affect
any claims that the Owner may have against the Servicer arising prior to any
such termination or resignation.
The Servicer shall promptly deliver to the successor the funds in the
Custodial Account and Escrow Account and all Mortgage Files and related
documents and statements held by it hereunder and the Servicer shall account
for all funds and shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and definitively vest in the
successor all such rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer.
SECTION 10.02. AMENDMENT.
This Agreement may be amended from time to time by the Servicer and
the Owner by written agreement signed by the Servicer and the Owner.
SECTION 10.03. RECORDATION OF AGREEMENT.
To the extent permitted by applicable law, this Agreement is subject
to recordation in all appropriate public offices for real property records in
all the counties or other comparable jurisdictions in which
<PAGE> 38
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-38
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
any or all of the properties subject to the Mortgages are situated, and in any
other appropriate public recording office or elsewhere, such recordation to be
effected by the Servicer at the Owner's expense, but only when such direction
is accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Owner or is necessary
for the administration or servicing of the Mortgage Loans.
SECTION 10.04. DURATION OF AGREEMENT.
This Agreement shall continue in existence and effect until
terminated as herein provided.
SECTION 10.05. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the
State of New York, except to the extent preempted by Federal law, and the
obligations, rights and remedies of the parties hereunder shall be determined
in accordance with such laws.
SECTION 10.06. GENERAL INTERPRETIVE PRINCIPLES.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions
of this Agreement;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration.
SECTION 10.07. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications which may hereafter be
executed, (b) documents received by any party at the closing, and (c) financial
statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar
<PAGE> 39
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-39
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
process. The parties agree that any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding,
whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business, and that
any enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
SECTION 10.08. NOTICES.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or
mailed by registered mail, postage prepaid, to (a) in the case of the
Servicer, _______________________ Attention ___________________, or such other
address as may hereafter be furnished to the Owner in writing by the Servicer,
and (b) in the case of the Owner, Nomura Asset Capital Corporation, Two World
Financial Center, Building B, 21st Floor, New York, New York 10281 Attention:
Michael Fallacara, or such other address as may hereafter be furnished to the
Servicer in writing by the Owner.
SECTION 10.09. SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate in
good-faith to develop a structure the economic effect of which is nearly as
possible the same as the economic effect of this Agreement without regard to
such invalidity.
SECTION 10.10. NO PARTNERSHIP.
Nothing herein contained shall be deemed or construed to create a
co-partnership or joint venture between the parties hereto and the services of
the Servicer shall be rendered as an independent contractor and not as agent
for the Owner.
SECTION 10.11. EXECUTION; SUCCESSORS AND ASSIGNS.
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Section 7.04, this Agreement
shall inure to the benefit of and be binding upon the Servicer and the Owner
and their respective successors and assigns. The Owner shall have the right,
without the Servicer's consent, to assign (in whole or in part), its interests
under this Agreement with respect to the Mortgage Loans, or to designate in
writing any one Person to exercise any rights of the Owner hereunder. Any
assignee or designee of the Owner shall accede to the Owner's rights and
obligations hereunder to the extent of such assignment or designation. All
references to the Owner shall, with respect to the Mortgage Loans, be deemed to
include its assignees or designee.
<PAGE> 40
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-40
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
SECTION 10.12. RECONSTITUTION AGREEMENTS
Upon the transfer, assignment or other conveyance of any of the
Mortgage Loans (any Mortgage Loan so transferred, assigned, pledged or
otherwise conveyed, a "Transferred Mortgage Loan") by the Owner to a third
party, the Servicer shall, at the request of the Owner and any such third
party (the "Transferee"), execute a Reconstitution Agreement, provided that
such Reconstitution Agreement shall be mutually satisfactory in form and
substance to the Owner, the Transferee and the Servicer in their respective
sole discretion and shall be agreed upon prior to the date of transfer. For all
purposes hereof, a "Reconstitution Agreement" shall be any agreement providing
for the servicing of a Transferred Mortgage Loan entered into between the
Servicer and the Transferee, including, without limitation, any pooling and
servicing agreement, participation and servicing agreement, seller's warranties
and servicing agreement or trust agreement. The Owner and third parties in
addition to the Transferee may also be party to a Reconstitution Agreement.
Upon entering into any Reconstitution Agreement, all of the Servicer's rights
and obligations hereunder with respect to the Transferred Mortgage Loans
subject to such Reconstitution Agreement shall be deemed terminated in
accordance with the provisions of Section 9.02.
<PAGE> 41
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL EXHIBIT M
PAGE M-41
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
IN WITNESS WHEREOF, the Servicer and the Owner have caused their names to
be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
---------------------------------------,
Servicer
By:
Name:
Title:
NOMURA ASSET CAPITAL CORPORATION
Owner
By:
Name:
Title:
<PAGE> 42
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL EXHIBIT M
PAGE M-42
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
STATE OF )
) SS.
COUNTY OF )
On the ____ day of ______________, 1995 before me, a Notary Public in and
for said State, personally appeared ___________________________ known to me to
be ____________________ of _____________________, one of the corporations that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my official seal
the day and year in this certificate first above written.
____________________________________
Notary Public
My Commission expires ______________
<PAGE> 43
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-43
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
STATE OF )
) SS.
COUNTY OF )
On the ____ day of ______________, 1995 before me, a Notary Public in
and for said State, personally appeared _____________________ known to me to be
_____________________ of _____________________, one of the corporations that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my official
seal the day and year in this certificate first above written.
_________________________________
Notary Public
My Commission expires ___________
<PAGE> 44
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-44
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT A
CONTENTS OF MORTGAGE LOAN FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items:
The original Mortgage Note, together with any riders thereto, bearing
all intervening endorsements, endorsed "Pay to the order of [__________],
without recourse" and signed in the name of the Seller by an authorized officer.
The original Assignment of Mortgage for each Mortgage Loan [in blank].
The original of any guarantee executed in connection with the
Mortgage Note.
The original Mortgage, together with any riders thereto, with
evidence of recording thereon. If in connection with any Mortgage Loan, the
Seller has not caused the original recorded Mortgage to be delivered to the
Custodian because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage has been
lost or because such public recording office retains the original recorded
Mortgage, the Mortgage File shall consist of a photocopy of such Mortgage,
together with (i) in the case of a delay caused by the public recording office,
an Officer's Certificate of either the Seller or the title insurer insuring the
Mortgage stating that such Mortgage has been delivered to the appropriate
public recording office for recordation and that the original recorded Mortgage
or a copy of such Mortgage certified by such public recording office to be a
true and complete copy of the original recorded Mortgage will be promptly
delivered to the Custodian upon receipt thereof by the Seller; or (ii) in the
case of a Mortgage where a public recording office retains the original
recorded Mortgage or in the case where a Mortgage is lost after recordation in
a public recording office, a copy of such Mortgage with the recording
information thereon certified by such public recording office to be a true and
complete copy of the original recorded Mortgage.
The originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, if any, or if such
agreement has not been returned from the applicable recording office or has
been lost or if such public recording office retains the original recorded
agreement, the Mortgage File shall include a photocopy of such agreement,
together with (i) in the case of a delay caused by the public recording office,
an Officer's Certificate of either the Seller or the title insurer insuring the
Mortgage stating that such agreement has been delivered to the appropriate
public recording office for recordation and that such original recorded
agreement or a copy of such agreement certified by the appropriate public
recording office to be a true and complete copy of the original recorded
agreement will be promptly delivered to the Custodian upon receipt thereof by
the Seller; or (ii) in the case of an agreement where a public recording office
retains the original recorded agreement or in the case where an agreement is
lost after recordation in a public recording office, a copy of such agreement
with recording information thereon certified by such public recording office to
be a true and complete copy of the original recorded document.
The originals of all intervening assignments of mortgage with
evidence of recording thereon, or if any such intervening assignment has not
been returned from the applicable recording office or has been
<PAGE> 45
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-45
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
lost or if such public recording office retains the original recorded
assignments of mortgage, the Mortgage File shall include a photocopy of such
intervening assignment, together with (i) in the case of a delay caused by the
public recording office, an Officer's Certificate of either the Seller or the
title insurer insuring the Mortgage stating that such intervening assignment of
mortgage has been delivered to the appropriate public recording office for
recordation and that such original recorded intervening assignment of mortgage
or a copy of such intervening assignment of mortgage certified by the
appropriate public recording office to be a true and complete copy of the
original recorded intervening assignment of mortgage will be promptly delivered
to the Custodian upon receipt thereof by the Seller; or (ii) in the case of an
intervening assignment where a public recording office retains the original
recorded intervening assignment or in the case where an intervening assignment
is lost after recordation in a public recording office, a copy of such
intervening assignment with recording information thereon certified by such
public recording office to be a true and complete copy of the original recorded
intervening assignment.
The original or a certified copy of the mortgage title insurance
policy or preliminary title insurance policy.
The original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage.
The original power of attorney, if applicable, with evidence of
recording thereon or if such power of attorney has not been returned from the
applicable recording office or has been lost or if such public recording office
retains the original recorded power of attorney, the Mortgage File shall
include a photocopy of such power of attorney, together with (i) in the case of
a delay caused by the public recording office, an Officer's Certificate of
either the Seller or the title insurer insuring the Mortgage stating that such
power of attorney has been delivered to the appropriate public recording office
for recordation and that such original recorded power of attorney or a copy of
such power of attorney certified by the appropriate public recording office to
be a true and complete copy of the original recorded power of attorney will be
promptly delivered to the Custodian upon receipt thereof by the Seller; or (ii)
in the case of a power of attorney where a public recording office retains the
original recorded power of attorney or in the case where a power of attorney is
lost after recordation in a public recording office, a copy of such power of
attorney with recording information thereon certified by such public recording
office to be a true and complete copy of the original recorded power of
attorney.
Mortgage Loan Package Cover Sheet.
Rescission Notice (if applicable).
Borrower disclosure - i.e.
a) Variable Rate Mortgage Loan Disclosure Statement
b) Reg Z Truth-in-Lending Disclosure Statement
c) RESPA Notice of Potential Servicing Transfer
d) RESPA Good Faith Estimate
<PAGE> 46
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-46
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
e) Broker Agreement (if applicable)
HUD - 1 (RESPA).
Itemization of origination fees financed (if applicable).
Notice as to Requirements of Impounds/Escrow for Taxes and Insurance.
Hazard insurance and records of premiums paid.
Flood Certification.
Flood insurance (if applicable) and records of premiums paid.
Primary mortgage insurance (if applicable).
Optional Insurance.
Tax Service Contract Statement.
Customer authorization for re-verification.
IRS 4506 or IRS 8821 (if applicable); after December 10, 1994, the
new version of IRS Form 4506 must be included in this sequence in place of
these forms.
The original goodbye letter.
The loss payee change notices for Hazard and Flood.
PMI Transfer Notice (if applicable).
Notice of Tax Service Contract Transfer.
Payment transaction histories (if applicable).
Residential loan application (Form 1003).
Credit report.
Credit explanations.
Title search.
Appraisal plus original photos of subject and comparables.
Survey of the Mortgage Property or reference to a record plat.
If available, termite report, structural engineer's report, water.
potability and septic certification.
<PAGE> 47
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-47
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
VOE(s).
Most recent paystub (wage earner).
2 years IRS Form W2's (wage earner).
2 years IRS Form 1040's, 1120's, 1120S's, 1065's, etc. and
appropriate schedules (for self employed).
Year-to-date income statement.
VOM(s) or other form of verification(s) on all mortgages.
Copy of first mortgage note and security instrument (if applicable).
Verification of original purchase price or real estate sales contract
or HUD-1 on first mortgage (if applicable).
VOD(s) or source of funds to close.
All other processing, underwriting and closing papers which are
customarily contained in a mortgage loan file and which are required to
document the Mortgage Loan or service the Mortgage Loan.
<PAGE> 48
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-48
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT B
CUSTODIAL ACCOUNT CERTIFICATION
________ __, 1995
__________________ (the "Servicer"), hereby certifies that it has
established the account described below as a Custodial Account pursuant to
Section 3.04 of the Servicing Agreement, dated as of ____________ 1, 1995,
Fixed Rate and Adjustable Rate Residential Mortgage Loans.
Title of Account: "____________, in trust for Nomura Asset Capital
Corporation pursuant to a Servicing Agreement dated as
of ____________ 1, 1995."
Account Number: _________________________
Address of office or
branch of the Servicer
at which Account is
maintained: _________________________
_________________________
_________________________
By_______________________
<PAGE> 49
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-49
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT C
CUSTODIAL ACCOUNT LETTER AGREEMENT
(date)
To: _________________________________
_________________________________
_________________________________
(the "Depository")
As "Servicer" under the Servicing Agreement, dated as of
____________ 1, 1995 (the "Agreement"), we hereby authorize and request you to
establish an account, as a Custodial Account pursuant to Section 3.04 of the
Agreement, to be designated as "_____________________, in trust for Nomura
Asset Capital Corporation pursuant to a Servicing Agreement dated as of
_________ 1, 1995". All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. This letter is submitted
to you in duplicate. Please execute and return one original to us.
_________________________
By_______________________
The undersigned, as "Depository", hereby certifies that the above
described account has been established under Account Number ________________, at
the office of the depository indicated above, and agrees to honor withdrawals
on such account as provided above. The amount deposited at any time in the
account will be insured by the Federal Deposit Insurance Corporation to the
maximum extent permitted under applicable law.
_________________________
(name of Depository)
By_______________________
<PAGE> 50
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-50
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT D
ESCROW ACCOUNT CERTIFICATION
________ __, 1995
__________________ (the "Servicer"), hereby certifies that it has
established the account described below as an Escrow Account pursuant to
Section 3.06 of the Servicing Agreement, dated as of ____________ 1, 1995,
Fixed Rate and Adjustable Rate Residential Mortgage Loans.
Title of Account: "____________, in trust for various Mortgagors, Taxes
and Insurance Escrow Funds."
Account Number: _________________________
Address of office or
branch of the Servicer
at which Account is
maintained: _________________________
_________________________
_________________________
By_______________________
<PAGE> 51
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-51
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT E
ESCROW ACCOUNT LETTER AGREEMENT
(date)
To: _________________________________
_________________________________
_________________________________
(the "Depository")
As "Servicer" under the Servicing Agreement, dated as of ____________
1, 1995 (the "Agreement"), we hereby authorize and request you to establish an
account, as an Escrow Account pursuant to Section 3.06 of the Agreement, to be
designated as "_____________________, in trust for various Mortgagors, Taxes and
Insurance Escrow Funds." All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. This letter is submitted
to you in duplicate. Please execute and return one original to us.
_________________________
By_______________________
The undersigned, as "Depository", hereby certifies that the above
described account has been established under Account Number ________________, at
the office of the depository indicated above, and agrees to honor withdrawals
on such account as provided above. The amount deposited at any time in the
account will be insured by the Federal Deposit Insurance Corporation to the
maximum extent permitted under applicable law.
_________________________
(name of Depository)
By_______________________
<PAGE> 52
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-52
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT F
CUSTODIAL AGREEMENT
<PAGE> 53
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-53
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT G
MORTGAGE LOAN SCHEDULE
<PAGE> 54
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-54
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT H
FORM OF DELINQUENCY REPORT (LOAN-BY-LOAN)
<PAGE> 55
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-55
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT I
FORM OF DELINQUENCY REPORT (AGGREGATE)
<PAGE> 56
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-56
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT J
FORM OF STATUS DETAIL REPORT
<PAGE> 57
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-57
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT K
FORM OF FORECLOSURE LOG
<PAGE> 58
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE M-58
AUGUST 1, 1995
FORM OF SERVICING AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT L
FORM OF FINANCIAL REPORT
<PAGE> 59
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT N
PAGE N-1
AUGUST 1, 1995
FORM OF CONFIRMATION
- --------------------------------------------------------------------------------
[DATE]
[SELLER
ADDRESS]
Re: Nomura Asset Capital Corporation
Commitment Number:_______
Dear Sir:
On the above referenced date you entered a Commitment to sell
Mortgage Loans to Nomura Asset Capital Corporation ("Nomura") as follows:
<TABLE>
<S> <C>
Mortgage Loan Program *Various
---------------
Principal Balance $
--------------
Base Rates
A As per attached %
---------------------
A- %
---------------------
B %
---------------------
C %
---------------------
D %
---------------------
Stated Purchase Price %
---------------------
Funding Date
---------------------
(delivery 5 business days prior)
Servicing Retained Released
------ ------
</TABLE>
The terms of this Commitment are governed by the
Purchasing/Servicing Agreement in effect between you and Nomura. The Purchase
Price of the Mortgage Loans delivered by you under this Commitment shall be
calculated based on the above Base Rates, Stated Purchase Prices and the buy-up
and buy-down ratios, Rate Adjustments and Price Adjustments attached to this
letter as Appendix A.
Please indicate your acceptance of the terms of this Commitment
by signing a copy of this letter in the space provided therefore and returning
the signed copy to Nomura.
NOMURA ASSET CAPITAL CORPORATION
By:
---------------------------
Name:
-------------------------
Title:
------------------------
AGREED AND ACCEPTED:
[SELLER NAME]
By:
--------------------------
Name:
------------------------
Title:
-----------------------
<PAGE> 60
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-1
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
CUSTODIAL AGREEMENT
by and among
NOMURA ASSET CAPITAL CORPORATION,
Purchaser
and
[________________________] Company
and
LASALLE NATIONAL BANK,
Custodian
Dated as of _____ 1, 1995
Fixed Rate and Adjustable Rate Mortgage Loans
<PAGE> 61
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-2
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. Definitions 1
SECTION 2. Delivery of Custodial Files 4
SECTION 3. Certification and Trust Receipt of Custodian 4
SECTION 4. Obligations of the Custodian 5
SECTION 5. Custodian to Cooperate 5
SECTION 6. Future Defects 5
SECTION 7. Release for Servicing 5
SECTION 8. Limitation on Release 6
SECTION 9. Release for Payment 6
SECTION 10. Fees of Custodian 6
SECTION 11. Removal of Custodian 6
SECTION 12. Transfer of Custodial Files Upon Termination 7
SECTION 13. Examination of Custodial Files 7
SECTION 14. Insurance of Custodian 7
SECTION 15. Counterparts 7
SECTION 16. Periodic Statements 7
SECTION 17. Governing Law 8
SECTION 18. Copies of Mortgage Documents 8
SECTION 19. No Adverse Interest of Custodian 8
SECTION 20. Termination by Custodian 8
SECTION 21. Term of Agreement 8
SECTION 22. Notices 8
SECTION 23. Successors and Assigns 9
</TABLE>
<PAGE> 62
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-3
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
SECTION 24. Indemnification of Custodian 9
SECTION 25. Reliance of Custodian 9
SECTION 26. Transmission of Custodial Files 9
SECTION 27. Authorized Representatives 10
SECTION 28. Amendments: Entire Agreement 10
SECTION 29. Reproduction of Documents 10
SECTION 30. No Assignment or Delegation by Custodian 11
</TABLE>
<PAGE> 63
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-4
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
EXHIBITS
--------
EXHIBIT 1 CONTENTS OF EACH CUSTODIAL FILE
EXHIBIT 2 FORM OF CERTIFICATION
EXHIBIT 3 FORM OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
EXHIBIT 4 AUTHORIZED REPRESENTATIVES OF COMPANY
EXHIBIT 5 AUTHORIZED REPRESENTATIVES OF CUSTODIAN
EXHIBIT 6 AUTHORIZED REPRESENTATIVES OF PURCHASER
EXHIBIT 7 FORM OF OPINION OF COUNSEL OF CUSTODIAN
EXHIBIT 8 FORM OF TRUST RECEIPT
EXHIBIT 9 SERVICING AGREEMENT
<PAGE> 64
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-5
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
THIS CUSTODIAL AGREEMENT, dated as of _____ 1, 1995, is by and among
Nomura Asset Capital Corporation, a Delaware corporation, having an address at
Two World Financial Center, Building B, New York, New York 10281-1198 (the
"Purchaser"), ___________________ having an office at ________________________
(the "Company"), and LaSalle National Bank, a national banking association
chartered under the laws of the United States, having an address at 135 South
LaSalle Street, Suite 200, Chicago, Illinois 60603 (the "Custodian");
W I T N E S S E T H
WHEREAS, the Purchaser has agreed to purchase certain mortgage loans
(each a "Mortgage Loan"), from time to time, as whole loans, from the Company
pursuant to its Non-Conforming Residential Mortgage Loan Conduit (the
"Conduit").
WHEREAS, the Company is to service the Mortgage Loans pursuant to the
terms and conditions of the Servicing Agreement, of even date herewith, between
the Purchaser and the Company (the "Servicing Agreement").
WHEREAS, the Custodian is a national banking association chartered
under the laws of the United States of America by the Comptroller of the
Currency, and is otherwise to act as Custodian pursuant to this Agreement. The
Purchaser desires to have the Custodian take possession from time to time of
the Mortgages and Mortgage Notes, along with certain other documents specified
herein, as the custodian of the Purchaser its successors and assigns, on
various delivery dates (each, a "Delivery Date"), in accordance with the terms
and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual undertakings herein
expressed, the parties hereto hereby agree as follows:
Section 1. Definitions.
Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Servicing Agreement, a copy of which is attached hereto
as Exhibit 9.
Agreement: This Custodial Agreement and all amendments and
attachments hereto and supplements hereof.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient
under the laws of the jurisdiction wherein the related Mortgaged Property is
located to reflect the sale of the Mortgage to the Purchaser.
Authorized Representative: As defined in Section 27 hereof.
Business Day: Any day excluding Saturday, Sunday and any day on which
banks located in the State of ______________, ______________ or New York are
authorized or obligated by law or executive order to be closed.
Certification: A certification as to each Mortgaged Loan, which
certification is delivered to the Purchaser by the Custodian in the form
annexed hereto as Exhibit 2.
<PAGE> 65
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-6
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
Closing Date: The date or dates on which the Purchaser from time to
time shall purchase, and the Company from time to time shall sell to the
Purchaser, Mortgage Loans.
Company: ___________________________, or its successor in interest or
assigns, or any successor to the Company under the Servicing Agreement as
therein provided.
Custodian: LaSalle National Bank, or its successor in interest or
assigns, or any successor to the Custodian under this Agreement as herein
provided.
Custodial File: As to each Mortgage Loan, the mortgage loan
documents which are delivered to the Custodian on or prior to the related
Closing Date as specified on Exhibit 1 hereto.
Delivery Date: As to each Mortgage Loan, the date on which the
Custodial File related to a Mortgage Loan is delivered to the Custodian.
Mortgage: The mortgage, deed of trust or other instrument creating a
valid and enforceable first or second lien on the Mortgage Property securing
the Mortgage Note.
Mortgage Loan Package: The Mortgage Loans to be purchased by the
Purchaser on a Closing Date.
Mortgage Loan Schedule: The schedule of Mortgage Loans for the
Mortgage Loan Package delivered on the related Delivery Date by the Seller to
the Custodian, such schedule setting forth the following information with
respect to each Mortgage Loan: (1) the Company's Mortgage Loan identifying
number; (2) the Mortgagor's first and last name; (3) the street address of the
Mortgaged Property including the state and zip code; (4) a code indicating
whether the Mortgaged Property is owner-occupied; (5) the type of residential
dwelling constituting the Mortgaged Property; (6) the original months to
maturity; (7) the original date of the Mortgage; (8) the Loan-to-Value
Ratio at origination; (9) the Mortgage Interest Rate in effect immediately
following the Cut-off Date; (10) the date on which the first Monthly Payment
was due on the Mortgage Loan; (11) the stated maturity date; (12) the amount of
the Monthly Payment at origination; (13) the amount of the Monthly Payment as
of the Cut-off Date; (14) the last Due Date on which a Monthly Payment was
actually applied to the unpaid Stated Principal Balance; (15) the original
principal amount of the Mortgage Loan; (16) the Stated Principal Balance of the
Mortgage Loan as of the close of business on the Cut-off Date; (17) the first
Adjustment Date with respect to each Adjustable Rate Mortgage Loan; (18) the
Gross Margin with respect to each Adjustable Rate Mortgage Loan; (19) a code
indicating the purpose of the loan (i.e., purchase financing, Rate/Term
Refinancing, Cash-Out Refinancing); (20) the Maximum Mortgage Interest Rate
under the terms of the Mortgage Note with respect to each Adjustable Rate
Mortgage Loan; (21) the Minimum Mortgage Interest Rate under the terms of the
Mortgage Note with respect to each Adjustable Rate Mortgage Loan; (22) the
Mortgage Interest Rate at origination; (23) the Periodic Rate Cap with respect
to each Adjustable Rate Mortgage Loan; (24) a code indicating the documentation
style (i.e. full, alternative or reduced); (25) the Primary Insurance Policy
number, if any, which number (or an additional code) shall identify the
applicable Primary Insurance Policy provider; (26) the first Adjustment Date
immediately following the Cut-off Date with respect to each Adjustable Rate
Mortgage Loan; (27) the Index with respect to each Adjustable Rate Mortgage
Loan; (28) the Appraised Value of the Mortgaged Property; (29) the sale price of
the Mortgaged Property, if applicable; (30) the Servicing Fee; and (31) the
Periodic Rate Cap with respect to the initial Adjustment Date with respect to
each Adjustable Rate Mortgage
<PAGE> 66
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-7
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
Loan. With respect to the Mortgage Loan Package in the aggregate, the Mortgage
Loan Schedule shall set forth the following information, as of the Cut-off Date:
(1) the number of Mortgage Loans; (2) the current principal balance of the
Mortgage Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage
Loans; and (4) the weighted average maturity of the Mortgage Loans.
Mortgage Loans: The original executed note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage.
Mortgaged Property: The real property securing repayment of the debt
evidenced by a Mortgage Note consisting of a single contiguous parcel of real
property improved by a one- to four- family dwelling held either as a fee
simple interest or, in markets for which leaseholds are accepted, a leasehold
estate in the underlying property that extends at least five (5) years beyond
the longer of the term of the related Mortgage and the amortization period of
the related Mortgage.
Officer's Certificate: A certificate signed by (i) an officer (authorized
to sign an Officer's Certificate) of the Company or the Purchaser or (ii) an
officer from the appropriate records depository for the jurisdiction where the
respective Mortgaged Property is located. (The text of any particular Officer's
Certificate may be printed or stamped upon or attached to a document
constituting a portion of a Custodial File and the signature of an officer
authorized to sign an Officer's Certificate may be either a facsimile or other
reproduction thereof.)
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof.
PMI Policy: A policy of primary mortgage guaranty insurance issued by a
Qualified Insurer, as required by the Servicing Agreement with respect to
certain Mortgage Loans.
Purchaser: Nomura Asset Capital Corporation, or its successor in interest
or assigns.
Qualified Insurer: An insurance company duly qualified as such under the
laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, approved as an insurer by FNMA
and FHLMC and whose claims paying ability is rated in one of the two highest
rating categories by the Standard & Poor's Rating Group and Moody's Investors
Service, Inc. with respect to primary mortgage insurance and in one of the two
highest rating categories by Best's with respect to hazard and flood insurance.
Trust Receipt: A trust receipt delivered by the Custodian to the Purchaser
in the form attached hereto as Exhibit 8.
Trust Receipt Schedule: The list of Mortgage Loans attached from time to
time to a Trust Receipt in the form requested by the Purchaser.
Section 2. Delivery of Custodial Files.
The Company will deliver at least five (5) Business Days prior to the
related Closing Date the documents listed in Exhibit 1 hereto pertaining to
each of the Mortgage Loans to be purchased on such
<PAGE> 67
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-8
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
Closing Date. Such documents so delivered by the Company shall be released by
the Company to the Custodian for the benefit of the Purchaser on the related
Closing Date.
From time to time, the Company shall forward to the Custodian
additional original documents as such documents are returned from the
applicable recording offices and any other documents required to be delivered
to the Custodian pursuant to the Conduit guidelines. In addition, the Company
shall forward to the Custodian additional documents evidencing an assumption,
modification, consolidation or extension of a Mortgage Loan approved by the
Company in accordance with the terms of the Servicing Agreement. All such
mortgage documents held by the Custodian as to each Mortgage Loan shall
constitute the "Custodial File."
With respect to any bulk purchase of Mortgage Loans, the Purchaser
shall deliver or cause to be delivered to the Custodian a Mortgage Loan
Schedule.
Section 3. Certification and Trust Receipt of the Custodian.
The Custodian shall deliver to the Purchaser a Certification in the
form of Exhibit 2 hereto within twenty-four (24) hours after each Delivery
Date, provided, however, that if the Custodian receives the Custodial Files
after 12:00 p.m. New York City time on a Delivery Date, the Custodian shall
have forty-eight (48) hours to deliver the related Certification. On the
initial Closing Date the Custodian shall deliver to the Purchaser a Trust
Receipt in the form of Exhibit 8 hereto. On each subsequent Closing Date the
Custodian shall deliver to the Purchaser a new Trust Receipt Schedule dated the
Closing Date and signed by an Authorized Representative of the Custodian. The
delivery of a dated and signed new Trust Receipt Schedule by the Custodian to
the Purchaser shall render the old Trust Receipt Schedule null and void.
Upon the written direction of the Purchaser, the Custodian shall
deliver all or any portion of the related Custodial Files held by it to the
Purchaser, or to such other party designated by the Purchaser in such written
direction, and to the place indicated in any such written direction. If such
delivery is for less than all of the Custodial Files held by the Custodian with
respect to a Trust Receipt, the Custodian shall deliver to the Purchaser a new
Trust Receipt Schedule with respect to the related Custodial Files retained by
the Custodian. In addition, upon receipt by the Custodian of a written
notification from the Purchaser that the Purchaser has sold all or a portion of
the Mortgage Loans relating to a Trust Receipt, which notification shall state
the name and address of the purchaser and the date of sale for such Mortgage
Loans, the Custodian shall change its records to reflect that the purchaser of
such Mortgage Loans from the Purchaser (the "Subsequent Purchaser") is the
owner of such Mortgage Loans and the related Custodial Files and shall, upon
the direction of the Purchaser, either deliver the applicable Custodial Files
to such Subsequent Purchaser or issue a Trust Receipt in the name of such
Subsequent Purchaser. The Custodian shall deliver to the Purchaser a new Trust
Receipt Schedule reflecting all of the Mortgage Loans with respect to which the
Custodian shall continue to hold the related Custodial Files on behalf of the
Purchaser. Any Subsequent Purchaser of a Mortgage Loan to whom a Trust Receipt
has been delivered shall succeed to all the rights and obligations of the
Purchaser under this Agreement, including the obligation to pay the Custodian's
fees and expenses, with respect to the such Mortgage Loan and the related
Custodial Files. The Purchaser shall give the Custodian at least one (1)
Business Day's notice prior to the sale of any or all of the Mortgage Loans. In
addition, the Purchaser shall give the Custodian such notice as is from
time-to-time agreed upon between the Purchaser and the Custodian prior to
requesting the shipping of any or all of the Custodial Files.
<PAGE> 68
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-9
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
Section 4. Obligations of Custodian.
With respect to the Mortgage Note, the Mortgage and the Assignment of
Mortgage and other documents constituting each Custodial File which is
delivered to the Custodian or which come into the possession of the Custodian,
the Custodian is the custodian for the Purchaser exclusively. On and after the
Closing Date, the Custodian shall hold all mortgage documents received by it
constituting the Custodial File for the exclusive use and benefit of the
Purchaser, and shall make disposition thereof only in accordance with this
Agreement and the instructions furnished by the Purchaser. The Custodian shall
segregate and maintain continuous custody of all mortgage documents
constituting the Custodial File in secure and fire-resistant facilities in
accordance with customary standards for such custody. The Custodian shall not
be responsible to verify (i) the validity, legality, enforceability,
sufficiency, due authorization, adequacy, recordability, title or genuineness
of any document in each Custodial File or of any of the Mortgage Loans or (ii)
the collectability, insurability, effectiveness or suitability of any Mortgage
Loan.
Section 5. Custodian to Cooperate.
From time to time and as appropriate in the servicing of the Mortgage
Loans, the Custodian shall cooperate with the Company's reasonable requests.
Section 6. Future Defects.
During the term of this Agreement, if the Custodian discovers any defect
with respect to a Custodial File, the Custodian shall give prompt written notice
of such defect to the Purchaser. The Purchaser, or its designee, shall be
solely responsible for providing each and every document required for the
Custodial File to the Custodian in a timely manner and for completing or
correcting any missing, incomplete or inconsistent documents, and the Custodian
shall not be responsible or liable for taking any such action, causing the
Company or any other Person to do so or notifying any Person that any such
action has or has not been taken (except to the extent of noting any existing
defects as provided herein).
Section 7. Release for Servicing.
From time to time and as appropriate for the foreclosure or servicing of
any of the Mortgage Loans, the Custodian is hereby authorized, upon written
receipt from an Authorized Representative of the Company of a request for
release of documents and receipt in the form annexed hereto as Exhibit 3, to
release to the Company the related Custodial File or the documents set forth in
such request and receipt to the Company. All documents so released to the
Company shall be held by the Company in trust for the benefit of the Purchaser
in accordance with the terms of the Servicing Agreement. The Company shall
return to the Custodian the Custodial File or other such documents when the
Company's need therefor in connection with such foreclosure or servicing no
longer exists, unless the Mortgage Loan shall be liquidated in which case, upon
receipt of an additional request for release of documents and receipt certifying
such liquidation from an Authorized Representative of the Company to the
Custodian in the form annexed hereto as Exhibit 3, the Company's request and
receipt submitted pursuant to the first sentence of this Section 7 shall be
released by the Custodian to the Company.
<PAGE> 69
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-10
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
Section 8. Limitation on Release.
The foregoing provision respecting release to the Company of the
Custodial Files and documents by the Custodian upon request by the Company shall
be operative only to the extent that at any time the Custodian shall not have
released to the Company active Custodial Files or documents (including those
requested) pertaining to more than 10 percent (10%) of the Mortgage Loans, by
aggregate outstanding principal balance, at the time being serviced by the
Company under the Servicing Agreement. Any additional Custodial Files or
documents requested to be released by the Company may be released only upon
written authorization of the Purchaser. The limitations of this paragraph shall
not apply to the release of Custodial Files to the Company under Section 9
below.
Section 9. Release for Payment.
Upon the repurchase or rejection of any Mortgage Loan pursuant to
Section 7 of the Servicing Agreement, or upon the payment in full of any
Mortgage Loan, and upon receipt by the Custodian of the Company's request for
release of documents and receipt in the form annexed hereto as Exhibit 3 (which
certification by the Company shall include a statement to the effect that
all amounts received in connection with such payment or repurchase have been
credited to the Custodial Account as provided in the Servicing Agreement), the
Custodian shall promptly release the related Custodial File to the Company.
Section 10. Fees of Custodian.
The Custodian shall charge such fees for its services under this
Agreement as are set forth in a separate agreement between the Custodian and
the Purchaser. All fees and expenses of the Custodian in connection with this
Agreement shall be borne solely by the Purchaser.
Section 11. Removal of Custodian.
The Purchaser, with or without cause, may (i) require the Custodian
to complete the endorsements on the Mortgage Notes and to complete the
Assignments of Mortgage, and/or (ii) upon at least thirty (30) days' notice
remove and discharge the Custodian from the performance of its duties under
this Agreement by written notice from the Purchaser to the Custodian, with a
copy to the Company. Having given notice of such removal, the Purchaser
promptly (and in any event within thirty (30) days after notice of removal is
given) shall appoint a successor Custodian to act on behalf of the Purchaser by
written instrument, one (1) original counterpart of which instrument shall be
delivered to the Purchaser, with a copy to the Company and an original to the
successor Custodian. In the event of any such removal, the Custodian shall
promptly transfer to the successor Custodian, as directed, all Custodial Files
being administered under this Agreement, and shall assign the Mortgages and
endorse the Mortgage Notes as directed by the Purchaser if the endorsement on
the Mortgage Notes and the Assignments of Mortgages have been completed in the
name of the Custodian; provided, that if no successor custodian shall have been
appointed within thirty (30) days after notice of removal has been given, the
Custodian shall deliver all of the Custodial Files to the Purchaser upon the
expiration of such thirty (30) day period, and shall assign the Mortgages and
endorse the Mortgage Notes to the Purchaser if the endorsements on the Mortgage
Notes and the Assignments of Mortgage have been completed in the name of
Custodian. In the event of any such appointment, the Purchaser shall be
responsible for the fees and expenses of the existing and successor custodian.
<PAGE> 70
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-11
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
Section 12. Transfer of Custodial Files Upon Termination.
If the Custodian is furnished with written notice from the Purchaser
that the Servicing Agreement has been terminated as to any or all of the
Mortgage Loans, upon written request of the Purchaser, the Custodian shall
release to such persons as the Purchaser shall designate, the Custodial Files
relating to such Mortgage Loans as the Purchaser shall request, and shall
assign the Mortgages and endorse the Mortgage Notes as directed by the
Purchaser.
Section 13. Examination of Custodial Files.
Upon reasonable prior notice to the Custodian, the Purchaser and its
agents, accountants, attorneys and auditors will be permitted during normal
business hours to examine the Custodial Files, documents, records and other
papers in the possession of or under the control of the Custodian relating to
any or all of the Mortgage Loans.
Section 14. Insurance of Custodian.
At its own expense, the Custodian shall maintain at all times during
the existence of this Agreement and keep in full force and effect a blanket
fidelity bond, theft of documents insurance, forgery insurance and errors and
omissions insurance. All such insurance shall be in amounts, with standard
coverage and subject to deductibles, all as is customary for insurance
typically maintained by banks which act as custodian. The minimum coverage
under any such bond and insurance policies shall be at least equal to the
corresponding amounts required by FNMA in the FNMA Mortgage-Backed Securities
Selling and Servicing Guide. A certificate of the respective insurer as to
each such policy, with a copy of such policy attached, shall be furnished to the
Purchaser, upon request, containing the statement of the insurer or endorsement
evidencing that such insurance shall not terminate prior to receipt by the
Purchaser, by registered mail, of 30 days' prior written notice thereof.
Section 15. Counterparts.
For the purpose of facilitating the execution of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute and be one
and the same instrument.
Section 16. Periodic Statements.
On the fifth Business Day of each month, and at such other times as
the Purchaser may reasonably request, the Custodian shall provide to the
Purchaser a list of all the Mortgage Loans for which the Custodian holds a
Custodial File showing all documents which are either in the Custodian's
possession, missing, defective or not yet returned from the appropriate
recording office pursuant to this Agreement. In addition, on the fifth Business
Day of each month, and at such other times as the Purchaser may reasonably
request, the Custodian shall provide to the Purchaser a list of all Custodial
Files released by the Custodian to the Company and the reason for such release.
All such reports shall be in a form reasonably acceptable to the Purchaser.
<PAGE> 71
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-12
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
Section 17. Governing Law.
This Agreement shall be construed in accordance with the laws of the State
of New York and the obligations, rights, and remedies of the parties hereunder
shall be determined in accordance with such laws.
Section 18. Copies of Mortgage Documents.
Upon the request of the Purchaser and at the cost and expense of the
Purchaser, the Custodian shall provide the Purchaser with copies of the
Mortgage Notes, Mortgages, Assignments of Mortgage and other documents relating
to one or more of the Mortgage Loans.
Section 19. No Adverse Interest of Custodian.
By execution of this Agreement, the Custodian represents and warrants that
it currently holds, and during the existence of this Agreement shall hold, no
adverse interest, by way of security or otherwise, in any Mortgage Loan, and
hereby waives and releases any such interest which it may have in any Mortgage
Loan as of the date hereof.
Section 20. Termination by Custodian.
The Custodian may terminate its obligations under this Agreement upon at
least sixty (60) days' prior written notice to the Company and the Purchaser.
In the event of such termination, the Purchaser shall appoint a successor
Custodian. The payment of such successor Custodian's fees and expenses shall be
solely the responsibility of the Purchaser. Upon such announcement, the
Custodian shall promptly transfer, at the Custodian's sole expense, to the
successor Custodian, as directed, all Custodial Files being administered under
this Agreement, and shall assign the Mortgages and endorse the Mortgage Notes
as directed by the Purchaser, if the endorsements on the Mortgage Notes and the
Assignments of Mortgage have been completed in the name of the Custodian.
Section 21. Term of Agreement.
Unless terminated pursuant to Section 11 or Section 20 hereof, this
Agreement shall terminate upon the final payment or other liquidation of the
last Mortgage Loan or the disposition of all property acquired upon foreclosure
or deed in lieu of foreclosure of any Mortgage Loan, and the final remittance
of all funds due the Purchaser under the Servicing Agreement. In such event
all documents remaining in the Custodial Files shall be released in accordance
with the written instructions of Purchaser.
Section 22. Notices.
All demands, notices and communications hereunder shall be in writing
(including, without limitation, facsimile transmissions) and shall be deemed to
have been duly given when received by the recipient party at the address shown
on the first page hereof, or at such other addresses as may hereafter be
furnished to the other parties by like notice. Any such demand, notice or
communication hereunder shall be deemed to have been received on the date
delivered to or received at the premises of the addressee.
<PAGE> 72
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-13
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
Section 23. Successors and Assigns.
This Agreement shall inure to the benefit of the successors and assigns of
the parties hereto; provided, that this Agreement may not be assigned in whole
or in part without the prior written consent of the other parties hereto, which
consent shall not be unreasonably withheld.
Section 24. Indemnification of Custodian.
Neither the Custodian nor any of its directors, officers, agents or
employees, shall be liable for any action taken or omitted to be taken by it or
them hereunder or in connection herewith in good faith and believed by it or
them to be within the purview of this Agreement, except for its or their own
negligence, lack of good faith or willful misconduct. In no event shall the
Custodian or its directors, officers, agents and employees be held liable for
any special, indirect or consequential damages resulting from any action taken
or omitted to be taken by it or them hereunder or in connection herewith even
if advised of the possibility of such damages.
The Purchaser agrees to reimburse, indemnify and hold the Custodian and
its directors, officers, agents and employees harmless against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever,
including reasonable attorney's fees, that may be imposed on, incurred by,
or asserted against it or them in any way relating to or arising out of any
action taken or not taken by it or them hereunder unless such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements (i) relate to or arise out of any action taken or not
taken by the Company hereunder or (ii) were imposed on, incurred by or asserted
against the Custodian because of the breach by the Custodian of its obligations
hereunder, which breach was caused by negligence, lack of good faith or willful
misconduct on the part of the Custodian or any of its directors, officers,
agents or employees.
The Company agrees to reimburse, indemnify and hold the Custodian and its
directors, officers, agents and employees harmless against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever,
including reasonable attorney's fees, that may be imposed on, incurred by, or
asserted against it or them in any way relating to or arising out of this
Agreement or any action taken or not taken by the Company hereunder unless
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements were imposed on, incurred by or
asserted against the Custodian because of the breach by the Custodian of its
obligations hereunder, which breach was caused by negligence, lack of good
faith or willful misconduct on the part of the Custodian or any of its
directors, officers, agents or employees.
Section 25. Reliance of Custodian.
In the absence of bad faith, negligence or willful misconduct on the part
of the Custodian, the Custodian may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
request, instructions, certificate, opinion or other document furnished to the
Custodian, reasonably believed by the Custodian to be genuine and to have been
signed or presented by the proper party or parties and conforming to the
requirements of this Agreement; but in the case of any loan document or other
request, instruction, document or certificate which by any provision hereof is
specifically
<PAGE> 73
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-14
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
required to be furnished to the Custodian, the Custodian shall be under a duty
to examine the same to determine whether or not it conforms on its face to the
requirements of this Agreement.
Section 26. Transmission of Custodial Files.
Written instructions as to the method of shipment and shipper(s) the
Custodian is directed to utilize in connection with transmission of mortgage
files and loan documents in the performance of the Custodian's duties hereunder
shall be delivered by the Company or the Purchaser, as applicable, to the
Custodian prior to any shipment of any mortgage files and loan documents
hereunder. The cost of such services shall be borne by the Purchaser or, at the
Custodian's option, shall be borne by the Custodian and reimbursed by the
Purchaser. Without limiting the generality of the provisions of Section 24
above, it is expressly agreed that in no event shall the Custodian have any
liability for any losses or damages to any person, including without
limitation, the Company and the Purchaser, arising out of actions of the
Custodian consistent with instructions of the Company or the Purchaser, as
applicable.
Section 27. Authorized Representatives.
Each individual designated as an authorized representative of the
Company, the Custodian or the Purchaser (each, an "Authorized Representative")
is authorized to give and receive notices, requests and instructions and to
deliver certificates and documents in connection with this Agreement on behalf
of the Company, the Custodian or the Purchaser, as the case may be, and the
specimen signature for each such Authorized Representative of the Company, the
Custodian and Purchaser initially authorized hereunder is set forth on Exhibits
4, 5 and 6 hereof, respectively. From time to time, the Company, the Custodian
and the Purchaser may, by delivering to the others a revised exhibit, change
the information previously given pursuant to this Section 27, but each of the
parties hereto shall be entitled to rely conclusively on the then current
exhibit until receipt of superseding exhibit.
Section 28. Amendments: Entire Agreement.
No amendment or waiver of any provision of this Agreement nor consent
to any departure herefrom shall in any event be effective unless the same shall
be in writing and signed by all the parties hereto, and then such amendment,
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the matters and
transactions contemplated by this Agreement and supersedes any prior agreement
and understandings with respect to those matters and transactions.
Section 29. Reproduction of Documents.
This Agreement and all documents relating thereto except with respect
to any Custodial File, including, without limitation, (a) consents, waivers and
modifications which may hereafter be executed, and (b) certificates and other
information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, microcard, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business, and that
any enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
<PAGE> 74
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-15
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
Section 30. No Assignment or Delegation by Custodian
The Custodian shall not assign, transfer, pledge, or grant a security
interest in, any of its rights, benefits or privileges hereunder nor delegate
or appoint any other Person, except an affiliate of the Custodian or another
national bank or a depository institution subject to supervision by federal or
state authority and shall have a long-term debt rating of at least single A
from Standard and Poor's Ratings Group or Moody's Investors Services, Inc.,
whose appointment shall not relieve the Custodian of its obligations hereunder,
to perform or carry out any of its duties, responsibilities or obligations
under this Agreement, without the prior written consent of the Purchaser, and
any act or instrument purporting to effect any such assignment, transfer,
pledge, grant delegation or appointment without such consent shall be void.
<PAGE> 75
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT M
PAGE R-16
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
IN WITNESS WHEREOF, the Company, the Purchaser and the Custodian have
caused their names to be duly signed hereto by their respective officers
thereunto duly authorized, all as of the date first above written.
NOMURA ASSET CAPITAL CORPORATION, as
Purchaser
By:
Name:
Title:
----------------------------, as Company
By:
Name:
Title:
LASALLE NATIONAL BANK, as Custodian
By:
Name:
Title:
<PAGE> 76
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-17
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT 1
CONTENTS OF EACH CUSTODIAL FILE
With respect to each Mortgage Loan, the Custodial File shall
include each of the following items unless otherwise agreed to in writing by
the Purchaser:
1. The original Mortgage Note, together with any riders thereto,
bearing all intervening endorsements, endorsed "Pay to the order
of [____________], without recourse" and signed in the name of
the Company by an authorized officer.
2. The original Assignment of Mortgage for each Mortgage Loan [in
blank].
3. The original of any guarantee executed in connection with the
Mortgage Note.
4. The original Mortgage, together with any riders thereto, with
evidence of recording thereon. If in connection with any
Mortgage Loan, the Company has not caused the original recorded
Mortgage to be delivered to the Custodian because of a delay
caused by the public recording office where such Mortgage has
been delivered for recordation or because such Mortgage has been
lost or because such public recording office retains the
original recorded Mortgage, the Custodial File shall consist of
a photocopy of such Mortgage, together with (i) in the case of a
delay caused by the public recording office, an Officer's
Certificate of either the Company or the title insurer insuring
the Mortgage stating that such Mortgage has been delivered to
the appropriate public recording office for recordation and that
the original recorded Mortgage or a copy of such Mortgage
certified by such public recording office to be a true and
complete copy of the original recorded Mortgage will be promptly
delivered to the Custodian upon receipt thereof by the Company;
or (ii) in the case of a Mortgage where a public recording
office retains the original recorded Mortgage or in the case
where a Mortgage is lost after recordation in a public recording
office, a copy of such Mortgage with the recording information
thereon certified by such public recording office to be a true
and complete copy of the original recorded Mortgage.
5. The originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, if
any, or if such agreement has not been returned from the
applicable recording office or has been lost or if such public
recording office retains the original recorded agreement, the
Custodial File shall include a photocopy of such agreement,
together with (i) in the case delay caused by the public
recording office, an Officer's Certificate of either the Company
or the title insurer insuring the Mortgage stating that such
agreement has been delivered to the appropriate public recording
office for recordation and that such original recorded agreement
or a copy of such agreement certified by the appropriate public
recording office to a true and complete copy of the original
recorded agreement will be promptly delivered to the Custodian
upon receipt thereof by the Company; or (ii) in the case of an
agreement where a public recording office retains the original
recorded agreement or in the case where an agreement is lost
after recordation in a public recording office, a copy of such
agreement with recording
<PAGE> 77
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-18
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
information thereon certified by such public recording office to
be a true and complete copy of the original recorded agreement.
6. The originals of all intervening assignments of mortgage with
evidence of recording thereon, or if any such intervening
assignment has not been returned from the applicable recording
office or has been lost or if such public recording office
retains the original recorded assignments of mortgage, the
Custodial File shall include a photocopy of such intervening
assignment, together with (i) in the case delay caused by the
public recording office, an Officer's Certificate of either the
Company or the title insurer insuring the Mortgage stating that
such intervening assignment of mortgage has been delivered to
the appropriate public recording office for recordation and that
such original recorded intervening assignment of mortgage or a
copy of such intervening assignment of mortgage certified by the
appropriate public recording office to a true and complete copy
of the original recorded intervening assignment of mortgage will
be promptly delivered to the Custodian upon receipt thereof by
the Company; or (ii) in the case of an intervening assignment
where a public recording office retains the original recorded
intervening assignment or in the case where an intervening
assignment is lost after recordation in a public recording
office, a copy of such intervening assignment with recording
information thereon certified by such public recording office to
be a true and complete copy of the original recorded intervening
assignment.
7. The original or a certified copy of the mortgagee title
insurance policy or preliminary title insurance policy.
8. The original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage.
9. The original power of attorney, if applicable, with evidence of
recording thereon or if such power of attorney has not been
returned from the applicable recording office or has been lost
or if such public recording office retains the original recorded
power of attorney, the Custodial File shall include a photocopy
of such power of attorney, together with (i) in the case delay
caused by the public recording office, an Officer's Certificate
of either the Company or the title insurer insuring the Mortgage
stating that such power of attorney has been delivered to the
appropriate public recording office for recordation and that
such original recorded power of attorney or a copy of such power
of attorney certified by the appropriate public recording office
to a true and complete copy of the original recorded power of
attorney will be promptly delivered to the Custodian upon
receipt thereof by the Company; or (ii) in the case of a power
of attorney where a public recording office retains the original
recorded power of attorney or in the case where a power of
attorney is lost after recordation in a public recording office,
a copy of such power of attorney with recording information
thereon certified by such public recording office to be a true
and complete copy of the original recorded power of attorney.
<PAGE> 78
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-19
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT 2
CERTIFICATION
[Date]
Nomura Asset Capital Corporation
Two World Financial Center, Building B
New York, New York 10281-1198
Attn:
RE: CUSTODIAL AGREEMENT, DATED AS OF ______ 1, 1995, AMONG
NOMURA ASSET CAPITAL CORPORATION AS THE PURCHASER, LA SALLE
NATIONAL BANK AS THE CUSTODIAN, AND
____________________________ AS THE COMPANY.
Ladies and Gentlemen:
In accordance with the provisions of Section 3 of the above-referenced
Custodial Agreement, the undersigned, as the Custodian, hereby certifies that,
except as specifically noted on the schedule attached hereto, as to each
Mortgage Loan, (i) all documents required to be included in the Custodial File
are in its possession; provided, however, that this certification is not
required to be made with respect to items 3 and 5 of Exhibit 1, (ii) such
documents have been reviewed by the Custodian and appear regular, complete, and
not patently inconsistent on their face and relate to the Mortgage Loan, (ii)
such documents purporting to be original documents appear on their face to be
original documents, and (iii) such documents purporting to be certified
photocopies or conformed copies appear on their face to be true copies of the
related originals. [If a bulk purchase add: In addition, based upon the
Custodian's examination of the documents in the Custodial Files, the Custodian
hereby certifies that the information set forth on the Mortgage Loan Schedule
accurately reflects the terms of such documents.]
LASALLE NATIONAL BANK, Custodian
By:
Name:
Title:
<PAGE> 79
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-20
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT 3
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
LASALLE NATIONAL BANK
135 South LaSalle Street, Suite 200
Chicago, Illinois 60603
Attn:
RE: CUSTODIAL AGREEMENT, DATED AS OF __________ 1, 1995, AMONG
NOMURA ASSET CAPITAL CORPORATION AS THE PURCHASER, LASALLE
NATIONAL BANK AS THE CUSTODIAN, AND
__________________________ AS THE COMPANY.
In connection with the administration of the Mortgage Loans held by you
as the Custodian on behalf of the Purchaser, we request the release, and
acknowledge receipt, of the (Custodial File/[specify documents]) for the
Mortgage Loan described below, for the reason indicated.
Mortgagor's Name Address & Zip Code:
- ------------------------------------
Mortgage Loan Number:
- ---------------------
Reason for Requesting Documents (check one)
- -------------------------------
__1. Mortgage Loan Paid in Full. (The Company hereby certifies that all
amounts received in connection therewith have been credited to the
Custodial Account as provided in the Servicing Agreement.)
__2. Mortgage Loan Repurchase Pursuant to Section ___ of the Servicing
Agreement. (The Company hereby certifies that the repurchase price has
been credited to the Custodial Account as provided in the Servicing
Agreement.)
__3. Mortgage Loan Liquidated By__________________ (The Company hereby
certifies that all proceeds of foreclosure, insurance, condemnation or
other liquidation have been finally received and credited to the
Custodial Account pursuant to the Servicing Agreement.)
__4. Mortgage Loan in Foreclosure
__5. Other (explain)
<PAGE> 80
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-21
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
If box 1, 2 or 3 above is checked, and if all or part of the Custodial
File was previously released to us, please release to us our previous request
and receipt on file with you, as well as any additional documents in your
possession relating to the specified Mortgage Loan.
If box 4 or 5 above is checked, upon our return of all of the above
documents to you as the Custodian, please acknowledge your receipt by signing
in the space indicated below, and returning this form.
[COMPANY]
By:
Name:
Title:
Date:
Acknowledgment of Documents returned to the Custodian (Items 4 and 5):
LASALLE NATIONAL BANK
By:
Name:
Title:
Date:
Acknowledgment of release of documents to the Company (only required if
Custodial Files or documents relating to more than 10 percent (10%) of the
Mortgage Loans, by aggregate outstanding principal balance, have withdrawn for
foreclosure or servicing):
NOMURA ASSET CAPITAL CORPORATION
By:
Name:
Title:
Date:
<PAGE> 81
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-22
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT 4
AUTHORIZED REPRESENTATIVES OF COMPANY
[COMPANY]
NAME SPECIMEN SIGNATURE
- ---- ------------------
- ----------------------------- -----------------------------
- ----------------------------- -----------------------------
- ----------------------------- -----------------------------
- ----------------------------- -----------------------------
- ----------------------------- -----------------------------
<PAGE> 82
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-23
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT 5
AUTHORIZED REPRESENTATIVES OF CUSTODIAN
LASALLE NATIONAL BANK
NAME SPECIMEN SIGNATURE
- ---- ------------------
- ----------------------------- -----------------------------
- ----------------------------- -----------------------------
- ----------------------------- -----------------------------
- ----------------------------- -----------------------------
- ----------------------------- -----------------------------
<PAGE> 83
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-24
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT 5
AUTHORIZED REPRESENTATIVES OF PURCHASER
NOMURA ASSET CAPITAL CORPORATION
NAME SPECIMEN SIGNATURE
- ---- ------------------
- ----------------------------- -----------------------------
- ----------------------------- -----------------------------
- ----------------------------- -----------------------------
- ----------------------------- -----------------------------
- ----------------------------- -----------------------------
<PAGE> 84
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-25
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT 7
FORM OF OPINION OF COUNSEL TO THE CUSTODIAN
(Date)
[COMPANY]
Nomura Asset Capital Corporation
Two World Financial Center
Building B
New York, New York 10281
Ladies and Gentlemen:
We have acted as counsel to LaSalle National Bank (the "Custodian")
in connection with the execution and delivery of that certain Custodial
Agreement, dated as of ____ 1, 1995 (the "Agreement"), among __________________
(the "Company"), Nomura Asset Capital Corporation (the "Purchaser") and the
Custodian with respect to certain residential mortgage loans.
We have reviewed the Agreement and such other matters as we have
deemed appropriate in order to deliver the opinions contained herein.
In rendering the opinions expressed below, we have assumed, without
any independent investigation or verification of any kind, that each of you and
the Company is duly organized, validly existing and in good standing under the
laws of the respective jurisdiction of incorporation and has full power and
authority to execute, deliver and perform the Agreement, and that the
execution, delivery and performance of the Agreement by each of the Purchaser
and the Company has been duly authorized by all requisite corporate action on
the part of each of the Purchaser and the Company and has been duly executed
and delivered by each of the Purchaser and the Company.
Based upon the foregoing, it is our opinion that:
1. The Custodian is a corporation, duly organized, validly existing
and in good standing under the laws of the State of _____________
with full right, power and authority to enter into, execute and
deliver the Agreement. The Custodian is eligible to act as
custodian under the terms of the Agreement.
2. The Agreement has been duly authorized, executed and delivered by
the Custodian and constitutes the legal, valid and binding
agreement of and is enforceable against the Custodian in
accordance with its terms, subject to bankruptcy laws and other
<PAGE> 85
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-26
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
similar laws of general application affecting rights of
creditors and subject to the application of the rules of equity,
including those respecting the availability of specific
performance.
We are members of the Bar of the State of __________. We do not
express herein any opinion as to matters governed by any law other than the law
of the State of _________, the laws of the State of __________ applicable to
Delaware corporations and the federal law of the United States of America.
This opinion is given to you for your sole benefit, and no other
person or entity is entitled to rely hereon, except that the purchaser or
purchasers to which the Purchaser initially and directly resells the Mortgage
Loans may rely on this opinion as if it were addressed to them as of its date.
Very truly yours,
<PAGE> 86
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-27
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
EXHIBIT 8
TRUST RECEIPT
[To be addressed to the Purchaser]
Re: Custodial Agreement, dated as of _____ 1, 1995, among Nomura Asset Capital
Corporation as the Purchaser, __________________________ as the Company and
LaSalle National Bank as the Custodian
Ladies and Gentlemen:
In accordance with the provisions of Section 3 of the above-referenced
Custodial Agreement, the undersigned, as the custodian, hereby certifies that
as to each Mortgage Loan in the attached Trust Receipt Schedule, except as noted
therein, (i) [ if a bulk purchase add: based on its examination of the documents
in the Custodial File, the information set forth on the Mortgage Loan Schedule
accurately reflects the terms of the documents held in the Custodial File,]
(ii) all documents required to be included in the Custodial File are in its
possession; provided, however, that this certification is not required to be
made with respect to items 3 and 5 of Exhibit 1 to the Custodial Agreement,
(iii) such documents have been reviewed by the Custodian and appear regular,
complete, and not patently inconsistent on their face and relate to the
Mortgage Loan, (iv) such documents purporting to be original documents appear
on their face to be original documents, and (v) such documents purporting to be
certified photocopies or conformed copies appear on their face to be true
copies of the related originals. The Custodian makes no representations as to
(i) the validity, legality, enforceability, sufficiency, due authorization,
adequacy, recordability, title or genuineness of any of the documents contained
in each Custodial File or of any of the Mortgage Loans or (ii) the
collectability, insurability, effectiveness or suitability of any such
Mortgage Loan.
The Custodian hereby confirms that it is holding each such Mortgage
Note and Assignment of Mortgage as agent and bailee of, and custodian for the
exclusive use and benefit, and subject to the sole discretion, of the addressee
above pursuant to the terms and conditions of the Custodial Agreement.
This Trust Receipt is not divisible or negotiable. However, you or an
affiliate may transfer this Trust Receipt by special endorsement to no more
than one other party as collateral for a loan or pursuant to a repurchase
transaction. Any party that takes this Trust Receipt from you or your affiliate
by special endorsement may only transfer it by a second endorsement in your
or your affiliate's favor.
If this Trust Receipt has been endorsed as provided above and is held
by other than you or one or your affiliates, we will accept and act on
instructions from the endorsee only if the Certification of Default set forth
below is executed and delivered to the Custodian.
<PAGE> 87
- --------------------------------------------------------------------------------
NOMURA ASSET CAPITAL CORPORATION EXHIBIT R
PAGE R-28
AUGUST 1, 1995
FORM OF CUSTODIAL AGREEMENT
- --------------------------------------------------------------------------------
Capitalized terms used herein shall have the meaning ascribed to them
in the Custodial Agreement.
LASALLE NATIONAL BANK, Custodian
By:
Name:
Title: ________________________________
CERTIFICATION OF DEFAULT
You are hereby notified that _____________________ is in default under
a loan agreement or repurchase agreement with the undersigned and the
undersigned is entitled to receive the Mortgage Loans subject to this Trust
Receipt.
[COMPANY]
By:
Name:
Title:
Receipt Acknowledged:
LASALLE NATIONAL BANK, Custodian
By:
Name:
Title:
Date:
EXHIBIT 9
SERVICING AGREEMENT
<PAGE> 1
EXHIBIT 10.9
MASTER REPURCHASE AGREEMENT GOVERNING
PURCHASES AND SALES OF MORTGAGE LOANS
Dated as of October 15, 1997
Between:
NOMURA ASSET CAPITAL CORPORATION, as Buyer
and
CMG FUNDING CORP., as Seller
1. APPLICABILITY
From time to time the parties hereto may enter into transactions in
which CMG Funding Corp. ("Seller") agrees to transfer to Nomura Asset
Capital Corporation ("Buyer") Mortgage Loans against the transfer of
funds by Buyer, with a simultaneous agreement by Buyer to transfer to
Seller such Mortgage Loans at a date certain not later than thirty days
after the date of transfer or on demand, as specified in the
Confirmation, against the transfer of funds by Seller. Each such
transaction shall be referred to herein as a "Transaction" and shall be
governed by this Agreement and the related Confirmation, unless
otherwise agreed in writing.
2. DEFINITIONS
"Act of Insolvency" means, with respect to any party, and its
Affiliates, (i) the filing of a petition, commencing, or authorizing the
commencement of any case or proceeding under any bankruptcy, insolvency,
reorganization, liquidation, dissolution or similar law relating to the
protection of creditors, or suffering any such petition or proceeding to
be commenced by another; (ii) seeking the appointment of a receiver,
trustee, custodian or similar official for such party or an Affiliate or
any substantial part of the property of either, (iii) the appointment of
a receiver, conservator, or manager for such party or an Affiliate by
any governmental agency or authority having the jurisdiction to do so;
(iv) the making or offering by such party or an Affiliate of a
composition with its creditors or a general assignment for the benefit
of creditors, (v) the admission in writing by such party or an Affiliate
of such party's or such Affiliate's inability to pay its debts or
discharge its obligations as they become due or mature; or (vi) any
governmental authority or agency or any person, agency or entity acting
or purporting to act under governmental authority shall have taken any
action to condemn, seize or appropriate, or to assume custody or control
of, all or any substantial part of the property of such party or
<PAGE> 2
of any of its Affiliates, or shall have taken any action to displace the
management of such party or of any of its Affiliates or to curtail its
authority in the conduct of the business of such party or of any of its
Affiliates.
"Additional Loans" means Mortgage Loans or cash provided by Seller to
Buyer or its designee pursuant to Section 4(a).
"Affiliate" means an affiliate of a party as such term is defined in the
United States Bankruptcy Code in effect from time to time.
"Agreement" means this Master Repurchase Agreement Governing Purchases
and Sales of Mortgage Loans, as amended from time to time.
"Assignment of Takeout" means a collateral assignment of a Takeout
Commitment executed by the Seller for the benefit of the Buyer in the
form of Exhibit VI.
"B/C Mortgage Loan" means a residential mortgage loan which conforms to
the representations and warranties set forth in Exhibit V.
"Business Day" means a day other than (i) a Saturday or Sunday, or (ii)
a day in which the New York Stock Exchange or Federal Reserve is
authorized or obligated by law or executive order to be closed.
"Buyer" has the meaning specified in Section 1.
"Collateral" has the meaning specified in Section 6.
"Collateral Amount" means, with respect to any Transaction, the amount
obtained by application of the Collateral Amount Percentage to the
Market Value of the Purchased Mortgage Loans for such Transaction.
"Collateral Amount Percentage" means 98%.
"Collateral Deficit" has the meaning specified in Section 4(a).
"Committed Amount" has the meaning specified in Section 3(e).
"Commitment Fee" has the meaning specified in Section 3(e).
"Confirmation" has the meaning specified in Section 3(a).
"Custodial Agreement" means that custodial agreement, dated as of the
date hereof by and among, Buyer, Seller and Custodian.
"Custodial Delivery" means the form executed by the Seller in order to
deliver the
2
<PAGE> 3
Mortgage File to Buyer or its designee (including the Custodian)
pursuant to Section 7(c), a form of which is attached hereto as Exhibit
II.
"Custodian" means LaSalle National Bank, as custodian under the
Custodial Agreement.
"Defaulted Mortgage Loan" means a mortgage loan that is in foreclosure
or bankruptcy, and which otherwise conforms to the representations and
warranties set forth in Exhibit V.
"Event of Default" has the meaning specified in Section 13.
"Hospital Loans" means a mortgage loan with respect to which one or more
of the documents constituting the Mortgage File, other than the
documents required by Sections 7(c)(i), 7(c)(v) and 7(c)(xiii) relating
to such Mortgage Loan, may be missing or defective, and which otherwise
conforms to the representations and warranties set forth in Exhibit V.
"HUD" means the United States Department of Housing and Urban
Development.
"Income" means, with respect to any Mortgage Loan at any time, any
principal thereof then payable and all interest or other distributions
payable thereon less any related servicing fee(s) charged by the
Servicer.
"Maximum Purchased Amount" has the meaning specified in Section 3.
"Market Value" means as of any date with respect to any Mortgage Loans,
the price at which such Mortgage Loans could readily be sold as
reasonably determined in good faith by Nomura; provided, however, that
in making such determination, Nomura may, in its sole discretion, not
take into account (i) any B/C Mortgage Loan which becomes sixty (60) or
more days delinquent for which all delinquent payments shall not have
been advanced by the related Servicer, and which has not become subject
to a Transaction hereunder as a Non-Securitizable Mortgage Loan pursuant
to Section 3(g), below, or (ii) any Mortgage Loan with respect to which
there is a breach of a representation, warranty or covenant made by
Seller in this Agreement or the Custodial Agreement that materially
adversely affects Buyer's interest in such Mortgage Loan and which
breach has not been cured.
"Mortgage" means a mortgage, deed of trust, deed to secure debt or other
instrument, creating a valid and enforceable first lien on or first
priority ownership interest in an estate in fee simple in real property
and the improvements thereon, securing a mortgage note or similar
evidence of indebtedness.
"Mortgage File" means the documents specified as the "Mortgage File" in
Section 7(c), together with any additional documents and information
required to be delivered to Buyer
3
<PAGE> 4
or its designee (including the Custodian) pursuant to this Agreement.
"Mortgage Loan" means non-securitized whole loans, namely: (i) B/C
Mortgage Loans; (ii) Non-Securitizable Mortgage Loans; and (iii) such
other types of non-securitized whole loans as may be agreed upon by the
parties hereto from time to time.
"Mortgage Loan Schedule" means a schedule of Mortgage Loans attached to
each Trust Receipt, Confirmation and Custodial Delivery which includes
the information set forth in Exhibit II.
"Mortgage Note" means a note or other evidence of indebtedness of a
Mortgagor secured by a Mortgage.
"Mortgaged Property" means the real property securing repayment of the
debt evidenced by a Mortgage Note.
"Mortgagee" means the record holder of a Mortgage Note secured by a
Mortgage.
"Mortgagor" means the obligor on a Mortgage Note and the grantor of the
related Mortgage.
"Nomura" means Nomura Asset Capital Corporation, a corporation organized
under the laws of the State of Delaware.
"Non-Performing Mortgage Loan" means a mortgage loan on which the
principal of and/or interest is past due and unpaid for sixty (60) days
or more, and which otherwise conforms to the representations and
warranties set forth in Exhibit V.
"Non-Securitizable Mortgage Loan" means B/C Mortgage Loans which are:
(i) Non-Performing Mortgage Loans; (ii) Defaulted Mortgage Loans; and
(iii) Hospital Loans.
"Periodic Payment" has the meaning specified in Section 5(b).
"Price Differential" means, with respect to any Transaction hereunder as
of any date, the aggregate amount obtained by daily application of the
Pricing Rate for such Transaction to the Purchase Price for such
Transaction on a 360 day per year basis for the actual number of days
during the period commencing on (and including) the Purchase Date for
such Transaction and ending on (but excluding) the Repurchase Date
(reduced by any amount of such Price Differential previously paid by
Seller to Buyer with respect to such Transaction).
"Pricing Rate" means: (i) with respect to B/C Mortgage Loans, 30 day
LIBOR plus 110 basis points, and (ii) with respect to Non-Securitizable
Mortgage Loans, 30 day LIBOR plus 325 basis points. 30 day LIBOR shall
be the rate set forth as such on page 12 of
4
<PAGE> 5
telerate at 10:00 a.m. (New York time) two Business Days prior to each
Purchase Date.
"Prime Rate" means the rate of interest published by The Wall Street
Journal, northeast edition, as the "prime rate".
"Purchase Date" means the date on which Purchased Mortgage Loans are
transferred by Seller to the Buyer or its designee (including the
Custodian) as specified in the Confirmation.
"Purchase Price" means on each Purchase Date, the price at which
Purchased Mortgage Loans are transferred by Seller to Buyer or its
designee (including the Custodian); provided however, that the Purchase
Price of any Mortgage Loan previously sold to the Seller by Nomura in
transactions unrelated to Transactions under this Agreement shall not
exceed 103% of the outstanding principal balance of such Mortgage Loan,
and the Purchase Price of any other Mortgage Loan shall not exceed 102%
of the outstanding principal balance of such Mortgage Loan.
"Purchased Mortgage Loans" means the Mortgage Loans sold by Seller to
Buyer in a Transaction, any Additional Loans and any Substituted
Mortgage Loans.
"Replacement Assets" has the meaning specified in Section 14(b).
"Repurchase Date" means the date on which Seller is to repurchase the
Purchased Mortgage Loans from Buyer, including any date determined by
application of the provisions of Sections 3 or 14, as specified in the
Confirmation.
"Repurchase Price" means the price at which Purchased Mortgage Loans are
to be transferred from Buyer or its designee (including the Custodian)
to Seller upon termination of a Transaction, which will be determined in
each case (including Transactions terminable upon demand) as the sum of
the Purchase Price and the Price Differential as of the date of such
determination decreased by all cash, Income and Periodic Payments
actually received by Buyer pursuant to Sections 4(a), 5(a) and 5(b),
respectively.
"Seller" means CMG Funding Corp., a corporation organized under the laws
of the State of Delaware.
"Servicer" has the meaning specified in Section 25.
"Seller Release" means, if there is no Warehouse Lender with respect to
a Mortgage Loan, a letter from the Seller to Buyer, substantially in the
form of an exhibit to the Custodial Agreement, confirming such fact and
releasing any and all right, title and interest of the Seller in such
Mortgage Loan.
5
<PAGE> 6
"Servicing Agreement" has the meaning specified in Section 25.
"Servicing Records" has the meaning specified in Section 25.
"Substituted Mortgage Loans" means any Mortgage Loans substituted for
Purchased Mortgage Loans in accordance with Section 9 hereof.
"Takeout Commitment" means an agreement by an investor or financial
institution to purchase Mortgage Loans on a forward delivery basis.
"Takeout Investor" means the investor or financial institution which
agrees to purchase Mortgage Loans pursuant to a Takeout Commitment.
"Termination Date" has the meaning specified in Section 19.
"Transaction" has the meaning specified in Section 1.
"Trust Receipt" means a trust receipt issued by Custodian to Buyer
confirming the Custodian's possession of certain mortgage loan files
which are the property of and held by Custodian for the benefit of the
Buyer.
"Underwriting Guidelines" means the underwriting guidelines of the
Seller, dated August 15, 1997, as may be amended from time to time with
the approval of Buyer, or such other guidelines as approved by Buyer.
"Warehouse Lender" means any lender providing financing to the Seller
for the purpose of originating Mortgage Loans and having a security
interest in or lien on the Mortgage Loans as collateral for the
obligations of the Seller to such lender with respect to the financing.
"Warehouse Lender Release" means a letter from each Warehouse Lender, or
the collateral or credit agent on behalf of each Warehouse Lender, as
applicable, having a security interest in or lien on a Mortgage Loan,
substantially in the form of an exhibit to the Custodial Agreement,
addressed to Buyer, releasing any and all right, title and interest of
the Warehouse Lender in such Mortgage Loan.
3. INITIATION; CONFIRMATION; TERMINATION
(a) An agreement to enter into a Transaction may be entered into orally
or in writing at the initiation of either Buyer or Seller; provided,
however, that Buyer shall have no obligation to enter into any
Transaction hereunder, except as provided in subsection (e), below. If
the parties agree to enter into a Transaction at either Buyer's or
Seller's initiation, then in any event, Buyer shall confirm the terms of
each Transaction by issuing a written confirmation to the Seller
promptly after the parties enter into such Transaction
6
<PAGE> 7
containing the terms set forth on Exhibit I attached hereto (a
"Confirmation"). Such Confirmation shall describe the Purchased Mortgage
Loans, identify Buyer and Seller and set forth (i) the Purchase Date,
(ii) the Purchase Price, (iii) the Repurchase Date, (iv) the Pricing
Rate applicable to the Transaction, and (v) may contain additional terms
or conditions not inconsistent with this Agreement. After receipt of the
Confirmation, the Seller shall, subject to the provisions of subsection
(c) below, sign the Confirmation and promptly return it to Buyer.
(b) Any Confirmation by Buyer shall be deemed to have been received by
Seller on the date actually received by Seller.
(c) Each Confirmation, together with this Agreement, shall be conclusive
evidence of the terms of the Transaction(s) covered thereby unless
objected to in writing by the Seller no more than one (1) Business Day
after the date the Confirmation was received by the Seller or unless a
corrected Confirmation is sent by Buyer. An objection sent by the Seller
must state specifically that the writing is an objection, must specify
the provision(s) being objected to by the Seller, must set forth such
provision(s) in the manner that the Seller believes they should be
stated, and must be received by Buyer no more than one (1) Business Day
after the Confirmation was received by the Seller.
(d) On the Repurchase Date, Buyer will terminate the Transaction and
will effect by transfer to Seller or its designee of the Purchased
Mortgage Loans (and any Income in respect thereof received by Buyer not
previously credited or transferred to, or applied to the obligations of,
Seller pursuant to Section 5) against the simultaneous transfer of the
Repurchase Price to an account of Buyer. Seller is obligated to obtain
the Mortgage Files from Buyer or its designee (including the Custodian)
at Seller's expense on the Repurchase Date.
(e) In consideration of a fee paid by Seller to Buyer in the amount
equal to 20 basis points multiplied by the Committed Amount (the
"Commitment Fee"), Buyer shall, for the term of this Agreement, commit
to purchase Mortgage Loans from the Seller so long as: (i) the aggregate
Purchase Price for Non-Securitizable Mortgage Loans purchased by Buyer
at any time under this Agreement does not exceed 10% of the aggregate
Purchase Price for all Mortgage Loans purchased by Buyer at any time
under this Agreement; (ii) the aggregate Purchase Price for all Mortgage
Loans purchased by Buyer at any time under this Agreement (the "Maximum
Purchased Amount") does not exceed $ 100,000,000 (the "Committed
Amount"); (iii) the Mortgage Loans comply with the representations and
warranties set forth herein; (iv) no Event of Default has occurred or is
continuing; and (v) Seller gives Buyer two Business Day notice prior to
entering a Transaction. Buyer may purchase, in its sole discretion,
additional Mortgage Loans which causes the Maximum Purchased Amount to
exceed the Committed Amount.
(f) At the end of each three-month period (commencing on the date three
months after
7
<PAGE> 8
the date of this Agreement). Seller shall pay to Buyer a non-utilization
fee in an amount equal to one-quarter of 25 basis points multiplied by
the positive difference, if any, between the Committed Amount and the
average daily balance of the aggregate Purchase Price of all Purchased
Mortgage Loans purchased by Buyer hereunder for such three month period.
(g) Any Mortgage Loan purchased by the Buyer hereunder as a B/C Mortgage
Loan that becomes sixty (60) or more days delinquent subsequent to the
Purchase Date of the related Transaction hereunder, shall be subject to
such Transaction as a Non-Performing Mortgage Loan, provided, however,
that the aggregate Purchase Price for all Non-Securitizable Mortgage
Loans purchased by Buyer at any time under this Agreement shall not
exceed IO% of the aggregate Purchase Price for all Purchased Mortgage
Loans.
4. COLLATERAL AMOUNT MAINTENANCE
(a) If at any time the Repurchase Price of Purchased Mortgage Loans
subject to a Transaction is greater than the Collateral Amount for such
Transaction (a "Collateral Deficit"), then Buyer may by notice to Seller
require Seller, to transfer to Buyer or its designee (including the
Custodian) (at the Buyer's option) Mortgage Loans or cash ("Additional
Loans"), so that the Repurchase Price shall be no greater than the
Collateral Amount.
(b) Notice required pursuant to subsection (a) above may be given by any
means of telecopier or telegraphic transmission. A notice for the
payment or delivery in respect of a Collateral Deficit received before
10:00 a.m. (New York time) on a Business Day must be met not later than
4:00 p.m. (New York time) on the Business Day on which the notice was
given. Any notice given on a Business Day after 10:00 a.m. (New York
time) shall be met not later than twenty-four hours following such
notice, unless such day is not a Business Day, in which case such notice
shall be met no later than 10:00 a.m. (New York time) on the next
Business Day. The failure of Buyer, on any one or more occasions, to
exercise its rights under subsection (a) of this Section shall not
change or alter the terms and conditions to which this Agreement is
subject or limit the right of the Buyer to do so at a later date. Buyer
agrees that a failure or delay to exercise its rights under subsection
(a) of this Section shall not limit its rights under this Agreement or
otherwise existing by law or in any way create additional rights for
the Seller.
5. INCOME PAYMENTS
(a) Where a particular Transaction's term extends over an Income payment
date on the Purchased Mortgage Loans subject to that Transaction such
Income shall be the property of Buyer. Notwithstanding the foregoing,
Buyer agrees that (i) if a Servicer is in place for the Purchased
Mortgage Loans, Servicer shall continue to remit Income to Seller, or
(ii) if Seller is the servicer of the Purchased Mortgage Loans, Seller
is permitted
8
<PAGE> 9
to retain the Income, until and unless Buyer directs Servicer or Seller,
as the case may be, to hold such Income in a segregated account for and
on behalf of Buyer and/or to remit such Income directly to Buyer.
(b) Notwithstanding that Buyer and Seller intend that the Transactions
hereunder be sales to Buyer of the Purchased Mortgage Loans, Seller
shall pay to Buyer the accreted value of the Price Differential (less
any amount of such Price Differential previously paid by Seller to
Buyer) (each such payment, a "Periodic Payment") on the first Business
Day of each month.
(c) Buyer shall offset against the Repurchase Price of each such
Transaction all Income and Periodic Payments actually received by Buyer
pursuant to Sections 5(a) and (b), respectively.
6. SECURITY INTEREST
The Buyer and the Seller intend that the Transactions hereunder be sales
to the Buyer of the Purchased Mortgage Loans and not loans from the
Buyer to the Seller secured by the Purchased Mortgage Loans. However, in
order to preserve the Buyer's rights under this Agreement in the event
that a court or other forum recharacterizes the Transactions hereunder
as loans and as security for the performance by Seller of all of
Seller's obligations to Buyer under this Agreement and the Transactions
entered into pursuant to this Agreement, Seller grants Buyer a first
priority security interest in the Purchased Mortgage Loans, Servicing
Agreements, Servicing Records, insurance relating to the Mortgage Loans,
Income, custodial accounts and escrow accounts relating to the Mortgage
Loans and any other contract rights (including the right to receive
principal and interest payments with respect to the Mortgage Loans and
the right to enforce such payments), general intangibles and other
assets relating to the Mortgage Loans or any interest in the Mortgage
Loans, the servicing of the Mortgage Loans (including and the right to
contract for servicing), securities backed by or representing an
interest in such Mortgage Loans, Takeout Commitments and any other
property of Seller held from time to time by Buyer or its Affiliates
(collectively, the "Collateral").
7. PAYMENT, TRANSFER AND CUSTODY
(a) Unless otherwise mutually agreed in writing, all transfers of funds
hereunder shall be in immediately available funds.
(b) On the Purchase Date for each Transaction, ownership of the
Purchased Mortgage Loans shall be transferred to the Buyer or its
designee (including the Custodian) against the simultaneous transfer of
the Purchase Price to an account of Seller specified in the
Confirmation. Seller, simultaneously with the delivery to the Buyer or
its designee (including the Custodian) of the Purchased Mortgage Loans
relating to each Transaction
9
<PAGE> 10
hereby sells, transfers, conveys and assigns to Buyer or its designee
including the Custodian) without recourse, but subject to the terms of
this Agreement, all the right, title and interest of Seller in and to
the Purchased Mortgage Loans together with all right, title and interest
in and to the proceeds of any related insurance policies. Upon transfer
of the Mortgage Loans to Buyer as set forth in Paragraph 3(a) of this
Agreement and until termination of any Transactions as set forth in this
Agreement, record title in the name of Seller to each Mortgage Loan
shall be retained by Seller in trust, for the benefit of Buyer, for the
sole purpose of facilitating the servicing and the supervision of the
servicing of the Mortgage Loans by Seller in accordance with Section 25
hereof.
(c) In connection with such sale, transfer, conveyance and assignment,
on or prior to each Purchase Date, the Seller shall deliver or cause to
be delivered and released to Buyer or its designee (including the
Custodian), prior to Buyer's purchase therefor, the following original
documents (the "Mortgage File"), pertaining to each of the Purchased
Mortgage Loans identified in the Custodial Delivery delivered therewith:
(i) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of _________, without
recourse" and signed in the name of the Seller by an authorized
officer (in the event that the Mortgage Loan was acquired in a
merger, the signature must be in the following form: "[owner],
successor by merger to [name of predecessor]"; in the event that
the Mortgage Loan was acquired or originated while doing
business under another name, the signature must be in the
following form: "[owner], formerly known as [previous name]";
(ii) the original of any guarantee executed in connection with
the Mortgage Note (if any);
(iii) the original Mortgage with evidence of recording thereon
or copies certified by Seller to have been sent for recording;
(iv) the originals of all assumption, modification,
consolidation or extension agreements, with evidence of
recording thereon or copies certified by Seller to have been
sent for recording;
(v) the original Assignment of Mortgage in blank for each
Mortgage Loan, in form and substance acceptable for recording
and signed in the name of the Seller; in the event that the
Mortgage Loan was acquired in a merger, the signature must be in
the following form: "[owner], successor by merger to [name of
predecessor]"; in the event that the Mortgage Loan was acquired
or originated while doing business under another name, the
signature must be in the following form: "[owner], formerly
known as [previous name]";
(vi) the originals of all intervening assignments of mortgage
that complete the
10
<PAGE> 11
chain of ownership from the original owner to the Seller, with
evidence of recording thereon or copies certified by Seller to
have been sent for recording;
(vii) the original fire and casualty insurance policy covering
the mortgaged property which is an amount at least equal to the
outstanding principal balance of the Mortgage Loan, as well as
the original insurance against flood hazards if the Mortgaged
Property is an area identified by the Federal Emergency
Management Agency as having special flood hazards;
(viii) with respect to any Mortgage Loan that has been
outstanding for five (5) years or less, an appraisal of the
related mortgaged property signed prior to the approval of the
Mortgage Loan application by a qualified appraiser, duly
appointed by the originator of the Mortgage Loan;
(ix) a copy of the UCC-1 Financing Statement, certified as true
and correct by the Seller or recording agent, stating Seller as
Secured Party, together with an assignment of UCC-1 executed by
Seller with the secured party in blank, but if the UCC-1 does
not name "Seller" as the secured party, the Mortgage File shall
contain all intervening assignments that complete the chain of
assignment from the original secured party to the Seller, and,
if provided, a UCC-3 Continuation Statement;
(x) the original PMI Policy or certificate, if any;
(xi) attorney's opinion of title and abstract of title or the
original mortgagee title insurance policy, or if the original
mortgagee title insurance policy has not been issued, the
preliminary title report, binder or commitment to insure;
(xii) the original of any security agreement, chattel mortgage
or equivalent document executed in connection with the Mortgage;
(xiii) either a Seller Release or a Warehouse Lender Release
from any Warehouse Lender having a security interest in a
Mortgage Loan, as appropriate; and
(xiv) any other item which may constitute part of the Mortgage
File.
(d) With respect to Hospital Loans, on or prior to each Purchase Date,
the Seller shall deliver or cause to be delivered and released to Buyer
or its designee (including the Custodian), prior to Buyer's purchase
therefor, at a minimum, the documents listed in Sections 7(c) (i),
7(c)(v) and 7(c)(xiii), above.
(e) Prior to the first Transaction, Seller shall deliver to Buyer the
following which shall
11
<PAGE> 12
be held in escrow by the Buyer until the termination of this Agreement
or the occurrence of an Event of Default:
(i) a fully executed power of attorney substantially in the form
of Exhibit III attached hereto irrevocably appointing Buyer its
attorney-in-fact with full power to complete and record the
assignment of Mortgage, complete the endorsement of the Mortgage
Note and take such other steps as may be necessary or desirable
to enforce Buyer's rights against such Mortgage Loans, the
related Mortgage Files and the Servicing Records;
(ii) a fully executed irrevocable letters of instructions to
Servicers or Master Servicers, substantially in the form of
Exhibit IV attached hereto, directing such Servicers or Master
Servicer to make all payments of Income directly to Buyer; and
(iii) a fully executed Assignment of Takeout, substantially in
the form of Exhibit VI attached hereto, directing such Takeout
Investor (i) to accept delivery of the Mortgage Loans subject
thereto from Buyer and (ii) to pay Buyer the purchase price for
the Mortgage Loans set forth in the Takeout Commitment.
(e) Buyer may deposit the Mortgage Files representing the Purchased
Mortgage Loans, or direct that the Mortgage Files be deposited directly,
with a designee acting in the capacity of bailee for the Buyer. If the
Mortgage Files are delivered to Buyer or its designee, Buyer or its
designee shall during the term of this Agreement exercise reasonable and
prudent care in the maintenance thereof. If the Mortgage Loan documents
are delivered to Custodian, the Mortgage Files shall be maintained in
accordance with the Custodial Agreement. The Seller understands and
agrees that the Custodian shall have no responsibility to the Seller,
including without limitation any responsibility to keep the Seller
informed of any changes in the status of such Mortgage Files or in the
Buyer's instructions with respect thereto, except as explicitly set
forth in the Custodial Agreement.
(f) Any Mortgage Files not delivered to Buyer or its designee (including
the Custodian) are and shall be held in trust by the Seller or its
designee for the benefit of the Buyer as the owner thereof. The Seller
or its designee shall maintain a copy of the Mortgage File and the
originals of the Mortgage File not delivered to Buyer or its designee
(including the Custodian). The possession of the Mortgage File by the
Seller or its designee is at the will of the Buyer for the sole purpose
of servicing the related Purchased Mortgage Loan, and such retention and
possession by the Seller or its designee is in a custodial capacity
only. Each Mortgage File retained or held by the Seller or its designee
shall be segregated on the Seller's books and records from the other
assets of the Seller or its designee and the books and records of the
Seller or its designee shall be marked appropriately to reflect clearly
the sale of the related Purchased Mortgage Loan to the
12
<PAGE> 13
Buyer. The Seller or its designee shall release its custody of the
Mortgage File only in accordance with written instructions from the
Buyer, unless such release is required as incidental to the servicing of
the Purchased Mortgage Loans or is in connection with a repurchase of
any Purchased Mortgage Loan by Seller.
8. HYPOTHECATION OR PLEDGE OF PURCHASED MORTGAGE LOANS
Title to all Purchased Mortgage Loans shall pass to Buyer and Buyer
shall have free and unrestricted use of all Purchased Mortgage Loans.
Nothing in this Agreement shall preclude Buyer from engaging in
repurchase transactions with the Purchased Mortgage Loans or otherwise
pledging, repledging, hypothecating, or rehypothecating the Purchased
Mortgage Loans, but no such transaction shall relieve Buyer of its
obligations to transfer Purchased Mortgage Loans to Seller pursuant to
Section 3. Nothing contained in this Agreement shall obligate Buyer to
segregate any Purchased Mortgage Loans delivered to Buyer by Seller.
9. SUBSTITUTION
(a) Subject to Section 9(b), Seller may, upon one (1) Business Day's
written notice to Buyer, with a copy to Custodian, substitute other
Mortgage Loans for any Purchased Mortgage Loans. Such substitution shall
be made by transfer to Buyer or its designee (including the Custodian)
of the Mortgage File of such other Mortgage Loans together with a
Custodial Delivery and transfer to Seller or its designee of the
Purchased Mortgage Loans requested for release. After substitution, the
substituted Mortgage Loans, shall be deemed to be Purchased Mortgage
Loans.
(b) Notwithstanding anything to the contrary in this Agreement, Seller
may not substitute other Mortgage Loans for any Purchased Mortgage Loans
if (i) after taking into account such substitution, a Collateral Deficit
were to occur, or (ii) Buyer does not consent to such substitution.
10. REPRESENTATIONS
(a) As of each Purchase Date, each of Buyer and Seller represents and
warrants to the other that (i) it is duly authorized to execute and
deliver this Agreement, to enter into the Transactions contemplated
hereunder and to perform its obligations hereunder and has taken all
necessary action to authorize such execution, delivery and performance;
(ii) it will engage in such Transactions as principal (or, if agreed in
writing in advance of any Transaction by the other party hereto, as
agent for a disclosed principal); (iii) the person signing this
Agreement on its behalf is duly authorized to do so on its behalf (or on
behalf of any such disclosed principal); (iv) no approval, consent or
authorization of the Transactions contemplated by this Agreement from
any federal, state, or local regulatory authority having jurisdiction
over it is required or, if required, such approval, consent or
13
<PAGE> 14
authorization has been or will, prior to the Purchase Date, be obtained;
(v) the execution, delivery, and performance of this Agreement and the
Transactions hereunder will not violate any law, regulation, order,
judgment, decree, ordinance, charter, by-law, or rule applicable to it
or its property or constitute a default (or an event which, with notice
or lapse of time, or both would constitute a default) under or result in
a breach of any agreement or other instrument by which it is bound or by
which any of its assets are affected; (vi) it has received approval and
authorization to enter into this Agreement and each and every
Transaction actually entered into hereunder pursuant to its internal
policies and procedures; and (vii) neither this Agreement nor any
Transaction pursuant hereto are entered into in contemplation of
insolvency or with intent to hinder, delay or defraud any creditor.
(b) The Seller represents and warrants to the Buyer that as of the
Purchase Date for the purchase of any Purchased Mortgage Loans by the
Buyer from the Seller and as of the date of this Agreement and any
Transaction hereunder and at all times while this Agreement and any
Transaction thereunder is in full force and effect:
(i) ORGANIZATION. The Seller is duly organized, validly existing
and in good standing under the laws and regulations of the state
of Seller's organization and is duly licensed, qualified, and in
good standing in every state where Seller transacts business and
in any state where any Mortgaged Property is located if the laws
of such state require licensing or qualification in order to
conduct business of the type conducted by the Seller.
(ii) NO LITIGATION. There is no action, suit, proceeding,
investigation, or in arbitration pending or threatened against
the Seller which may result in any material adverse change in
the business, operations, financial condition, properties, or
assets of the Seller, or which may have an adverse effect on the
validity of this Agreement or the Purchased Mortgage Loans
Assets or any action taken or to be taken in connection with the
obligations of the Seller contemplated herein.
(iii) NO BROKER. The Seller has not dealt with any broker,
investment banker, agent, or other person, except for the Buyer,
who may be entitled to any commission or compensation in
connection with the sale of Purchased Mortgage Loans pursuant to
this Agreement; provided, that if Seller has dealt with any
broker, investment banker, agent, or other person, except for
the Buyer, who may be entitled to any commission or compensation
in connection with the sale of Purchased Mortgage Loans pursuant
to this Agreement, such commission or compensation shall have
been paid in full by Seller.
(iv) GOOD TITLE TO COLLATERAL. Purchased Mortgage Loans shall be
free and clear of any lien, encumbrance or impediment to
transfer, and the Seller represents
14
<PAGE> 15
and warrants the foregoing to the Buyer and represents and
warrants that it has good, valid and marketable title or right
to sell and transfer such Purchased Mortgage Loans to the Buyer.
(v) DELIVERY OF MORTGAGE FILE. The Mortgage Note, the Mortgage,
the Assignment of Mortgage and any other documents required to
be delivered under this Agreement or the Custodial Agreement for
the Mortgage Loans have been delivered to the Custodian. The
Seller or its designee is in possession of a complete, true and
accurate Mortgage File, except for such documents the originals
of which have been delivered to the Custodian, and except for
such documents relating to Hospital Loans that are defective or
missing, as permitted under Section 7 of this Agreement.
(vi) SELECTION PROCESS. The Purchased Mortgage Loans were
selected from among the outstanding mortgage loans in the
Seller's portfolio as to which the representations and
warranties set forth in this Agreement could be made and such
selection was not made in a manner so as to affect adversely the
interests of the Buyer.
(vii) ADDITIONAL REPRESENTATIONS AND WARRANTIES BY INSURED
DEPOSITORY INSTITUTIONS. If Seller is an "insured depository
institution" as that term is defined in Section 1813(a) of Title
12 of the United States Code, as amended, Seller makes the
following additional representations and warranties:
(A) This Agreement between Buyer and Seller conforms to all
applicable statutory requirements. This Agreement is (1)
executed contemporaneously with the agreement reached by Buyer
and Seller, (2) approved by a specific corporate or banking
association resolution by the Seller's board of directors, which
approval shall be reflected in the minutes of said board, and
(3) continuously, from the time of its execution, an official
record of the Seller. A copy of such resolution, certified by a
vice president or higher officer of Seller has been provided to
Buyer.
(B) Seller will maintain a copy of this Agreement and each
Confirmation in its official books and records and shall make
same available for Buyer's inspection and copying on one
Business Day's notice.
(C) The aggregate amount of the Transactions outstanding as of
any date between Buyer and Seller shall not exceed any
restrictions or limitations imposed by the board of directors of
Seller.
(c) The Seller represents and warrants to the Buyer that each Mortgage
Loan sold
15
<PAGE> 16
hereunder and each pool of Mortgage Loans sold in a Transaction
hereunder: (i) was underwritten in accordance with the Underwriting
Guidelines, and (ii) conforms to the representations and warranties set
forth in Exhibit V attached hereto and such additional representations
and warranties provided in the Confirmation, if any; and that each
Mortgage Loan delivered hereunder as Additional Loans or Substituted
Mortgage Loans: (i) was underwritten in accordance with the Underwriting
Guidelines, and (ii) conforms to the representations and warranties set
forth in Exhibit V hereto and the Confirmation, if any. Buyer may in its
sole discretion waive any of the representations and warranties set
forth in Exhibit V attached hereto; provided, that such waiver must be
set forth in the related Confirmation. It is understood and agreed that
the representations and warranties set forth in Exhibit V hereto and the
Confirmation, if any, shall survive delivery of the respective Mortgage
File to Buyer or its designee (including the Custodian).
(d) On the Purchase Date for any Transaction, Buyer and Seller shall
each be deemed to have made all the foregoing representations with
respect to itself as of such Purchase Date.
11. NEGATIVE COVENANTS OF THE SELLER
On and as of the date of this Agreement and each Purchase Date and until
this Agreement is no longer in force with respect to any Transaction,
the Seller covenants that it will not:
(a) take any action which would directly or indirectly impair or
adversely affect the Buyer's title to or the value of the Purchased
Mortgage Loans;
(b) pledge, assign, convey, grant, bargain, sell, set over, deliver or
otherwise transfer any interest in the Purchased Mortgage Loans to any
person not a party to this Agreement nor will the Seller create, incur
or permit to exist any lien, encumbrance or security interest in or on
the Purchased Mortgage Loans except as described in Section 6 of this
Agreement;
(c) without Buyer's prior consent, Seller and those acting on behalf of
Seller shall not amend or modify, or waive any term or condition of, or
settle or compromise any claim in respect of, any item of the Purchased
Mortgage Loans or any related rights.
12. AFFIRMATIVE COVENANTS OF THE SELLER
(a) Seller covenants that it will promptly notify Buyer of any material
adverse change in its business operations and/or financial condition,
provided, however, that nothing in this Section 12 shall relieve Seller
of its obligations pursuant to any other Section of this Agreement.
(b) Seller shall provide Buyer with copies of such documentation as
Buyer may reasonably request evidencing the truthfulness of the
representations set forth in Section
16
<PAGE> 17
10.
(c) Seller shall, at Buyer's request, take all action necessary to
ensure that Buyer will have a first priority security interest in the
Purchased Mortgage Loans, including, among other things, using its best
efforts to obtain the Servicer's signature (if the Servicer's signature
is necessary) and file such UCC financing statements as Buyer may
reasonably request.
(d) Seller covenants that it will not create, incur or permit to exist
any lien, encumbrance or security interest in or on any of the
Collateral without the prior express written consent of Buyer.
(e) Seller shall notify Buyer immediately after obtaining actual
knowledge thereof, if any event has occurred that constitutes an Event
of Default with respect to Seller or any event that with the giving of
notice or lapse of time, or both, would become an Event of Default with
respect to Seller.
(f) Seller warrants and will defend the right, title and interest of
Buyer in and to all Collateral against all adverse claims and demands.
(g) Seller shall repurchase or cause the repurchase of any Mortgage Loan
within 180 days of the initial Purchase Date of such Mortgage Loan.
(h) Seller shall maintain tangible net worth (defined as net worth plus
subordinated debt) in an amount not less than $1.25 million.
(i) Seller shall maintain, during the term of this Agreement, a
financing line with ContiFinancial Corporation for an amount not less
than $10,000,000, secured by residual classes of securities backed by
mortgage loans sold by Seller into securitization pools subsequent to
the date hereof
(j) Seller shall certify in writing to Buyer on a quarterly basis,
commencing ninety (90) days from the date hereof, that Seller is in
compliance with all of the financial covenants contained in this
Agreement and any other agreement or instrument evidencing indebtedness
of the Seller for borrowed money in excess of $1,000,000.
13. EVENTS OF DEFAULT
(a) If any of the following events (each an "Event of Default") occur,
the Seller and Buyer shall have the rights set forth in Section 14, as
applicable:
(i) Seller fails to pay the Repurchase Price in full when due or
Buyer fails to deliver the Mortgage Loans against full payment
therefor;
17
<PAGE> 18
(ii) Seller or Buyer fails to satisfy or perform any material
obligation or covenant under this Agreement (including any
breach of the obligations set forth in Section 4);
(iii) an Act of Insolvency occurs with respect to Seller or
Buyer;
(iv) any representation made by Seller or Buyer shall have been
incorrect or untrue in any material respect when made or
repeated or deemed to have been made or repeated;
(v) Seller or Buyer shall admit its inability to, or its
intention not to, perform any of its obligations hereunder;
(vi) any governmental, regulatory, or self-regulatory authority
takes any action to remove, limit, restrict, suspend or
terminate the rights, privileges, or operations of the Seller or
any of its Affiliates, including suspension as an issuer, lender
or seller/servicer of mortgage loans, which suspension has a
material adverse effect on the ordinary business operations of
Seller or Seller's Affiliate, and which continues for more than
24 hours;
(vii) There exists a change in the majority of the board of
directors of the Seller or other change which results in a
change in control with respect to the Seller, or Seller
dissolves, merges or consolidates with another entity unless it
is the surviving party, or sells, transfers, or otherwise
disposes of a material portion of its business or assets;
(viii) Buyer, in its respective good faith judgment, has
reasonable cause to believe that there has been a material
adverse change in the business, operations, organizational
structure or financial condition of the Seller or that the
Seller will not meet any of its obligations under any
Transaction pursuant to this Agreement or any other agreement
between the parties, and the Seller fails to provide the Buyer
with adequate assurances (including without limitation
performance guarantees), within 24 hours of a request therefor,
of its ability to perform its obligations;
(ix) Seller shall fail to pay any of its indebtedness for
borrowed money or pay interest or premium thereon when due
(whether by scheduled maturity, required payment, acceleration,
demand or otherwise) and such failure shall continue after the
applicable grace period, if any, specified in the agreement or
instrument relating to such indebtedness; or any other default
under any agreement or instrument relating to any such
indebtedness shall occur and continue after the applicable grace
period, if any, specified in such agreement or instrument; or
shall fail to perform any of its obligations with respect to
repurchase transactions;
18
<PAGE> 19
(x) An Affiliate of Seller is in default under any agreement
with Buyer or its Affiliates;
(xi) A judgment by any competent court in the United States of
America for the payment of money in an amount of at least
$250,000 is rendered against the Seller, and the same remains
undischarged or unpaid for a period of sixty (60) days during
which execution of such judgment is not effectively stayed;
(xii) This Agreement shall for any reason cease to create a
valid, first priority security interest in any of the Purchased
Mortgage Loans purported to be covered hereby; or
(xiii) Seller fails to provide quarterly unaudited and annual
audited financial statements within 50 and 95 days,
respectively, after the date on which such period ends, or fails
to deliver in a timely manner such financial or other
information as Buyer may from time to time reasonably request.
(b) In making a determination as to whether an Event of Default has
occurred, the Buyer shall be entitled to rely on reports published or
broadcast by media sources believed by the Buyer to be generally
reliable and on information provided to it by any other sources believed
by it to be generally reliable, provided that the Buyer reasonably and
in good faith believes such information to be accurate and has taken
such steps as may be reasonable in the circumstances to attempt to
verify such information.
14. REMEDIES
(a) If an Event of Default occurs with respect to the Seller, the
following rights and remedies are available to the Buyer:
(i) At the option of the Buyer, exercised by written notice to
the Seller (which option shall be deemed to have been exercised,
even if no notice is given, immediately upon the occurrence of
an Act of Insolvency), the Repurchase Date for each Transaction
hereunder shall be deemed immediately to occur. Notwithstanding
that the Repurchase Date shall be deemed immediately to have
occurred upon the exercise or deemed exercise of such option by
the Buyer, for purposes of determining the Repurchase Price, the
Repurchase Date shall be the date specified in the Confirmation
for such Transaction.
(ii) If the Buyer exercises or is deemed to have exercised the
option referred to in subsection (a)(i) of this Section,
(A) the Seller's obligations hereunder to repurchase all
Purchased Mortgage Loans in such Transactions shall
thereupon become immediately
19
<PAGE> 20
due and payable,
(B) to the extent permitted by applicable law, the
Pricing Rate shall be the Prime Rate plus 2.50%, and
(C) all Income actually received by the Buyer pursuant
to Section 5 shall be applied to the aggregate unpaid
Repurchase Price owed by the Seller.
(iii) After one Business Day's notice to the Seller (which
notice need not be given if an Act of Insolvency shall have
occurred, and which may be the notice given under subsection
(a)(i) of this Section), the Buyer may (A) immediately sell,
without notice or demand of any kind, at a public or private
sale and at such price or prices as the Buyer may reasonably
deem satisfactory any or all Purchased Mortgage Loans subject to
a Transaction hereunder or (B) in its sole discretion elect, in
lieu of selling all or a portion of such Purchased Mortgage
Loans, to give the Seller credit for such Purchased Mortgage
Loans in an amount equal to the Market Value of the Purchased
Mortgage Loans against the aggregate unpaid Repurchase Price and
any other amounts owing by the Seller hereunder. The proceeds of
any disposition of Purchased Mortgage Loans shall be applied
first to the costs and expenses incurred by the Buyer in
connection with the Seller's default; second to consequential
damages, including but not limited to costs of cover and/or
related hedging transactions; third to the Repurchase Price; and
fourth to any other outstanding obligation of the Seller to the
Buyer or its Affiliates.
(iv) Buyer or an Affiliate may deliver the Purchased Mortgage
Loans which are subject to a Takeout Commitment, or a purchase
commitment by another purchaser, to the Takeout Investor or such
other purchaser, as the case may be, in exchange for securities
or cash, which securities or cash shall then be treated as
Purchased Mortgage Loans, and the Seller hereby irrevocably
appoints the Buyer to act as its attorney-in-fact and agent to
take such action upon the occurrence of an Event of Default as
may be necessary to obtain such securities or cash.
(v) The parties recognize that it may not be possible to
purchase or sell all of the Purchased Mortgage Loans on a
particular Business Day, or in a transaction with the same
purchaser, or in the same manner because the market for such
Purchased Mortgage Loans may not be liquid. In view of the
nature of the Purchased Mortgage Loans, the parties agree that
liquidation of a Transaction or the underlying Purchased
Mortgage Loans does not require a public purchase or sale and
that a good faith private purchase or sale shall be deemed to
have been made in a commercially reasonable manner. Accordingly,
Buyer may elect, in its sole discretion, the time and manner of
liquidating any Purchased Mortgage Loan
20
<PAGE> 21
and nothing contained herein shall (A) obligate Buyer to
liquidate any Purchased Mortgage Loan on the occurrence of an
Event of Default or to liquidate all Purchased Mortgage Loans in
the same manner or on the same Business Day or (B) constitute a
waiver of any right or remedy of Buyer. However, in recognition
of the parties' agreement that the Transactions hereunder have
been entered into in consideration of and in reliance upon the
fact that all Transactions hereunder constitute a single
business and contractual relationship and that each Transaction
has been entered into in consideration of the other
Transactions, the parties further agree that Buyer shall use its
best efforts to liquidate all Transactions hereunder upon the
occurrence of an Event of Default as quickly as is prudently
possible in the reasonable judgment of Buyer.
(vi) Buyer shall, without regard to the adequacy of the security
for the Seller's obligations under this Agreement, be entitled
to the appointment of a receiver by any court having
jurisdiction, without notice, to take possession of and protect,
collect, manage, liquidate, and sell the Collateral or any
portion thereof, and collect the payments due with respect to
the Collateral or any portion thereof. Seller shall pay all
costs and expenses incurred by Buyer in connection with the
appointment and activities of such receiver.
(vii) Seller agrees that Buyer may obtain an injunction or an
order of specific performance to compel Seller to fulfill its
obligations as set forth in Section 25, if Seller fails or
refuses to perform its obligations as set forth therein.
(viii) Seller shall be liable to Buyer for (A) the amount of all
expenses, including reasonable legal or other expenses incurred
by Buyer in connection with or as a consequence of an Event of
Default, and (B) actual damages, including, without limitation,
all costs incurred in connection with hedging or covering
transactions.
(ix) Buyer shall have all the rights and remedies provided
herein, provided by applicable federal, state, foreign, and
local laws (including, without limitation, the rights and
remedies of a secured party under the Uniform Commercial Code of
the State of New York, to the extent that the Uniform Commercial
Code is applicable, and the right to offset any mutual debt and
claim), in equity, and under any other agreement between Buyer
and Seller.
(x) Buyer may exercise one or more of the remedies available to
Buyer immediately upon the occurrence of an Event of Default
and, except to the extent provided in subsections (a)(i) or
(iii) of this Section, at any time thereafter without notice to
Seller. All rights and remedies arising under this Agreement as
amended from time-to-time hereunder are cumulative and not
exclusive of any other rights or remedies which Buyer may have.
21
<PAGE> 22
(xi) In addition to its rights hereunder, Buyer shall have the
right to proceed against any assets of Seller which may be in
the possession of Buyer, its Affiliates or their designee
(including the Custodian), including the right to liquidate such
assets and to set off the proceeds against monies owed by Seller
to Buyer pursuant to this Agreement. Buyer may set off cash, the
proceeds of the liquidation of the Purchased Mortgage Loans, any
Collateral or its proceeds, and all other sums or obligations
owed by Buyer or its Affiliates to Seller against all of
Seller's obligations to Buyer, whether under this Agreement,
under a Transaction, or under any other agreement between the
parties, or otherwise, whether or not such obligations are then
due, without prejudice to Buyer's right to recover any
deficiency. Any cash, proceeds, or property in excess of any
amounts due, or which Buyer reasonably believes may become due,
to it from Seller shall be returned to Seller after satisfaction
of all obligations of Seller to Buyer.
(xii) Buyer may enforce its rights and remedies hereunder
without prior judicial process or hearing, and Seller hereby
expressly waives any defenses Seller might otherwise have to
require Buyer to enforce its rights by judicial process. Seller
also waives any defense Seller might otherwise have arising
from the use of nonjudicial process, enforcement and sale of all
or any portion of the Collateral, or from any other election of
remedies. Seller recognizes that nonjudicial remedies are
consistent with the usages of the trade, are responsive to
commercial necessity and are the result of a bargain at arm's
length.
(b) If an Event of Default occurs with respect to Buyer, the following
rights and remedies are available to the Seller:
(i) Upon tender by the Seller of payment of the aggregate
Repurchase Price for all such Transactions, the Buyer's right,
title and interest in all Purchased Mortgage Loans subject to
such Transactions shall be deemed transferred to the Seller, and
the Buyer shall deliver or cause to be transferred all such
Purchased Mortgage Loans to the Seller or its designee at
Buyer's expense.
(ii) If the Seller exercises the option referred to in
subsection (b)(i) of this Section and the Buyer fails to deliver
or cause to be delivered the Purchased Mortgage Loans to the
Seller or its designee, after one Business Day's notice to the
Buyer, the Seller may (A) purchase Mortgage Loans or securities
("Replacement Assets") that are as similar as is reasonably
practicable in characteristics, outstanding principal amounts
(as a pool) and interest rate to any Purchased Mortgage Loans
that are not delivered by the Buyer to the Seller or its
designee as required hereunder or (B) in its sole discretion
elect, in lieu of purchasing Replacement Assets, to be deemed to
have purchased Replacement Assets at a price therefor on such
date, equal to the Market Value of the Purchased Mortgage Loans.
22
<PAGE> 23
(iii) The Buyer shall be liable to the Seller (A) with respect
to Purchased Mortgage Loans (other than Additional Loans), for
any excess of the price paid (or deemed paid) by the Seller for
Replacement Assets therefor over the Repurchase Price for such
Purchased Mortgage Loans, (B) with respect to Additional Loans,
for the price paid (or deemed paid) by the Seller for the
Replacement Assets therefor. In addition, the Buyer shall be
liable to the Seller for interest on such remaining liability
with respect to each such purchase (or deemed purchase) of
Replacement Assets from the date of such purchase (or deemed
purchase) until paid in full by Buyer. Such interest shall be at
the greater of the Pricing Rate or the Prime Rate, and (C) for
actual damages, including, without limitation, all costs
incurred in connection with hedging or covering transactions.
15. SINGLE AGREEMENT
Buyer and Seller acknowledge that, and have entered hereunto and will
enter into each Transaction hereunder in consideration of and in
reliance upon the fact that, all Transactions hereunder constitute a
single business and contractual relationship and that each has been
entered into in consideration of the other Transactions. Accordingly,
each of Buyer and Seller agrees (i) to perform all of its obligations in
respect of each Transaction hereunder, and that a default in the
performance of any such obligations shall constitute a default by it in
respect of all Transactions hereunder, (ii) that each of them shall be
entitled to set off claims and apply property held by them in respect of
any Transaction against obligations owing to them in respect of any
other Transactions hereunder and (iii) that payments, deliveries, and
other transfers made by either of them in respect of any Transaction
shall be deemed to have been made in consideration of payments,
deliveries, and other transfers in respect of any other Transactions
hereunder, and the obligations to make any such payments, deliveries,
and other transfers may be applied against each other and netted.
16. NOTICES AND OTHER COMMUNICATIONS
Unless another address is specified in writing by the respective party
to whom any written notice or other communication is to be given
hereunder, all such notices or communications shall be in writing or
confirmed in writing and delivered at the respective addresses set forth
in the Confirmation. Any notices or other communications permitted or
required hereunder shall be in writing and shall be deemed conclusively
to have been given if (a) personally delivered, (b) mailed by registered
or certified mail, postage prepaid, and return receipt requested, (c)
sent by express courier delivery service and received by the party to
whom it is sent or (d) transmitted by telex or facsimile transmission
(or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing given by means of (a), (b) or (c).
23
<PAGE> 24
17. ENTIRE AGREEMENT; SEVERABILITY
This Agreement together with the applicable Confirmation constitutes the
entire understanding between Buyer and Seller with respect to the
subject matter it covers and shall supersede any existing agreements
between the parties containing general terms and conditions for
repurchase transactions involving Purchased Mortgage Loans. By
acceptance of this Agreement, Buyer and Seller acknowledge that they
have not made, and are not relying upon, any statements,
representations, promises or undertakings not contained in this
Agreement. Each provision and agreement herein shall be treated as
separate and independent from any other provision or agreement herein
and shall be enforceable notwithstanding the unenforceability of any
such other provision or agreement.
18. NON-ASSIGNABILITY
The rights and obligations of the parties under this Agreement and under
any Transaction shall not be assigned by either party without the prior
written consent of the other party; provided, however, that Nomura may
assign its rights and obligations under this Agreement and/or under any
Transaction to an Affiliate without the prior written consent of the
other party. Subject to the foregoing, this Agreement and any
Transactions shall be binding upon and shall inure to the benefit of the
parties and their respective successors and assigns. Nothing in this
Agreement express or implied, shall give to any person, other than the
parties to this Agreement and their successors hereunder, any benefit
or any legal or equitable right, power, remedy or claim under this
Agreement.
19. TERMINABILITY
This Agreement shall be terminated three hundred and sixty four (364)
days following the date hereof (the "Termination Date"), and any
outstanding Transactions shall become due on such date. This Agreement
may be extended beyond the Termination Date, solely at the discretion of
Buyer, for an additional period of 364 days, provided however, that
Seller provide to Buyer a written request for such extension not later
than ninety (90) days prior to the Termination Date. Notwithstanding any
such termination or the occurrence of an Event of Default, all of the
representations, warranties and covenants hereunder shall continue and
survive.
20. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
21. CONSENT TO JURISDICTION AND ARBITRATION
24
<PAGE> 25
The parties irrevocably agree to submit to the personal jurisdiction of
the United States District Court for the Southern District of New York,
the parties irrevocably waiving any objection thereto and waive all
rights to a trial by jury. If, for any reason, federal jurisdiction is
not available, and only if federal jurisdiction is not available, the
parties irrevocably agree to submit to the personal jurisdiction of the
Supreme Court of the State of New York, the parties irrevocably waiving
any objection thereto and waive all rights to a trial by jury.
Notwithstanding the foregoing two sentences, at either party's sole
option exercisable at any time not later than thirty (30) days after an
action or proceeding has been commenced, the parties agree that the
matter may be submitted to binding arbitration in accordance with the
commercial rules of the American Arbitration Association then in effect
in the State of New York and judgment upon any award rendered by the
arbitrator may be entered in any court having jurisdiction thereof
within the City, County and State of New York; provided, however, that
the arbitrator shall not amend, supplement, or reform in any regard this
Agreement or the terms of any Confirmation, the rights or obligations of
any party hereunder or thereunder, or the enforceability of any of the
terms hereof or thereof. Any arbitration shall be conducted before a
single arbitrator who shall be reasonably familiar with repurchase
transactions and the secondary mortgage market in the City, County, and
State of New York.
22. NO WAIVERS, ETC.
No express or implied waiver of any Event of Default by either party
shall constitute a waiver of any other Event of Default and no exercise
of any remedy hereunder by any party shall constitute a waiver of its
right to exercise any other remedy hereunder. No modification or waiver
of any provision of this Agreement and no consent by any party to a
departure here from shall be effective unless and until such shall be in
writing and duly executed by both of the parties hereto. Any such waiver
or modification shall be effective only in the specific instance and for
the specific purpose for which it was given.
23. INTENT
The parties understand and intend that this Agreement and each
Transaction hereunder constitute a "securities contract" as that term is
defined in Section 741 of Title II of the United States Code, as
amended; provided, however, that if the Seller is an "insured depository
institution" as that term is defined in Section 1813(a) of Title 12 of
the United States Code, as amended, the parties understand and intend
that this Agreement and each Transaction hereunder constitute a
"qualified financial contract" as that term is defined in Section 1821
of Title 12 of the United States Code, as amended.
24. SERVICING
(a) Seller covenants to maintain or cause the servicing of the Mortgage
Loans to be maintained in conformity with accepted servicing practices
in the industry and in a
25
<PAGE> 26
manner at least equal in quality to the servicing Seller provides to
mortgage loans which it owns. The Servicer (or Seller if acting as
Servicer) may retain legal title of the Purchased Mortgage Loans solely
for the purpose of servicing or supervising the servicing of such
Purchased Mortgage Loans. Any equitable interest in Purchased Mortgage
Loans shall remain in the Buyer. All servicing fees and compensation
with respect to the servicing of the Mortgage Loans shall be customary,
reasonable and consistent with industry practice.
(b) If the Mortgage Loans are serviced by the Seller, (i) Seller agrees
that Buyer is the owner of all servicing records, including but not
limited to any and all servicing agreements, files, documents, records,
data bases, computer tapes, copies of computer tapes, proof of insurance
coverage, insurance policies, appraisals, other closing documentation,
payment history records, and any other records relating to or evidencing
the servicing of Purchased Mortgage Loans (the "Servicing Records"), and
(ii) Seller grants the Buyer a security interest in all servicing fees
and rights relating to the Mortgage Loans and all Servicing Records to
secure the obligation of the Seller or its designee to service in
conformity with this Section and any other obligation of Seller to
Buyer. Seller covenants to safeguard such Servicing Records and to
deliver them promptly to Buyer or its designee (including the Custodian)
at Buyer's request.
(c) If the Mortgage Loans are serviced by a third party servicer (such
third party servicer, the "Servicer"), the Seller (i) shall provide a
copy of the servicing agreement to Buyer (the "Servicing Agreement");
and (ii) hereby irrevocably assigns to the Buyer and Buyer's successors
and assigns all right, title, interest and the benefits of the Servicing
Agreements with respect to the Mortgage Loans.
(d) The Servicer (or Seller if acting as Servicer) shall use of one or
more of the following types of accounts, in each case maintained at an
institution that is independent of and unaffiliated with Seller, into
which all sums collected in respect of Mortgage Loans shall be deposited
and maintained: (i) a trust account or accounts maintained for the
benefit of Buyer with the trust department of a federally chartered
depository institution or trust company acting in its fiduciary capacity
or (ii) a trust account or accounts maintained for the benefit of Buyer
with the trust department of a state chartered depository institution or
trust company acting in its fiduciary capacity and subject to
regulations regarding fiduciary funds on deposit therein substantially
similar to 12 CFR Section 9.10(b), or (iii) an account or accounts (a)
maintained with a depository institution the debt obligations of which
are rated by Standard & Poor's Ratings Group in one of its two highest
rating categories at the time of any deposit therein or (b) the deposits
of which are insured by the FDIC, to the limits established by the FDIC,
and the uninsured deposits in which are otherwise secured such that, as
evidenced by an opinion of counsel, Buyer has a claim with respect to
the funds in such account or a perfected first security interest against
any collateral securing such funds that is superior to claims of any
other depositor or creditors
26
<PAGE> 27
of the depository institution WITH which such account is maintained.
(e) Seller shall provide, or shall cause the Servicer to provide, to
Buyer each month a monthly remittance report prepared and distributed by
Seller if acting as Servicer, or by the Servicer pursuant to the
Servicing Agreement, with respect to all Mortgage Loans subject to any
Transaction hereunder.
(f) Seller shall provide to Buyer a letter from the Servicer to the
effect that upon the occurrence of an Event of Default, Buyer may
terminate the Servicing Agreement and transfer such servicing to its
designee, at no cost or expense to Buyer, it being agreed that Seller
will pay any and all fees required to terminate the Servicing Agreement
and to effectuate the transfer of Servicing to Buyer.
25. DISCLOSURE RELATING TO CERTAIN FEDERAL PROTECTIONS
The parties acknowledge that they have been advised that in the case of
Transactions in which one of the parties is an "insured depository
institution" as that term is defined in Section 1831(a) of Title 12
of the United States Code, as amended, funds held by the financial
institution pursuant to a Transaction hereunder are not a deposit and
therefore are not insured by the Federal Deposit Insurance Corporation,
the Savings Association Insurance Fund or the Bank Insurance Fund, as
applicable.
26. NETTING
If Buyer and Seller are "financial institutions" as now or hereinafter
defined in Section 4402 of Title 12 of the United States Code ("Section
4402") and any rules or regulations promulgated thereunder:
(a) All amounts to be paid or advanced by one party to or on behalf of
the other under this Agreement or any Transaction hereunder shall be
deemed to be "payment obligations" and all amounts to be received by or
on behalf of one party from the other under this Agreement or any
Transaction hereunder shall be deemed to be "payment entitlements"
within the meaning of Section 4402, and this Agreement shall be deemed
to be a "netting contract" as defined in Section 4402.
(b) The payment obligations and the payment entitlements of the parties
hereto pursuant to this Agreement and any Transaction hereunder shall be
netted as follows. In the event that either party (the "Defaulting
Party") shall fail to honor any payment obligation under this Agreement
or any Transaction hereunder, the other party (the "Nondefaulting
Party") shall be entitled to reduce the amount of any payment to be made
by the Nondefaulting Party to the Defaulting Party by the amount of the
payment obligation that the Defaulting Party failed to honor.
27
<PAGE> 28
27. CONDITIONS PRECEDENT TO INITIAL TRANSACTION
As conditions precedent to the initial Transaction hereunder, Buyer
shall have received on or before the day of such Transaction: (i) the
Commitment Fee, and (ii) the following, in form and substance
satisfactory to the Buyer and duly executed by Seller:
(a) This Agreement and the Custodial Agreement.
(b) Evidence that all other actions necessary or, in the sole discretion
of Buyer, desirable to perfect and protect the security interests and
liens created by Section 6 hereof have been taken, including without
limitation duly executed Uniform Commercial Code financing statements on
Form UCC-1 with respect to the Collateral.
(c) A certified copy of the Seller's corporate resolutions approving
this Agreement and the Custodial Agreement and transactions contemplated
thereunder, and all documents evidencing other necessary corporate
action or governmental approvals as may be required in connection with
this Agreement and the Custodial Agreement.
(d) A certificate of the Seller's Corporate Secretary or Assistant
Secretary certifying the names, true signatures and titles of the
Seller's officers duly authorized to initiate Transactions and to sign
this Agreement and the Custodial Agreement and the other documents to be
delivered thereunder.
(e) A favorable opinion of the Seller's outside counsel as to such
matters as the Buyer may reasonably request.
(f) The documents set forth in Exhibit III, Exhibit IV and Exhibit VI
hereto.
28. CONFIDENTIALITY
This Agreement and its terms and contents are proprietary to Buyer and
shall be held by Seller in strict confidence and shall not be disclosed
to any third party without the consent of Buyer except for (i)
disclosure to your attorneys or accountants, provided that such
attorneys and accountants likewise agree to be bound by this covenant of
confidentiality or (ii) disclosure required by law, rule, regulation or
order of a court or other regulatory body.
29. MISCELLANEOUS
(a) Time is of the essence under this agreement and all Transactions and
all references to a time shall mean New York time in effect on the date
of the action unless otherwise expressly stated in this Agreement.
28
<PAGE> 29
(b) Buyer shall be authorized to accept orders and take any other action
affecting any accounts of the Seller in response to instructions given
in writing or orally by telephone or otherwise by any person with
apparent authority to act on behalf of the Seller, and the Seller shall
indemnify Buyer, defend, and hold Buyer harmless from and against any
and all liabilities, losses, damages, costs, and expenses of any nature
arising out of or in connection with any action taken by Buyer in
response to such instructions received or reasonably believed to have
been received from the Seller.
(c) If there is any conflict between the terms of this Agreement or any
Transaction entered into hereunder and the Custodial Agreement, this
Agreement shall prevail.
(d) If there is any conflict between the terms of a Confirmation or a
corrected Confirmation issued by the Buyer and this Agreement, the
Confirmation shall prevail.
(e) This Agreement may be executed in counterparts, each of which so
executed shall be deemed to be an original, but all of such counterparts
shall together constitute but one and the same instrument.
(f) The headings in this Agreement are for convenience of reference only
and shall not affect the interpretation or construction of this
Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
29
<PAGE> 30
IN WITNESS WHEREOF, the parties have entered into this agreement as of the date
set forth above.
BUYER
NOMURA ASSET CAPITAL
CORPORATION
BY: /s/ JAMES K. LIEBLICH
Title: JAMES K. LIEBLICH
DIRECTOR
Date: 10/15/97
SELLER
CMG FUNDING CORP.
By: /s/ VICTOR R. CALANDRA
Title: SENIOR VICE PRESIDENT
Date: 10-14-97
<PAGE> 31
EXHIBITS
EXHIBIT I Confirmation
EXHIBIT II Form of Custodial Delivery including the form of Mortgage
Loan Schedule
EXHIBIT III Form of Power of Attorney
EXHIBIT IV Letter of Instruction to Master Servicer and Servicers
EXHIBIT V Representations and Warranties for Mortgage Loans
EXHIBIT VI Assignment of Takeout
1
<PAGE> 32
EXHIBIT I
Form of Confirmation
CMG Funding Corp.
20251 Ventura Boulevard, 2nd Floor
Woodland Hills, California 91364
Attention:
Confirmation No.:________________________
Purchase Date:
Description of the Mortgage Loans to be Purchased:
Aggregate Principal Amount of Purchased Mortgage Loans:
Purchase Price:
Pricing Rate:
Repurchase Date:
Repurchase Price:
Names and addresses for communications:
Buyer: Murray Pozmanter
Nomura Asset Capital Corporation
2 World Financial Center
Building B
21st Floor
New York, New York 10281
Seller: CMG Funding Corp.
20251 Ventura Boulevard, 2nd Floor
Woodland Hills, California 91364
2
<PAGE> 33
EXHIBIT II
Form of Custodial Delivery
On this day of 19 , CMG Funding Corp. (the "Seller"), as the Seller
under that certain Master Repurchase Agreement Governing Purchases and Sales of
Mortgage Loans, dated as of October 15, 1997 (the "Repurchase Agreement")
between the Seller and Nomura Asset Capital Corporation (the "Buyer"), does
hereby deliver to ("Custodian"), as custodian under that certain
Custodial Agreement, dated as of 199_, among Buyer, Seller and
Custodian, the Mortgage Files with respect to the Mortgage Loans to be purchased
by the Buyer on pursuant to the Repurchase Agreement, which
Mortgage Loans are listed on the Mortgage Loan Schedule attached hereto and
which Mortgage Loans shall be subject to the terms of the Custodial Agreement on
the date hereof.
With respect to the Mortgage Files delivered hereby, for the purposes of issuing
the Trust Receipt, the Custodian shall review the Mortgage Files to ascertain
delivery of the documents listed in Annex A attached to the Custodial Agreement.
Please review the Mortgage Files in accordance with the standards set forth in
the Custodial Agreement and deliver to Buyer a Trust Receipt promptly upon
completion of your review.
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Custodial Agreement.
IN WITNESS WHEREOF, the Seller has caused its name to be signed hereto by its
officer thereunto duly authorized as of the day and year first above written.
CMG FUNDING CORP.
By:
Title:
Name:
3
<PAGE> 34
Mortgage Loan Schedule
<TABLE>
<CAPTION>
Outstanding
Loan No, Mortgagor Note Rate Note Date Face Amount Principal Amount Maturity
- -------- --------- --------- --------- ----------- ---------------- --------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<TABLE>
<CAPTION>
# of Days Last Payment
ARM/Fixed ARM/Type Loan Type Takeout Price Takeout Investor On Facility Date
- --------- -------- --------- ------------- ---------------- ----------- ----
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
4
<PAGE> 35
EXHIBIT III
Form of Power of Attorney
"Notice: The powers granted by this document are broad and sweeping. They are
defined in New York General Obligations Law, Article 5, Title 15, sections
5-1502A through 51503, which expressly permits the use of any other different
form of power of attorney desired by the parties concerned.
"Know All Men by These Presents, which are intended to constitute a GENERAL
POWER OF ATTORNEY pursuant to Article 5, Title 15 of the New York General
Obligations Law: That CMG Funding Corp. ("Seller"), does hereby appoint Nomura
Asset Capital Corporation ("Nomura"), its attorney-in-fact to act in Seller's
name, place and stead in any way which Seller could do with respect to recording
the Mortgages (or Assignments of Mortgage) purchased by Nomura pursuant to a
Master Repurchase Agreement Governing Purchases and Sales of Mortgage Loans
dated as of October 15, 1997 between Seller and Nomura and to take such other
steps as may be necessary or desirable to enforce Nomura's rights against such
Mortgage Loans, the related Mortgage Files and the Servicing Records to the
extent that Seller is permitted by law to act through an agent.
TO INDUCE ANY THIRD PARTY TO ACT HEREUNDER, SELLER HEREBY AGREES THAT ANY THIRD
PARTY RECEIVING A DULY EXECUTED COPY OR FACSIMILE OF THIS INSTRUMENT MAY ACT
HEREUNDER, AND THAT REVOCATION OR TERMINATION HEREOF SHALL BE INEFFECTIVE AS TO
SUCH THIRD PARTY UNLESS AND UNTIL ACTUAL NOTICE OR KNOWLEDGE OF SUCH REVOCATION
OR TERMINATION SHALL HAVE BEEN RECEIVED BY SUCH THIRD PARTY, AND SELLER ON ITS
OWN BEHALF AND ON BEHALF OF SELLER'S LEGAL REPRESENTATIVES AND ASSIGNS, HEREBY
AGREES TO INDEMNIFY AND HOLD HARMLESS ANY SUCH THIRD PARTY FROM AND AGAINST ANY
AND ALL CLAIMS THAT MAY ARISE AGAINST SUCH THIRD PARTY BY REASON OF SUCH THIRD
PARTY HAVING RELIED ON THE PROVISIONS OF THIS INSTRUMENT.
IN WITNESS WHEREOF Seller has caused this Power of Attorney to be executed and
the Seller's seal to be affixed this day of 199_.
CMG FUNDING CORP.
(Seal)
By:
Name:
Title:
5
<PAGE> 36
EXHIBIT IV
Letter of Instructions to Master Servicer and Servicers
[Servicer]
Ladies/Gentlemen:
On 199_, CMG Funding Corp. ("Seller"), sold to Nomura Asset
Capital Corporation ("Buyer") all of Seller's right, title and interest in and
to the mortgage loans identified on Appendix A attached to this letter and made
a part hereof (the "Mortgage Loans"). Accordingly, Seller hereby unconditionally
and irrevocably instructs you to pay to Buyer, pursuant to the terms of our
existing servicing arrangements, any and all monies received by you on or after
199_ which would have been payable from time to time by you to
Seller on account of or otherwise in connection with the Mortgage Loans,
including without limitation any and all principal, interest, partial
prepayments, prepayments in full, penalties, advance payments, or expenses;
provided, however, that any such monies representing scheduled payments of
principal of or interest on such Mortgage Loans due prior to , 199_
shall be paid to Seller.
All such monies should be paid by you to the order of Buyer in the
manner and on the date such monies would have been payable to Seller, as
follows:
Mellon Bank, Pittsburgh
ABA #043000261 for the account of Nomura Asset Capital Corporation
Acct: #1092525
Attn: Murray Pozmanter/re: CMG Funding Corp.
Seller further instructs you that all rights and powers of Seller under
the existing servicing arrangements with respect to the Mortgage Loans have been
transferred to Buyer and that Buyer has the sole right as the owner of the
Mortgage Loans to direct your actions under such servicing arrangements with
respect to the Mortgage Loans and to exercise such rights and powers.
Very truly yours,
CMG FUNDING CORP.
By:
Name:
Title:
6
<PAGE> 37
EXHIBIT V
Representations and Warranties
Regarding Mortgage Loans
The Seller represents and warrants to the Buyer that, with respect to
each Mortgage Loan sold hereunder, as of the related Purchase Date:
(a) Mortgage Loans as Described. The information set forth in the
Mortgage Loan Schedule is complete, true and correct; and Seller acknowledges
that Buyer has not verified the accuracy of such information;
(b) No Fraud. There was no fraud in the origination of the Mortgage
Loan.
(c) Payments Current. Except with respect to Non-Performing Mortgage
Loans and Defaulted Mortgage Loans, all payments required to be made up to the
Purchase Date for each Mortgage Loan under the terms of the mortgage note have
been made and credited, and no payment required under the Mortgage Loan has been
delinquent at any time since the mortgage was originated;
(d) No Outstanding Charges. Except with respect to Non-Performing
Mortgage Loans and Defaulted Mortgage Loans, there are no defaults in complying
with the terms of the mortgage, and all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold payments or
ground rents which previously became due and owing have been paid, or an escrow
of funds has been established in an amount sufficient to pay for every such item
which remains unpaid and which has been assessed but is not yet due and payable.
Seller has not advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the mortgagor, directly or indirectly,
for the payment of any amount required under the Mortgage Loan, except for
interest accruing from the date of the mortgage note or date of disbursement of
the Mortgage Loan proceeds, whichever is greater, to the day which precedes by
one month the due date of the first installment of principal and interest;
(e) Original Terms Unmodified. The terms of the mortgage note and
mortgage have not been impaired, waived, altered or modified in any respect,
except by a written instrument which has been recorded, if necessary to protect
the interests of Buyer and which has been delivered to Buyer or its designee
(including the Custodian). The substance of any such waiver, alteration or
modification has been approved by the issuer of any related PMI Policy (as
defined below) and the title insurer, to the extent required by the policy, and
its terms are reflected on the Mortgage Loan Schedule. No mortgagor has been
released, in whole or in part, except in connection with an assumption agreement
approved by the issuer of any related PMI Policy (as defined below) and the
title insurer, to the extent required by the policy, and which assumption
agreement is included in the
7
<PAGE> 38
Mortgage File delivered to Buyer or its designee (including the Custodian) and
the terms of which are reflected in the Mortgage Loan Schedule;
(f) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the mortgage
note or the mortgage, or the exercise of any right thereunder, render either the
mortgage note or the mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto;
(g) Insurance Policies in Effect. The fire and casualty insurance policy
covering the mortgaged property (1) affords (and will afford) sufficient
insurance against fire and such other risks as are usually insured against in
the broad form of extended coverage insurance from time to time available, as
well as insurance against flood hazards if the mortgaged property is an area
identified by the Federal Emergency Management Agency as having special flood
hazards; (2) is a standard policy of insurance for the locale where the
mortgaged property is located, is in full force and effect, and the amount of
the insurance is in the amount of the full insurable value of the mortgaged
property on a replacement cost basis or the unpaid balance of the Mortgage
Loans, whichever is less; (3) names (and will name) the present owner of the
mortgaged property as the insured; and (4) contains a standard mortgagee loss
payable clause in favor of Seller. The mortgage obligates the mortgagor
thereunder to maintain the hazard insurance policy at the mortgagor's cost and
expense, and to seek reimbursement therefor from the mortgagor. The hazard
insurance policy is the valid and binding obligation of the insurer, is in full
force and effect, and will be in full force and effect and inure to the benefit
of Buyer upon consummation of the transactions contemplated by the Agreement.
Seller has not engaged in, and has no knowledge of the mortgagor's or any other
party's having engaged in, any act or omission which would impair the coverage
of any such policy, the benefits of the endorsement provided for herein, or the
validity and binding effect of either;
(h) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity or disclosure laws applicable to the Mortgage Loan have
been complied with, and Seller shall maintain in its possession, available for
Buyer's inspection, and shall deliver to Buyer upon demand, evidence of
compliance with all such requirements;
(i) No Satisfaction of Mortgage. The mortgage has not been satisfied,
cancelled, subordinated or rescinded, in whole or in part, and the mortgaged
property has not been released from the lien of the mortgage, in whole or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission;
8
<PAGE> 39
(j) Location and Type of Mortgaged Property. The mortgaged property is
located in the state identified in the Mortgage Loan Schedule and consists of a
parcel of real property with a detached single family residence erected thereon,
or a two- to four-family dwelling, or an individual condominium unit in a
low-rise condominium project, or an individual unit in a planned unit
development and no residence or dwelling is a mobile home or a manufactured
dwelling, except as permitted under the Underwriting Guidelines. No portion of
the mortgaged property is used for commercial purposes;
(k) Valid First Lien. The mortgage is a valid, subsisting and
enforceable first lien on the mortgaged property, including all buildings on the
mortgaged property and all installations and mechanical, electrical, plumbing,
heating and air conditioning systems located in or annexed to such buildings,
and all additions, alterations and replacements made at any time with respect to
the foregoing. The lien of the mortgage is subject only to:
(1) the lien of current real property taxes and assessments not
yet due and payable;
(2) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date
of recording acceptable to mortgage lending institutions
generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage
Loan and (i) referred to or to otherwise considered in the
appraisal made for the originator of the Mortgage Loan or (ii)
which do not adversely affect the appraised value of the
mortgaged property set forth in such appraisal; and
(3) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the
security intended to be provided by the mortgage or the use,
enjoyment, value or marketability of the related mortgaged
property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting and enforceable first lien and first priority security interest on
the property described therein and Seller has full right to pledge, sell,
transfer, and assign the same to Buyer or its designee (including the
Custodian). The mortgaged property was not, as of the date of origination of the
Mortgage Loan, subject to a mortgage, deed of trust, deed to secured debt or
other security instrument creating a lien subordinate to the lien of the
mortgage;
(1) Validity of Mortgage Documents. The mortgage note and the mortgage
are genuine, and each is the legal, valid and binding obligation of the maker
thereof
9
<PAGE> 40
enforceable in accordance with its terms. All parties to the mortgage note and
the mortgage had legal capacity to enter into the Mortgage Loan and to execute
and deliver the mortgage note and the mortgage, and the mortgage note and the
mortgage have been duly and properly executed by such parties;
(m) Full Disbursement of Proceeds. The proceeds of the Mortgage Loan
have been fully disbursed and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site or
off-site improvement and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making or closing
the Mortgage Loan and the recording of the mortgage were paid, and the mortgage
is not entitled to any refund of any amounts or due under the mortgage note or
mortgage;
(n) Ownership. Seller is the sole owner of record and holder of the
Mortgage Loan. The Mortgage Loan is not assigned or pledged except as provided
in this Agreement, and Seller has good and marketable title thereto, and has
full right to pledge, sell, transfer, and assign the Mortgage Loan to Buyer or
its designee (including the Custodian) free and clear of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement;
(o) Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the mortgaged property is located, and (2) either (a) organized
under the laws of such state, or (b) qualified to do business in such state, or
(c) federal savings and loan associations or national banks having principal
offices in such state, or (d) not doing business in such state;
(p) LTV, PMI Policy. Unless otherwise agreed in writing by Buyer and
Seller, no Mortgage Loan has a LTV of more than 90%. The original LTV of the
Mortgage Loan either was not more than 80% or the excess over 75% is and will be
insured as to payment defaults by a policy of primary mortgage guaranty
insurance issued by a generally accepted insurance carrier (a "PMI Policy")
until the LTV of such Mortgage Loan is reduced to 80%. All provisions of such
PMI Policy have been and are being complied with, such policy is in full force
and effect, and all premiums due thereunder have been paid. Any Mortgage Loan
subject to a PMI Policy obligates the mortgagor thereunder to maintain the PMI
Policy and to pay all premiums and charges in connection therewith;
(q) Title Insurance. The Mortgage Loan is covered by either (i) an
attorney's opinion of title and abstract of title the form and substance of
which is acceptable to mortgage lending institutions making mortgage loans in
the area where the mortgaged
10
<PAGE> 41
property is located or (ii) an ALTA lender's title insurance policy or other
generally acceptable form of insurance policy, issued by a title insurer
qualified to do business in the jurisdiction where the mortgaged property is
located, insuring Seller, its successors and assigns, as to the first priority
lien of the mortgage in the original principal amount of the Mortgage Loan,
subject only to the exceptions contained in clauses (1), (2) and (3) of
paragraph (j) above and, with respect to adjustable rate Mortgage Loans, against
any loss by reason of the invalidity or unenforceability of the lien resulting
from the provisions of the mortgage providing for adjustment to the mortgage
interest rate and monthly payment. Seller is the sole insured of such lender's
title insurance policy, and such lender's title insurance policy is in full
force and effect and will be in force and effect upon the consummation of the
transactions contemplated by this Agreement. No claims have been made under such
lender's title insurance policy, and no prior holder of the mortgage, including
Seller, has done, by act or omission, anything which would impair the coverage
of such lender's title insurance policy;
(r) No Defaults. Except with respect to Non-Performing Mortgage Loans
and Defaulted Mortgage Loans, there is no default, breach, violation or event of
acceleration existing under the mortgage or the mortgage note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, other than the failure to make, prior to expiration of the
applicable grace period, the monthly payment due immediately prior to the
related Purchase Date if such Purchase Date occurs prior to the expiration of
such grace period, would constitute a default, breach, violation or event of
acceleration, and neither Seller nor its predecessors have waived any default,
breach, violation or event of acceleration;
(s) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under the law could give rise to such liens) affecting the
mortgaged property which are or may be liens prior to, or equal or coordinate
with, the lien of the Mortgage;
(t) Location of Improvements; No Encroachments. All improvements which
were considered in determining the appraised value of the mortgaged property lay
wholly within the boundaries and building restriction lines of the mortgaged
property and no improvements on adjoining properties encroach upon the mortgaged
property. No improvement located on or being part of the mortgaged property is
in violation of any applicable zoning law or regulation;
(u) Origination; Payment Terms. The Mortgage Loan was originated by
Seller, a HUD-approved mortgagee, or a savings and loan association, a savings
bank, a commercial bank or similar banking institution which is supervised and
examined by a Federal or State authority, in accordance with the originator's
underwriting standards in effect at the time the Mortgage Loan was originated.
The principal balance at origination was no more than $500,000 and no less than
$100,000. The documents, instruments and
11
<PAGE> 42
agreements submitted for loan underwriting were not falsified and contain no
untrue statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the information and statements therein
not misleading. With respect to adjustable rate Mortgage Loans, the mortgage
interest rate is adjusted annually on each interest rate adjustment date to
equal the index plus the gross margin, rounded up or down to the nearest 1/8%,
subject to the mortgage interest rate cap. With respect to fixed rate Mortgage
Loans, the mortgage note is payable each month in equal monthly installments of
principal and interest. With respect to adjustable rate Mortgage Loans,
installments of interest are subject to change due to the adjustments to the
mortgage interest rate on each interest rate adjustment date, with interest
calculated and payable in arrears, sufficient to amortize the Mortgage Loan
fully by the stated maturity date, over an original term of not more than thirty
years from commencement of amortization;
(v) Customary Provisions. The mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the mortgaged property of the
benefits of the security provided thereby, including, (i) in the case of a
mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. There is no homestead or other exemption available to a
mortgagor which would interfere with the right to sell the mortgaged property at
a trustee's sale or the right to foreclose the mortgage;
(w) Occupancy of the Mortgaged Property. As of the related Purchase Date
the mortgaged property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the mortgaged property and, with respect to
the use and occupancy of the same, including but not limited to certificates of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities;
(x) No Additional Collateral. The mortgage note is not and has not been
secured by any collateral except the lien of the corresponding mortgage and the
security interest of any applicable security agreement or chattel mortgage
referred to in (j) above;
(y) Deeds of Trust. In the event the mortgage constitutes a deed of
trust, a trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the mortgage, and no
fees or expenses are or will become payable by Buyer to the trustee under the
deed of trust, except in connection with a trustee's sale after default by the
mortgagor;
(z) Acceptable Investment. Seller has no knowledge of any circumstances
or conditions with respect to the mortgage, the mortgaged property, the
mortgagor or the mortgagor's credit standing that can reasonably be expected to
cause private institutional investors to regard the Mortgage Loan as an
unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value or marketability of the Mortgage
12
<PAGE> 43
Loan;
(aa) Purchase of Mortgage Documents. The Mortgage File and any other
documents required by Buyer to be delivered for the Mortgage Loan by Seller
under this Agreement have been delivered to the Custodian. Seller is in
possession of a complete, true and accurate mortgage file except for such
documents the originals of which have been delivered to the Buyer or its
designee (including the Custodian), and except for such documents relating to
Hospital Loans that are defective or missing, as permitted under Section 7 of
this Agreement;
(bb) Condominiums/Planned Unit Developments. If the mortgaged property
is a condominium unit or a planned unit development (other than a de minimis
planned unit development) such condominium or planned unit development project
meets FNMA eligibility requirements for sale to FNMA or is located in a
condominium or planned unit development project which has received FNMA project
approval and the representations and warranties required by FNMA with respect to
such condominium or planned unit development have been made and remain true and
correct in all respects;
(cc) Transfer of Mortgage Loans. The assignment of mortgage is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the mortgaged property is located;
(dd) Due on Sale. The Mortgage contains an enforceable provision for the
acceleration of the payment of the unpaid principal balance of the Mortgage Loan
in the event that the mortgaged property is sold or transferred without the
prior written consent of the mortgagee thereunder;
(ee) No Buydown Provisions. No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
monthly payments are paid or partially paid with funds deposited in any
separate account established by Seller, the mortgagor or anyone on behalf of the
mortgagor, or paid by any source other than the mortgagor nor does it contain
any other similar provisions currently in effect which may constitute a
"buydown" provision. The Mortgage Loan is not a graduated payment mortgage loan
and the Mortgage Loan does not have a shared appreciation or other contingent
interest feature;
(ff) Consolidation of Future Advances. Any future advances made prior to
the Purchase Date have been consolidated with the outstanding principal amount
secured by the mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term. The lien of the mortgage
securing the consolidated principal amount is expressly insured as having first
lien priority by a title insurance policy or an endorsement to the policy
insuring the mortgagee's consolidated interest or by other title evidence
generally acceptable. The consolidated principal amount does not exceed
13
<PAGE> 44
the original principal amount of the Mortgage Loan,
(gg) Mortgaged Property Undamaged. There is no proceeding pending or
threatened for the total or partial condemnation of the mortgaged property. The
mortgaged property is undamaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado or other casualty so as to affect adversely the value
of the mortgaged property as security for the Mortgage Loan or the use for which
the premises were intended;
(hh) Collection Practices, Escrow Deposits, Interest Rate Adjustments.
The origination and collection practices used with respect to the Mortgage Loan
have been in all respects in accordance with industry custom and practice, and
have been in all respects legal and proper. With respect to escrow deposits and
escrow payments, all such payments are in the possession of Seller and there
exist no deficiencies in connection therewith for which customary arrangements
for repayment thereof have not been made. All escrow payments have been
collected in full compliance with state and federal law. If an escrow of funds
has been established, it is not prohibited by applicable law and has been
established in an amount sufficient to pay for every item that remains unpaid
and has been assessed but is not yet due and payable. No escrow deposits or
escrow payments or other charges or payments due Seller have been capitalized
under the Mortgage or the mortgage note. All mortgage interest rate adjustments
have been made in strict compliance with state and federal law and the terms of
the related mortgage note. Any interest required to be paid pursuant to state
and local law has been properly paid and credited;
(ii) Appraisal. With respect to any Mortgage Loan that has been
outstanding for five (5) years or less, the mortgage file contains an appraisal
of the related mortgaged property signed prior to the approval of the Mortgage
Loan application by a qualified appraiser, duly appointed by the originator of
the Mortgage Loan, who had no interest, direct or indirect in the mortgaged
property or in any loan made on the security thereof, other than as an employee
of the lender, and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan, and the appraisal and appraiser both satisfy
the requirements of Title XI of the Federal Institutions Reform, Recovery, and
Enforcement Act of 1989 and the regulations promulgated thereunder, all as in
effect on the date the Mortgage Loan was originated;
(jj) Soldiers' and Sailors' Relief Act. The mortgagor has not notified
Seller, and Seller has no knowledge of any relief requested or allowed to the
mortgagor under the Soldiers' and Sailors' Civil Relief Act of 1940; and
(kk) Environmental Matters. The mortgaged property is free from any and
all toxic or hazardous substances and there exists no violation of any local,
state or federal environmental law, rule or regulation.
14
<PAGE> 45
(ll) Compliance with Underwriting Guidelines. The Mortgage Loan was
underwritten in accordance with the Underwriting Guidelines.
15
<PAGE> 46
EXHIBIT VI
ASSIGNMENT OF TAKEOUT
Whereas, CMG Funding Corp. ("Seller") has entered into that Master
Repurchase Agreement Governing the Purchases and Sales of Mortgage Loans (the
"Agreement") dated as of October 15, 1997 by and between Seller and Nomura Asset
Capital Corporation ("Buyer"); and
Whereas, Seller has granted Buyer a security interest in, among other
things, all of Seller's rights, proceeds and income with respect to Takeout
Commitments; and
Whereas, Seller, in order to induce Buyer to purchase Mortgage Loans
from Seller pursuant to the Agreement, has agreed to assign all of its rights,
proceeds and income as security for its obligations to Buyer under the
Agreement;
Now, Therefore, the parties hereto agree as follows:
1. All terms not otherwise defined herein shall have the meanings set forth
in the Agreement.
2. As security for Seller's obligations to Buyer pursuant to the Agreement,
Seller assigns all of its right, title and interest in and to all
Takeout Commitments set forth on Annex I attached hereto. Seller grants
Buyer the right to deliver the Mortgage Loans subject to the Takeout
Commitment to the purchaser thereof in exchange for the purchase price
set forth in the Takeout Commitment.
3. In order for Buyer to fulfill the delivery requirements pursuant to the
Takeout Commitment, any equitable interest which Seller may have in the
Mortgage Loans shall transfer to Buyer.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
executed by their duly authorized representatives.
NOMURA ASSET CAPITAL CORPORATION CMG FUNDING CORP.
- ------------------------------- -------------------------------
By: By:
16
<PAGE> 1
EXHIBIT 10.14
MORTGAGE LOAN PURCHASE AGREEMENT
THIS Mortgage Loan Purchase Agreement (the "Agreement"), is made and
entered into as of May 1, 1998 by and between RealTrust Asset Corporation
("Purchaser") and CMG Funding Corp. ("Seller").
WITNESSETH
WHEREAS, Seller is engaged in the business of originating and selling
mortgage loans secured by real property; and
WHEREAS, Purchaser may desire to purchase from Seller from time to time
certain of those mortgage loans; and
WHEREAS, the parties intend hereby to set forth the terms and conditions
upon which the transactions will be effected.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual
agreements contained herein, the Purchaser and Seller agree as follows:
SECTION 1. Definitions. Whenever used herein, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
Acquisition Cost: Amount paid by Seller to acquire mortgage loans
whether from its customers through its wholesale production operation, either on
a flow or bulk basis or from Seller's retail operations.
Agreement: This Mortgage Loan Purchase Agreement and all
amendments hereof and supplements hereto.
Assignment of Security Instrument: Assignment of all Seller's
rights, title and interest in and to a Security Instrument for the benefit of
Purchaser, in a form acceptable to Purchaser, to be executed by Seller in
connection with each Mortgage Loan purchased hereunder, as applicable.
Custodian: Such nationally recognized bank or financial
institution as Purchaser may designate in writing from time to time.
Document Delivery Procedures: Procedures established by Purchaser
for the delivery of Loan Documents evidencing Loans to be purchased hereunder,
attached hereto as Exhibit "B", as may be amended from time to time by Purchaser
in its sole discretion.
Mortgage Loans: Each Mortgage Loan identified in the Schedule of
Loans Delivered that, from time to time, are subject to this Agreement.
Mortgage Loan Documents: For any Mortgage Loan, at least the
documents listed on Exhibit "B" hereto, as well as any other documents in
Seller's possession relating to the Mortgage Loan.
1
<PAGE> 2
Mortgaged Premises: The fee simple interest in real property for
each Mortgage Loan purchased which shall consist only of real property improved
by one-to-four family residences, covered by a Security Instrument and securing
an Obligor's indebtedness under the related Note.
Note: Instrument evidencing the indebtedness of the Obligor under
a Mortgage Loan.
Obligor: The borrower or borrowers under a Note, any other person
or entity who owes payments under a Note, or a subsequent owner of Mortgaged
Premises who has assumed the respective Security Instrument.
Purchase Date: The funding date for the purchase of Mortgage
Loans hereunder as agreed to by the parties in writing on the Schedule of Loans
Delivered.
Schedule of Loans Available: A list of Mortgage Loans available
for sale that at a minimum includes the loan number, borrower name, and loan
amount, and such other pertinent information that Purchaser deems reasonably
necessary in the circumstances, and that is also readily available to Seller.
Schedule of Loans Delivered: A listing of Mortgage Loans from
any Schedule of Loan Available to Purchaser desires to acquire.
Security Instrument: All deeds of trust, deeds to secure debt,
trust deeds or mortgages, as applicable securing repayment of the indebtedness
evidenced by a Note executed by an Obligor for a Mortgage Loan purchased
hereunder, as applicable.
Servicing Transfer Date: The date for the transfer of servicing
of Mortgage Loans from Seller to Purchaser as agreed to by the parties in
writing on the Schedule of Loans Delivered. Unless otherwise agreed to in
writing, the Servicing Transfer Date will be the Purchase Date.
SECTION 2. Right of First Refusal. Agreement to Sell and Purchase.
(a) During the term hereof, Seller agrees to offer to Purchaser
the right of first refusal to purchase any and all Mortgage Loans originated or
acquired by Seller, except those Mortgage Loans which Seller is obligated to
sell to ContiFinancial Corporation pursuant to that certain Investment Banking
Services Agreement dated as of December 17, 1996, as amended. Seller shall, not
less frequently than every two weeks, prepare and deliver to Purchaser a
Schedule of Loans Available setting forth all Mortgage Loans originated or
acquired by Seller and available for sale (or expected to be available for
sale). Upon receipt of any Schedule of Loans Available, Purchaser shall, within
10 business days, determine which, if any, of the Mortgage Loans thereon that
it desires to acquire. within such 10-day period Purchaser shall deliver a
completed Schedule of Loans Delivered identifying the desired Mortgage Loans.
If Purchaser does not deliver a Schedule of Loans Delivered within 10 days
after its receipt of a Schedule Loans Available, Seller shall be permitted to
sell such Mortgage Loans to third parties. The price of any Mortgage Loan
purchase shall be as set forth in subsection (c) below.
(b) Pursuant to the terms of this Agreement, Seller hereby agrees
to sell, transfer, assign, set over and convey to the Purchaser, subject to the
terms of this Agreement, all rights, title and interest of the Seller in and to
the Mortgage Loans and the Purchaser hereby agrees to purchase the Mortgage
Loans listed on the Schedule of Mortgage Loans Delivered.
(c) The Purchase Price paid by Purchaser to Seller for Mortgage
Loans shall be as follows:
The Acquisition Cost for the Mortgage Loans plus a
percentage of the unpaid principal balance of the Mortgage Loans delivered to
the Purchaser under this Agreement. Such percentage will be agreed to by an
officer of both Seller and Purchaser and may change based on the nature of
Mortgage Loans being purchased. The Purchase Price will be presented to the
Board of Directors of both Seller and Purchaser at their regularly scheduled
meetings for review and approval. Acquisition Cost for Mortgage Loans will be
determined by Seller and communicated at least weekly to Purchaser in writing
via its wholesale rate sheet. An officer of the Purchaser must approve any
variations to the Acquisition Cost as published in writing.
(d) Unless otherwise agreed to by the parties hereto, the sale of
Mortgage Loans hereof shall be made on a "servicing released" basis and shall
constitute a transfer by Seller to Purchaser of all rights of every kind with
respect to the servicing of each Mortgage Loan. Unless otherwise agreed to by
both parties hereto, this transfer of servicing rights to Purchaser will be
effective as of the Servicing Transfer Date.
2
<PAGE> 3
(e) Unless otherwise agreed to by the parties hereto, the amount
of Mortgage Loans to be acquired by Purchaser from Seller is limited to $1
billion annually.
SECTION 2.1. Assignment of Servicing. Seller hereby assigns and releases
all servicing rights and responsibilities including without limitation, all
rights to receive servicing fees and other servicing-related income and
benefits, with respect to each Mortgage Loan purchased under this Agreement to
and for the benefit of Purchaser, as of the Servicing Transfer Date.
SECTION 2.2. Interim Servicing. Notwithstanding anything to the contrary
contained in this Agreement, to the extent that the actual servicing of any
Mortgage Loan can not be transferred on the Purchase Date due to the
requirements governing the timing of notice of transfer of servicing under the
Real Estate Settlement Procedures Act and Regulation X thereunder, or as
otherwise agreed by the Seller and the Purchaser, Seller shall service such
Mortgage Loans as a subservicer on behalf and for the benefit of Purchaser
pursuant to the terms and conditions of this Section 2.2. Seller shall service
such Mortgage Loans from and after the Purchase Date until the Servicing
Transfer Date in compliance with reasonable and customary servicing practices
and procedures of prudent loan servicers that service Mortgage Loans similar to
the Mortgage Loans. Within three business days after the Servicing Transfer
Date, Seller shall remit to Purchaser, by wire, all amounts received by Seller
prior to and including the Servicing Transfer Date, (including without
limitation monies received or held in reserve for the payment of taxes,
insurance premiums or other charges in connection with the Mortgage Loan, plus
interest thereon) together with the following: (a) a summary of remittances; (b)
a trial balance of Mortgage Loans, (c) a monthly collection report, and (d) as
appropriate, arrears and prepayment reports.
SECTION 2.3. Relationship between Purchaser and Seller. Seller is acting
as an independent contractor and not as an agent of the Company for purposes of
purchasing Mortgage Loans and selling such Mortgage Loans to Purchaser.
Purchaser and Seller are not partners or joint venturers with each other and
nothing herein shall be construed to make them such partners or joint venturers
or impose any liability as such on either of them. In that regard, this
Agreement is not intended to be an exclusive arrangement. Unless otherwise
agreed to by both parties, nothing herein shall prevent Seller from engaging in
other businesses or from rendering other services of any kind to any other
person or entity, including the sale of its Mortgage Loans, or the servicing of
loans. In the event that Purchaser seeks a commitment from Seller to acquire all
of Seller's mortgage loan production for some period of time, Seller must
receive approval from it's Board of Directors and receive appropriate
compensation for such a commitment.
SECTION 2.4. Term of Agreement. This Agreement will automatically
terminate on December 31, 2003, unless both Purchaser and Seller agree in
writing to extend the Agreement, after receiving approval by their respective
Board of Directors.
SECTION 3. Delivery of Documents and Other Information. Seller will
deliver to the Custodian the Mortgage Loan Documents and upon receipt by Seller
of the Purchase Price, Seller will instruct the Custodian to release the
Mortgage Loan Documents to Purchaser.
SECTION 4. Representations and Warranties of the Seller with Respect to
Authority and Other Matters. Seller hereby makes as of the Purchase Date the
following representations and warranties:
(a) Seller has not dealt with any broker or agent or other
parties who might be entitled to a fee or commission in
connection with this transaction other than Purchaser or
its affiliates;
(b) Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Delaware with full corporate power necessary to carry on
its business as now being conducted; Seller has the full
corporate power and authority to execute and deliver
this Agreement and to perform in accordance herewith;
the execution, delivery and performance of this
Agreement (including all instruments of transfer to be
delivered
3
<PAGE> 4
pursuant to this Agreement) by the Seller and the
consummation of the transactions contemplated hereby
have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation
of the Seller, and all requisite corporate action has
been taken by the Seller to make this Agreement valid
and binding upon the Seller in accordance with its
terms;
(c) The consummation of the transactions contemplated by
this Agreement is in the ordinary course of business of
the Seller, and the transfer, assignment and conveyance
of all documents by the Seller pursuant to this
Agreement are not subject to the bulk transfer or any
similar statutory provision in effect in any applicable
jurisdiction;
(d) Neither the execution and delivery of this Agreement,
the sale of Mortgage Loans to the Purchaser, or the
transactions contemplated hereby, nor the fulfillment of
or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of
any of the terms, conditions or provisions of the
Seller's charter or by-laws or any legal restriction or
any material agreement or instrument to which the Seller
is now a party or by which it is bound, or constitute a
default or result in an acceleration under any of the
foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the
Seller or its property is subject, or impair the ability
of the Purchaser to realize on the Mortgage Loans, or
impair the value of the Mortgage Loans;
(e) There is no action, suit, proceeding or investigation
pending, or to the Seller's knowledge threatened against
the Seller that, either in any one instance or in the
aggregate, may result in any material adverse change in
the business, operations, financial condition,
properties or assets of the Seller, or in any material
impairment of the right or ability of the Seller to
carry on its business substantially as now conducted, or
in any material liability on the part of the Seller, or
that would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken
or to be taken in connection with the obligations of the
Seller contemplated herein, or that would be likely to
impair materially the ability of the Seller to perform
under the terms of this Agreement;
(f) No consent, approval, authorization or order of any
court or governmental agency is required for the
execution, delivery and performance by the Seller, or
compliance by the Seller, with this Agreement or the
sale of the Mortgage Loans as evidenced by the
consummation of the transactions contemplated by this
Agreement, or if required, such approval has been
obtained prior to the Purchase Date. However, Seller's
participation in this Agreement will be approved by its
Board of Directors;
(g) Seller used no adverse selection procedures in selecting
the Mortgage Loans from among the outstanding mortgage
loans in its portfolio as to which representations and
warranties in this Section of the Agreement could be
made;
(h) Seller will treat the disposition of the Mortgage Loans
as a sale of assets for financial accounting and
reporting purposes;
(i) Seller is the sole owner of, and has the full right to
sell to the Purchaser, all rights with respect to the
servicing of the Mortgage Loans following the Purchase
Date;
(j) Seller will not solicit any of the borrowers listed on
the Schedule of Loans Delivered in order to refinance
their mortgage loan without prior written approval from
the Purchaser; and
4
<PAGE> 5
(k) Seller hereby warrants that it is compliance with all
applicable licensing requirements of federal, state, and
local governmental authorities, including, without
limitation, any such requirements in the jurisdictions
in which each Mortgaged Premises is located.
SECTION 4.1 Representations and Warranties of the Seller Regarding
Individual Mortgage Loans. Seller hereby represents and warrants to Purchaser
with respect to each Mortgage Loan that, as of the Purchase Date thereof:
(a) The information set forth on the Schedule of Loans
Delivered is complete, true and correct in all material
respects.
(b) All policies of title insurance, hazard insurance, and
flood insurance respecting such Mortgage Loan and the
related premises and improvements thereon are in full
force and effect, have been fully paid and have been
issued by sound and financially responsible insurance
companies, duly licensed and qualified to transact
business, and are in such amounts as are reasonably
required by Purchaser or as required by law. All such
policies insure Seller, among others, as loss payee
thereunder, in a form such that it may be endorsed to
Purchaser as loss payee as required hereunder, and there
are no facts or circumstances which could provide a
basis for revocation of any policies or defense to any
claims made thereon. If such Property is located in a
flood area identified by the Federal Emergency
Management Agency ("FEMA") pursuant to the National
Flood Insurance Act of 1968, as amended, (the "Act") a
flood insurance policy issued by FEMA, or one conforming
to the requirements of the Federal Housing
Administration, has been obtained and complies with this
Subsection (b) and the Act.
(c) The Mortgage Loan is secured by a valid, existing and
enforceable lien on the Mortgaged Premises, including
improvements with respect to the foregoing. The Security
Instrument is subject only to the lien of (a) current
real property taxes and assessments, (b) covenants,
conditions and restrictions, rights of way, easements
and other matters of public record as of the date of
recording acceptable to mortgage lending institutions
generally and specifically referred to in the title
insurance policy and which do not adversely affect the
appraised value of the Mortgaged Premises set forth in
such appraisal; and (c) other matters to which like
properties are commonly subject which do not materially
interfere with the benefits of the security intended to
be provided by the Security Instrument or the use,
enjoyment, value or marketability of the related
Mortgaged Premises;
(d) The Note and the Security Instrument are genuine, and
each is the legal, valid and binding obligation of the
maker thereof enforceable in accordance with its terms
subject to bankruptcy, reorganization or other similar
laws. All parties to the Note and the Security
instrument had legal capacity to enter into the Mortgage
Loan and to execute and deliver the Note and the
Security Instrument, and the Note and the Security
Instrument have been duly and properly executed by such
parties;
(e) The terms of the Note and the Security instrument have
not been impaired, waived, altered or modified in any
respect, except by a written instrument which has been
recorded, if necessary to protect the interest of the
Purchaser and which has been delivered to the Custodian.
The substance of any such waiver has been approved by
the issuer of any related Primary Mortgage Insurance
Policy and the title insurer, to the extent required by
the policy, and its terms are reflected on the Schedule
of Loans Delivered. No borrower has been released, in
whole or in part, except in connection with an
assumption agreement approved by the issuer of any
related Primary Mortgage Insurance Policy and the title
insurer, to the extent required by the policy, and which
assumption agreement is part of
5
<PAGE> 6
the Mortgage Loan Documents delivered to the Custodian
and the terms of which are reflected in the Schedule of
Loans Delivered.
(f) The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including
without limitation the defense of usury, nor will the
operation of any of the terms of the Note or the
Security Instrument, or the exercise of any right
thereunder, render either the Note or the Security
instrument unenforceable, in whole or in part, or
subject to any right of rescission, set-off,
counterclaim or defense, including without limitation
the defense of usury, and no such right of rescission,
set-off, counterclaim or defense has been asserted with
respect thereto;
(g) There are no defaults in complying with the terms of the
Security Instruments, and all taxes, governmental
assessments, insurance premiums, water, sewer and
municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or
an escrow of funds has been established in an amount
sufficient to pay for every such item which remains
unpaid and which has been assessed but is not yet due
and payable. The Seller has not advanced funds, or
induced, solicited or knowingly received any advance of
funds by a party other than the borrower, directly or
indirectly, for the payment of any amount required under
the Mortgage Loan, except for interest accruing from the
date of the Note or date of disbursement of the Mortgage
Loan proceeds, whichever is later;
(h) Requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending,
real estate settlement procedures, consumer credit
protection, equal credit opportunity or disclosure laws
applicable to the Mortgage Loan have been complied with
in all material respects;
(i) The Security Instrument has not been satisfied,
canceled, subordinated or rescinded in whole or in part,
and the Mortgaged Premises has not been released from
the lien of the Security Instrument, in whole or in
part, nor has any instrument been executed that would
effect any such release, cancellation, subordination or
rescission;
(j) The proceeds of the Mortgage Loan have been fully
disbursed and there is no requirement for future
advances thereunder, and any and all requirements as to
completion of any on-site or off-site improvement and
disbursements of any escrow funds thereof have been
complied with. All costs, fees and expenses incurred in
making or closing the Mortgage Loan and the recording of
the Security Instrument were paid, and the Borrower is
not entitled to any refund of any amounts paid or due
under the Note or Security Instrument;
(k) Seller is the sole owner of the Mortgage Loan and there
has not been any other sale or assignment thereof. The
related Note and Security Instrument delivered to
Purchaser are the only executed copies thereof.
(l) There is no default, breach, violation or event of
acceleration existing under the Security Instrument or
the Note and no event which, with the passage of time or
with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or
event of acceleration, and neither the Seller nor its
predecessors have waived any default, breach, violation
or event of acceleration;
(m) There are no mechanics' liens or claims which have been
filed for work, labor or material affecting the
Mortgaged Premises which are or may be liens prior to or
equal to the lien of the related Security Instrument;
6
<PAGE> 7
(n) There is no proceeding pending for total or partial
condemnation of the related Mortgaged Premises or any
part thereof and such Mortgaged Premises are free of
material damage. No improvement encumbered by such
Mortgage Loan is in violation of any applicable zoning
law or regulation, building code or any valid
restrictive or protective covenant or setback line. No
improvement on such Mortgaged Premises is a mobile home
or manufactured home unless specifically approved by
Purchaser in writing prior to purchase;
(o) The Mortgage Loan was underwritten generally in
accordance with the underwriting guidelines of the
Seller as presented to the Purchaser;
(p) The related Security Instrument contains customary and
enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the
realization against the related Mortgaged Premises of
the benefits of the security provided thereby,
including: (a) in the case of a Security Instrument
designated as a deed of trust, by trustee's sale; and
(b) otherwise by judicial foreclosure. In the event that
such Security Instrument constitutes a deed of trust, a
trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so
serves, and is named in the Security Instrument or has
been substituted in accordance with applicable law and
no fees or expenses will become payable by Purchaser to
such trustee under the deed of trust, except in
connection with a trustee's sale after default by the
Obligor;
(q) The origination and collection practices used with
respect to the Mortgage Loan have been in all respects
legal, proper, prudent and customary in the mortgage
origination and servicing business, and have been in all
respects in compliance with all applicable laws and
regulations. With respect to escrow deposits and escrow
payments, all such payments are in the possession of the
Seller and there exist no deficiencies in connection
therewith for which customary arrangement for repayment
thereof have not been made. All escrow payments have
been calculated and collected in full compliance with
state and federal law;
(r) Such Mortgage Loan does not fall within the coverage of
Section 103(aa) of the Truth-in- Lending Act, as
amended, nor Section 226.32 of Federal Reserve Board Reg
Z, as amended, which govern certain mortgages commonly
known as "high cost mortgages" or "Section 32 loans";
(s) The Mortgage Premises is free from any and all toxic or
hazardous substances, and there exists no violation of
any local, state or federal environmental law, rule or
regulation; and
(t) No prepayment penalty, as set forth in the terms of the
Note and Security instrument, has been waived or limited
before or after an interest rate change date.
SECTION 5. Representations and Warranties of the Purchaser. The
Purchaser hereby makes as of the Purchase Date the following representations and
warranties:
(a) Purchaser is acquiring Mortgage Loans for its own
account only and not for any other person;
(b) The Purchaser considers itself a substantial,
sophisticated institutional investor having such
knowledge and experience in financial and business
matters that it is capable of evaluating the merits and
risks of investment in the Mortgage Loans;
7
<PAGE> 8
(c) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Maryland with full corporate power necessary to
carry on its business as now being conducted; the
Purchaser has the full corporate power and authority to
execute and deliver this Agreement and to perform in
accordance herewith; the execution, delivery and
performance of this Agreement by the Purchaser and the
consummation of the transactions contemplated hereby
have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation
of the Purchaser, and all requisite corporate action has
been taken by the Purchaser to make this Agreement valid
and binding upon the Purchaser in accordance with its
terms;
(d) The consummation of the transactions contemplated by
this Agreement is in the ordinary course of business of
the Purchaser;
(e) Neither the execution and delivery of this Agreement,
the acquisition of the Mortgage Loans by the Purchaser
or the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and
conditions of this Agreement, will conflict with or
result in a breach of any of the terms, conditions or
provisions of the Purchaser's charter or by- laws or any
legal restriction or any material agreement or
instrument to which the Purchaser is now a party or by
which it is bound, or constitute a default or result in
an acceleration under any of the foregoing, or result in
the violation of any law, rule, regulation, order,
judgment or decree to which the Purchaser or its
property is subject;
(f) There is no action, suit, proceeding or investigation
pending, or to the Purchaser's knowledge threatened
against the Purchaser that, either in any one instance
or in the aggregate, may result in any material adverse
change in the business, operations, financial condition,
properties or assets of the Purchaser, or in any
material impairment of the right or ability of the
Purchaser to carry on its business substantially as now
conducted, or result in any material liability on the
part of the Purchaser, or that would draw into question
the validity of this Agreement or the Mortgage Loans or
of any action taken or to be taken in connection with
the obligations of the Purchaser contemplated herein, or
that would be likely to impair materially the ability of
the Purchaser to perform under the terms of this
Agreement; and
(g) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Purchaser of
or compliance by the Purchaser with this Agreement, or
the acquisition of the Mortgage Loans as evidenced by
the consummation of the transactions contemplated by
this Agreement, or if required, such approval has been
obtained prior to the Purchase Date. However,
Purchaser's participation in this Agreement will be
approved by its Board of Directors.
SECTION 6. Remedies. In the event that a party discovers a breach of a
representation and warranty set forth in Section 4, Section 4.1 or Section 5
that materially and adversely affects the value of any of the Mortgage Loans or
the interest of the Purchaser therein, such party shall give prompt notice to
the other parties hereto. The party in breach shall have 60 days, after receipt
of notice of such breach, in which to cure in all material respects such breach.
In the event that the Seller is unable to cure in all material respects a breach
of a representation and warranty set forth in Section 4 or Section 4.1 as to any
Mortgage Loans, then the Seller shall promptly repurchase each affected Mortgage
Loan at a price equal to the unpaid principal balance of such Mortgage Loan plus
accrued and unpaid interest thereon at the gross coupon rate through the date of
repurchase (the Repurchase Date). In the event that the Seller repurchases a
Mortgage Loan such Mortgage Loan will be returned to the Seller.
As an additional remedy, the Seller shall indemnify the Purchaser and
hold it harmless against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
8
<PAGE> 9
and expenses arising out of or resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, (a) a breach by the
Seller of any of its covenants, representation or warranties contained in this
Agreement or (b) the servicing of any Mortgage Loan prior to the transfer of
servicing.
The Purchaser shall indemnify the Seller and hold it harmless against
any losses, damages, penalties, fines, forfeiture, reasonable and necessary
legal fees and related costs, judgments and other costs and expenses arising out
of or resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, (a) a breach by the Purchaser of any of its
covenants, representations or warranties contained in this Agreement or (b) the
servicing of any Mortgage Loan following the transfer of servicing.
SECTION 7. Successor and Assigns. This Agreement shall bind and inure to
the benefit of and be enforceable by the Seller and the Purchaser and the
respective successors and assigns of the Seller and the Purchaser. This
Agreement shall not be assigned, pledged or hypothecated by the Seller to a
third party without the consent of the Purchaser or the successors and assigns
of the Purchaser which shall not be unreasonably withheld or delayed.
SECTION 8. Conditions to Closing. The obligations of the Seller and the
Purchaser to consummate the sale and purchase of the Mortgage Loans on the
Purchase Date are subject to the satisfaction of the following conditions:
(a) All representations and warranties of Seller and
Purchaser under this Agreement shall be true and correct
as of the Purchase Date, and no event shall have
occurred that, with notice or the passage of time, would
constitute a default under this Agreement;
(b) All Mortgage Loan Documents shall have been delivered to
the Custodian; and
(c) All other terms and conditions of this Agreement shall
have been complied with in all material respects.
Subject to the foregoing conditions, Purchaser shall pay the Purchase
Price to Seller on the Purchase Date by wire transfer of immediately available
funds to the account designated by Seller.
SECTION 9. Costs. Seller shall pay any commissions due its salesmen, the
legal fees and expenses of its attorneys, and fees incurred in connection with
the transfer of the Mortgage Loan Documents to the Custodian. Seller shall
prepare the Assignment of Security Instrument and pay all recording fees with
respect to the transfer of each Mortgage Loan to Purchaser or its designee.
SECTION 10. Notices. All demands, notices and communication hereunder
shall be in writing and shall be deemed to have been duly given when mailed by
registered or certified mail, return receipt requested at the address listed
below or at such other address as may hereafter be furnished to the other party
by like notice. Any such demand, notice or communication hereunder shall be
deemed to have been received on the date delivered to or received at the
premises of the addressee as follows: if to Purchaser: RealTrust Asset
Corporation, 2855 East Cottonwood Parkway, Suite 500, Salt Lake City, Utah
84121, Attn: Chairman, and if to Seller: CMG Funding Corp., 2855 East Cottonwood
Parkway, Suite 500, Salt Lake City, Utah 84121, Attn: President.
SECTION 11. Severability Clause. Any part, provision, representation or
warranty of this Agreement that is prohibited or that is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions.
SECTION 12. Counterparts. This Agreement may be executed simultaneously
in any number of counterparts. Each counterpart shall be deemed to be an
original, and all such counterparts shall constitute one and the same
instrument.
9
<PAGE> 10
SECTION 13. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Utah.
SECTION 14. Waivers. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by the party against whom such waiver or modification is sought to be enforced.
SECTION 15. Exhibits. The exhibits to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
SECTION 16. Survival. This Agreement, and the representations and
warranties contained herein, shall survive the Purchase and shall not merge into
the purchase documents.
SECTION 17. Amendment. This Agreement may only be amended with the
written consent of both Seller and Purchaser.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the date first above written.
RealTrust Asset Corporation
By:______________________________________
Name:____________________________________
Title:___________________________________
CMG Funding Corp.
By:______________________________________
Name:____________________________________
Title:___________________________________
10
<PAGE> 11
EXHIBIT "B"
List of Mortgage Loan Documents
and Delivery Procedures
Required Mortgage Loan Documents
(1) Original Note bearing all intervening endorsements and (if applicable)
the original recorded assumption agreement, together with the original
of any surety agreement or guaranty agreement relating to the Note or
any such assumption agreement, endorsed in blank.
(2) Buy-down Agreement (if applicable)
(3) Security Instrument (including any required addenda and riders)
consisting of either the recorded original or a certified copy of the
original if the Security Instrument is unavailable because it is in the
process of being recorded or the original in a form suitable for
recording;
(4) Originals or certified copies of any intervening Assignment of the
Security Instrument;
(5) Original unrecorded Assignment of the Security Instrument in blank;
(6) An original Title Insurance Policy; if any such policy has not been
issued, a written commitment for such policy (or a copy thereof) issued
by the title insurance company or a binder or Preliminary Title Report
if the Mortgaged Premises is located in California.
(7) Credit file - the same file used by RealTrust during its underwriting of
the Mortgage Loan.
(8) Servicer file - to be delivered with the transfer of servicing.
Delivery Instructions
Mortgage Loans must be delivered to:
RealTrust Asset Corporation
2855 East Cottonwood Parkway
Suite 500
Salt Lake City, Utah 84121
11
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
RealTrust Asset Corporation
We consent to the use of our report included herein and to the reference to our
firm under the headings "Experts" and "Selected Financial Data of Real Trust
Asset Corporation and CMG Funding Corp." in the prospectus.
KPMG PEAT MARWICK LLP
Salt Lake City, Utah
May 29, 1998
