<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 7, 1996
REGISTRATION STATEMENT NO. 333-3418
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
DELTA FUNDING CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEW YORK 11-2609517
(STATE OR OTHER JURISDICTION (IRS EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1000 WOODBURY ROAD
WOODBURY, NEW YORK 11797
(516) 364-8500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
RICHARD BLASS
VICE PRESIDENT
DELTA FUNDING CORPORATION
1000 WOODBURY ROAD
WOODBURY, NEW YORK 11797
(516) 364-8500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
Copy to:
ROBERT C. WIPPERMAN
STROOCK & STROOCK & LAVAN
SEVEN HANOVER SQUARE
NEW YORK, NEW YORK 10004
(212) 806-5400
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. /x/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please 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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH CLASS AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
OF SECURITIES TO BE REGISTERED REGISTERED(1) PRICE PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE(2)
<S> <C> <C> <C> <C>
Asset Backed Notes and Asset
Backed Certificates........... $1,706,898,250 100% $1,706,898,250 $517,241.38
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Previously paid.
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 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE>
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[EL]SALE 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
SUCH STATE.
SUBJECT TO COMPLETION, DATED NOVEMBER 7, 1996
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED , 1996)
$
DELTA FUNDING HOME EQUITY LOAN TRUST 199 -
$ CLASS A-1 % CERTIFICATES
$ CLASS A-2 % CERTIFICATES
$ CLASS A-3 % CERTIFICATES
$ CLASS A-4 % CERTIFICATES
$ CLASS A-5 % CERTIFICATES
HOME EQUITY LOAN ASSET-BACKED CERTIFICATES, SERIES 199 -
------------------------
DELTA FUNDING CORPORATION, AS SELLER AND SERVICER
------------------------
The Home Equity Loan Asset-Backed Certificates, Series 199 - (the
'Certificates'), will consist of six Classes (each, a 'Class') of senior
Certificates, the Class A-1 Certificates, the Class A-2 Certificates, the Class
A-3 Certificates, the Class A-4 Certificates and the Class A-5 Certificates
(collectively the 'Class A Certificates') and the Class S Certificates
(collectively with the Class A Certificates, the 'Senior Certificates'), and one
Class of subordinated Certificates (the 'Class R Certificates'). Only the Class
A Certificates (the 'Offered Certificates') are being offered hereby.
The Certificates will evidence in the aggregate the entire beneficial
interest in a pool (the 'Mortgage Pool') of closed-end, fixed rate, home equity
loans (the 'Home Equity Loans') held by Delta Funding Home Equity Loan Trust
199 - (the 'Trust') to be formed pursuant to a Pooling and Servicing Agreement
between Delta Funding Corporation ('Delta'), as Seller and Servicer, and
, as Trustee. The Home Equity Loans are secured by first
and second deeds of trust or mortgages primarily on one- to four-family
residential properties.
The aggregate undivided interest in the Trust represented by the Offered
Certificates will initially be equal to $ , which as of , 199
(the 'Cut-off Date') is 100% of the sum of the outstanding Principal Balances
(as defined herein) of the Initial Loans and the amount to be deposited in a
trust account (the 'Pre-Funding Account') on the Closing Date.
Distributions on the Offered Certificates will be made on the 25th day of
each month or, if such date is not a Business Day, then on the next succeeding
Business Day (each, a 'Distribution Date'), commencing in 199 . On
each Distribution Date, holders of the Offered Certificates will be entitled to
receive, from and to the limited extent of funds available in the Distribution
Account (as defined herein), distributions calculated as set forth herein.
The Certificates are not guaranteed by the Seller, the Servicer, the Trustee
or any affiliate thereof. However, the Offered Certificates will have the
benefit of an irrevocable and unconditional certificate guaranty insurance
policy (the 'Policy') issued by (the 'Certificate
Insurer') pursuant to which the Certificate Insurer will guarantee payments to
the holders of Senior Certificates as described herein. See 'DESCRIPTION OF THE
CERTIFICATES--The Policy' herein.
[LOGO]
There is currently no market for the Offered Certificates and there can be
no assurance that such a market will develop or if it does develop that it will
continue. See 'RISK FACTORS' herein.
(Continued on next page)
------------------------
PROSPECTIVE INVESTORS SHOULD REVIEW THE INFORMATION SET FORTH UNDER 'RISK
FACTORS' ON PAGE S-14 HEREIN AND ON PAGE 13 IN THE
ACCOMPANYING PROSPECTUS.
------------------------
THE CERTIFICATES REPRESENT INTERESTS IN THE TRUST ONLY AND DO NOT REPRESENT
INTERESTS IN OR OBLIGATIONS OF THE SELLER, THE SERVICER, THE TRUSTEE OR ANY
AFFILIATE THEREOF. NEITHER THE CERTIFICATES NOR THE HOME EQUITY LOANS
ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The Offered Certificates are being offered by the Underwriters from time to
time in negotiated transactions or otherwise at varying prices to be determined,
in each case, at the time of sale.
The aggregate proceeds to the Seller from the sale of the Offered
Certificates will be approximately $ plus accrued interest, before
deducting expenses payable by the Seller, estimated to be $ in the
aggregate.
------------------------
The Offered Certificates are offered subject to prior sale and subject to
the Underwriters' right to reject orders in whole or in part. It is expected
that delivery of the Offered Certificates will be made in book-entry form only
through the facilities of The Depository Trust Company, CEDEL S.A., and the
Euroclear System on or about , 199 (the 'Closing Date'). The Offered
Certificates will be offered in Europe and the United States of America.
------------------------
[NAMES OF UNDERWRITERS]
, 199
<PAGE>
(Continued from previous page)
Separate elections will be made to treat the certain assets of the Trust as
a 'real estate mortgage investment conduit' (a 'REMIC') for federal income tax
purposes. As described more fully herein and in the Prospectus, the Offered
Certificates will constitute 'regular interests' in the Upper Tier REMIC. See
'DESCRIPTION OF THE CERTIFICATES--Separate REMIC Structure' herein and 'FEDERAL
INCOME TAX CONSIDERATIONS' in the Prospectus.
------------------------
The Pooling and Servicing Agreement provides that additional closed-end,
fixed rate home equity loans (the 'Subsequent Loans') may be purchased by the
Trust from the Seller from time to time on or before , 199 from
funds on deposit in the Pre-Funding Account. On the Closing Date an aggregate
cash amount of approximately $ will be deposited with the Trustee
in the Pre-Funding Account. The Home Equity Loans transferred to the Trust on
the Closing Date will be collectively referred to herein as the 'Initial Loans'
and the Initial Loans and the Subsequent Loans will be collectively referred to
as the 'Home Equity Loans.'
Until ninety days after the date of this Prospectus Supplement, all dealers
effecting transactions in the Offered Certificates, whether or not participating
in this distribution, may be required to deliver a Prospectus Supplement and
Prospectus. This is in addition to the obligation of dealers acting as
underwriters to deliver a Prospectus supplement and Prospectus with respect to
their unsold allotments or subscriptions.
------------------------
The Offered Certificates constitute part of a separate series of
Asset-Backed Securities being offered by Delta Funding Corporation from time to
time pursuant to its Prospectus dated , 1996. This Prospectus
Supplement does not contain complete information about the offering of the
Offered Certificates. Additional information is contained in the Prospectus and
investors are urged to read both this Prospectus Supplement and the Prospectus
in full. Sales of the Offered Certificates may not be consummated unless the
purchaser has received both this Prospectus Supplement and the Prospectus.
S-2
<PAGE>
SUMMARY
The following summary of certain pertinent information is qualified in its
entirety by reference to the detailed information appearing elsewhere in this
Prospectus Supplement and the accompanying Prospectus. Certain capitalized terms
used in the Summary are defined elsewhere in this Prospectus Supplement or in
the Prospectus. Reference is made to Index of Principal Terms beginning on page
S-47 herein and the Glossary of Terms beginning on page 77 in the Prospectus for
the definitions of certain capitalized terms.
<TABLE>
<S> <C>
Trust.................... Delta Funding Home Equity Loan Trust 199 - (the
'Trust') will be formed pursuant to a pooling and
servicing agreement (the 'Agreement') to be dated as
of , 199 (the 'Cut- Off Date') between
Delta Funding Corporation ('Delta'), as seller and
servicer (together with any successor in such
capacity, the 'Seller' and the 'Servicer',
respectively), and , as trustee (the 'Trustee'). The
property of the Trust will include: a pool of
closed-end, fixed rate home equity loans (the 'Home
Equity Loans'), secured by first and second deeds of
trust or mortgages on residential properties that are
primarily one- to four-family properties (the
'Mortgaged Properties'); payments in respect of the
Home Equity Loans received after the Cut-Off Date,
or after the Subsequent Cut-Off Date, as applicable,
other than payments of interest on the Initial Loans
due on or before , 199 ; property that
secured a Home Equity Loan which is acquired by
foreclosure or deed in lieu of foreclosure; rights
under certain hazard insurance policies covering the
Mortgaged Properties; funds on deposit in a trust
account (the 'Pre-Funding Account'); and funds on
deposit in a trust account (the 'Capitalized Interest
Account'). In addition, the Seller has caused the
Certificate Insurer to issue an irrevocable and
unconditional certificate guaranty insurance policy
(the 'Policy') for the benefit of the holders of
Senior Certificates (the 'Senior Certificateholders')
pursuant to which the Certificate Insurer will
guarantee payments to the Senior Certificateholders
as described herein. The 'Subsequent Cut-Off Date'
for any Subsequent Loan is the first day of the Due
Period in which such Subsequent Loan is transferred
to the Trust.
The Trust property initially will include the unpaid
principal balance of each Initial Loan as of the
Cut-Off Date and the amount of funds on deposit in the
Pre-Funding Account as of the Closing Date. With
respect to any date, the 'Pool Balance' will be equal
to the aggregate of the Principal Balances of all Home
Equity Loans as of such date and the amount on deposit
in the Pre-Funding Account as of such date. The
'Cut-Off Date Principal Balance' with respect to each
Initial Loan is the unpaid principal balance thereof
as of the Cut-Off Date and with respect to each
Subsequent Loan is the unpaid principal balance
thereof as of the related Subsequent Cut-Off Date. The
'Principal Balance' of a Home Equity Loan (other than
a Liquidated Home Equity Loan) on any day is equal to
its Cut-Off Date Principal Balance, minus all
collections applied in reduction of the Cut-Off Date
Principal Balance of such Home Equity Loan. The
Principal Balance of a Liquidated Home Equity Loan (as
defined herein) after final recovery of related
Liquidation Proceeds (as defined herein) will be zero.
</TABLE>
S-3
<PAGE>
<TABLE>
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Securities Offered....... The Home Equity Loan Asset-Backed Certificates, Series
199 - (the 'Certificates') will consist of six Classes
of senior certificates, the Class A-1 Certificates,
the Class A-2 Certificates, the Class A-3
Certificates, the Class A-4 Certificates and the Class
A-5 Certificates (collectively, the 'Class A
Certificates') and the Class S Certificates
(collectively with the Class A Certificates, the
'Senior Certificates') and one Class of subordinated
certificates (the 'Class R Certificates'). Only the
Class A Certificates (the 'Offered Certificates') are
offered hereby. Each Class of Offered Certificates
represents the right to receive payments of interests
at the rates described below (with respect to each
such Class the 'Certificate Rate'), payable monthly,
and payments of principal to the extent provided
below. The aggregate undivided interest in the Trust
represented by the Class A Certificates as of the
Cut-Off Date will equal approximately $
of principal (the 'Original Class A Principal
Balance'), which represents the sum of 100% of the
aggregate Cut-Off Date Principal Balances of the
Initial Loans and the amount on deposit in the
Pre-Funding Account as of the Closing Date. The
principal amount of a Class of Class A Certificates
(each, a 'Class Principal Balance') on any date is
equal to the applicable Class Principal Balance on the
Closing Date minus the aggregate of amounts actually
distributed as principal to the holders of such Class
of Class A Certificates.
The Home Equity Loans.... The Initial Loans are expected to consist of
$ in principal amount of closed-end,
fixed rate home equity loans secured by first and
second deeds of trust or mortgages on Mortgaged
Properties located in states and the District of
Columbia.
The original combined loan-to-value ratio of each
Initial Loan, computed taking into account the amounts
of any related senior mortgage loans (the 'Combined
Loan-to-Value Ratio') did not exceed % as of the
Cut-Off Date. The weighted average original Combined
Loan-to-Value Ratio of the Initial Loans was % as
of the Cut-Off Date. Interest on each Home Equity Loan
is payable monthly on the outstanding Principal
Balance thereof at a rate per annum (the 'Loan Rate')
specified in the related Mortgage Note. As of the
Cut-Off Date, the Loan Rates range from % to
% per annum and the weighted average Loan Rate is
% per annum. The Cut-Off Date Principal Balances
of the Initial Loans ranged from $ to $
and averaged $ . Each Initial Loan was
originated in the period from 199 to
, 199 . See 'DESCRIPTION OF THE HOME
EQUITY LOANS' herein.
Pre-Funding Account...... On the Closing Date, an aggregate cash amount of
approximately $ (the 'Pre-Funded
Amount') will be deposited in a trust account in the
name of the Trustee (the 'Pre-Funding Account'). Such
amount will be funded from the sale of the Class A
Certificates and is expected to be used to acquire
Subsequent Loans during the Funding Period. The
'Funding Period' is the period from the Closing Date
until the earliest of (i) the date on which the amount
on deposit in the Pre-Funding Account is less than
$100,000, (ii) the date on which an Event of Default
occurs and
</TABLE>
S-4
<PAGE>
<TABLE>
<S> <C>
(iii) , 199 . The Pre-Funded Amount will be
reduced during (the Funding Period by the amount
thereof, if any, used to purchase Subsequent Loans in
accordance with the Agreement. Subsequent Loans
purchased by and transferred to the Trust on any date
(each, a 'Subsequent Transfer Date' and together with
the Closing Date, each a 'Transfer Date') must satisfy
the criteria set forth in the Agreement. Any portion
of the Pre-Funded Amount remaining at the end of the
Funding Period will be applied as a distribution of
principal to the Classes of Class A Certificates then
entitled to distributions of principal on the
Distribution Date which immediately follows the end of
the Funding Period. The Pre-Funding Account will not
be an asset of either REMIC. See 'PREPAYMENT AND YIELD
CONSIDERATIONS--Mandatory Prepayment' herein.
Capitalized Interest
Account................ On the Closing Date, cash will be deposited in a trust
account (the 'Capitalized Interest Account') in the
name of the Trustee on behalf of the Trust. The amount
thereon, will be used by the Trustee to fund certain
interest shortfalls during the Funding Period as
described herein under 'DESCRIPTION OF THE
CERTIFICATES--Capitalized Interest Account.' Amounts
remaining in the Capitalized Interest Account at the
end of the Funding Period and not used for such
purposes are required to be paid to the Class R
Certificateholders. The Capitalized Interest Account
will not be an asset of either REMIC.
Denominations............ The Class A Certificates will be offered for purchase
in denominations of $25,000 and multiples of $1 in
excess thereof. The interest in the Trust evidenced by
a Class A Certificate (the 'Percentage Interest') will
be equal to the percentage derived by dividing the
denomination of such Certificate by the Original
Aggregate Class A Principal Balance.
Registration of Class A
Certificates........... The Class A Certificates will be Book-Entry
Securities, as defined in the Prospectus under
'DESCRIPTION OF THE SECURITIES--Book-Entry
Securities.' Persons acquiring beneficial ownership
interests in the Class A Certificates ('Owners') will
hold their Class A Certificate interests through The
Depository Trust Company ('DTC'), in the United
States, or Cedel Bank, societe anonyme ('CEDEL') or
the Euroclear System ('Euroclear'), in Europe.
Transfers within DTC, CEDEL or Euroclear, as the case
may be, will be in accordance with the usual rules and
operating procedures of the relevant system. So long
as the Class A Certificates are Book-Entry Securities,
such Certificates will be evidenced by one or more
Certificates registered in the name of Cede & Co.
('Cede'), as the nominee of DTC, or one of the
relevant depositaries (collectively. the 'European
Depositaries'). Cross-market transfers between persons
holding directly or indirectly through DTC, on the one
hand, and counterparties holding directly or
indirectly through CEDEL or Euroclear, on the other,
will be effected in DTC through Citibank N.A.
('Citibank') or The Chase Manhattan Bank ('Chase'),
the relevant depositaries of CEDEL and Euroclear,
respectively, and each a participating member of DTC.
The interests of such Certificateholders will be
represented by book-entries on the records of DTC and
participating members thereof. No Owner will be
</TABLE>
S-5
<PAGE>
<TABLE>
<S> <C>
entitled to receive a definitive certificate
representing such person's interest, except in the
event that Definitive Securities (as defined in the
Prospectus under 'DESCRIPTION OF THE SECURITIES--
Book-Entry Securities') are issued under the limited
circumstances described herein. All references in this
Prospectus Supplement to any Class A Certificates
reflect the rights of Owners only as such rights may
he exercised through DTC and its participating
organizations for so long as such Class A Certificates
are held by DTC. See 'RISK FACTORS--Book-Entry
Registration May Affect Liquidity,' 'DESCRIPTION OF
THE CERTIFICATES--Book-Entry Certificates' and ANNEX
I hereto.
Seller and Servicer...... Delta Funding Corporation (the 'Seller' or the
'Servicer', as applicable). The principal executive
offices of the Seller and the Servicer are located at
1000 Woodbury Road, Woodbury, New York 11797
(telephone (516) 364-8500). See 'THE SELLER AND THE
SERVICER' in the Prospectus.
Certificate Rate......... The 'Certificate Rate' applicable to each Class of
Offered Certificates on any Distribution Date is the
respective rate per annum set forth on the cover
hereof. Interest on each Class of Offered Certificates
in respect of any Distribution Date will accrue from
the first day of the calendar month preceding the
month of such Distribution Date through the last day
of such calendar month (each such period, an 'Interest
Period') on the basis of a 360-day year consisting of
twelve 30-day months.
Distributions............ On the 25th day of each month, or if such a day is not
a Business Day, then the next succeeding Business Day,
commencing in 199 (each such day, a
'Distribution Date'), the Trustee will be required to
distribute from funds available therefor in the
Distribution Account (as described herein) to the
holders of the Offered Certificates (the 'Offered
Certificateholders') of record as of the last day of
the calendar month immediately preceding the calendar
month in which such Distribution Date occurs (the
'Record Date'), in the priorities described below, in
the aggregate an amount equal to the sum of (a) the
Class Interest Distribution for each Class of Senior
Certificates, and (b) the Class A Principal
Distribution. So long as an Insurer Default has not
occurred, distributions of principal in the amounts
described below will be applied sequentially to the
Class A-1, Class A-2, Class A-3 and Class A-4
Certificates (the 'Sequential Certificates'), in that
order, such that no Class of Sequential Certificates
having a higher numerical designation is entitled to
distributions of principal until the Class Principal
Balance of each such Class of Sequential Certificates
having a lower numerical designation has been reduced
to zero. The Class A-5 Certificates are entitled to
distributions of principal in the amounts described
below concurrently with the Class of Sequential
Certificates then entitled to distribution of
principal. On any Distribution Date during the
continuance of an Insurer Default, the Class A
Principal Distribution will be distributed to each
Class of Class A Certificates outstanding on a pro
rata basis in accordance with the Class Principal
Balance of each such Class. See 'DESCRIPTION OF THE
CERTIFICATES--Distributions' herein.
</TABLE>
S-6
<PAGE>
<TABLE>
<S> <C>
Interest
On each Distribution Date, to the extent of funds
available therefor as described herein interest will
he distributed with respect to each Class of Senior
Certificates in an amount (each a 'Class Interest
Distribution') equal to the sum of (a) one month's
interest at the related Certificate Rate on the
related Class Principal Balance, or Notional Amount,
as the case may be, of such Class immediately prior to
such Distribution Date (the 'Class Monthly Interest
Distributable Amount') and (b) any Class Interest
Carryover Shortfall for such Class of Senior
Certificates with respect to previous Distribution
Dates. As to any Distribution Date and Class of Senior
Certificates. 'Class Interest Carryover Shortfall' is
the sum of (i) the excess, if any, of the related
Class Monthly Interest Distributable Amount for the
preceding Distribution Date plus any outstanding Class
Interest Carryover Shortfall with respect to such
Class on such preceding Distribution Date, over the
amount in respect of interest that is actually
distributed to the related Senior Certificateholders
on such preceding Distribution Date plus (ii) one
month's interest on such excess, to the extent
permitted by law, at the Certificate Rate. The
interest entitlement described in (a) above will be
reduced by such Class' pro rata share of Civil Relief
Act Interest Shortfalls, if any, for such Distribution
Date. Civil Relief Act Interest Shortfalls will not be
covered by payments under the Policy. See 'DESCRIPTION
OF THE CERTIFICATES' herein.
The Class S Certificates are entitled to distributions
of interest on a pro rata basis with the Class A
Certificates. The Certificate Rate for the Class S
Certificates is the weighted average of the Strip
Rates relating to each Class of Class A Certificates.
Interest to be distributed on the Class S Certificates
accrues on the basis of the Notional Amount described
below.
The Certificate Rate for the Class S Certificates is
equal to the average of the Strip Rates relating to
each Class of Class A Certificates, weighted on the
basis of the Class Principal Balance of each Class of
Class A Certificates immediately prior to a
Distribution Date. The Strip Rate relating to each
Class of Class A Certificates is as follows:
Class A-1 %
Class A-2 %
Class A-3 %
Class A-4 %
Class A-5 %
As of the Closing Date, the weighted average of the
Strip Rates is % per annum.
The 'Notional Amount' is the sum of the Class
Principal Balances of each Class of Class A
Certificates immediately prior to a Distribution Date
and is used to calculate the amount of the Class
Monthly Interest Distributable Amount for the Class S
Certificates.
On each Distribution Date, the Class Interest
Distribution relating to each Class of Senior
Certificates will be distributed on an equal priority
and any shortfall in the amount required to be
distributed as
</TABLE>
S-7
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<TABLE>
<S> <C>
interest thereon to each such Class will be allocated
between such Classes pro rata based on the amount that
would have been distributed on each such Class in the
absence of such shortfall.
Principal
'Class A Principal Distribution' means, with respect
to any Distribution Date, to the extent of funds
available therefor as described herein, the sum of the
Class A Monthly Principal Distributable Amount for
such Distribution Date and any outstanding Class A
Principal Carryover Shortfall as of the close of the
preceding Distribution Date; provided, however, that
the Class A Principal Distribution will not exceed the
Class A Principal Balance.
The Class A Principal Distribution will be distributed
to the Class A Certificates in the following order:
first, concurrently. % to the Class A-1
Certificates and % to the Class
Certificates until the Class Principal Balance of the
Class A-1 Certificates has been reduced to zero;
second, concurrently, % to the Class A-2
Certificates and % to the Class A-5
Certificates until the Class Principal Balance of the
Class A-2 Certificates has been reduced to zero;
third, concurrently, % to the Class A-3
Certificates and % to the Class A-5
Certificates until the Class Principal Balance of the
Class A-3 Certificates has been reduced to zero;
fourth, concurrently, % to the Class A-4
Certificates and % to the Class A-5
Certificates until the Class Principal Balance of the
Class A-4 Certificates has been reduced to zero; and
fifth, % to the Class A-5 Certificates
until the Class Principal Balance thereof has been
reduced to zero.
'Class A Monthly Principal Distributable Amount'
means, with respect to any Distribution Date, to the
extent of funds available therefor as described
herein, the amount equal to the sum of the following
amounts (without duplication) with respect to the
immediately preceding Due Period (as defined below):
(i) each payment of principal on a Home Equity Loan
received by the Servicer during such Due Period,
including all full and partial principal prepayments;
(ii) the Principal Balance of all Home Equity Loans
that became Liquidated Home Equity Loans during the
related Due Period; (iii) the portion of the Purchase
Price allocable to principal of all repurchased
Defective Home Equity Loans with respect to such Due
Period; (iv) any Substitution Adjustment Amounts
received on or prior to the related Determination Date
and not previously distributed; (v) the amount of
Distributable Excess Spread (as defined below) in
respect of such Distribution Date; and (vi) the
Pre-Funded Amount remaining on deposit in the Pre-
Funding Account immediately following the end of the
Pre-Funding Period.
If the required level of overcollateralization is
reduced below the then existing amount of
overcollateralization (described below) or if the
required level of overcollateralization is satisfied,
the amount of the Class A Monthly Principal
Distributable Amount on the following Distribution
Date will be correspondingly reduced by the amount of
such reduction or by the amount necessary such that
the
</TABLE>
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<S> <C>
overcollateralization will not exceed the required
level of overcollateralization after giving effect to
the distribution in respect of principal to be made on
such Distribution Date.
'Due Period' means (a) with respect to the first
Determination Date (i) for collections of principal
the period from and including 1, 199
through and including 1, 199 and (ii) for
collections of interest the period from and including
, 199 through and including ,
199 and (b) with respect to each Determination Date
thereafter for collections of both interest and
principal the period from and including the second day
of the month preceding the month of such Determination
Date to and including the first day of the month of
such Determination Date.
For a description of a 'Liquidated Home Equity Loan'
see 'DESCRIPTION OF THE CERTIFICATES--Distributions'
herein.
'Excess Spread' means, with respect to any
Distribution Date, the positive excess, if any, of (x)
the sum of the amounts deposited to the Distribution
Account as described in clauses (i) through (vi) under
'DESCRIPTION OF THE CERTIFICATES--Deposits to the
Distribution Account' herein with respect to such
Distribution Date (excluding amounts received from the
Certificate Insurer) over (y) the amount required to
be distributed pursuant to priorities (i) through
(vii) set forth under the heading 'DESCRIPTION OF THE
CERTIFICATES--Distributions' on such Distribution
Date.
'Distributable Excess Spread' means, with respect to
any Distribution Date, such portion (not greater than
100%) of Excess Spread, if any, required to be
distributed on such Distribution Date to satisfy the
required level of overcollateralization (see
'DESCRIPTION OF THE
CERTIFICATES--Overcollateralization Provisions'
herein) for such Distribution Date.
Distributions to the Class A Certificateholders of
Distributable Excess Spread will result in
acceleration of principal payments to the holders of
the Class A Certificates and reduce the weighted
average life of the Class A Certificates. See
'DESCRIPTION OF THE CERTIFICATES--Overcollateralization
Provisions' and 'PREPAYMENT AND YIELD CONSIDERATIONS' herein.
The last scheduled Distribution Date for each Class of
Class A Certificates is as follows: Class A-1
Certificates, 25, , Class A-2
Certificates, 25, , Class A-3
Certificates, 25, , Class A-4
Certificates, 25, and Class A-5
Certificates, 25, . It is expected that
the actual last Distribution Date for each Class of
Class A Certificates will occur significantly earlier
than such scheduled Distribution Dates. See
'PREPAYMENT AND YIELD CONSIDERATIONS' herein.
Credit Enhancement....... The credit enhancement provided for the benefit of the
Offered Certificateholders consists of (a) the
overcollateralization created by
</TABLE>
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<S> <C>
the application of the internal cash flows of the
Trust, as described herein, and (b) the Policy.
Overcollateralization: The credit enhancement
provisions of the Trust will result in a limited
acceleration of the Offered Certificates relative to
the amortization of the Home Equity Loans. This
acceleration feature creates overcollateralization
(i.e., the excess of the current Pool Balance over the
Class A Principal Balance). Once the required level of
overcollateralization is reached, unless the required
level of overcollateralization is increased as
described below, and subject to the next paragraph,
the acceleration feature will cease.
The Agreement provides that, subject to certain
floors, caps and triggers, the required level of
overcollateralization may increase or decrease over
time. An increase in the required level of
overcollateralization will result if the delinquency
or default experience on the Home Equity Loans exceeds
certain levels set forth in the Agreement. In that
event, amortization of the Offered Certificates would
be accelerated until the level of
overcollateralization reaches its required level. The
required level of overcollateralization may be
decreased under certain circumstances, which will slow
the amortization of the Offered Certificates.
Accelerated amortization and the resulting
overcollateralization is accomplished by distributing
a portion of the interest receipts on the Home Equity
Loans as a payment of principal on the Class A
Certificates. See 'DESCRIPTION OF THE CERTIFICATES--
Overcollateralization Provisions' herein.
The Policy: The Policy will unconditionally and
irrevocably guarantee principal payments (as described
in the next sentence) on the Class A Certificates plus
accrued and unpaid interest due on the Senior
Certificates. On each Distribution Date, a draw will
be made on the Policy equal to the sum of (a) the
amount for each Class of Senior Certificates by which
interest accrued at the applicable Certificate Rate on
the related outstanding Class Principal Balance or
Notional Amount, as the case may be, exceeds the
amount on deposit in the Distribution Account
available to be distributed therefor on such
Distribution Date and (b) the amount (the 'Class A
Guaranteed Principal Distribution Amount'), if any, by
which the Class A Principal Balance exceeds the sum of
the Principal Balances of the Home Equity Loans at the
end of the previous month and the amount, if any, on
deposit in the Pre-Funding Account on such date (after
giving effect to all amounts distributable and
allocable to principal on the Class A Certificates on
such Distribution Date). In addition. the Policy will
guarantee the payment in full of the Class A Principal
Balance on the Distribution Date in 20
(after giving effect to all other amounts
distributable and allocable to principal on the Class
A Certificates on such Distribution Date).
In the absence of payments under the Policy, Senior
Certificateholders will directly bear the credit and
other risks associated with their undivided interest
in the Trust. See 'DESCRIPTION OF THE
CERTIFICATES--The Policy' herein.
</TABLE>
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<S> <C>
The Certificate
Insurer................ a stock insurance company (the 'Certificate
Insurer'). See 'DESCRIPTION OF THE CERTIFICATES--The
Policy' and 'THE CERTIFICATE INSURER' herein.
Servicing................ The Servicer will be responsible for servicing,
managing and making collections on the Home Equity
Loans. The Servicer will deposit all collections in
respect of the Home Equity Loans into the Collection
Account as described herein. Not later than the fourth
Business Day prior to each Distribution Date (the
'Determination Date'), the Servicer will calculate the
amounts to be paid, as described herein, to the
Certificateholders on such Distribution Date. See
'DESCRIPTION OF THE CERTIFICATES--Distributions.' With
respect to each Due Period, the Servicer will receive
from payments in respect of interest on the Home
Equity Loans a portion of such payments as a monthly
servicing fee (the 'Servicing Fee') in the amount of
% per annum (the 'Servicing Fee Rate') on the
Principal Balance of each Home Equity Loan as of the
first day of each such Due Period. See 'DESCRIPTION OF
THE CERTIFICATES--Servicing Compensation, Payment of
Expenses and Prepayment Interest Shortfalls.' In
certain limited circumstances, the Servicer may resign
or be removed, in which event either the Trustee or a
third-party servicer will be appointed as successor
Servicer. See 'DESCRIPTION OF THE
CERTIFICATES--Certain Matters Regarding the Servicer.'
Trustee.................. , a national
banking association (the 'Trustee').
Monthly Advances......... The Servicer is required to remit to the Trustee no
later than the close of business on the Determination
Date for each Distribution Date, for deposit in the
Distribution Account, an amount equal to the scheduled
installment of interest due on each Home Equity Loan
but not received by the Servicer during the related
Due Period (a 'Monthly Advance'). Such obligation of
the Servicer continues with respect to each Home
Equity Loan until such Home Equity Loan becomes a
Liquidated Home Equity Loan. The Servicer is not
required to make any Monthly Advances which it
determines would be nonrecoverable. Monthly Advances
are reimbursable to the Servicer subject to certain
conditions and restrictions, and are intended to
provide sufficient funds for the payment of interest
on the Senior Certificates. See 'DESCRIPTION OF THE
CERTIFICATES--Advances' herein.
Prepayment Interest
Shortfalls............. Not later than the Determination Date, the Servicer is
required to remit to the Trustee, without any right of
reimbursement, an amount equal to, with respect to
each Home Equity Loan as to which a principal
prepayment in full was received during the related Due
Period, the lesser of (a) the excess, if any, of 30
days' interest on the Principal Balance of such Home
Equity Loan at the Loan Rate (or at such lower rate as
may be in effect for such Home Equity Loan because of
application of the Soldiers' and Sailors Civil Relief
Act of 1940, as amended (the 'Civil Relief Act')),
minus the Servicing Fee for such Home Equity Loan over
the amount of interest actually paid by the related
Mortgagor in connection with such principal prepayment
(with respect to all such Home Equity Loans, the
</TABLE>
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<PAGE>
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<S> <C>
'Prepayment Interest Shortfall') and (b) the sum of
aggregate Servicing Fee received by the Servicer in
the most recently ended Due Period.
Civil Relief Act Interest Shortfalls will not be
covered by the Policy, although Prepayment Interest
Shortfalls, after application of the Servicing Fee
will be so covered. The Servicer is not obligated to
offset any of the Servicing Fee against, or to provide
any other funds to cover, any shortfalls in interest
collections on the Home Equity Loans that are
attributable to the application of the Civil Relief
Act ('Civil Relief Act Interest Shortfalls'). See
'RISK FACTORS-- Prepayments and Simple Interest Loans
May Affect Interest Collections' herein.
Optional Termination
by the Servicer........ The Servicer may, at its option, terminate the
Agreement on the Distribution Date following the Due
Period at the end of which the aggregate Principal
Balance of the Home Equity Loans is less than 10% of
the sum of the Principal Balances of the Initial Loans
and Subsequent Loans as of the Cut-Off Date and
related Subsequent Cut-Off Date, as the case may be.
See 'DESCRIPTION OF THE CERTIFICATES--Termination;
Purchase of Home Equity Loans' herein.
Optional Purchase of
Defaulted Home Equity
Loans.................. The Servicer has the option, but is not obligated, to
purchase from the Trust any Home Equity Loan 90 days
or more delinquent at a purchase price equal to the
outstanding Principal Balance as of the date of
purchase, plus all accrued and unpaid interest on such
Principal Balance through the date of purchase,
computed at the Loan Rate net of the Servicing Fee
Rate. See 'DESCRIPTION OF THE CERTIFICATES--Optional
Purchase of Defaulted Home Equity Loans' herein.
Federal Income Tax
Considerations......... For federal income tax purposes, separate elections
will be made to treat certain assets of the Trust as a
'real estate mortgage investment conduit' (the 'Upper
Tier REMIC' and 'Lower Tier REMIC,' respectively). The
Offered Certificates will represent beneficial
ownership of 'regular interests' in the Upper Tier
REMIC and will be treated as debt instruments of the
Upper Tier REMIC for federal income tax purposes with
payment terms equivalent to the terms of such
Certificates. The Class R Certificates (the 'Residual
Certificates') will represent beneficial ownership of
'residual interests' in both the Upper Tier REMIC and
the Lower Tier REMIC and will be the Class of Residual
Certificates, as described in the Prospectus.
The holders of the Offered Certificates will be
required to include in income interest on such
Certificates in accordance with the accrual method of
accounting, and the Offered Certificates may,
depending on their issue price, be treated as having
been issued with original issue discount for federal
income tax purposes. For further information regarding
the federal income tax consequences of investing in
the Offered Certificates, see 'FEDERAL INCOME TAX
CONSIDERATIONS' herein and in the Prospectus.
</TABLE>
S-12
<PAGE>
<TABLE>
<S> <C>
ERISA Considerations..... The acquisition of an Offered Certificate by a pension
or other employee benefit plan (a 'Plan') subject to
the Employee Retirement Income Security Act of 1974,
as amended ('ERISA'), could, in some instances, result
in a 'prohibited transaction' or other violation of
the fiduciary responsibility provisions of ERISA and
Code Section 4975. Certain exemptions from the
prohibited transaction rules could be applicable to
the acquisition of such Certificates. Any Plan
fiduciary considering whether to purchase any Offered
Certificate on behalf of a Plan should consult with
its counsel regarding the applicability of the
provisions of ERISA and the Code. See 'ERISA
CONSIDERATIONS' herein and in the Prospectus.
Subject to the considerations and conditions described
under 'ERISA CONSIDERATIONS' herein, it is expected
that the Offered Certificates may be purchased by a
Plan upon conclusion of the Funding Period.
Legal Investment
Considerations......... The Offered Certificates will not constitute 'mortgage
related securities' for purposes of the Secondary
Mortgage Market Enhancement Act of 1984 ('SMMEA'),
because some of the Mortgages securing the Home Equity
Loans are not first mortgages. Accordingly, many
institutions with legal authority to invest in
comparably rated securities based solely on first
mortgages may not be legally authorized to invest in
the Offered Certificates. See 'LEGAL INVESTMENT' in
the Prospectus.
Certificate Rating....... It is a condition to the issuance of the Offered
Certificates that they receive ratings of 'AAA' by
Standard & Poor's Rating Services ('Standard &
Poor's') and 'Aaa' by Moody's Investors Service, Inc.
('Moody's') (each a 'Rating Agency'). In general,
ratings address credit risk and do not address the
likelihood of prepayments. See 'RATINGS' herein and
'RISK FACTORS--Ratings Are Not Recommendations' in the
Prospectus.
</TABLE>
S-13
<PAGE>
RISK FACTORS
Investors should consider, among other things, the following risk factors
and the risk factors set forth on page 13 of the Prospectus in connection with
the purchase of the Offered Certificates.
Prepayments May Vary. All of the Home Equity Loans may be prepaid in whole
or in part at any time. However, Home Equity Loans secured by first liens on
Mortgaged Properties in New York are subject to a prepayment penalty for the
first 12 months following determination. In addition, Home Equity Loans secured
by Mortgaged Properties in other jurisdictions may be subject to prepayment
penalties to the extent permitted by law. Home equity loans, such as the Home
Equity Loans, have been originated in significant volume only during the past
few years and the Seller is not aware of any publicly available studies or
statistics on the rate of prepayment of such loans. Generally, home equity loans
are not viewed by borrowers as permanent financing. Accordingly, the Home Equity
Loans may experience a higher rate of prepayment than traditional loans. The
Trust's prepayment experience may be affected as a wide variety of factors,
including general economic conditions, interest rates, the availability of
alternate financing and homeowner mobility. In addition, substantially all of
the Home Equity Loans contain due-on-sale provisions and the Servicer is
required by the Agreement to enforce such provisions unless (i) such enforcement
is not permitted by applicable law or (ii) the Servicer, in a manner consistent
with reasonable commercial practice, permits the purchaser of the related
Mortgaged Property to assume the Home Equity Loan. To the extent permitted by
applicable law, such assumption will not release the original borrower from its
obligation under any such Home Equity Loan See 'CERTAIN LEGAL ASPECTS OF
LOANS--Due-on-Sale Clauses in Home Equity Loans' in the Prospectus.
Underwriting Standards May Affect Performance. As described herein, the
Seller's underwriting standards generally are less stringent than those of
Fannie Mae or Freddie Mac with respect to a borrower's credit history and in
certain other respects. A borrower's past credit history may not preclude the
Seller from making a loan; however, it generally will reduce the size (and
consequently the Combined Loan-to-Value Ratio) of the loan that the Seller is
willing to make. As a result of this approach to underwriting, the Home Equity
Loans in the Mortgage Pool may experience higher rates of delinquencies,
defaults and foreclosures than mortgage loans underwritten in a more traditional
manner.
Risk of Early Defaults. All of the Initial Loans were originated within 12
months prior to the initial Cut-Off Date. The weighted average remaining term to
maturity of the Initial Loans as of such Cut-Off Date is approximately
months. Although little data is available, defaults on mortgage loans, including
home equity loans similar to the Initial Loans, are generally expected to occur
with greater frequency in the early years of the terms of mortgage loans.
Liquidation proceeds received upon liquidation of a Mortgaged Property following
a default on the related Home Equity Loan will have the same effect as a
principal prepayment on the yield to maturity of the Class of Offered
Certificates receiving such proceeds. In general, the earlier a prepayment is
received, the greater will be the effect on the yield to maturity. In addition,
Holders may not be able to reinvest such prepayment at yields equal to the
yields on such Holders' Offered Certificates.
Balloon Loans May Adversely Affect Performance. With respect to
% of the Initial Loans (by Cut-Off Date Principal Balance) the
borrowers are not required to make monthly payments of principal that will be
sufficient to amortize such Home Equity Loans by their maturity (collectively,
'Balloon Loans'). As a result, a borrower generally will be required to pay the
entire remaining principal amount of the Initial Loan at its maturity. The
ability of a borrower to make such a payment may depend on the ability of the
borrower to obtain refinancing of the balance due on the Initial Loan. An
increase in interest rates over the Loan Rate applicable at the time the Initial
Loan was originated may have an adverse effect on the borrower's ability to
obtain refinancing or to pay the required monthly payment.
With respect to Balloon Loans, general credit risk may also be greater to
Certificateholders than to holders of instruments representing interests in
level payment fully amortizing first mortgage loans.
Second Liens Create Risks. Based on appraisals at the time of origination
of each Home Equity Loan, each such Home Equity Loan will have been fully
secured at such time. However, even if the Mortgaged Properties provide adequate
security for the Home Equity Loans, substantial delays could be encountered in
connection with the liquidation of Home Equity Loans that are delinquent and
resulting shortfalls in distributions to Offered Certificateholders could occur
if the Certificate Insurer were unable to perform its obligations under the
Policy.
S-14
<PAGE>
Further, liquidation expenses (such as legal fees, real estate taxes, and
maintenance and preservation expenses) will reduce the proceeds payable to
Certificateholders and thereby reduce the security for the Home Equity Loans. In
the event any of the Mortgaged Properties fail to provide adequate security for
the related Home Equity Loans, Offered Certificateholders could experience a
loss if the Certificate Insurer were unable to perform its obligations under the
Policy.
The Initial Loans are secured by first and second mortgages or deeds of
trust (representing approximately % and %, respectively, of the
aggregate Cut-Off Date Principal Balance of the Initial Loans). With respect to
Home Equity Loans that are junior in priority to liens having a first priority
with respect to the related Mortgaged Property ('First Liens'), the Servicer has
the power under certain circumstances to consent to a new mortgage lien on such
Mortgaged Property having priority over such Home Equity Loan in connection with
the refinancing of such First Lien. Home Equity Loans secured by second
mortgages are entitled to proceeds that remain from the sale of the related
Mortgaged Property after any related senior mortgage loan and prior statutory
liens have been satisfied. In the extent that such proceeds are insufficient to
satisfy such loans and prior liens in the aggregate and the Certificate Insurer
is unable to perform its obligations under the Policy, the Trust and,
accordingly, the Certificateholders, bear (i) the risk of delay in distributions
while a deficiency judgment against the borrower is sought and (ii) the risk of
loss if the deficiency judgment cannot be obtained or is not realized upon. See
'CERTAIN LEGAL ASPECTS OF LOANS' in the Prospectus.
Geographic Concentration. The Mortgaged Properties relating to the Initial
Loans are located in states and the Distinct of Columbia. However,
approximately %, (by aggregate principal balance as of the Cut-Off Date)
of the Mortgaged Properties relating to the Initial Loans are located in New
York. To the extent that the Northeast region has experienced or may experience
in the future weaker economic conditions or greater rates of decline in real
estate values than the United States generally, such a concentration of the Home
Equity Loans may be expected to exacerbate the foregoing risks. The Seller can
neither quantify the impact of any recent property value declines on the Home
Equity nor predict whether, to what extent or for how long such declines may
continue.
Pre-Funding May Adversely Affect Yield. To the extent that amounts on
deposit in the Pre-Funding Account have not been fully applied to the purchase
of Subsequent Loans by the Trust by the end of the Funding Period, the Classes
of Offered Certificates then entitled to distributions of principal will receive
a prepayment of principal in an amount equal to the Pre-Funded Amount remaining
in the Pre-Funding Account on the Distribution Date following the end of the
Funding Period (in no event later than the 199 Distribution Date).
Although no assurances can be given the Seller intends that the principal amount
of Subsequent Loans sold to the Trust will require the application of
substantially all amounts on deposit in the Pre-Funding Account and that there
will be no material principal prepayment to the Class A Certificateholders.
The Seller will not select Subsequent Loans in a manner that it believes is
adverse to the interest of the Offered Certificateholders. However. Subsequent
Loans may have been originated more recently than, and have credit criteria
different from those which were applied to, the Initial Loans. Therefore,
following the transfer of Subsequent Loans to the Trust, the aggregate
characteristics of the Home Equity Loans then held in the Trust may vary from
those of the Initial Loans. See 'DESCRIPTION OF THE HOME EQUITY LOANS--
Conveyance of Subsequent Loans' herein.
The ability of the Trust to invest in Subsequent Loans is largely dependent
upon the ability of the Seller to originate or purchase additional loans. The
ability of the Seller to originate or purchase additional loans may be affected
as a result of a variety of economic factors, including interest rates,
unemployment levels, the rate of inflation and consumer perception of economic
conditions generally.
Prepayments and Simple Interest Loans Affect Interest Collections. When a
principal prepayment in full is made on Home Equity Loan, the Mortgagor is
charged interest only up to the date of such prepayment, instead of for a full
month which may result in a Prepayment Interest Shortfall. The Servicer is
obligated to pay, without any right of reimbursement, those shortfalls in
interest collections payable on the Senior Certificates that are attributable to
Prepayment Interest Shortfalls, but only to the extent of the Servicing Fee for
the related Due Period (any such payment, 'Compensating Interest').
S-15
<PAGE>
Approximately 100% of the Home Equity Loans are simple interest mortgage
loans ('Simple Interest Loans') pursuant to which interest is computed and
charged to the Mortgagor on the outstanding Principal Balance of the related
Home Equity Loan based on the number of days elapsed between the date through
which interest was last paid on the Home Equity Loan through receipt of the
Mortgagor's most current payment, and the portions of each monthly payment that
are allocated to interest and principal are adjusted based on the actual amount
of interest charged on such basis. Consequently, if less than a full month has
elapsed between the interest paid to date and the next payment on a Home Equity
Loan, the amount of interest actually paid by the Mortgagor will be less than a
full month's interest on the principal balance of such Mortgage Loan.
Conversely, if more than a full month has elapsed between (the interest paid to
date and the next payment on a Home Equity Loan, the amount of interest actually
paid by the Mortgagor will be greater than a full month's interest on the
principal balance of such Home Equity Loan. To the extent that the aggregate of
such shortfalls exceeds the aggregate of such excesses, a 'Net Simple Interest
Shortfall' will result. The Servicing Fee will not be available to cover any
shortfalls in interest collections on the Home Equity Loans that are
attributable to Civil Relief Act Interest Shortfalls or Net Simple Interest
Shortfalls. Civil Relief Act Interest Shortfalls will not be covered by payments
under the Policy, although Prepayment Interest Shortfalls, after application of
the Servicing Fee as described above, and Net Simple Interest Shortfalls, will
be so covered.
Book-entry Registration May Affect Liquidity. Issuance of the Offered
Certificates in book-entry form may reduce the liquidity of such Certificates in
the secondary trading market since investors may be unwilling to purchase Class
A Certificates for which they cannot obtain physical certificates.
Since transactions in the Offered Certificates can be effected only through
DTC, CEDEL, Euroclear, participating organizations, indirect participants and
certain banks, the ability of a Certificate Owner to pledge an Offered
Certificate to persons or entities that do not participate in the DTC, CEDEL or
Euroclear system or otherwise to take actions in respect of such Certificates,
may be limited due to lack of a physical certificate representing the Offered
Certificates.
Certificate Owners may experience some delay in their receipt of
distributions of interest and principal on the Offered Certificates since such
distributions will be forwarded by the Trustee to DTC and DTC will credit such
distributions to the accounts of its Participants (as defined herein) which will
thereafter credit them to the accounts of Certificate Owners either directly or
indirectly through indirect participants. See 'DESCRIPTION OF THE
CERTIFICATES--Book-Entry Certificates' herein.
Reduction of Ratings May Affect Price. The ratings assigned to the Offered
Certificates will be based primarily on the assessment of the Rating Agencies of
the creditworthiness of the Certificate Insurer. Any downgrade or withdrawal of
the ratings assigned to the Certificate Insurer on the Closing Date would likely
result in a withdrawal or downgrading of the ratings assigned to the Offered
Certificates. Any such withdrawal or downgrading of the ratings of the Offered
Certificates may adversely affect the liquidity and the prices purchasers may be
willing to pay for such Certificates.
THE CERTIFICATE INSURER
The information set forth in this section and in the financial statements
of the Certificate Insurer set forth in Appendix A and Appendix B hereto have
been provided by the Certificate Insurer.
The Certificate Insurer is the principal operating subsidiary of
is not obligated to pay the debts of
or claims against the Certificate Insurer. The Certificate Insurer is domiciled
in the State of and licensed to do business in all 50 states.
S-16
<PAGE>
The tables below present selected financial information of the Certificate
Insurer determined in accordance with statutory accounting practices prescribed
or permitted by insurance regulatory authorities ('SAP') and generally accepted
accounting principles ('GAAP'):
<TABLE>
<CAPTION>
SAP
---------------------------------------
DECEMBER 31, 199 SEPTEMBER 30, 199
----------------- ------------------
(AUDITED) (UNAUDITED)
(IN MILLIONS)
<S> <C> <C>
Admitted Assets............... $ $
Liabilities...................
Capital and Surplus...........
</TABLE>
<TABLE>
<CAPTION>
GAAP
---------------------------------------
DECEMBER 3, 199 SEPTEMBER 30, 199
----------------- ------------------
(AUDITED) (UNAUDITED)
(IN MILLIONS)
<S> <C> <C>
Assets........................ $ $
Liabilities...................
Shareholders Equity...........
</TABLE>
Audited financial statements of the Certificate Insurer as of December 31,
199 and 199 and for each of the three years in the period ended December 31,
199 are included herein as Appendix A. Unaudited financial statements of the
Certificate Insurer for the nine-month period ended September 30, 199 are
included herein as Appendix B. Such financial statements have been prepared on
the basis of generally accepted accounting principles. Copies of the Certificate
Insurer's 199 year-end audited financial statements prepared in accordance with
statutory accounting practices are available from the Certificate Insurer.
A copy of the Annual Report on Form 10-K of is available from the
Certificate Insurer or the Securities and Exchange Commission.
The address of the Certificate Insurer is and the telephone
number is ( ) - . Requests for financial statements or Form 10-K should
be addressed to .
Moody's Investors Service, Inc. rates the claims paying ability of the
Certificate Insurer 'Aaa'.
Standard & Poor's Rating Services rates the claims paying ability of the
Certificate Insurer 'AAA'.
Fitch Investors Service L.P. rates the claims paying ability of the
Certificate Insurer 'AAA'.
Each rating of the Certificate Insurer should be evaluated independently.
The ratings reflect the respective rating agency's current assessment of the
creditworthiness of the Certificate Insurer and its ability to pay claims on its
policies of insurance. Any further explanation as to the significance of the
above ratings may be obtained only from the applicable rating agency.
The above ratings are not recommendations to buy, sell or hold the
Certificates, and such ratings may be subject to revision or withdrawal at any
time by the rating agencies. Any downward revision or withdrawal of any of the
above ratings may have an adverse effect on the market price of the
Certificates. The Certificate Insurer does not guaranty the market price of the
Certificates nor does it guaranty that the ratings on the Certificates will not
be revised or withdrawn.
The Certificate Insurer does not accept any responsibility for the accuracy
or completeness of this Prospectus Supplemental or the Prospectus or any
information or disclosure contained herein or omitted herefrom, other than with
respect to the accuracy of the information regarding the Policy and the
Certificate Insurer set forth under the headings 'THE CERTIFICATE INSURER' and
'DESCRIPTION OF THE CERTIFICATES--The Policy' and in Appendices A and B.
S-17
<PAGE>
DESCRIPTION OF THE HOME EQUITY LOANS
GENERAL
The statistical information presented in this Prospectus Supplement is only
with respect to the Initial Loans and describes the Initial Loans as of the
Cut-Off Date.
The Subsequent Loans are intended to be purchased by the Trust from the
Seller from time to time on or before , 199 , from funds on deposit
in the Pre-Funding Account. The Initial Loans and the Subsequent Loans, if
available, to be purchased by the Trust will be originated or purchased by the
Seller and sold by the Seller to the Trust. The Agreement will provide that the
Home Equity Loans, following the conveyance of the Subsequent Loans, must in the
aggregate conform to certain specified characteristics described below under
'--Conveyance of Subsequent Loans.'
The Mortgage Pool consists of Initial Loans with an aggregate
principal balance outstanding as of the Cut-Off Date of $ ,
together with any Subsequent Loans acquired as described herein. The Initial
Mortgage Pool consists of closed end, fixed rate home equity loans with
remaining terms to maturity of not more than 360 months (including both fully
amortizing and Balloon Loans). Approximately % of the Initial Loans (by
Principal Balance as of the Cut-Off Date) are secured by first lien mortgages on
the related Mortgaged Properties and % (by Principal Balance as of the
Cut-Off Date) are secured by junior liens on the related Mortgaged Properties.
With respect to approximately % of the Initial Loans by Cut-Off Date
Principal Balance the related Mortgages are secured by a primary residence of
the Mortgagor. Except for approximately % of the Initial Loans (by Principal
Balance as of the Cut-Off Date) which are between 30 and 89 days delinquent, the
Initial Loans were not more than 30 days delinquent as of the Cut-Off Date. With
respect to the Initial Loans, the average Cut-Off Date Principal Balance was
$ , the minimum Cut-Off Date Principal Balance was $ , the maximum
Cut-Off Date Principal Balance was $ , the minimum Loan Rate and the
maximum Loan Rate on the Cut-Off Date were % and % per annum,
respectively, and the weighted average Loan Rate on the Cut-Off Date was %
per annum. The weighted average original Combined Loan-to-Value Ratio of the
Initial Loans was % as of the Cut-Off Date.
The sole basis for determination of whether a Mortgage is secured by a
primary residence of a borrower ('Mortgagor') will be either (a) a
representation by the Mortgagor at origination of the Mortgage Loan that the
Mortgaged Property will be used for a period of at least six months every year,
or that he intends to use the Mortgaged Property as his primary residence or (b)
that the address of the Mortgaged Property is the Mortgagor's mailing address as
reflected in the Seller's records.
The Home Equity Loans provide that interest is charged to the Mortgagors
thereunder, and payments are due from such Mortgagors, as of a scheduled day of
each month which is fixed at the time of origination. All of the Home Equity
Loans provide for monthly installments of principal and interest. Certain Home
Equity Loans provide for full amortization of the principal amount thereof over
the term of the Home Equity Loan. Certain other Home Equity Loans provide for
amortization of a portion of the principal amount thereof over the term of the
Home Equity Loan and a balloon payment of the remaining principal amount thereof
at the end of the term of the Home Equity Loan.
POOL STATISTICS
The following information is approximate. The sum of the columns below may
not equal the total indicated due to rounding. In addition, unless otherwise set
forth herein, all percentages set forth with respect to the Initial Loans are
measured by the respective aggregate Principal Balances thereof as of the
Cut-Off Date.
S-18
<PAGE>
CUT-OFF DATE PRINCIPAL BALANCES
<TABLE>
<CAPTION>
CUT-OFF DATE % OF CUT-OFF
NUMBER OF AGGREGATE DATE AGGREGATE
CUT-OFF DATE PRINCIPAL BALANCES INITIAL LOANS PRINCIPAL BALANCE PRINCIPAL BALANCE
- --------------------------------- ------------- ----------------- -----------------
<S> <C> <C> <C>
$ 0.01 to $ 10,000.00....... $ %
$ 10,000.01 to $ 20,000.00.......
$ 20,000.01 to $ 30,000.00.......
$ 30,000.01 to $ 40,000.00.......
$ 40,000.01 to $ 50,000.00.......
$ 50,000.01 to $ 60,000.00.......
$ 60,000.01 to $ 70,000.00.......
$ 70,000.01 to $ 80,000.00.......
$ 80,000.01 to $ 90,000.00.......
$ 90,000.01 to $100,000.00.......
$100,000.01 to $110,000.00.......
$110,000.01 to $120,000.00.......
$120,000.01 to $130,000.00.......
$130,000.01 to $140,000.00.......
$140,000.01 to $150,000.00.......
$150,000.01 to $160,000.00.......
$160,000.01 to $170,000.00.......
$170,000.01 to $180,000.00.......
$180,000.01 to $190,000.00.......
$190,000.01 to $200,000.00.......
$200,000.01 to $210,000.00.......
$210,000.01 to $220,000.00.......
$230,000.01 to $240,000.00.......
$240,000.01 to $250,000.00.......
$250,000.01 to $260,000.00.......
$260,000.01 to $270,000.00.......
$270,000.01 to $280,000.00.......
$280,000.01 to $290,000.00.......
$290,000.01 to $300,000.00.......
$310,000.01 to $320,000.00.......
$320,000.01 to $330,000.00.......
------------- ----------------- -----------------
Total.......................... $ %
------------- ----------------- -----------------
------------- ----------------- -----------------
</TABLE>
S-19
<PAGE>
DISTRIBUTION BY GEOGRAPHIC REGION(1)
<TABLE>
<CAPTION>
CUT-OFF DATE % OF CUT-OFF
NUMBER OF AGGREGATE DATE AGGREGATE
GEOGRAPHIC REGION INITIAL LOANS PRINCIPAL BALANCE PRINCIPAL BALANCE
- ------------------------ ------------- ----------------- -----------------
<S> <C> <C> <C>
Arizona................. $ %
California..............
Colorado................
Connecticut.............
Delaware................
District of Columbia....
Florida.................
Georgia.................
Illinois................
Indiana.................
Kentucky................
Maine...................
Maryland................
Massachusetts...........
Michigan................
Minnesota...............
Missouri................
Nevada..................
New Hampshire...........
New Jersey..............
New York................
North Carolina..........
Ohio....................
Oregon..................
Pennsylvania............
Rhode Island............
South Carolina..........
Tennessee...............
Virginia................
Washington..............
West Virginia...........
Total.................
------------- ----------------- -----------------
$ 100.00%
------------- ----------------- -----------------
------------- ----------------- -----------------
</TABLE>
- ------------------
(1) Determined by property address designated as such in the related Mortgage.
S-20
<PAGE>
COMBINED LOAN-TO-VALUE RATIOS(1)
<TABLE>
<CAPTION>
CUT-OFF DATE % OF CUT-OFF
NUMBER OF AGGREGATE DATE AGGREGATE
COMBINED LOAN-TO-VALUE RATIO INITIAL LOANS PRINCIPAL BALANCE PRINCIPAL BALANCE
- ---------------------------- ------------- ----------------- -----------------
<S> <C> <C> <C>
5.01% to 10.00%............ $ %
10.01% to 15.00%............
15.01% to 20.00%............
20.01% to 25.00%............
25.01% to 30.00%............
30.01% to 35.00%............
35.01% to 40.00%............
40.01% to 45.00%............
45.01% to 50.00%............
50.01% to 55.00%............
55.01% to 60.00%............
60.01% to 65.00%............
65.01% to 70.00%............
70.01% to 75.00%............
75.01% to 80.00%............
80.01% to 85.00%............
85.01% to 90.00%............
------------- ----------------- -----------------
Total..................... $ %
------------- ----------------- -----------------
------------- ----------------- -----------------
</TABLE>
- ------------------
(1) The original Combined Loan-to-Value Ratios ('CLTV') shown above are equal,
with respect to each Initial Loan, to (i) the sum of (a) the original
principal balance of such Home Equity Loan at the date of origination plus
(b) the remaining balance of the senior lien(s), if any, at the date of
origination of such Home Equity Loan divided by the value of the related
Mortgaged Property, based upon the appraisal made at the time of origination
of such Home Equity Loan. No assurance can be given that the values of such
Mortgaged Properties have remained or will remain at their levels as of the
dates of origination of the related Initial Home Equity Loans. If the
residential real estate market should experience an overall decline in
property values such that the outstanding balances of such Home Equity Loans
together with the outstanding balances of the related first liens become
equal to or greater than the value of the related Mortgaged Properties, the
actual losses could be higher than those now generally experienced in the
mortgage lending industry.
S-21
<PAGE>
LOAN RATES
<TABLE>
<CAPTION>
CUT-OFF DATE % OF CUT-OFF
NUMBER OF INITIAL AGGREGATE DATE AGGREGATE
LOAN RATES LOANS PRINCIPAL BALANCE PRINCIPAL BALANCE
- -------------------------- ----------------- ----------------- -----------------
<S> <C> <C> <C>
8.000% to 8.500%........ $ %
8.501% to 9.000%........
9.001% to 9.500%........
9.501% to 10.000%........
10.001% to 10.500%........
10.501% to 11.000%........
11.001% to 11.500%........
11.501% to 12.000%........
12.001% to 12.500%........
12.501% to 13.000%........
13.001% to 13.500%........
13.501% to 14.000%........
14.001% to 14.500%........
14.501% to 15.000%........
15.001% to 15.500%........
15.501% to 16.000%........
16.001% to 16.500%........
16.501% to 17.000%........
17.001% to 17.500%........
17.501% to 18.000%........
18.001% to 18.500%........
18.501% to 19.000%........
----------------- ----------------- -----------------
Total................... $ %
----------------- ----------------- -----------------
----------------- ----------------- -----------------
</TABLE>
REMAINING MONTHS TO STATED MATURITY
<TABLE>
<CAPTION>
CUT-OFF DATE % OF CUT-OFF
REMAINING MONTHS NUMBER OF INITIAL AGGREGATE DATE AGGREGATE
TO STATED MATURITY MORTGAGE LOANS PRINCIPAL BALANCE PRINCIPAL BALANCE
- -------------------------- ----------------- ----------------- -----------------
<S> <C> <C> <C>
49 to 60................ $ %
73 to 84................
109 to 120................
133 to 144................
169 to 180................
229 to 240................
289 to 300................
349 to 360................
----------------- ----------------- -----------------
Total................... $ %
----------------- ----------------- -----------------
----------------- ----------------- -----------------
</TABLE>
S-22
<PAGE>
MONTHS SINCE ORIGINATION
<TABLE>
<CAPTION>
CUT-OFF DATE % OF CUT-OFF
REMAINING MONTHS NUMBER OF AGGREGATE DATE AGGREGATE
TO STATED MATURITY INITIAL LOANS PRINCIPAL BALANCE PRINCIPAL BALANCE
- ------------------------ ------------- ----------------- -----------------
<S> <C> <C> <C>
1 to 12................. $ 100.00%
------------- ----------------- -----------------
Total................. $ 100.00%
------------- ----------------- -----------------
------------- ----------------- -----------------
</TABLE>
PROPERTY TYPE
<TABLE>
<CAPTION>
CUT-OFF DATE % OF CUT-OFF
REMAINING MONTHS NUMBER OF AGGREGATE DATE AGGREGATE
TO STATED MATURITY INITIAL LOANS PRINCIPAL BALANCE PRINCIPAL BALANCE
- ------------------------ ------------- ----------------- -----------------
<S> <C> <C> <C>
Single Family........... $ %
Two- to Four-Family.....
Condominiums............
Other...................
------------- ----------------- -----------------
Total................. $ 100.00%
------------- ----------------- -----------------
------------- ----------------- -----------------
</TABLE>
CONVEYANCE OF SUBSEQUENT LOANS
The Agreement permits the Trust to acquire up to approximately $
aggregate balance of Subsequent Loans. Accordingly, the statistical
characteristics of the Home Equity Loans vary as of any Subsequent Transfer Date
upon the acquisition of Subsequent Loans.
The obligation of the Trust to purchase Subsequent Loans on a Subsequent
Transfer Date is subject to the following requirements, any of which
requirements (except for the requirement stated in clause (v) of this paragraph)
may be waived or modified in any respect by the Certificate Insurer: (i) such
Subsequent Loan may not be 30 or more days contractually delinquent as of the
related Subsequent Cut-Off Date; (ii) the remaining term to stated maturity of
such Subsequent Loan may not exceed 30 years for fully amortizing loans or 15
years for 'Balloon Loans'; (iii) such Subsequent Mortgage Loan will be secured
by a Mortgage in a first or second lien position; (iv) such Subsequent Loan will
not have a Loan Rate less than %; (v) such Subsequent Loan will be
otherwise acceptable to the Certificate Insurer; (vi) following the purchase of
such Subsequent Loan by the Trust on a Subsequent Transfer Date, the Home Equity
Loans (including such Subsequent Loan) as of the related Subsequent Cut-Off
Date: (a) will have a weighted average Loan Rate of at least %; (b) will
have a weighted average remaining term to stated maturity of not more than
months; (c) will have a weighted average Combined Loan-to-Value Ratio of not
more than %; (d) will not have more than % by aggregate principal balance
'Balloon Loans'; (e) will have no Home Equity Loan with a principal balance in
excess of $ ; (f) will have a state concentration not in excess of % for
any one state; (g) will have not more than % in aggregate principal balance
of the Home Equity Loans concentrated in any single zip code; (h) will have not
more than % in aggregate principal balance of Home Equity Loans relating
to non-owner occupied properties; and (i) will not include Home Equity Loans in
excess of % by aggregate principal balance secured by Mortgages in a second
lien position; (vii) such Subsequent Loan shall be secured by a mortgage on
property which, at the time of the origination of such Subsequent Loan, has an
appraised value of not more than $ ; and (viii) the first payment on
such Subsequent Loan is due no later than the last day of the month in which the
purchase occurs, unless there is deposited into the Certificate Account an
amount equal to 30 days' interest on any such Subsequent Loan at the Loan Rate
less the Servicing Fee Rate, then the first payment on such Subsequent Loan is
due no later than the last day of the month following the month in which the
purchase occurs.
S-23
<PAGE>
PREPAYMENT AND YIELD CONSIDERATIONS
GENERAL
The rate of principal payments on the Offered Certificates,the aggregate
amount of distributions on the Offered Certificates and the yield to maturity of
the Offered Certificates will be related to the rate and timing of payments of
principal on the Home Equity Loans. The rate of principal payments on the Home
Equity Loans will in turn be affected by the amortization schedules of the Home
Equity Loans and by the rate of principal prepayments (including for this
purpose prepayments resulting from refinancing, liquidations of the Home Equity
Loans due to defaults, casualties, condemnations and repurchases by Delta). The
Home Equity Loans may be prepaid by the Mortgagors at any time. However, Home
Equity Loans secured by first liens on Mortgaged Properties in New York are
subject to a prepayment penalty for the first 12 months following origination.
In addition, Home Equity Loans secured by Mortgaged Properties in other
jurisdictions may be subject to prepayment penalties to the extent permitted by
law.
Prepayments, liquidations and purchases of the Home Equity Loans (including
any optional purchase by the Servicer of a Home Equity Loan and any optional
purchase of the remaining Home Equity Loans in connection with the termination
of the Trust, in each case as described herein) will result in distributions on
the Classes of Offered Certificates then entitled to distributions of principal
which would otherwise be distributed over the remaining terms of the Home Equity
Loans. Since the rate of payment of principal of the Home Equity Loans will
depend on future events and a variety of factors, no assurance can be given as
to such rate or the rate of principal prepayments. The extent to which the yield
to maturity of a Class of Offered Certificates may vary from the anticipated
yield will depend upon the degree to which a Certificate of such Class is
purchased at a discount or premium, and the degree to which the timing of
payments thereon is sensitive to prepayments, liquidations and purchases of such
Home Equity Loans. An additional factor affecting the yield to maturity of the
Offered Certificates is the overcollateralization amount. The
overcollateralization will accelerate the amortization of the Offered
Certificates relative to the amortization of the Home Equity Loans because all
principal payments received on the Home Equity Loans will be distributed to the
Offered Certificateholders as long as the amount of overcollateralization is
less than the required level of overcollateralization.
The rate of prepayment on the Home Equity Loans cannot be predicted. Home
equity loans such as the Home Equity Loans have been originated in significant
volume only during the past few years and the Seller is not aware of any
publicly available studies or statistics on the rate of prepayment of such Home
Equity Loans. Generally, home equity loans are not viewed by borrowers as
permanent financing. Accordingly, the Home Equity Loans may experience a higher
rate of prepayment than traditional first mortgage loans. The prepayment
experience of the Trust with respect to the Home Equity Loans may be affected by
a wide variety of factors, including economic conditions, prevailing interest
rate levels, the availability of alternative financing and homeowner mobility
and changes affecting the deductibility for Federal income tax purposes of
interest payments on home equity loans. Substantially all of the Home Equity
Loans contain 'due-on-sale' provisions and the Servicer is required by the
Agreement to enforce such provisions, unless such enforcement is not permitted
by applicable law. The enforcement of a 'due-on-sale' provision will have the
same effect as a prepayment of the related Home Equity Loan. See 'CERTAIN LEGAL
ASPECTS OF LOANS--Due-on-Sale Clauses in Home Equity Loans' in the Prospectus.
In addition to the foregoing factors affecting the weighted average lives
of the Offered Certificates, the use of Distributable Excess Spread to pay
principal of the Offered Certificates will result in acceleration of the Class
A-1 and Class A-5 Certificates relative to the amortization of the Home Equity
Loans in the early months of the transaction as well as accelerating the first
date on which each other Class of Offered Certificates will begin to receive
distribution of principal. This acceleration feature creates
overcollateralization which results from the excess of the sum of aggregate
Principal Balance of the Home Equity Loans and the amount on deposit in the
Pre-Funding Account over the Class A Principal Balance. Once the required level
of overcollaterlization is reached, the acceleration feature will cease, unless
necessary to maintain the required level of overcollateralization.
S-24
<PAGE>
MANDATORY PREPAYMENT
The approximate original Pre-Funded Amount of $ will be
funded from the proceeds of the sale of the Offered Certificates and may be used
to acquire Subsequent Loans. In the event that, on the last day of the Funding
Period, not all of the original Pre-Funded Amount has been used to acquire
Subsequent Loans, then the Classes of Offered Certificates then entitled to
distributions of principal will receive a partial prepayment on the Distribution
Date immediately following the last day of the Funding Period in an amount equal
to the amount remaining in the Pre-Funding Account (after taking into account
the purchase of Subsequent Loans on such date).
Although no assurances can be given, the Seller intends that the principal
amount of Subsequent Loans sold to the Trust will require the application of
substantially all the amount on deposit in the Pre-Funding Account and that
there should be no material principal prepaid to the Holders of any of the Class
A Certificates.
PAYMENT DELAY FEATURE OF OFFERED CERTIFICATES
The effective yield to the Certificateholders of each Class of Offered
Certificates will be lower than the yield otherwise produced by the Certificate
Rate for each such Class and the purchase price of such Certificates because
distributions will not be payable to the Certificateholders until the 25th day
of the month following the month of accrual (without any additional distribution
of interest or earnings thereon in respect of such delay).
WEIGHTED AVERAGE LIVES
Generally, greater than anticipated prepayments of principal will increase
the yield on Offered Certificates purchased at a price less than par. Generally,
greater than anticipated prepayments of principal will decrease the yield on
Offered Certificates purchased at a price greater than par. The effect on an
investor's yield due to principal payments on the Home Equity Loans occurring at
a rate that is faster (or slower) than the rate anticipated by the investor in
the period immediately following the issuance of the Certificates will not be
entirely offset by a subsequent like reduction (or increase) in the rate of
principal payments. The weighted average life of the Offered Certificates will
also be affected by the amount and timing of delinquencies and defaults on the
Home Equity Loans and the recoveries, if any, on Liquidated Home Equity Loans
and foreclosed properties.
The 'weighted average life' of a Certificate refers to the average amount
of time that will elapse from the date of issuance to the date each dollar in
respect of principal of such Certificate is repaid. The weighted average life of
any Class of the Class A Certificates will be influenced by, among other
factors, the rate at which principal payments are made on the Home Equity Loans,
including final payments made upon the maturity of Balloon Loans.
Prepayments on Home Equity Loans are commonly measured relative to a
prepayment standard or model. The model used in this Prospectus Supplement (the
'Prepayment Assumption'), represents an assumed rate of prepayment each month
relative to the then outstanding principal balance of the pool of mortgage loans
for the life of such mortgage loans. A 100% Prepayment Assumption assumes a
constant prepayment rate ('CPR') of 4% per annum of the outstanding principal
balance of such mortgage loans in the first month of the life of the mortgage
loans and an additional 1.455% (precisely 16/11) (expressed as a percentage per
annum) in each month thereafter until the twelfth month; beginning in the
twelfth month and in each month thereafter during the life of the mortgage
loans, a constant prepayment rate of 20% per annum each month is assumed. As
used in the table below, 0% Prepayment Assumption assumes a constant prepayment
rate equal to 0% of the Prepayment Assumption, i.e., no prepayments.
Correspondingly, 80% Prepayment Assumption assumes prepayment rates equal to 80%
of the Prepayment Assumption, and so forth. The Prepayment Assumption does not
purport to be an historical description of prepayment experience or a prediction
of the anticipated rate of prepayment of any pool of mortgage loans, including
the Home Equity Loans.
Since the tables were prepared on the basis of the assumptions in the
following paragraph, there are discrepancies between characteristics of the
actual Home Equity Loans and the characteristics of the Home Equity Loans
assumed in preparing the tables. Any such discrepancy may have an effect upon
the percentages of the Principal Balances outstanding and weighted average lives
of the Certificates set forth in the tables. In addition, since the actual Home
Equity Loans in the Trust have characteristics which differ from those assumed
S-25
<PAGE>
in preparing the tables set forth below, the distributions of principal on the
Certificates may be made earlier or later than as indicated in the tables.
For the purpose of the tables below, it is assumed that: (i) the Home
Equity Loans consist of pools of loans with the level-pay and balloon
amortization characteristics set forth below, (ii) all the Subsequent Loans
purchased with funds from the Pre-Funding Account are purchased on ,
199 , (iii) the Closing Date for the Class A Certificates is , 199 ,
(iv) distributions on the Class A Certificates are made on the 25th day of each
month regardless of the day on which the Distribution Date actually occurs,
commencing in 199 and are made in accordance with the priorities
described herein, (v) the scheduled monthly payments of principal and interest
on the Home Equity Loans will be timely delivered on the last day of each month
(with no defaults, commencing in 199 ), (vi) the Home Equity Loans'
prepayment rates are a multiple of the applicable Prepayment Assumption, (vii)
all prepayments are prepayments in full received on the last day of each month
(commencing 199 ) and include 30 days' interest thereon, (viii) no
optional termination or mandatory termination is exercised, (ix) the Class A
Certificates of each Class have the respective Certificate Rates and Original
Class Principal Balances as set forth on the cover hereof, and (x) all of the
Pre-Funded Amount is used to acquire Subsequent Loans.
<TABLE>
<CAPTION>
ORIGINAL ORIGINAL REMAINING
AMORTIZATION TERM TO TERM TO
PRINCIPAL LOAN TERM MATURITY MATURITY
AMORTIZATION METHODOLOGY BALANCE RATE (MONTHS) (MONTHS) (MONTHS)
- ------------------------ --------- ---- ------------ -------- ---------
<S> <C> <C> <C> <C> <C>
Initial Loans
Level Pay............. $ %
Level Pay............. $ %
Level Pay............. $ %
Balloon............... $ %
Subsequent Loans
Level Pay............. $ %
Level Pay............. $ %
Level Pay............. $ %
Balloon............... $ %
</TABLE>
Subject to the foregoing discussion and assumptions, the following table
indicates the weighted average life of each Class of Class A Certificates, and
sets forth the percentages of the initial Principal Balance of each such Class
of Class A Certificates that would be outstanding after each of the dates shown
at various percentages of the Prepayment Assumption.
S-26
<PAGE>
PERCENT OF INITIAL CLASS PRINCIPAL BALANCE OUTSTANDING
AT THE FOLLOWING PERCENTAGES OF THE PREPAYMENT ASSUMPTION
<TABLE>
<CAPTION>
CLASS A-1 CLASS A-2
----------------------------------------- -----------------------------------------
DISTRIBUTION DATE 0% 50% 100% 125% 150% 0% 50% 100% 125% 150%
- ------------------------- ----- ----- ----- ----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Initial Percentage.......
Weighted Average Life
(years)*...............
<CAPTION>
CLASS A-3
----------------------------------------
DISTRIBUTION DATE 0% 50% 100% 125% 150%
- ------------------------- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Initial Percentage.......
Weighted Average Life
(years)*...............
</TABLE>
- ------------------
* The weighted average life of a Certificate of any Class is determined by (i)
multiplying the amount of each distribution in reduction of the related
Certificate Principal Balance by the number of years from the date of issuance
of the Certificate to the related Distribution Date, (ii) adding the results,
and (iii) dividing the sum by the highest related Certificate Principal
Balance of the Certificate.
S-27
<PAGE>
PERCENT OF INITIAL CLASS PRINCIPAL BALANCE OUTSTANDING
AT THE FOLLOWING PERCENTAGES OF THE PREPAYMENT ASSUMPTION--(CONTINUED)
<TABLE>
<CAPTION>
CLASS A-4 CLASS A-5
---------------------------------------------- ----------------------------------------------
DISTRIBUTION DATE 0% 50% 100% 125% 150% 0% 50% 100% 125% 150%
- ------------------------- ------ ------ ------ ------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Initial Percentage.......
Weighted Average Life
(years)*...............
</TABLE>
- ------------------
* The weighted average life of a Certificate of any Class is determined by (i)
multiplying the amount of each distribution in reduction of the related
Certificate Principal Balance by the number of years from the date of issuance
of the Certificate to the related Distribution Date, (ii) adding the results,
and (iii) dividing the sum by the highest related Certificate Principal
Balance of the Certificate.
S-28
<PAGE>
DESCRIPTION OF THE CERTIFICATES
The Certificates will be issued pursuant to the Agreement. A form of the
Agreement has been filed as an exhibit to the Registration Statement of which
this Prospectus Supplement and the Prospectus is a part. The following summaries
together with the information in the Prospectus under the headings 'DESCRIPTION
OF THE SECURITIES' and 'THE AGREEMENTS' describe the material provisions of the
Agreement. The summaries do not purport to be complete and are subject to, and
are qualified in their entirety by reference to, all of the provisions of the
Agreement. Wherever particular sections or defined terms of the Agreement are
referred to, such sections or defined terms are hereby incorporated herein by
reference.
GENERAL
The Offered Certificates will be issued in denominations of $25,000 and
multiples of $1 in excess thereof and will evidence specified undivided
interests in the Trust. The property of the Trust will consist of, to the extent
provided in the Agreement: (i) the Home Equity Loans; (ii) payments received
after the Cut-Off Date or after the Subsequent Cut-Off Date as applicable, other
than payments of interest on the Initial Loans due on or before ,
199 ; (iii) Mortgaged Properties relating to the Home Equity Loans that are
acquired by foreclosure or deed in lieu of foreclosure together with all
collections thereon and proceeds thereof; (iv) the Collection Account and the
Distribution Account and such assets deposited therein from time to time and any
investment proceeds thereof; and (v) the Pre-Funding Account, the Capitalized
Interest Account and funds on deposit therein. In addition, the Seller has
caused the Certificate Insurer to issue an irrevocable and unconditional
certificate guaranty insurance policy (the 'Policy') for the benefit of the
Senior Certificateholders pursuant to which it will guarantee payments to such
Senior Certificateholders as described herein. Definitive Certificates (as
defined below), if issued, will be transferable and exchangeable at the
corporate trust office of the Trustee, which will initially act as Certificate
Registrar. See '--Book-Entry Certificates' below. No service charge will be made
for any registration of exchange or transfer of Certificates. but the Trustee
may require payment of a sum sufficient to cover any tax or other governmental
charge.
The aggregate undivided interest in the Trust represented by the Offered
Certificates as of the Closing Date will equal approximately $ of
principal (the 'Original Class A Principal Balance'), which represents 100% of
the sum of the aggregate Cut-Off Date Principal Balance of the Initial Loans and
the original Pre-Funded Amount. The principal amount of a Class of Class A
Certificates (each, a 'Class Principal Balance') on any Distribution Date is
equal to the applicable Class A Principal Balance on the Closing Date minus the
aggregate of amounts actually distributed as principal to the holders of such
Class of Class A Certificates. The Home Equity Loan Asset-Backed Certificates,
Series 199 - will be issued in six Classes of senior certificates, Class A-1
(the 'Class A-1 Certificates'), Class A-2 (the 'Class A-2 Certificates'), Class
A-3 (the 'Class A-3 Certificates'), Class A-4 (the 'Class A-4 Certificates'),
and Class A-5 (the 'Class A-5 Certificates') (collectively the 'Class A
Certificates') and the Class S Certificates (the 'Class S Certificates' and,
collectively with the Class A Certificates, the 'Senior Certificates'). Only the
Class A Certificates are offered hereby (the 'Offered Certificates'). The Class
A-1, Class A-2, Class A-3 and Class A-4 Certificates (the 'Sequential
Certificates') will receive distributions of principal sequentially in the
amounts described below under 'Principal'. The Class A-5 Certificates are
entitled to distributions of principal in the amounts described below under
'Principal' concurrently with the Class of Sequential Certificates then entitled
to distributions of principal. Each Class of Offered Certificates represents the
right to receive payments of interest at the Certificate Rate for such Class and
payments of principal as described below.
The Person in whose name a Certificate is registered as such in the
Certificate Register is referred to herein as a 'Certificateholder.'
The 'Percentage Interest' of a Class A Certificate as of any date of
determination will be equal to the percentage obtained by dividing the
denomination of such Certificate by the Class Principal Balance for the related
Class of Class A Certificates as of the Cut-Off Date.
SEPARATE REMIC STRUCTURE
For federal income tax purposes, the Trust other than the Pre-Funding
Account and the Capitalized Interest Account created by the Pooling and
Servicing Agreement will include two segregated asset pools, each of which will
be treated as a separate REMIC. The assets of the Lower Tier REMIC will
generally consist of the Home
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Equity Loans. The assets of the Upper Tier REMIC will generally consist of
uncertificated regular interests issued by the Lower Tier REMIC, which in the
aggregate will correspond to the Class A Certificates.
BOOK-ENTRY CERTIFICATES
Each Class of Offered Certificates will be issued in book-entry form (the
'Book-Entry Certificates'). Persons acquiring beneficial ownership interests in
the Book-Entry Certificates ('Owners') will hold their Certificates through the
Depository Trust Company ('DTC') in the United States, or CEDEL Bank, societe
anonyme ('CEDEL') or the Euroclear System ('Euroclear') (in Europe) if they are
participants of such systems, or indirectly through organizations which are
participants in such systems. The Book-Entry Certificates will be issued in one
or more certificates which equal the aggregate principal balance of the Class A
Certificates and will initially be registered in the name of Cede & Co., the
nominee of DTC. CEDEL and Euroclear will hold omnibus positions on behalf of
their participants through customers' securities accounts in CEDEL's and
Euroclear's names on the books of their respective depositaries which in turn
will hold such positions in customers' securities accounts in the depositaries'
names on the books of DTC. Citibank N.A. ('Citibank') will act as depositary for
CEDEL and The Chase Manhattan Bank ('Chase') will act as depositary for
Euroclear (in such capacities, individually the 'Relevant Depositary' and
collectively the 'European Depositaries'). Unless and until Definitive
Securities are issued, it is anticipated that the only 'Certificateholder' will
be Cede & Co., as nominee of DTC. Owners are only permitted to exercise their
rights indirectly through Participants and DTC. For a description of the
features of the book-entry registration system, see 'DESCRIPTION OF THE
SECURITIES--Book-Entry Securities' in the Prospectus. For information with
respect to tax documentation procedures relating to the Certificates, see
'FEDERAL INCOME TAX CONSIDERATIONS--Foreign Investors' and '--Backup
Withholding' herein and 'GLOBAL CLEARANCE, SETTLEMENT AND TAX DOCUMENTATION
PROCEDURES--certain U.S. Federal Income Tax Documentation Requirements' in Annex
I hereto.
Neither the Seller, the Servicer nor the Trustee will have any
responsibility for any aspect of the records relating to or payments made on
account of beneficial ownership interests of the Book-Entry Certificates held by
Cede & Co., as nominee for DTC, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
ASSIGNMENT OF HOME EQUITY LOANS
On the Closing Date the Depositor, will transfer to the Trust all of its
right, title and interest in and to each Home Equity Loan, the related mortgage
note, mortgages and other related documents (collectively, the 'Related
Documents'), including all payments received after the Cut-Off Date or the
Subsequent Cut-Off Date, as applicable, other than payments of interest on the
Initial Loans due on or before , 199 . The Trustee, concurrently
with such initial transfer, will deliver the Certificates to the Seller.
Within 30 days of the Closing Date or the Subsequent Transfer Date, as the
case may be, the Trustee will review the Home Equity Loans and the Related
Documents pursuant to the Agreement and if any Home Equity Loan or Related
Document is found to be defective in any material respect and such defect is not
cured within 90 days following notification thereof to the Seller by the
Trustee, the Seller will be obligated to either (i) substitute for such Home
Equity Loan an Eligible Substitute Loan; however, such substitution is permitted
only within two years of the Closing Date and may not be made unless an opinion
of counsel is provided to the effect that such substitution will not disqualify
the Trust as a REMIC or result in a prohibited transaction tax under the Code or
(ii) purchase such Home Equity Loan at a price (the 'Purchase Price') equal to
the outstanding Principal Balance of such Home Equity Loan as of the date of
purchase, plus unpaid interest thereon from the date interest was last paid or
with respect to which interest was advanced and not reimbursed through the end
of the calendar month in which the purchase occurred, computed at the Loan Rate,
net of the Servicing Fee if the Seller is the Servicer, plus if the Seller is
not the Servicer the amount of any unreimbursed Servicing Advances made by the
Servicer. The Purchase Price will be deposited in the Collection Account on or
prior to the next succeeding Determination Date after such obligation arises.
The obligation of the Seller to repurchase or substitute for a Defective Home
Equity Loan is the sole remedy regarding any defects in the Home Equity Loans
and Related Documents available to the Trustee or the Certificateholders.
In connection with the substitution of an Eligible Substitute Loan, the
Seller will be required to deposit in the Collection Account on or prior to the
next succeeding Determination Date after such obligation arises an
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amount (the 'Substitution Adjustment') equal to the excess of the Principal
Balance of the related Defective Home Equity Loan over the Principal Balance of
such Eligible Substitute Loan.
An 'Eligible Substitute Loan' is a mortgage loan to be substituted by the
Seller for a Defective Home Equity Loan which must, on the date of such
substitution, (i) have an outstanding principal balance after deducting all
scheduled principal payments due in the month of such substitution (or in the
case of a substitution of more than one Home Equity Loan for a Defective Home
Equity Loan, an aggregate Principal Balance), not in excess of, and not more
than 5% less than, the Principal Balance of the Defective Home Equity Loan; (ii)
have a Loan Rate not less than the Loan Rate of the Defective Home Equity Loan
and not more than 1% in excess of the Loan Rate of such Defective Home Equity
Loan; (iii) have a mortgage of the same or higher level of priority as the
mortgage relating to the Defective Home Equity Loan; (iv) have a remaining term
to maturity not more than six months earlier and not later than the remaining
term to maturity of the Defective Home Equity Loan; and (v) comply with each
representation and warranty as to the Home Equity Loans set forth in the
Agreement (deemed to be made as of the date of substitution).
The Seller will make certain representations and warranties as to the
accuracy in all material respects of certain information furnished to the
Trustee with respect to each Home Equity Loan (e.g., Cut-Off Date Principal
Balance and the Loan Rate). In addition, the Seller will represent and warrant,
on the Closing Date, that, among other things: (i) at the time of transfer to
the Trust, the Seller has transferred or assigned all of its right, title and
interest in each Home Equity Loan and the Related Documents, free of any lien;
and (ii) each Home Equity Loan complied, at the time of origination, in all
material respects with applicable state and federal laws. Upon discovery of a
breach of any such representation and warranty which materially and adversely
affects the interests of the Certificateholders or the Certificate Insurer in
the related Home Equity Loan and Related Documents, the Seller will have a
period of 60 days after discovery or notice of the breach to effect a cure. If
the breach cannot be cured within the 60-day period, the Seller will be
obligated to (i) substitute for such Defective Home Equity Loan an Eligible
Substitute Loan or (ii) purchase such Defective Home Equity Loan from the Trust.
The same procedure and limitations that are set forth above for the substitution
or purchase of Defective Home Equity Loans as a result of deficient
documentation relating thereto will apply to the substitution or purchase of a
Defective Home Equity Loan as a result of a breach of a representation or
warranty in the Agreement that materially and adversely affects the interests of
the Certificateholders or the Certificate Insurer.
PAYMENTS ON HOME EQUITY LOANS; DEPOSITS TO COLLECTION ACCOUNT AND DISTRIBUTION
ACCOUNT
The Trustee will establish and maintain in the name of the Trustee a
separate trust account (the 'Collection Account') for the benefit of the holders
of the Certificates. The Collection Account will be an Eligible Account (as
defined herein). Subject to the investment provisions described in the following
paragraphs, upon receipt by the Servicer of amounts in respect of the Home
Equity Loans (excluding amounts representing the Servicing Fee, reimbursement
for Monthly Advances and Servicer Advances and insurance proceeds to be applied
to the restoration or repair of a Mortgaged Property or similar items), the
Servicer will deposit such amounts in the Collection Account. Amounts so
deposited may be invested in Eligible Investments (as described in the
Agreement) maturing no later than one Business Day prior to the date on which
the amount on deposit therein is required to be deposited in the Distribution
Account or on such Distribution Date if approved by the Rating Agencies and the
Certificate Insurer.
The Trustee will establish an account (the 'Distribution Account') into
which will be deposited amounts withdrawn from the Collection Account for
distribution to Certificateholders on a Distribution Date. The Distribution
Account will be an Eligible Account. Amounts on deposit therein (other than
Insured Payments) may be invested in Eligible Investments maturing on or before
the Business Day prior to the related Distribution Date.
An 'Eligible Account' is a segregated account that is (i) maintained with a
depository institution whose debt obligations at the time of any deposit therein
have the highest short-term debt rating by the Rating Agencies and whose
accounts are fully insured by either the Savings Association Insurance Fund
('SAIF') or the Bank Insurance Fund ('BIF') of the Federal Deposit Insurance
Corporation established by such fund with a minimum long-term unsecured debt
rating of A2 by Moody's and A by Standard & Poor's, and which is any of (A) a
federal savings and loan association duly organized, validly existing and in
good standing under the federal banking laws, (B) an institution duly organized,
validly existing and in good standing under the applicable banking laws of any
state, (C) a national banking association duly organized, validly existing and
in good standing under the federal banking laws, (D) a principal subsidiary of a
bank holding company, and in each case of (A)-(D) above, approved in writing by
the Certificate Insurer; (ii) a segregated trust account maintained with
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the corporate trust department of a federal or state chartered depository
institution or trust company, having capital and surplus of not less than
$50,000,000, acting in its fiduciary capacity or (iii) otherwise acceptable to
each Rating Agency and the Certificate Insurer as evidenced by a letter from
each Rating Agency and the Certificate Insurer to the Trustee, without reduction
or withdrawal of the then current ratings of the Certificates.
Eligible Investments are specified in the Agreement and are limited to
investments which meet the criteria of the Rating Agencies from time to time as
being consistent with their then current ratings of the Certificates.
ADVANCES
Not later than the close of business on each Determination Date, the
Servicer will remit to the Trustee for deposit in the Collection Account an
amount, to be distributed on the related Distribution Date, equal to the sum of
the interest accrued on each Home Equity Loan through the related Due Date but
not received by the Servicer as of the close of business on the last day of the
related Due Period (net of the Servicing Fee) (the 'Monthly Advance'). Such
obligation of the Servicer continues with respect to each Home Equity Loan until
such Home Equity Loan becomes a Liquidated Home Equity Loan.
In the course of performing its servicing obligations, the Servicer will
pay all reasonable and customary 'out-of-pocket' costs and expenses incurred in
the performance of its servicing obligations, including, but not limited to, the
cost of (i) the preservation, restoration and protection of the Mortgaged
Properties, (ii) any enforcement or judicial proceedings, including
foreclosures, and (iii) the management and liquidation of Mortgaged Properties
acquired in satisfaction of the related Mortgage. Each such expenditure will
constitute a 'Servicing Advance.'
The Servicer's right to reimbursement for Servicing Advances is limited to
late collections on the related Home Equity Loan, including Liquidation
Proceeds, released mortgaged property proceeds, Insurance Proceeds and such
other amounts as may be collected by the Servicer from the related Mortgagor or
otherwise relating to the Home Equity Loan in respect of which such unreimbursed
amounts are owed. The Servicer' s right to reimbursement for Monthly Advances is
limited to late collections of interest on any Home Equity Loan and to
Liquidation Proceeds and Insurance Proceeds on the related Home Equity Loan. The
Servicer's right to such reimbursements is prior to the rights of
Certificateholders.
Notwithstanding the foregoing, the Servicer is not required to make any
Monthly Advance or Servicing Advance if in the good faith judgment and sole
discretion of the Servicer, the Servicer determines that such advance will not
be ultimately recoverable from collections received from the Mortgagor in
respect of the related Mortgage Loan or other recoveries in respect of such Home
Equity Loan (a 'Nonrecoverable Advance'). However, if any Servicing Advance or
Monthly Advance is determined in good faith by the Servicer to be non-
recoverable from such sources, the amount of such Non-Recoverable Advances may
be reimbursed to the Servicer from other amounts on deposit in the Collection
Account.
DISTRIBUTION DATES
On each Distribution Date, the Offered Certificateholders will be entitled
to receive, from amounts then on deposit in the Distribution Account, to the
extent of funds available therefor in accordance with the priority and in the
amounts described below under 'Distributions' in an aggregate amount equal to
the sum of (a) the related Class Interest Distribution for each Class of Offered
Certificates and (b) the Class A Principal Distribution. Distributions will be
made (i) in immediately available funds to Holders of Offered Certificates
holding Certificates the aggregate principal balance of which is at least
$1,000,000, by wire transfer or otherwise, to the account of such
Certificateholder at a domestic bank or other entity having appropriate
facilities therefor, if such Certificateholder has so notified the Trustee, or
(ii) by check mailed to the address of the person entitled thereto as it appears
on the register (the 'Certificate Register') maintained by the Trustee as
registrar (the 'Certificate Registrar').
DEPOSITS TO THE DISTRIBUTION ACCOUNT
The following amounts will be deposited into the Distribution Account in
respect of the related Due Period for each Distribution Date: (i) payments of
principal and interest on the Home Equity Loans (net of amounts representing the
Servicing Fee and reimbursement for Monthly Advances and Servicer Advances);
(ii) Net Liquidation Proceeds and Insurance Proceeds (net of amounts applied to
the restoration or repair of a Mortgaged Property); (iii) the Purchase Price for
repurchased Defective Home Equity Loans and any Substitution Adjustment Amounts;
(iv) payments from the Servicer in connection with (a) Monthly Advances, (b)
Prepayment Interest Shortfalls and (c) the termination of the Trust as provided
in the Agreement; (v) transfers from the Pre-
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Funding Account of funds not used to purchase Subsequent Loans during the
Funding Period; (vi) transfers from the Capitalized Interest Account during the
Funding Period of funds for the payment of interest on the Class A Certificates;
and (vii) any amounts paid under the Policy.
DISTRIBUTIONS
On each Distribution Date, the Trustee is required to make the following
disbursements and transfers from monies then on deposit in the Distribution
Account (other than amounts paid under the Policy which shall be available only
for distribution to Senior Certificateholders) in respect of the related Due
Period and payable on such Distribution Date, to the extent of funds available
therefor, in the following order of priority:
(i) to the Certificate Insurer, amounts owing to the Certificate
Insurer under the Insurance Agreement for the premium payable pursuant
thereto;
(ii) to the Trustee, the Trustee Fee for such Distribution Date;
(iii) to each Class of Senior Certificates. an amount equal to the
related Class Interest Distribution for such Distribution Date;
(iv) to the Classes of Offered Certificates then entitled to receive
distributions of principal, the Class A Principal Distribution (other than
the portion constituting the Distributable Excess Spread) for such
Distribution Date;
(v) to the Servicer the amount of any accrued and unpaid Servicing
Fee;
(vi) to the Certificate Insurer, for reimbursement for prior draws
made on the Policy together with interest thereon at the rate set forth in
the Agreement;
(vii) to the Servicer the amount of Non-Recoverable Advances not
previously reimbursed;
(viii) to the Classes of Offered Certificates then entitled to receive
distributions of principal, Distributable Excess Spread, if any, for such
Distribution Date;
(ix) to the Certificate Insurer, any other amounts owing to the
Certificate Insurer under the Insurance Agreement; and
(x) to the Class R Certificateholders, any remaining amounts.
INTEREST
With respect to any Distribution Date, the amount of interest to be
distributed on the Senior Certificates, to the extent of funds available
therefor in accordance with the priorities described above under 'Distribution',
is the sum of the Class Interest Distributions for each Class of Senior
Certificates. For each Distribution Date and each Class of Senior Certificates,
the 'Class Interest Distribution' is the sum of (a) one month's interest at the
related Certificate Rate on the related Class Principal Balance or Notional
Amount, as the case may be, immediately prior to such Distribution Date (the
'Class Monthly Interest Distributable Amount') and (b) any Class Interest
Carryover Shortfall for such Class of Senior Certificates for such Distribution
Date. As to any Distribution Date and Class of Senior Certificates, 'Class
Interest Carryover Shortfall' is the sum of (i) the excess of the related Class
Monthly Interest Distributable Amount for the preceding Distribution Date and
any outstanding Class Interest Carryover Shortfall with respect to such Class on
such preceding Distribution Date, over the amount in respect of interest that is
actually distributed to such Class of Senior Certificateholders on such
preceding Distribution Date plus (ii) one month's interest on such excess, to
the extent permitted by law, at the related Certificate Rate. The interest
entitlement described in (a) above will be reduced by such Class' pro rata share
of Civil Relief Act Interest Shortfalls, if any, for such Distribution Date.
Civil Relief Act Interest Shortfalls will not be covered by payments under the
Policy.
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On each Distribution Date, the Class Interest Distribution for each Class
of Senior Certificates will be distributed on an equal priority and any
shortfall in the amount required to be distributed as interest thereon to each
such Class will be allocated between such Classes pro rata based on the amount
that would have been distributed on each such Class in the absence of such
shortfall.
The Class S Certificates are entitled to distributions of interest on a pro
rata basis with the Class A Certificates. The Certificate Rate for the Class S
Certificates is the weighted average of the Strip Rates relating to each Class
of Class A Certificates. Interest to be distributed on the Class S Certificates
accrues on the basis of the Notional Amount described below.
The Certificate Rate for the Class S Certificates is equal to the average
of the Strip Rates relating to each Class of Class A Certificates, weighted on
the basis of the Class Principal Balance of each Class of Class A Certificates
immediately prior to a Distribution Date. The Strip Rate relating to each Class
of Class A Certificates is as follows:
<TABLE>
<S> <C>
Class A-1.... %
Class A-2.... %
Class A-3.... %
Class A-4.... %
Class A-5.... %
</TABLE>
With respect to the first Distribution Date, the weighted average of the
Strip Rates is expected to be % per annum.
The Notional Amount is used to calculate the amount of the Class Monthly
Interest Distributable Amount for the Class S Certificates and is the sum of the
Class Principal Balances of each Class of Class A Certificates immediately prior
to a Distribution Date.
PRINCIPAL
'Class A Principal Distribution' means, with respect to any Distribution
Date, the sum of the Class A Monthly Principal Distributable Amount for such
Distribution Date and any outstanding Class A Principal Carryover Shortfall as
of the close of business on the preceding Distribution Date; provided, however,
that the Class A Principal Distribution shall not exceed the Class A Principal
Balance.
The Class A Principal Distribution will be distributed to the Class A
Certificates in the following order: first, concurrently, % to the
Class A-1 Certificates and % to the Class A-5 Certificates until the
Class Principal Balance of the Class A- 1 Certificates has been reduced to zero;
second concurrently, % to the Class A-2 Certificates and
% to the Class A-5 Certificates until the Class Principal Balance of
the Class A-2 Certificates has been reduced to zero; third, concurrently,
% to the Class A-3 Certificates and % to the Class A-5
Certificates until the Class Principal Balance of the Class A-3 Certificates has
been reduced to zero; fourth, concurrently, % to the Class A-4
Certificates and % to the Class A-5 Certificates until the Class
Principal Balance of the Class A-4 Certificates has been reduced to zero; and
fifth, % to the Class A-5 Certificates until the Class Principal Balance
thereof has been reduced to zero.
'Class A Monthly Principal Distributable Amount' means, with respect to any
Distribution Date, to the extent of funds available therefor as described
herein, the amount equal to the sum of the following amounts (without
duplication) with respect to the immediately preceding Due Period (as defined
below): (i) each payment of principal on a Mortgage Loan received by the
Servicer during such Due Period, including all full and partial principal
prepayments, (ii) the Principal Balance of all Home Equity Loans that became
Liquidated Home Equity Loans during the related Due Period, (iii) the portion of
the Purchase Price allocable to principal of all repurchased Defective Home
Equity Loans with respect to such Due Period, (iv) any Substitution Adjustment
Amounts received on or prior to the related Determination Date and not
previously distributed, (v) the amount of Distributable Excess Spread, if any,
in respect of such Distribution Date and (vi) the Pre-Funded Amount remaining on
deposit in the Pre-Funding Account immediately following the end of the
Pre-Funding Period.
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If the required level of overcollateralization is reduced below the then
existing amount of overcollateralization (described below) or the required level
of overcollateralization is satisfied, the amount of the Class A Monthly
Principal Distributable Amount on the following Distribution Date will be
correspondingly reduced by the amount of such reduction or by the amount
necessary such that the overcollateralization will not exceed the required level
of overcollateralization after giving effect to the distribution in respect of
principal to be made on such Distribution Date.
The application of Distributable Excess Spread is intended to create
overcollateralization to provide a source of additional cashflow to cover losses
on the Home Equity Loans. If the amount of losses in a particular Due Period
exceeds the amount of Excess Spread for the Distribution Date, the amount
distributed in respect of principal will be reduced. A draw on the Policy in
respect of principal will not be made until the Class A Principal Balance
exceeds the sum of the aggregate Principal Balance of the Home Equity Loans and
the amount on deposit in the Pre-Funding Account. See '--The Policy' herein.
Accordingly, there may be Distribution Dates on which Class A Certificateholders
receive little or no distributions in respect of principal.
So long as an Insurer Default has not occurred and is continuing,
distributions of the Class A Principal Distribution will be applied,
sequentially, to the distribution of principal to the Sequential Certificates,
in order of their numerical designations, such that no Class of Sequential
Certificates having a higher numerical designation is entitled to distributions
of principal until the Class Principal Balance of each such Class of Sequential
Certificates having a lower numerical designation has been reduced to zero. The
Class A-5 Certificates are entitled to distributions of principal in the amounts
described above concurrently with the Class of Sequential Certificates then
entitled to distributions of principal. On any Distribution Date if an Insurer
Default has occurred and is continuing, the Class A Principal Distribution will
be applied to the distribution of principal of each Class of the Class A
Certificates outstanding on a pro rata basis in accordance with the Class
Principal Balance of each such Class immediately preceding such Distribution
Date.
'Due Period' means, (a) with respect to the first Determination Date (i)
for collections of principal the period from and including 1, 199
through and including 1, 199 and (ii) for collections of interest the
period from and including 2, 199 through and including
1, 199 and (b) with respect to each Determination Date thereafter for
collections of both interest and principal the period from and including the
second day of the month preceding the month of such Determination Date to and
including the first day of the month of such Determination Date.
A 'Liquidated Home Equity Loan', as to any Distribution Date, is a Home
Equity Loan with respect to which the Servicer has determined, in accordance
with the servicing procedures specified in the Agreement, as of the end of the
preceding Due Period, that all Liquidation Proceeds which it expects to recover
with respect to such Home Equity Loan (including the disposition of the related
REO) have been received.
'Excess Spread' means, with respect to any Distribution Date, the positive
excess, if any, of (x) the sum of the amounts deposited into the Distribution
Account as described in clauses (i) through (vi) under 'Deposits to the
Distribution Account' above with respect to such Distribution Date over (y) the
amount required to be distributed pursuant to priorities (i) through (vii) above
under 'Distributions' on such Distribution Date.
An 'Insurer Default' will occur in the event the Certificate Insurer fails
to make a payment required under the Policy or if certain events of bankruptcy
or insolvency occur with respect to the Certificate Insurer.
'Distributable Excess Spread' means, with respect to any Distribution Date,
the portion of (not greater than 100%) Excess Spread, if any, required to be
distributed on such Distribution Date to satisfy the required level of
overcollateralization for such Distribution Date. See '--Overcollateralization
Provisions.'
As to each Distribution Date the 'Class A Principal Carryover Shortfall' is
the amount by which the Class A Monthly Principal Distributable Amount for prior
Distribution Dates was less than the maximum amount that would have been
distributed if sufficient funds had been available therefor, which was not
subsequently distributed.
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THE POLICY
The following information has been supplied by the Certificate Insurer for
inclusion in this Prospectus Supplement. Accordingly, neither the Seller nor the
Servicer makes any representation as to the accuracy and completeness of such
information.
The Certificate Insurer, in consideration of the payment of the premium and
subject to the terms of the Policy, thereby unconditionally and irrevocably
guarantees to any Owner that an amount equal to each full and complete Insured
Payment will be received by ,
or its successor, as trustee for the Owners (the 'Trustee'), on behalf of the
Owners from the Certificate Insurer, for distribution by the Trustee to each
Owner of each Owner's proportionate share of the Insured Payment. The
Certificate Insurer's obligations under the Policy with respect to a particular
Insured Payment shall be discharged to the extent funds equal to the applicable
Insured Payment are received by the Trustee, whether or not such funds are
properly applied by the Trustee. Insured Payments shall be made only at the time
set forth in the Policy and no accelerated Insured Payments shall be made
regardless of any acceleration of the Senior Certificates, unless such
acceleration is at the sole option of the Certificate Insurer.
Notwithstanding the foregoing paragraph, the Policy does not cover
shortfalls, if any, attributable to the liability of the Trust, either REMIC or
the Trustee for withholding taxes, if any (including interest and penalties in
respect of any such liability).
The Certificate Insurer will pay any Insured Payment that is a Preference
Amount on the Business Day following receipt on a Business Day by the Fiscal
Agent (as described below) of (i) a certified copy of the order requiring the
return of a preference payment, (ii) an opinion of counsel satisfactory to the
Certificate Insurer that such order is final and not subject to appeal, (iii) an
assignment in such form as is reasonably required by the Certificate Insurer,
irrevocably assigning to the Certificate Insurer all rights and claims of the
Owner relating to or arising under the Senior Certificates against the debtor
that made such preference payment or otherwise with respect to such Preference
Amount and (iv) appropriate instruments to effect the appointment of the
Certificate Insurer as agent for such Owner in any legal proceeding related to
such Preference Amount, such instruments being in a form satisfactory to the
Certificate Insurer, provided that if such documents are received after 12:00
noon New York City time on such Business Day, they will be deemed to be received
on the following Business Day. Such payments shall be disbursed to the receiver
or trustee in bankruptcy named in the final order of the court exercising
jurisdiction on behalf of the Owners and not any Owner directly unless such
Owner has returned principal or interest paid on the Senior Certificates to such
receiver or trustee in bankruptcy, in which case such payment shall be disbursed
to such Owner.
The Certificate Insurer will pay any other amount payable under the Policy
no later than 12:00 noon New York City time on the later of the Distribution
Date on which the Deficiency Amount is due or the Business Day following receipt
in New York, New York on a Business Day by
, as Fiscal Agent for the Certificate Insurer or any
successor fiscal agent appointed by the Certificate Insurer (the 'Fiscal Agent')
of a Notice (as described below); provided that if such Notice is received after
12:00 noon New York City time on such Business Day, it will be deemed to be
received on the following Business Day. If any such Notice received by the
Fiscal Agent is not in proper form or is otherwise insufficient for the purpose
of making claim under the Policy it shall be deemed not to have been received by
the Fiscal Agent for purposes of this paragraph, and the Certificate Insurer or
the Fiscal Agent, as the case may be, shall promptly so advise the Trustee and
the Trustee may submit an amended Notice.
Insured Payments due under the Policy unless otherwise stated therein will
be disbursed by the Fiscal Agent to the Trustee on behalf of the Owners by wire
transfer of immediately available funds in the amount of the Insured Payment
less, in respect of Insured Payments related to Preference Amounts, any amount
held by the Trustee for the payment of such Insured Payment and legally
available therefor.
The Fiscal Agent is the agent of the Certificate Insurer only and the
Fiscal Agent shall in no event be liable to the Owners for any acts of the
Fiscal Agent or any failure of the Certificate Insurer to deposit or cause to be
deposited, sufficient funds to make payments due under the Policy.
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As used in the Policy, the following terms shall have the following
meanings:
'Agreement' means the Pooling and Servicing Agreement, dated as of
, 199 , between Delta Funding Corporation, as Seller and
Servicer, and the Trustee, as trustee, without regard to any amendment or
supplement thereto unless such amendment or modification has been approved
in writing by the Certificate Insurer.
'Business Day' means any day other than a Saturday, a Sunday or a day
on which banking institutions in New York City or the city in which the
corporate trust office of the Trustee under the Agreement is located are
authorized or obligated by law or executive order to close.
'Deficiency Amount' means for any Distribution Date (A) the excess, if
any, of (i) Class Monthly Interest Distributable Amount (net of any Civil
Relief Act Interest Shortfalls) plus any Class Interest Carryover Shortfall
over (ii) funds on deposit in the Distribution Account (net of the
Trustee's Fee and the Insurance Premium for such Distribution Date) and (B)
the Guaranteed Principal Amount.
'Guaranteed Principal Amount' means for any Distribution Date (a) the
amount which is required to reduce the then outstanding Class A Principal
Balance after giving effect to the distributions, if any, to the Holders in
respect of principal on such Distribution Date to an amount equal to the
sum of (i) the Aggregate Principal Balance of the Home Equity Loans as of
the last day of the immediately preceding Due Period and (ii) the amount on
deposit in the Pre-Funding Account after giving effect to any withdrawals
from the Pre-Funding Account during the month in which such Distribution
Date occurs and (b) on 25, 20 after all distributions have been
made including distributions pursuant to clause (a) of this definition of
'Guaranteed Principal Amount,' an amount equal to the then outstanding
Class A Principal Balance.
'Insured Payment' means (i) as of any Distribution Date, any
Deficiency Amount and (ii) any Preference Amount.
'Notice' means the telephonic or telegraphic notice, promptly
confirmed in writing (in the case of a telephonic notice) by telecopy,
substantially in the form of Exhibit A attached to the Policy, the original
of which is subsequently delivered by registered or certified mail, from
the Trustee specifying the Insured Payment which shall be due and owing on
the applicable Distribution Date.
'Owner' means each Holder (as defined in the Agreement) who, on the
applicable Distribution Date, is entitled under the terms of the applicable
Senior Certificates to payment under the Policy.
'Preference Amount' means any amount previously distributed to an
Owner on the Senior Certificates that is recoverable and sought to be
recovered as a voidable preference by a trustee in bankruptcy pursuant to
the United States Bankruptcy Code (11 U.S.C.), as amended from time to time
in accordance with a final nonappealable order of a court having competent
jurisdiction.
Capitalized terms used in the Policy and not otherwise defined in the
Policy shall have the respective meanings set forth in the Agreement as of the
date of execution of the Policy, without giving effect to any subsequent
amendment or modification to the Agreement unless such amendment or modification
has been approved in writing by the Certificate Insurer.
Any notice under the Policy or service of process on the Fiscal Agent may
be made at the address listed below for the Fiscal Agent or such other address
as the Certificate Insurer shall specify to the Trustee in writing.
The notice address of the Fiscal Agent
is Attention:
, or such other address as the Fiscal Agent shall
specify to the Trustee in writing.
The Policy is being issued under and pursuant to, and shall be construed
under, the laws of the State of New York, without giving effect to the conflict
of laws principles thereof.
The insurance provided by the Policy is not covered by the
Property/Casualty Insurance Security Fund specified in Article 76 of the New
York Insurance Law.
The Policy is not cancelable for any reason. The premium on the Policy is
not refundable for any reason including payment, or provision being made for
payment, prior to the maturity of the Senior Certificates.
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OVERCOLLATERALIZATION PROVISIONS
The Agreement requires that, on each Distribution, Date, the Distributable
Excess Spread will be applied on such Distribution Date as an accelerated
payment of principal on the Class or Classes of Class A Certificates then
entitled to a distribution of the Class A Principal Distribution. This has the
effect of accelerating the amortization of the Class A Certificates relative to
the amortization of the Home Equity Loans.
The required level of overcollateralization will be satisfied as of each
Distribution Date when the sum of the aggregate of the Principal Balances of the
Home Equity Loans at the end of the previous month together with amounts on
deposit in the Pre-Funding Account on such Distribution Date exceeds the Class A
Principal Balance by an amount specified in the Pooling and Servicing Agreement.
Thereafter, the level of overcollateralization necessary to satisfy the required
level of overcollateralization may be increased or decreased from time to time
based on the loss and delinquency experience of the Home Equity Loans in
accordance with the provisions of the Agreement. In addition the required level
of overcollateralization may be decreased, in the sole discretion of the
Certificate Insurer and with the prior consent of each Rating Agency as low as
zero, which would have the effect of reducing the amortization of the Class A
Certificates below what it otherwise would have been.
PRE-FUNDING ACCOUNT
On the Closing Date the Pre-Funded Amount will be deposited in the
Pre-Funding Account, which account will be in the name of and maintained by the
Trustee and will be part of the Trust and will be used to acquire Subsequent
Loans. The Pre-Funded Amount will be reduced during the Funding Period by the
amount thereof used to purchase Subsequent Loans in accordance with the
Agreement. Any Pre-Funded Amount remaining at the end of the Funding Period will
be distributed to the Holders of the Classes of the Offered Certificates then
entitled to distributions of principal on the Distribution Date following the
end of the Funding Period, thus resulting in a partial principal prepayment of
such Classes of Offered Certificates. See 'PREPAYMENT AND YIELD
CONSIDERATIONS--Mandatory Prepayment' herein.
Amounts on deposit in the Pre-Funding Account will be invested in Eligible
Investments. All interest and any other investment earnings on amounts on
deposit in the Pre-Funding Account will be deposited in the Capitalized Interest
Account prior to each Distribution Date during the Funding Period. The
Pre-Funding Account will not be an asset of either REMIC.
CAPITALIZED INTEREST ACCOUNT
On the Closing Date cash will be deposited in the Capitalized Interest
Account, which account will be in the name of and maintained by the Trustee and
will be part of the Trust. The amount on deposit in the Capitalized Interest
Account, including reinvestment income thereon, will be used by the Trustee to
fund the excess, if any, of (i) the sum of the amount of interest accruing at
the weighted average Certificate Rate of all Senior Certificates on the amount
by which the Class A Principal Balance as of the last day of the preceding month
exceeds the Aggregate Principal Balance of the Home Equity Loans as of such day,
over (ii) the amount of any reinvestment income on monies on deposit in the
Pre-Funding Account. Any amounts remaining in the Capitalized Interest Account
at the end of the Funding Period and not needed for such purpose will be paid to
the Class R Certificateholders and will not thereafter be available for
distribution to the Holders of the Offered Certificates.
Amounts on deposit in the Capitalized Interest Account will be invested in
Eligible Investments. The Capitalized Interest Account will not be an asset of
either REMIC.
REPORTS TO CERTIFICATEHOLDERS
Concurrently with each distribution to the Certificateholders, the Trustee
will forward to each Certificateholder a statement setting forth among other
items:
(i) the aggregate amount of the distribution to each Class of
Certificates on the Distribution Date set forth above;
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(ii) the amount of the distribution set forth in paragraph (i) above
in respect of interest and the amount thereof in respect of any Class
Interest Carryover Shortfall, and the amount of any Class Interest
Carryover Shortfall remaining;
(iii) the amount of the distribution set forth in paragraph (i) above
in respect of principal and the amount thereof in respect of the Class A
Principal Carryover Shortfall, and any remaining Class A Principal
Carryover Shortfall;
(iv) the amount of Distributable Excess Spread paid as principal;
(v) the Guaranteed Principal Amount for such Distribution Date;
(vi) the amount paid under the Policy for such Distribution Date in
respect of the Class Interest Distribution of each Class of Senior
Certificates and the portion of the Guaranteed Principal Amount paid to the
Offered Certificates;
(vii) the Servicing Fee;
(viii) the aggregate Principal Balance of the Home Equity Loans and
the Pool Balance as of the close of business on the last day of the
preceding Due Period;
(ix) the Class A Principal Balance and the Class Principal Balance of
each Class of Class A Certificates after giving effect to payments
allocated to principal above;
(x) the required level of overcollateralization and the amount of
overcollateralization as of the close of business on the Distribution Date,
after giving effect to distributions of principal on such Distribution
Date;
(xi) the number and aggregate Principal Balances of the Home Equity
Loans as to which the minimum monthly payment is delinquent for 30-59 days,
60-89 days and 90 or more days, respectively, as of the end of the
preceding month;
(xii) the book value of any real estate which is acquired by the Trust
through foreclosure or grant of deed in lieu of foreclosure; and
(xiii) the amounts of net losses for such Due Period and the
cumulative amount of net losses to date.
In the case of information furnished pursuant to clauses (ii) and (iii)
above, the amounts shall be expressed as a dollar amount per Certificate with a
$ 1,000 denomination.
Within 60 days after the end of each calendar year, the Trustee will
forward to each Person, if requested in writing by such Person, who was a
Certificateholder during the prior calendar year a statement containing the
information set forth in clauses (ii) and (iii) above aggregated for such
calendar year.
LAST SCHEDULED DISTRIBUTION DATE
The last scheduled Distribution Date for each Class of Class A Certificates
is as follows: Class A-l Certificates, 25, , Class A-2
Certificates, 25, , Class A-3 Certificates, 25, , Class
A-4 Certificates, , , and Class A-5 Certificates, 25,
. It is expected that the actual last Distribution Date for each Class of
Offered Certificates will occur significantly earlier than such scheduled
Distribution Dates. See 'PREPAYMENT AND YIELD CONSIDERATIONS.'
Such last scheduled Distribution Dates are based on a 0% Prepayment
Assumption with no Distributable Excess Spread used to make accelerated payments
of principal to the holders of the related Offered Certificates; provided that
the last scheduled Distribution Date for the Class A-5 Certificates has been
calculated assuming that a Home Equity Loan (including any Subsequent Loans)
having the latest maturity allowed by the Agreement amortizes according to its
terms, plus one year.
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SERVICING COMPENSATION, PAYMENT OF EXPENSES AND PREPAYMENT INTEREST SHORTFALLS
With respect to each Due Period, the Servicer will receive from interest
payments in respect of the Mortgage Loans a portion of such interest payments as
a monthly Servicing Fee in the amount equal to % per annum ('Servicing Fee
Rate') on the Principal Balance of each Home Equity Loan as of the first day of
each such Due Period. All assumption fees, late payment charges and other feed
and charges, to the extent collected from borrowers, will be retained by the
Servicer as additional servicing compensation.
Not later than the Determination Date, the Servicer is required to remit to
the Trustee, without any right of reimbursement, an amount equal to, with
respect to each Home Equity Loan as to which a principal prepayment in full was
received during the related Due Period, the lesser of (a) the excess, if any, of
30 days' interest on the Principal Balance of such Home Equity Loan at the Loan
Rate (or at such lower rate as may be in effect for such Mortgage Loan because
of application of the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended (the 'Civil Relief Act'), minus the Servicing Fee for such Home Equity
Loan over the amount of interest actually paid by the related Mortgagor in
connection with such principal prepayment (with respect to all such Home Equity
Loans, the 'Prepayment Interest Shortfall') and (b) the sum of the aggregate
Servicing Fee received by the Servicer in the most recently ended Due Period.
Civil Relief Act Interest Shortfalls will not be covered by the Policy,
although Prepayment Interest Shortfalls, after application of the Servicing Fee,
will be so covered. The Servicer is not obligated to offset any of the Servicing
Fee against, or to provide any other funds to cover, any shortfalls in interest
collections on the Home Equity Loans that are attributable to the application of
the Civil Relief Act ('Civil Relief Act Interest Shortfalls').
EVIDENCE AS TO COMPLIANCE
The Agreement provides for delivery on or before the last day of the fifth
month following the end of the Servicer's fiscal year, beginning in 199 , to the
Trustee, the Certificate Insurer and the Rating Agencies of an annual statement
signed by an officer of the Servicer to the effect that the Servicer has
fulfilled its material obligations under the Agreement throughout the preceding
fiscal year, except as specified in such statement.
On or before the last day of the fifth month following the end of the
Servicer's fiscal year, beginning in 199 , the Servicer will furnish a report
prepared by a firm of nationally recognized independent public accountants (who
may also render other services to the Servicer or the Depositor) to the Trustee,
the Certificate Insurer and the Rating Agencies to the effect that such firm has
examined certain documents and the records relating to servicing of the Home
Equity Loans under the Uniform Single Audit Program for Mortgage Bankers and
such firm's conclusion with respect thereto.
The Servicer's fiscal year is the calendar year.
CERTAIN MATTERS REGARDING THE SERVICER
The Agreement provides that the Servicer may not resign from its
obligations and duties thereunder, except in connection with a permitted
transfer of servicing, unless (i) such duties and obligations are no longer
permissible under applicable law as evidenced by an opinion of counsel delivered
to the Certificate Insurer or (ii) upon the satisfaction of the following
conditions: (a) the Servicer has proposed a successor servicer to the Trustee in
writing and such proposed successor servicer is reasonably acceptable to the
Trustee; (b) the Rating Agencies have confirmed to the Trustee that the
appointment of such proposed successor servicer as the Servicer will not result
in the reduction or withdrawal of the then current rating of the Certificates;
and (c) such proposed successor servicer is reasonably acceptable to the
Certificate Insurer. No such resignation will become effective until the Trustee
or a successor servicer has assumed the Servicer' s obligations and duties under
the Agreement.
The Servicer may perform any of its duties and obligations under the
Agreement through one or more subservicers or delegates, which may be affiliates
of the Servicer. Notwithstanding any such arrangement, the Servicer will remain
liable and obligated to the Trustee and the Certificateholders for the
Servicer's duties and obligations under the Agreement, without any diminution of
such duties and obligations and as if the Servicer itself were performing such
duties and obligations.
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Any corporation 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 corporation succeeding to the business of
the Servicer shall be the successor of the Servicer under the Agreement, without
the execution or filing of any paper or any further act on the part of any of
the parties to the Agreement, anything in the Agreement to the contrary
notwithstanding.
EVENTS OF DEFAULT
'Events of Default' will consist of: (i) (A) any failure by the Servicer to
make any required Monthly Advance or (B) any other failure of the Servicer to
deposit in the Collection Account any deposit required to be made under the
Agreement, which failure continues unremedied for three Business Days after
payment was required to be made; (ii) any failure by the Servicer duly to
observe or perform in any material respect any other of its covenants or
agreements in the Agreement which, in each case, materially and adversely
affects the interests of the Certificateholders or the Certificate Insurer and
continues unremedied for 30 days after knowledge or the giving of written notice
of such failure to the Servicer by the Trustee, or to the Servicer and the
Trustee by the Certificate Insurer or Certificateholders evidencing an
aggregate, undivided interest in the Trust of Percentage Interests of at least
25%; (iii) any failure by the Servicer to make any required Servicing Advance,
which failure continues unremedied for a period of 30 days after knowledge or
the giving of written notice of such failure to the Servicer by the Trustee, or
to the Servicer and the Trustee by the Certificate Insurer or Certificateholders
evidencing an aggregate, undivided interest in the Trust of Percentage Interests
of at least 25%; and (iv) certain events of insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings relating to the
Servicer and certain actions by the Servicer indicating insolvency,
reorganization or inability to pay its obligations (an 'Insolvency Event').
If any Monthly Advance is not made by 12:00 Noon New York Time on the
second Business Day prior to the applicable Distribution Date, the Trustee or a
successor Servicer will immediately assume the duties of the Servicer.
Upon removal or resignation of the Servicer, the Trustee will be the
Successor Servicer (the 'Successor Servicer'). The Trustee, as Successor
Servicer, will be obligated to make Monthly Advances and Servicing Advances and
certain other advances unless it determines reasonably and in good faith that
such advances would not be recoverable. If, however, the Trustee is unwilling or
unable to act as Successor Servicer, or if the majority of Certificateholders
(with the consent of the Certificate Insurer) or the Certificate Insurer so
requests, the Trustee may appoint, or petition a court of competent jurisdiction
to appoint, subject to the approval of the Certificate Insurer, any established
mortgage loan servicing institution acceptable to the Certificate Insurer having
a net worth of not less than $25,000,000 as the Successor Servicer in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Servicer.
In addition, the Certificate Insurer may terminate the Servicer upon the
occurrence of a Trigger Event. Trigger Events will consist of among other
things, (i) any failure by the Servicer to pay when due any amount payable by it
under the Pooling and Servicing Agreement or the Insurance Agreement which
results in a drawing under the Policy, (ii) failure of the Servicer to satisfy
certain financial tests; and (iii) the loss and delinquency performance of the
Mortgage Loans exceeding certain levels.
RIGHTS UPON AN EVENT OF DEFAULT
So long as an Event of Default remains unremedied, either the Trustee, or
Certificateholders holding Certificates evidencing at least 51% of the
Percentage Interests in the Trust, with the consent of the Certificate Insurer,
or the Certificate Insurer, may terminate all of the rights and obligations of
the Servicer under the Agreement and in and to the Mortgage Loans, whereupon the
Trustee will succeed to all the responsibilities, duties and liabilities of the
Servicer under the Agreement and will be entitled to similar compensation
arrangements. In the event that the Trustee would be obligated to succeed the
Servicer but is unwilling or unable so to act, it may appoint, or petition a
court of competent jurisdiction for the appointment of, a housing and home
finance institution or other mortgage loan or home equity loan servicer with all
licenses and permits required to perform its obligations under the Agreement and
having a net worth of at least $25,000,000 and acceptable to the Certificate
Insurer to act as successor to the Servicer under the Agreement. Pending such
appointment, the
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Trustee will be obligated to act in such capacity unless prohibited by law. Such
successor will be entitled to receive the same compensation that the Servicer
would otherwise have received (or such lesser compensation as the Trustee and
such successor may agree). A receiver or conservator for the Servicer may be
empowered to prevent the termination and replacement of the Servicer if the only
Event of Default that has occurred is an Insolvency Event.
VOTING RIGHTS
For purposes of determining if the required amount of Percentage Interests
have given notice, consented to or taken any action, the Class A Certificates
shall be considered to represent 98% of the Percentage Interests and the Class S
Certificates shall be deemed to represent 2% of the Percentage Interests.
TERMINATION; PURCHASE OF HOME EQUITY LOANS
The Trust will terminate on the Distribution Date following the later of
(A) payment in full of all amounts owing to the Certificate Insurer unless the
Certificate Insurer shall otherwise consent and (B) the earliest of (i) the
Distribution Date on which the Aggregate Class A Principal Balance has been
reduced to zero, (ii) the final payment or other liquidation of the last Home
Equity Loan in the Trust, (iii) the optional purchase by the Servicer of the
Home Equity Loans, as described below and (iv) the Distribution Date in
20 , on which date the Policy will be available to pay the
outstanding Aggregate Class A Principal Balance.
Subject to provisions in the Agreement concerning adopting a plan of
complete liquidation, the Servicer may, at its option terminate the Agreement on
the Distribution Date in the month following the Due Period during which the
aggregate Principal Balance of the Home Equity Loans is less than 10% of the sum
of the Principal Balances of the Initial Loans and Subsequent Loans as of the
related Cut-Off Dates by purchasing, on the next succeeding Distribution Date,
all of the outstanding Home Equity Loans and REO Properties at a price equal to
the sum of the outstanding Pool Balance (subject to reduction as provided in the
Agreement if the purchase price is based in part on the appraised value of any
REO Property included in the Trust and such appraised value is less than the
Principal Balance of the related Home Equity Loan) and accrued and unpaid
interest thereon at the weighted average of the Loan Rates through end of the
related Due Period together with all amounts due and owing to the Certificate
Insurer.
Any such purchase will be accomplished by deposit into the Collection
Account of the purchase price specified above.
OPTIONAL PURCHASE OF DEFAULTED HOME EQUITY LOANS
The Servicer has the option to purchase from the Trust any Home Equity Loan
90 days or more delinquent at a purchase price equal to the outstanding
principal balance of such Home Equity Loan as of the date of purchase, plus all
accrued and unpaid interest on such principal balance computed at the Loan Rate.
THE TRUSTEE
, a national banking
association with its principal place of business in , has been named
Trustee pursuant to the Agreement.
The commercial bank or trust company serving as Trustee may have normal
banking relationships with the Seller and the Servicer.
USE OF PROCEEDS
The net proceeds to be received from the sale of the Certificates will be
applied by the Seller for general corporate purposes, including repayment of
financing for the Home Equity Loans.
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FEDERAL INCOME TAX CONSIDERATIONS
An election will be made to treat the Trust (exclusive of the Pre-Funding
Account and the Capitalized Interest Account) as two 'real estate mortgage
investment conduits' (an 'Upper Tier REMIC' and a 'Lower Tier REMIC,'
respectively) for federal income tax purposes under the Internal Revenue Code of
1986, as amended (the 'Code'). The Offered Certificates will represent
beneficial ownership of 'regular interests' in the Upper Tier REMIC and the
Class R Certificates will represent beneficial ownership of residual interests
in both REMICs. See 'FEDERAL INCOME TAX CONSIDERATIONS--Taxation of the REMIC
and its Holders' in the Prospectus.
The Offered Certificates generally will be treated as debt instruments
issued by the Upper Tier REMIC for federal income tax purposes. Income on the
Offered Certificates must be reported under an accrual method of accounting.
The Offered Certificates may, depending on their issue price, be issued
with original issue discount ('OID') for federal income tax purposes. In such
event, holders of such Certificates will be required to include OlD in income as
it accrues under a constant yield method, in advance of the receipt of cash
attributable to such income. The OlD Regulations do not contain provisions
specifically interpreting Code Section 1272(a)(6). Until the Treasury issues
guidance to the contrary, the Trustee intends to base its computation on Code
Section l272(a)(6) and the OID Regulations as described in the Prospectus.
However, because no regulatory guidance currently exists under Code Section
1272(a)(6), there can be no assurance that such methodology represents the
correct manner of calculating OID.
The yield used to calculate accruals of OID with respect to the Offered
Certificates with OID will be the original yield to maturity of such
Certificates, determined by assuming that the Home Equity Loans will prepay in
accordance with % of the Prepayment Assumption. No representation is made as
to the actual rate at which the Home Equity Loans will prepay.
BACKUP WITHHOLDING
Certain Owners may be subject to backup withholding at the rate of 31% with
respect to interest paid on the Offered Certificates if the Owners, upon
issuance, fail to supply the Trustee or their broker with their taxpayer
identification number, furnish an incorrect taxpayer identification number,
fails to report interest, dividends, or other 'reportable payments' (as defined
in the Code) properly, or, under certain circumstances, fails to provide the
Trustee or their broker with a certified statement, under penalty of perjury,
that they are not subject to backup withholding.
The Trustee will be required to report annually to the IRS, and to each
Offered Certificateholder of record, the amount of interest paid (and OID
accrued, if any) on the Offered Certificates (and the amount of interest
withheld for federal income taxes, if any) for each calendar year, except as to
exempt holders (generally, holders that are corporations, certain tax-exempt
organizations or nonresident aliens who provide certification as to their status
as nonresidents). As long as the only 'Class A Certificateholder' of record is
Cede, as nominee for DTC, Owners and the IRS will receive tax and other
information including the amount of interest paid on such Certificates owned
from Participants and Indirect Participants rather than from the Trustee. (The
Trustee, however, will respond to requests for necessary information to enable
Participants, Indirect Participants and certain other persons to complete their
reports.) Each non-exempt Owner will be required to provide, under penalty of
perjury, a certificate on IRS Form W-9 containing his or her name, address,
correct Federal taxpayer identification number and a statement that he or she is
not subject to backup withholding. Should a nonexempt Owner fail to provide the
required certification, the Participants or Indirect Participants (or the Paying
Agent) will be required to withhold 31% of the interest (and principal)
otherwise payable to the holder, and remit the withheld amount to the IRS as a
credit against the holder's federal income tax liability. Such amounts will be
deemed distributed to the affected Owner for all purposes of the Certificates,
the Agreement and the Policy.
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FEDERAL INCOME TAX CONSEQUENCES TO FOREIGN INVESTORS
The following information describes the United States federal income tax
treatment of holders that are not United States persons ('Foreign Investors').
The term 'Foreign Investor' means any person other than (i) a citizen or
resident of the United States, (ii) a corporation, partnership or other entity
organized in or under the laws of the United States or any state or political
subdivision thereof of (iii) an estate or trust the income of which is
includible in gross income for United States federal income tax purposes,
regardless of its source.
The Code and Treasury regulations generally subject interest paid to a
Foreign Investor to a withholding tax at a rate of 30% (unless such rate were
changed by an applicable treaty). The withholding tax, however, is eliminated
with respect to certain 'portfolio debt investments' issued to Foreign
Investors. Portfolio debt investments include debt instruments issued in
registered form for which the United States payor receives a statement that the
beneficial owner of the instrument is a Foreign Investor. The Offered
Certificates will be issued in registered form, therefore if the information
required by the Code is furnished (as described below) and no other exceptions
to the withholding tax exemption are applicable, no withholding tax will apply
to the Offered Certificates.
For the Offered Certificates to constitute portfolio debt investments
exempt from the United States withholding tax, the withholding agent must
receive from the Certificate Owner an executed IRS Form W-8 signed under penalty
of perjury by the Owner stating that the Certificate Owner is a Foreign Investor
and providing such Owner's name and address. The statement must be received by
the withholding agent in the calendar year in which the interest payment is
made, or in either of the two preceding calendar years.
An Owner that is a nonresident alien or foreign corporation will not he
subject to United States federal income tax on gain realized on the sale,
exchange, or redemption of such Offered Certificate, provided that (i) such gain
is not effectively connected with a trade or business carried on by the Owner in
the United States, (ii) in the case of a Certificate Owner that is an
individual, such Owner is not present in the United States for 183 days or more
during the taxable year in which such sale, exchange or redemption occurs and
(iii) in the case of gain representing accrued interest, the conditions
described in the immediately preceding paragraph are satisfied.
ERISA CONSIDERATIONS
Any Plan fiduciary which proposes to cause a Plan to acquire any of the
Offered Certificates should consult with its counsel with respect to the
potential consequences under the Employee Retirement Income Security Act of
1974, as amended ('ERISA'), and the Code, of the Plans acquisition and ownership
of such Certificates. See 'ERISA CONSIDERATIONS' in the Prospectus.
The U.S. Department of Labor has granted to
(' ') Prohibited Transaction Exemption - (the 'Exemption')
which exempts from the application of the prohibited transaction rules
transactions relating to (l) the acquisition, sale and holding by Plans of
certain certificates representing an undivided interest in certain asset-backed
pass-through trusts, with respect to which or any of its
affiliates is the sole underwriter or the manager or co-manager of the
underwriting syndicate; and (2) the servicing, operation and management of such
asset-backed pass-through trusts, provided that the general conditions and
certain other conditions set forth in the Exemption are satisfied. Upon
termination of the Funding Period, the Exemption will apply to the acquisition,
holding and resale of the Offered Certificates by a Plan provided that certain
conditions (certain of which are described below) are met.
Among the conditions which must be satisfied for the Exemption to apply are
the following:
(l) The acquisition of the Offered Certificate by a Plan is on terms
(including the price for such Certificates) that are at least as favorable
to the investing Plan as they would be in an arm's-length transaction with
an unrelated party;
(2) The rights and interests evidenced by the Offered Certificates
acquired by the Plan are not subordinated to the rights and interest
evidenced by other certificates of the Trust;
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(3) The Offered Certificates acquired by the Plan have received a
rating at the time of such acquisition that is in one of the true highest
generic rating categories from either Standard & Poor's, Moody's, or Duff &
Phelps Inc.;
(4) The sum of all payments made to and retained by the Underwriters
in connection with the distribution of the Offered Certificates represents
not more than reasonable compensation for underwriting such Certificates;
the sum of all payment made to and retained by the Seller pursuant to the
sale of the Home Equity Loans to the Trust represents not more than the
fair market value of such Home Equity Loans; the sum of all payments made
to and retained by the Servicer represent not more than reasonable
compensation for the Servicer's services under the Agreement and
reimbursement of the Servicer's reasonable expenses in connection
therewith;
(5) The Trustee is not an affiliate of the Underwriter, the Seller,
the Servicer, the Certificate Insurer, any borrower whose obligations under
one or more Home Equity Loans constitute more than 5% of the aggregate
unamortized principal balance of the assets in the Trust, or any of their
respective affiliates (the 'Restricted Group'); and
(6) The Plan investing in the Offered Certificates is an 'accredited
investor' as defined in Rule 50l(a)(l) of Regulation D of the Securities
and Exchange Commission under the Securities Act of 1933, as amended.
The Underwriters believe that upon termination of the Funding Period, the
Exemption will apply to the acquisition and holding of the Offered Certificates
by Plans and that all conditions of the Exemption other than those within the
control of the investors will be met.
Any Plan fiduciary considering whether to purchase any Offered Certificates
on behalf of a Plan should consult with its counsel regarding the applicability
of the fiduciary responsibility and prohibited transaction provisions of ERISA
and the Code to such investment. Among other things, before purchasing any
Offered Certificates, a fiduciary of a Plan subject to the fiduciary
responsibility provisions of ERISA or an employee benefit plan subject to the
prohibited transaction provisions of the Code should make its own determination
as to the availability of the exemptive relief provided in the Exemption, and
also consider the availability of any other prohibited transaction exemptions.
LEGAL INVESTMENT CONSIDERATIONS
Although, as a condition to their issuance, the Class A Certificates will
be rated in the highest rating category of the Rating Agencies, the Class A
Certificates will not constitute 'mortgage related securities' for purposes of
the Secondary Mortgage Market Enhancement Act of 1984 ('SMMEA'), because not all
of the Mortgages securing the Home Equity Loans are first mortgages.
Accordingly, many institutions with legal authority to invest in comparably
rated securities based on first mortgage loans may not be legally authorized to
invest in the Class A Certificates, which because they evidence interests in a
pool that includes junior mortgage loans are not 'mortgage related securities'
under SMMEA. See 'LEGAL INVESTMENT' in the Prospectus.
S-45
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in the underwriting
agreement, dated , 199 (the 'Underwriting Agreement'), among the
Seller and the Underwriters named below (the 'Underwriters'), the Seller has
agreed to sell to the Underwriters and each of the Underwriters has severally
agreed to purchase from the Seller the principal amount of Class A Certificates
set forth below opposite their respective names.
<TABLE>
<CAPTION>
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4 CLASS A-5
UNDERWRITER CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES CERTIFICATES
- ---------------------------------------- ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Total...................................
</TABLE>
Distribution of the Offered Certificates will be made by the Underwriters
from time to time in negotiated transactions or otherwise at varying prices to
be determined at the time of sale. Proceeds to the Seller from the sale of the
Offered Certificates will be $ , before deducting expenses payable
by the Seller expected to be $ . In connection with the purchase and sale
of the Offered Certificates, the Underwriters may be deemed to have received
compensation from the Seller in the form of underwriting discounts.
The Seller has been advised by the Underwriters that they presently intend
to make a market in the Class A Certificates offered hereby; however, no
Underwriter is obligated to do so, any market-making may be discontinued at any
time, and there can be no assurance that an active public market for the Class A
Certificates will develop.
The Underwriting Agreement provides that the Seller will indemnify the
Underwriters against certain civil liabilities, including liabilities under the
Act.
EXPERTS
The consolidated financial statements of
as of December 31, 199 and 199
and for the years ended December 31, 199 , 199 and 199 , included as Appendix A
to this Prospectus Supplement have been audited by ,
independent auditors, as set forth in their report thereon appearing in this
Prospectus Supplement and are included in reliance upon the authority of such
firm as experts in accounting and auditing.
LEGAL MATTERS
Certain legal matters with respect to the Offered Certificates will be
passed upon for the Seller by Stroock & Stroock & Lavan, New York, New York, and
for the Underwriters, by .
RATINGS
It is a condition to issuance that the Offered Certificates receive ratings
of 'AAA' by Standard & Poor's and 'Aaa' by Moody's.
A securities rating addresses the likelihood of the receipt by Offered
Certificateholders of distributions on the Mortgage Loans to which they are
entitled. The rating takes into consideration the characteristics of the
Mortgage Loans and the structural, legal and tax aspects associated with the
Offered Certificates. The ratings on the Offered Certificates do not, however
constitute statements regarding the likelihood or frequency of prepayments on
the Home Equity Loans or the possibility that Offered Certificateholders might
realize a lower than anticipated yield.
The ratings assigned to the Offered Certificates will depend primarily upon
the creditworthiness of the Certificate Insurer. Any reduction in a rating
assigned to the claims-paying ability of the Certificate Insurer below the
ratings initially assigned to the Offered Certificates may result in a reduction
of one or more of the ratings assigned to the Offered Certificates.
A securities rating is not a recommendation to buy, sell or hold securities
and may be subject to revision or withdrawal at any time by the assigning rating
organization. Each securities rating should be evaluated independently of
similar ratings on different securities.
S-46
<PAGE>
INDEX OF PRINCIPAL TERMS
Set forth below are the pages on which certain principal terms are first
defined. Additional defined terms can be found in THE GLOSSARY OF TERMS
beginning on page 77 of the Prospectus.
<TABLE>
<CAPTION>
TERMS PAGE
- ---------------------------------------------------------------------------------------------------- ----------
<S> <C>
Agreement........................................................................................... S-3
Book-Entry Certificates............................................................................. S-33
Capitalized Interest Account........................................................................ S-3
Cede................................................................................................ S-5
Certificateholder................................................................................... S-31
Certificate Insurer................................................................................. Cover
Certificate Insurer Default......................................................................... S-41
Certificate Rate.................................................................................... S-4
Certificates........................................................................................ Cover
Civil Relief Act.................................................................................... S-11
Civil Relief Act Interest Shortfalls................................................................ S-12
Class............................................................................................... Cover
Class A Certificates................................................................................ Cover, S-3
Class A Guaranteed Principal Distribution Amount.................................................... S-9
Class A Monthly Principal Distributable Amount...................................................... S-8
Class Principal Balance............................................................................. S-4, S-33
Class A Principal Distribution...................................................................... S-8
Class Interest Distribution......................................................................... S-7
Class Monthly Interest Distributable Amount......................................................... S-7
Class Principal Balance............................................................................. S-4
Closing Date........................................................................................ Cover
Code................................................................................................ S-49
Collection Account.................................................................................. S-37
Combined Loan-to-Value Ratio........................................................................ S-4
CPR................................................................................................. S-28
Cut-Off Date........................................................................................ Cover
Cut-Off Date Principal Balance...................................................................... S-3
Determination Date.................................................................................. S-11
Distributable Excess Spread......................................................................... S-9
Distribution Account................................................................................ S-37
Distribution Date................................................................................... Cover
DTC................................................................................................. S-5, S-32
Due Period.......................................................................................... S-9
Eligible Account.................................................................................... S-37
Eligible Substitute Mortgage Loan................................................................... S-36
Excess Spread....................................................................................... S-9
Funding Period...................................................................................... S-4
Home Equity Loans................................................................................... S-2
Initial Loans....................................................................................... S-2
Interest Period..................................................................................... S-6
Liquidated Mortgage Loan............................................................................ S-41
Loan Rate........................................................................................... S-4
Monthly Advance..................................................................................... S-11
Mortgaged Properties................................................................................ S-3
Mortgage Pool....................................................................................... Cover
Nonrecoverable Advance.............................................................................. S-38
Offered Certificates................................................................................ Cover
Offered Certificateholders.......................................................................... S-6
Original Class A Principal Balance.................................................................. S-4
</TABLE>
S-47
<PAGE>
<TABLE>
<S> <C>
Owners.............................................................................................. S-5
Percentage Interest................................................................................. S-5
Policy.............................................................................................. Cover
Pool Balance........................................................................................ S-3
Pre-Funded Amount................................................................................... S-4
Pre-Funding Account................................................................................. Cover
Prepayment Assumption............................................................................... S-26
Prepayment Interest Shortfall....................................................................... S-12
Principal Balance................................................................................... S-3
Record Date......................................................................................... S-6
REMIC............................................................................................... S-2
Seller.............................................................................................. S-3
Senior Certificates................................................................................. Cover
Sequential Certificates............................................................................. S-6
Servicer............................................................................................ S-3
Servicing Advance................................................................................... S-37
Servicing Fee....................................................................................... S-11
Servicing Fee Rate.................................................................................. S-11
SMMEA............................................................................................... S-13
Strip Rate.......................................................................................... S-7
Subsequent Cut-Off Date............................................................................. S-3
Subsequent Loans.................................................................................... S-2
Subsequent Transfer Date............................................................................ S-5
Transfer Date....................................................................................... S-4
Trust............................................................................................... Cover
Trustee............................................................................................. S-3
</TABLE>
S-48
<PAGE>
ANNEX I
GLOBAL CLEARANCE, SETTLEMENT AND TAX DOCUMENTATION PROCEDURES
Except in certain limited circumstances, the globally offered Home Equity
Loan Asset-Backed Certificates, Series 199 - (the 'Global Securities') will be
available only in book-entry form. Investors in the Global Securities may hold
such Global Securities through any of The Depository Trust Company ('DTC'),
CEDEL or Euroclear. The Global Securities will be tradeable as home market
instruments in both the European and U.S. domestic markets. Initial settlement
and all secondary trades will settle in same-day funds.
Secondary market trading between investors holding Global Securities
through CEDEL and Euroclear will be conducted in the ordinary way in accordance
with their normal rules and operating procedures and in accordance with
conventional eurobond practice (i.e., seven calendar day settlement).
Secondary market trading between investors holding Global Securities
through DTC will be conducted according to the rules and procedures applicable
to U.S. corporate debt obligations and prior Home Equity Loan Asset-Backed
Certificates issues.
Secondary cross-market trading between CEDEL or Euroclear and DTC
Participants holding Certificates will be effected on a delivery-against-payment
basis through the respective Depositaries of CEDEL and Euroclear (in such
capacity) and as DTC Participants.
Non-U.S. holders (as described below) of Global Securities will be subject
to U.S. withholding taxes unless such holders meet certain requirements and
deliver appropriate U.S. tax documents to the securities clearing organizations
or their participants.
INITIAL SETTLEMENT
All Global Securities will be held in book-entry form by DTC in the name of
Cede & Co. as nominee of DTC. Investors' interests in the Global Securities will
be represented through financial institutions acting on their behalf as direct
and indirect Participants in DTC. As a result, CEDEL and Euroclear will hold
positions on behalf of their participants through their respective Depositaries,
which in turn will hold such positions in accounts ad DTC Participants.
Investors electing to hold their Global Securities through DTC will follow
the settlement practices applicable to prior Home Equity Loan Asset-Backed
Certificates issues. Investor securities custody accounts will be credited with
their holdings against payment in same-day funds on the settlement date.
Investors electing to hold their Global Securities through CEDEL or
Euroclear accounts will follow the settlement procedures applicable to
conventional eurobonds, except that there will be no temporary global security
and no 'lock-up' or restricted period. Global Securities will be credited to the
securities custody accounts on the settlement date against payment in same-day
funds.
SECONDARY MARKET TRADING
Since the purchaser determines the place of delivery, it is important to
establish at the time of the trade where both the purchaser's and seller's
accounts are located to ensure that settlement can be made on the desired value
date.
Trading between DTC Participants. Secondary market trading between DTC
Participants will be settled using the procedures applicable to prior Home
Equity Loan Asset-Backed Certificates issues in same-day funds.
Trading between CEDEL and/or Euroclear Participants. Secondary market
trading between CEDEL Participants or Euroclear Participants will be settled
using the procedures applicable to conventional eurobonds in same-day funds.
Trading between DTC seller and CEDEL or Euroclear purchaser. When Global
Securities are to be transferred from the account of a DTC Participant to the
amount of a CEDEL Participant or a Euroclear Participant, the purchaser will
send instructions to CEDEL or Euroclear through a CEDEL Participant or Euroclear
Participant at least one business day prior to settlement. CEDEL or Euroclear
will instruct the
S-49
<PAGE>
respective Depositary, as the case may be, to receive the Global Securities
against payment. Payment will include interest accrued on the Global Securities
from and including the last coupon payment date to and excluding the settlement
date, on the basis of the actual number of days in such accrual period and a
year assumed to consist of 360 days. For transactions settling on the 31st of
the month, payment will include interest accrued to and excluding the first day
of the following month. Payment will then be made by the respective Depositary
of the DTC Participant's account against delivery of the Global Securities.
After settlement has been completed, the Global Securities will be credited to
the respective clearing system and by the clearing system, in accordance with
its usual procedures, to the CEDEL Participant's or Euroclear Participant's
account. The securities credit will appear the next day (European time) and the
cash debt will be back-valued to, and the interest on the Global Securities will
accrue from, the value date (which would be the preceding day when settlement
occurred in New York). If settlement is not completed on the intended value date
(i.e., the trade fails), the CEDEL or Euroclear cash debt will be valued instead
as of the actual settlement date.
CEDEL Participants and Euroclear Participants will need to make available
to the respective clearing systems the funds necessary to process same-day funds
settlement. The most direct means of doing so is to preposition funds for
settlement, either from cash on hand or existing lines of credit, as they would
for any settlement occurring within CEDEL or Euroclear. Under this approach,
they may take one credit exposure to CEDEL or Euroclear until the Global
Securities are credited to their accounts one day later.
As an alternative, if CEDEL or Euroclear has extended a line of credit to
them, CEDEL Participants or Euroclear Participants can elect not to preposition
funds and allow that credit line to be drawn upon the finance settlement. Under
this procedure, CEDEL Participants or Euroclear Participants purchasing Global
Securities would incur overdraft charges for one day, assuming they cleared the
overdraft when the Global Securities were credited to their accounts. However,
interest on the Global Securities would accrue from the value date. Therefore,
in many cases the investment income on the Global Securities earned during that
one-day period may substantially reduce or offset the amount of such overdraft
charges, although this result will depend on each CEDEL Participant's or
Euroclear Participant's particular cost of funds.
Since the settlement is taking place during New York business hours, DTC
Participants can employ their usual procedures for sending Global Securities to
the respective European Depositary for the benefit of CEDEL Participants or
Euroclear Participants. The sale proceeds will be available to the DTC seller on
the settlement date. Thus, to the DTC Participants a cross-market transaction
will settle no differently than a trade between two DTC Participants.
Trading between CEDEL or Euroclear Seller and DTC Purchaser. Due to time
zone differences in their favor, CEDEL Participants and Euroclear Participants
may employ their customary procedures for transactions in which Global
Securities are to be transferred by the respective clearing system, through the
respective Depositary, to a DTC Participant. The seller will send instructions
to CEDEL or Euroclear through a CEDEL Participant or Euroclear Participant at
least one business day prior to settlement. In these cases CEDEL or Euroclear
will instruct the respective Depositary, as appropriate, to deliver the Global
Securities to the DTC Participant's account against payment. Payment will
include interest accrued on the Global Securities from and including the last
coupon payment to and excluding the settlement date on the basis of the actual
number of days in such accrual period and a year assumed to consist of 360 days.
For transactions settling on the 31st of the month, payment will include
interest accrued to and excluding the first day of the following month. The
payment will then be reflected in the account of the CEDEL Participant or
Euroclear Participant the following day, and receipt of the cash proceeds in the
Cedel Participant's or Euroclear Participant's account would be back-valued to
the value date (which would be the preceding day, when settlement occurred in
New York). Should the CEDEL Participant or Euroclear Participant have a line of
credit with its respective clearing system and elect to be in debt in
anticipation of receipt of the sale proceeds in its account, the back-valuation
will extinguish any overdraft incurred over that one-day period. If settlement
is not completed on the intended value date (i.e., the trade fails), receipt of
the cash proceeds in the CEDEL Participant's or Euroclear Participant's account
would instead be valued as of the actual settlement date.
Finally, day traders that use CEDEL or Euroclear and that purchase Global
Securities from DTC Participants for delivery to CEDEL Participants or Euroclear
Participants should note that these trades would
S-50
<PAGE>
automatically fail on the sale side unless affirmative action were taken. At
least three techniques should be readily available to eliminate this potential
problem:
(a) borrowing through CEDEL or Euroclear for one day (until the
purchase side of the day trade is reflected in their CEDEL or Euroclear
accounts) in accordance with the clearing system's customary procedures;
(b) borrowing the Global Securities in the U.S. from a DTC Participant
no later than one day prior to settlement, which would give the Global
Securities sufficient time to be reflected in their CEDEL or Euroclear
account in order to settle the sale side of the trade; or
(c) staggering the value dates for the buy and sell sides of the trade
so that the value date for the purchase from the DTC Participant is at
least one day prior to the value date for the sale to the CEDEL Participant
or Euroclear Participant.
CERTAIN U.S. FEDERAL INCOME TAX DOCUMENTATION REQUIREMENTS
A beneficial owner of Global Securities holding securities through CEDEL or
Euroclear (or through DTC if the holder has an address outside the U.S.) will be
subject to the 30% U.S. withholding tax that generally applies to payments of
interest (including original issue discount) on registered debt issued by U.S.
Persons, unless (i) each clearing system, bank or other financial institution
that holds customers' securities in the ordinary course of its trade or business
in the chain of intermediaries between such beneficial owner and the U.S. entity
required to withhold tax complies with applicable certification requirements and
(ii) such beneficial owner takes one of the following steps to obtain an
exemption or reduced tax rate:
Exemption for non-U.S. Persons (Form W-8). Beneficial owners of Global
Securities that are non-U.S. Persons can obtain a complete exemption from the
withholding tax by filing a signed Form W-8 (Certificate of Foreign Status). If
the information shown on Form W-8 changes, a new Form W-8 must be filed within
30 days of such change.
Exchange for non-U.S. Persons with effectively connected income (Form
4224). A non-U.S. Person, including a non-U.S. corporation or bank with a U.S.
branch, for which the interest income is effectively connected with its conduct
of a trade or business in the United States, can obtain an exemption from the
withholding tax by filing Form 4224 (Exemption from Withholding of Tax on Income
Effectively Connected with the Conduct of a Trade or Business in the United
States).
Exemption or reduced rate for non-U.S. Persons resident in treaty countries
(Form 1001). Non-U.S. Persons that are Certificate Owners residing in a country
that has a tax treaty with the United States can obtain an exemption or reduced
tax rate (depending on the treaty terms) by filing Form 1001 (Ownership,
Exemption or Reduced Rate Certificate). If the treaty provides only for a
reduced rate, withholding tax will be imposed at that rate unless the filer
alternatively files Form W-8. Form 1001 may be filed by the Certificate Owners
or his agent.
Exemption for U.S. Persons (Form W-9). U.S. Persons can obtain a complete
exemption from the withholding tax by filing Form W-9 (Payer's Request for
Taxpayer Identification Number and Certification).
U.S. Federal Income Tax Reporting Procedure. The Certificate Owner of a
Global Security or, in the case of a Form 1001 or a Form 4224 filer, his agent,
files by submitting the appropriate form to the person through whom it holds
(the clearing agency, in the case of persons holding directly on the books of
the clearing agency). Form W-8 and Form 1001 are effective for three calendar
years and Form 4224 is effective for one calendar year.
The term 'U.S. Person' means (i) a citizen or resident of the United
States, (ii) a corporation or partnership organized in or under the laws of the
United States or any political subdivision thereof or (iii) an estate or trust
the income of which is includible in gross income for United States tax
purposes, regardless of its source. This summary does not deal with all aspects
of U.S. Federal income tax withholding that amy be relevant to foreign holders
of the Global Securities. Investors are advised to consult their own tax
advisors for specific tax advice concerning their holding and disposing of the
Global Securities.
S-51
<PAGE>
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 SALE 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
SUCH STATE.
SUBJECT TO COMPLETION DATED NOVEMBER 7, 1996
PROSPECTUS
ASSET-BACKED CERTIFICATES
ASSET-BACKED NOTES
(ISSUABLE IN SERIES)
------------------------
DELTA FUNDING CORPORATION
(SELLER AND SERVICER)
------------------------
The Asset-Backed Certificates (the 'Certificates') and the Asset-Backed
Notes (the 'Notes' and, collectively with the Certificates, the 'Securities')
described herein may be sold from time to time in one or more series (each, a
'Series') in amounts, at prices and on terms to be determined at the time of
sale and to be set forth in a supplement to this Prospectus (a 'Prospectus
Supplement'). Each series (each a 'Series') of Securities will include either
one or more classes of Certificates or, if Notes are issued as part of a Series,
one or more Classes of Notes and one or more Classes of Certificates, as set
forth in the related Prospectus Supplement. Certain capitalized terms used
herein are defined in 'GLOSSARY OF TERMS' beginning on page 77.
The Certificates of a Series will evidence undivided interests in certain
assets deposited into a trust (each, a 'Trust Fund') by Delta Funding
Corporation (the 'Seller') pursuant to a Pooling and Servicing Agreement or a
Trust Agreement, as described herein. The Notes of a Series will be issued and
secured pursuant to an Indenture and will represent indebtedness of the related
Trust Fund. The Trust Fund for a Series of Securities will include (a) Primary
Assets, which may include one or more pools of (i) closed-end home equity loans
(the 'Home Equity Loans'), secured by mortgages on one- to four-family
residential or mixed-use properties, and (ii) securities ('Private Securities')
backed or secured by Home Equity Loans (the 'Underlying Loans'), (b) certain
monies received or due thereunder on or after the date specified in the related
Prospectus Supplement (the 'Cutoff Date') net of certain amounts payable to
Delta Funding Corporation, as servicer (the 'Servicer') of the Home Equity
Loans, (c) if specified in the related Prospectus Supplement, funds on deposit
in one or more pre-funding accounts and/or capitalized interest accounts and (d)
reserve funds, letters of credit, surety bonds, insurance policies or other
forms of credit support as described herein and in the related Prospectus
Supplement. Amounts on deposit in a pre-funding account for any Series will be
used to purchase additional Home Equity Loans during the funding period
specified in the related Prospectus Supplement in the manner specified therein.
The amount initially deposited in a pre-funding account for a Series of
Securities will not exceed fifty percent of the aggregate principal amount of
such Series of Securities.
Each Series of Securities will be issued in one or more classes (each, a
'Class'). Interest on and principal of the Securities of a Series will be
payable on the date or dates specified in the related Prospectus Supplement
(each, a 'Distribution Date'), at the times, at the rates, in the amounts and in
the order of priority set forth in the related Prospectus Supplement.
If a Series includes multiple Classes, such Classes may vary with respect to
the amount, percentage (which may be 0%) and timing of distributions of
principal, interest or both and one or more Classes may be subordinated to other
Classes with respect to distributions of principal, interest or both as
described herein and in the related Prospectus Supplement. The Primary Assets
and other assets comprising the Trust Fund may be divided into one or more Asset
Groups and each Class of the related Series will evidence beneficial ownership
of the corresponding Asset Group, as applicable.
The rate of reduction of the aggregate principal balance of each Class of a
Series may depend principally upon the rate of payment (including prepayments)
with respect to the Home Equity Loans or Underlying Loans relating to the
Private Securities, as applicable. A rate of prepayment lower or higher than
anticipated will affect the yield on the Securities of a Series in the manner
described herein and in the related Prospectus Supplement. Under certain limited
circumstances described herein and in the related Prospectus Supplement, a
Series of Securities may be subject to termination or redemption.
If specified in the related Prospectus Supplement, an election may be made
to treat certain assets comprising the Trust Fund for a Series as a 'real estate
mortgage investment conduit' (a 'REMIC') for federal income tax purposes. See
'FEDERAL INCOME TAX CONSIDERATIONS.'
There currently is no secondary market for the Securities. There can be no
assurance that any such market will develop or, if it does develop, that it will
continue.
------------------------
NOTES OF A GIVEN SERIES REPRESENT OBLIGATIONS OF, AND CERTIFICATES OF A SERIES
EVIDENCE BENEFICIAL INTERESTS IN, THE RELATED TRUST FUND ONLY AND ARE NOT
GUARANTEED BY ANY GOVERNMENTAL AGENCY OR BY THE SELLER, THE TRUSTEE, THE
SERVICER OR BY ANY OF THEIR RESPECTIVE AFFILIATES OR, UNLESS OTHERWISE
SPECIFIED IN THE RELATED PROSPECTUS SUPPLEMENT, BY ANY OTHER PERSON OR
ENTITY. THE SELLER'S ONLY OBLIGATIONS WITH RESPECT TO ANY SERIES OF
SECURITIES WILL BE PURSUANT TO CERTAIN REPRESENTATIONS AND WARRANTIES
SET FORTH IN THE RELATED AGREEMENT AS DESCRIBED HEREIN OR IN THE
RELATED PROSPECTUS SUPPLEMENT.
------------------------
SEE 'RISK FACTORS' BEGINNING ON PAGE 13 FOR CERTAIN FACTORS
TO BE CONSIDERED IN PURCHASING THE SECURITIES.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR THE
PROSPECTUS SUPPLEMENT. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
Retain this Prospectus for future reference. This Prospectus may not be used
to consummate sales of securities offered hereby unless accompanied by a
Prospectus Supplement.
THE DATE OF THIS PROSPECTUS IS , 1996
<PAGE>
PROSPECTUS SUPPLEMENT
The Prospectus Supplement relating to a Series of Securities to be offered
hereunder will, among other things, set forth with respect to such Series of
Securities: (i) the aggregate principal amount, interest rate, and authorized
denominations of each Class of such Securities; (ii) certain information
concerning the Primary Assets; (iii) the terms of any Enhancement (as defined
herein) with respect to such Series; (iv) the terms of any insurance related to
the Primary Assets; (v) information concerning any other assets in the related
Trust Fund, including any Reserve Fund; (vi) the Final Scheduled Distribution
Date (as defined herein) of each Class of such Securities; (vii) the method to
be used to calculate the amount of interest and principal required to be applied
to the Securities of each Class of such Series on each Distribution Date, the
timing of the application of interest and principal and the order of priority of
the application of such interest and principal to the respective Classes and the
allocation of interest and principal to be so applied; (viii) the Distribution
Dates and any Assumed Reinvestment Rate (as defined herein); (ix) the amount, if
any, deposited in the Pre-Funding Account (as defined herein) available to
purchase additional Home Equity Loans, the length of the Pre-Funding Period (as
defined herein) and the criteria for determining which additional Home Equity
Loans may become part of the Trust Fund; (x) additional information with respect
to the plan of distribution of such Securities; and (xi) whether a REMIC
election will be made with respect to some or all of the Trust Fund for such
Series.
REPORTS TO HOLDERS
Periodic and annual reports concerning the related Trust Fund for a Series
of Securities are required under the related Agreements to be forwarded to
Holders. Unless otherwise specified in the related Prospectus Supplement, such
reports will not be examined and reported on by an independent public
accountant. If so specified in the Prospectus Supplement for a Series of
Securities, such Series or one or more Classes of such Series will be issued in
book-entry form. In such event, (i) owners of beneficial interests in such
Securities will not be considered 'Holders' under the Agreements and will not
receive such reports directly from the related Trust Fund; rather, such reports
will be furnished to such owners through the participants and indirect
participants of the applicable book-entry system and (ii) references herein to
the rights of 'Holders' shall refer to the rights of such owners as they may be
exercised indirectly through such participants. See 'THE AGREEMENTS-- Reports to
Holders.'
AVAILABLE INFORMATION
The Seller has filed with the Securities and Exchange Commission (the
'Commission') a Registration Statement under the Securities Act of 1933, as
amended, with respect to the Securities. This Prospectus, which forms a part of
the Registration Statement, and the Prospectus Supplement relating to each
Series of Securities contain summaries of the material terms of the documents
referred to herein and therein, but do not contain all of the information set
forth in the Registration Statement pursuant to the Rules and Regulations of the
Commission. For further information, reference is made to such Registration
Statement and the exhibits thereto. Such Registration Statement and exhibits can
be inspected and copied at prescribed rates at the public reference facilities
maintained by the Commission at its Public Reference Section, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at its Regional Office located as follows,
Midwest Regional Office, 500 West Madison Street, Chicago, Illinois 60661; and
Northeast Regional Office, Seven World Trade Center, New York, New York 10048.
The Commission maintains an Internet Web site that contains reports, proxy and
information statements and other information regarding the registrants that file
electronically with the Commission, including the Seller. The address of such
Internet Web site is (http://www.sec.gov).
Each Trust Fund will be required to file certain reports with the
Commission pursuant to the requirements of the Securities Exchange Act of 1934,
as amended (the 'Exchange Act'). The Seller intends to cause each Trust Fund to
suspend filing such reports if and when such reports are no longer required
under the Exchange Act.
No person has been authorized to give any information or to make any
representation other than those contained in this Prospectus and any Prospectus
Supplement with respect hereto and, if given or made, such information or
representations must not be relied upon. This Prospectus and any Prospectus
Supplement with respect hereto do not constitute an offer to sell or a
solicitation of an offer to buy any securities other than the
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Securities offered hereby and thereby nor an offer of the Securities to any
person in any state or other jurisdiction in which such offer would be unlawful.
The delivery of this Prospectus at any time does not imply that information
herein is correct as of any time subsequent to its date.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
All documents subsequently filed by or on behalf of the Trust Fund referred
to in the accompanying Prospectus Supplement with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of this
Prospectus and prior to the termination of any offering of the Securities issued
by such Trust Fund shall be deemed to be incorporated by reference in this
Prospectus and to be a part of this Prospectus from the date of the filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for all purposes of this Prospectus to the extent that a statement contained
herein (or in the accompanying Prospectus Supplement) or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference modifies or replaces such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Seller on behalf of any Trust Fund will provide without charge to each
person to whom this Prospectus is delivered, on the written or oral request of
such person, a copy of any or all of the documents referred to above that have
been or may be incorporated by reference in this Prospectus (not including
exhibits to the information that is incorporated by reference unless such
exhibits are specifically incorporated by reference into the information that
this Prospectus incorporates). Such requests should be directed to Corporate
Secretary, Delta Funding Corporation, 1000 Woodbury Road, Woodbury, New York
11797 (telephone: 516-364-8500; facsimile: 516-364-9450).
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SUMMARY OF TERMS
The following summary is qualified in its entirety by reference to the
detailed information appearing elsewhere in this Prospectus and by reference to
the information with respect to each Series of Securities contained in the
Prospectus Supplement to be prepared and delivered in connection with the
offering of Securities of such Series. Capitalized terms used and not otherwise
defined herein or in the related Prospectus Supplement shall have the meanings
set forth in the 'GLOSSARY OF TERMS' beginning on page 77.
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SECURITIES OFFERED....... Asset-Backed Certificates (the 'Certificates') and
Asset-Backed Notes (the 'Notes'). Certificates are
issuable from time to time in Series pursuant to a
Pooling and Servicing Agreement or Trust Agreement.
Each Certificate of a Series will evidence an interest
in the Trust Fund for such Series, or in an Asset
Group specified in the related Prospectus Supplement.
Notes are issuable from time to time in a Series
pursuant to an Indenture. Each Series of Securities
will consist of one or more Classes, one or more of
which may be Classes of Compound Interest Securities,
Planned Amortization Class ('PAC') Securities,
Variable Interest Securities, Zero Coupon Securities,
Principal Only Securities, Interest Only Securities,
Senior Securities or Subordinate Securities (each of
which is generally described in the 'GLOSSARY OF
TERMS'). Each Class may differ in, among other things,
the amounts allocated to and the priority of principal
and interest payments, Final Scheduled Distribution
Dates, Distribution Dates and interest rates. The
Securities of each Class will be issued in fully
registered form in the denominations specified in the
related Prospectus Supplement. If so specified in the
related Prospectus Supplement, the Securities or
certain Classes of such Securities offered thereby may
be available in book-entry form only.
SELLER AND SERVICER...... Delta Funding Corporation, a New York corporation,
with its principal executive offices located at 1000
Woodbury Road, Woodbury, New York 11797, and a
telephone number of (516) 364-8500. See 'THE SELLER
AND THE SERVICER.'
INTEREST PAYMENTS........ Interest payments on the Securities of a Series
entitled by their terms to receive interest will be
made on each Distribution Date, to the extent set
forth in, and at the applicable rate specified in (or
determined in the manner set forth in), the related
Prospectus Supplement. The interest rate on Securities
of a Series may be variable or change with changes in
the rates of interest on the related Home Equity Loans
or Underlying Loans relating to the Private
Securities, as applicable and/or as prepayments occur
with respect to such Home Equity Loans or Underlying
Loans, as applicable. Interest Only Securities may be
assigned a 'Notional Amount' which is used solely for
convenience in expressing the calculation of interest
and for certain other purposes and does not represent
the right to receive any distributions allocable to
principal. Principal Only Securities may not be
entitled to receive any interest payments or may be
entitled to receive only nominal interest payments.
Interest payable on the Securities of a Series on a
Distribution Date will include all interest accrued
during the period specified in the related Prospectus
Supplement. See 'DESCRIPTION OF THE
SECURITIES--Payments of Interest.'
PRINCIPAL PAYMENTS....... All payments of principal of a Series of Securities
will be made in an aggregate amount determined as set
forth in the related Prospectus Supplement and will be
paid at the times and will be allocated among
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the Classes of such Series in the order and amounts,
and will be applied either on a pro rata or a random
lot basis among all Securities of any such Class, all
as specified in the related Prospectus Supplement.
FINAL SCHEDULED
DISTRIBUTION DATE
OF THE SECURITIES...... The Final Scheduled Distribution Date with respect to
each Class of Notes is the date no later than the date
on which principal thereof will be fully paid and with
respect to each Class of Certificates is the date
after which no Certificates of such Class are expected
to remain outstanding, in each case calculated on the
basis of the assumptions applicable to such Series
described in the related Prospectus Supplement. The
Final Scheduled Distribution Date of a Class may equal
the maturity date of the Primary Asset in the related
Trust Fund which has the latest stated maturity or
will be determined as described herein and in the
related Prospectus Supplement.
The actual final Distribution Date of the Securities
of a Series will depend primarily upon the rate of
payment (including prepayments, liquidations due to
default, the receipt of proceeds from casualty
insurance policies and repurchases) of the Home Equity
Loans or Underlying Loans relating to the Private
Securities, as applicable, in the related Trust Fund.
In general, the actual final Distribution Date of any
Security is likely to occur earlier and may occur
substantially earlier or, with respect to a Class of
Certificates, may occur later than its Final Scheduled
Distribution Date as a result of the application of
prepayments to the reduction of the principal balances
of the Securities and as a result of defaults on the
Primary Assets. The rate of payments on the Home
Equity Loans or Underlying Loans relating to the
Private Securities, as applicable, in the Trust Fund
for a Series will depend on a variety of factors,
including certain characteristics of such Home Equity
Loans or Underlying Loans, as applicable, and the
prevailing level of interest rates from time to time,
economic, demographic, tax and legal factors and
servicing decisions. No assurance can be given as to
the actual prepayment experience with respect to a
Series. See 'RISK FACTORS--Yield May Vary' and
'DESCRIPTION OF THE SECURITIES--Weighted Average Life
of the Securities.'
OPTIONAL TERMINATION..... The Seller, the Servicer, or such other entity that is
specified in the related Prospectus Supplement, may,
at its option, cause an early termination of one or
more Classes of Securities by purchasing all or part
of the Primary Assets remaining in the Trust Fund on
or after a specified date, or on or after such time as
the aggregate principal balance of the Securities of
the Series or the Primary Assets relating to such
Series, as specified in the related Prospectus
Supplement, is less than the amount or percentage
specified in the related Prospectus Supplement. See
'DESCRIPTION OF THE SECURITIES--Optional Redemption,
Purchase or Termination.'
THE TRUST FUND........... The Trust Fund for a Series of Securities will consist
of one or more of the assets described below, as
described in the related Prospectus Supplement.
A. PRIMARY ASSETS...... The Primary Assets for a Series may consist of any
combination of the following assets, to the extent and
as specified in the related Prospectus Supplement.
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(1) HOME EQUITY
LOANS......... Primary Assets for a Series will consist, in whole or
in part, of 'closed-end' home equity loans (the 'Home
Equity Loans'). The Home Equity Loans may, as
specified in the related Prospectus Supplement, have
various payment characteristics, including balloon or
other irregular payment features, and may accrue
interest at a fixed rate or an adjustable rate. Some
Home Equity Loans may be delinquent or non-performing
as specified in the related Prospectus Supplement. The
Home Equity Loans will be originated or acquired by
the Seller in the ordinary course of its business. The
Home Equity Loans will be nonconventional loans.
Additional Home Equity Loans may be periodically added
to the Trust Fund, or may be removed from time to time
if certain asset tests are met, all as described
herein under 'THE TRUST FUNDS' and in the related
Prospectus Supplement.
The Home Equity Loans will be secured by mortgages or
deeds of trust or other similar security instruments
creating a lien on a Mortgaged Property, which may be
subordinated to one or more senior liens on such
Mortgaged Property, as described herein under 'THE
TRUST FUNDS' and in the related Prospectus Supplement.
The related Prospectus Supplement will describe
certain characteristics of the Home Equity Loans for a
Series, including, without limitation, and to the
extent relevant: (a) the aggregate unpaid principal
balance of the Home Equity Loans; (b) the range and
weighted average Home Equity Loan Rate on the Home
Equity Loans and in the case of adjustable rate Home
Equity Loans, the range and weighted average of the
Current Home Equity Loan Rates and the Lifetime Rate
Caps, if any; (c) the range and the average
outstanding principal balance of the Home Equity
Loans; (d) the weighted average original and remaining
term-to-stated maturity of the Home Equity Loans and
the range of original and remaining terms-to-stated
maturity, if applicable; (e) the range of Combined
Loan-to-Value Ratios or Loan-to-Value Ratios, as
applicable, of the Home Equity Loans, computed in the
manner described in the related Prospectus Supplement;
(f) the percentage (by principal balance as of the
Cut-off Date) of Home Equity Loans that accrue
interest at adjustable or fixed interest rates; (g)
any enhancement relating to the Home Equity Loans; (h)
the geographic distribution of the Mortgaged
Properties securing the Home Equity Loans; (i) the use
and type of each Mortgaged Property securing a Home
Equity Loan; (j) the lien priority of the Home Equity
Loans; and (k) the delinquency status and year of
origination of the Home Equity Loans.
(2) PRIVATE
SECURITIES.... Primary Assets for a Series may consist, in whole or
in part, of Private Securities which include (a)
pass-through certificates representing beneficial
interests in loans of the type that would otherwise be
eligible to be Home Equity Loans (the 'Underlying
Loans') or (b) collateralized obligations secured by
Underlying Loans. Such pass-through certificates or
collateralized obligations: (i) will have been
registered for sale under the Securities Act of 1933,
as amended; (ii) will have been acquired in the
secondary market and not in the initial offering
thereof; (iii) will have been issued by an issuer
which is not involved in the issuance of the
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related Series and which is not an affiliate of the
Seller; and (iv) will be freely transferable under
Rule 144(k) under the Securities Act of 1933, as
amended, to the extent such rule is applicable to such
securities. Although individual Underlying Loans may
be insured or guaranteed by the United States or an
agency or instrumentality thereof, they need not be,
and the Private Securities themselves will not be so
insured or guaranteed. See 'THE TRUST FUNDS-- Private
Securities.' Payments on the Private Securities will
be distributed directly to the Trustee as registered
owner of such Private Securities.
The related Prospectus Supplement for a Series will
specify (such disclosure may be on an approximate
basis, as described above and will be as of the date
specified in the related Prospectus Supplement) to the
extent relevant and to the extent such information is
reasonably available to the Seller and the Seller
reasonably believes such information to be reliable:
(i) the aggregate approximate principal amount and
type of any Private Securities to be included in the
Trust Fund for such Series; (ii) certain
characteristics of the Underlying Loans including (A)
the payment features of such Underlying Loans (i.e.,
whether they are fixed rate or adjustable rate and
whether they provide for fixed level payments,
negative amortization or other payment features), (B)
the approximate aggregate principal amount of such
Underlying Loans which are insured or guaranteed by a
governmental entity, (C) the servicing fee or range of
servicing fees with respect to such Underlying Loans,
(D) the minimum and maximum stated maturities of such
Underlying Loans at origination, (E) the lien priority
of such Underlying Loans, and (F) the delinquency
status and year of origination of such Underlying
Loans; (iii) the maximum original term-to-stated
maturity of the Private Securities; (iv) the weighted
average term-to-stated maturity of the Private
Securities; (v) the pass-through or certificate rate
or ranges thereof for the Private Securities; (vi) the
sponsor or depositor of the Private Securities (the
'PS Sponsor'), the servicer of the Private Securities
(the 'PS Servicer') and the trustee of the Private
Securities (the 'PS Trustee'); (vii) certain
characteristics of Enhancement, if any, such as
reserve funds, insurance policies, letters of credit
or guarantees, relating to the Underlying Loans, or to
such Private Securities themselves; (viii) the terms
on which the Underlying Loans may, or are required to,
be repurchased prior to stated maturity; and (ix) the
terms on which substitute Underlying Loans may be
delivered to replace those initially deposited with
the PS Trustee. See 'THE TRUST FUNDS--Private
Securities--Additional Information.'
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B. COLLECTION,
CERTIFICATE
AND DISTRIBUTION
ACCOUNTS.......... All payments on or with respect to the Primary Assets
for a Series, net of amounts permitted to be retained
by the Servicer pursuant to the Agreement, will be
remitted by the Servicer directly to an account (the
'Collection Account' or the 'Certificate Account') to
be established for such Series. The Trustee will be
required to apply a portion of the amount in the
Collection Account or the Certificate Account, to the
payment of certain amounts payable to the Servicer
under the related Agreement and any other person
specified in the Prospectus Supplement, and to deposit
a portion of the amount in the Collection Account into
one or more separate accounts (each, a 'Distribution
Account') to be established for such Series, each in
the manner and at the times established in the related
Prospectus Supplement. All amounts deposited in such
Distribution Account (or, if there is no Distribution
Account, amounts remaining in the Certificate Account)
will be available for (i) application to the payment
of principal of and interest on such Series of
Securities (or such Class or Classes specified in the
related Prospectus Supplement) on the next
Distribution Date, (ii) the making of adequate
provision for future payments on certain Classes of
Securities and (iii) any other purpose specified in
the related Prospectus Supplement. After applying the
funds in the Collection Account or the Certificate
Account as described above, any funds remaining in
such Accounts may be paid over to the Servicer, the
Seller, any provider of Enhancement with respect to
such Series (an 'Enhancer') or any other person
entitled thereto in the manner and at the times
established in the related Prospectus Supplement.
C. PRE-FUNDING AND
CAPITALIZED
INTEREST
ACCOUNTS.......... A Trust Fund may include one or more segregated trust
accounts (each, a 'Pre-Funding Account') for the
related Series. On the closing date for such a Series,
a portion of the proceeds of the sale of the
Securities of such Series (such amount, the
'Pre-Funded Amount') will be deposited in the
Pre-Funding Account and may be used to purchase
additional Primary Assets during the period of time,
not to exceed six months, specified in the related
Prospectus Supplement (the 'Pre-Funding Period'). The
Primary Assets to be so purchased will be required to
have certain characteristics specified in the related
Prospectus Supplement. If any Pre-Funded Amount
remains on deposit in the Pre-Funding Account at the
end of the Pre-Funding Period, such amount will be
applied in the manner specified in the related
Prospectus Supplement to prepay the Classes of Notes
and/or the Certificates of the applicable Series
specified in the related Prospectus Supplement. The
amount initially deposited in a Pre-Funding Account
for a Series of Securities will not exceed fifty
percent of the aggregate principal amount of such
Series of Securities. The Seller does not intend to
include information regarding the additional Primary
Assets in a Current Report on Form 8-K.
If a Pre-Funding Account is established, one or more
segregated trust accounts (each, a 'Capitalized
Interest Account') may be established for the related
Series. On the closing date for such
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Series, a portion of the proceeds of the sale of the
Securities of such Series may be deposited in the
Capitalized Interest Account and used to fund the
excess, if any, of (x) the sum of (i) the amount of
interest accrued on the Classes of Securities of such
Series specified in the related Prospectus Supplement
and (ii) if specified in the related Prospectus
Supplement, certain fees or expenses during the
Pre-Funding Period such as Trustee fees and credit
enhancement fees, over (y) the amount of interest
available therefor from the Primary Assets in the
Trust Fund. If so specified in the related Prospectus
Supplement, amounts on deposit in the Capitalized
Interest Account may be released to the Seller prior
to the end of the Pre-Funding Period subject to the
satisfaction of certain tests specified in the related
Prospectus Supplement. Any amounts on deposit in the
Capitalized Interest Account at the end of the Pre-
Funding Period that are not necessary for such
purposes will be distributed to the person specified
in the related Prospectus Supplement.
ENHANCEMENT.............. If and to the extent specified in the related
Prospectus Supplement, enhancement with respect to a
Series or any Class of Securities may include any one
or more of the following: a financial guaranty
insurance policy, overcollateralization, a letter of
credit, a cash reserve fund, insurance policies, one
or more Classes of Subordinate Securities, derivative
products or other forms of credit enhancement, or any
combination thereof (collectively, 'Enhancement'). The
Enhancement with respect to any Series or any Class of
Securities may be structured to provide protection
against delinquencies and/or losses on the Primary
Assets, against changes in interest rates, or other
risks, to the extent and under the conditions
specified in the related Prospectus Supplement. Any
form of Enhancement will have certain limitations and
exclusions from coverage thereunder, which will be
described in the related Prospectus Supplement.
Further information regarding any Enhancer, including
financial information when material, will be included
in the related Prospectus Supplement. See
'ENHANCEMENT.'
With respect to any Series of Securities including one
or more Classes of Notes, distributions in respect of
the Certificates may be subordinated in priority of
payment to payments on the Notes, to the extent
specified in the related Prospectus Supplement.
CREDIT QUALITY OF
HOME EQUITY LOANS...... Throughout its 14 years of operating history, the
Seller has focused on lending to individuals who
generally have impaired or limited credit profiles or
higher debt to income ratios and who typically have
substantial equity in their homes. See 'RISK FACTORS--
Underwriting Standards May Affect Performance' and
'THE SELLER AND THE SERVICER--General' and
'--Underwriting' herein. The Seller has in the past
and will in the future change its underwriting
guidelines and procedures when, in its business
judgment, competition or other conditions in its
market so warrant. As a result, Home Equity Loans
originated at different times may reflect different
underwriting guidelines and be of different credit
quality. However, any such differences will be
reflected in the levels of Enhancement for the related
Series of Securities.
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SERVICING................ The Servicer will be responsible for servicing,
managing and making collections on the Home Equity
Loans for a Series. In addition, the Servicer, if so
specified in the related Prospectus Supplement, will
act as custodian and will be responsible for
maintaining custody of the Home Equity Loans and
related documentation on behalf of the Trustee.
Advances with respect to delinquent payments of
principal and/or interest on a Home Equity Loan
('Delinquency Advances') will be made by the Servicer
if and only to the extent described in the related
Prospectus Supplement. Such advances will be intended
to provide liquidity only and will be reimbursable to
the Servicer to the extent specified in the related
Prospectus Supplement, from scheduled payments of
principal and/or interest, late collections, or from
the proceeds of liquidation of the related Home Equity
Loans or from other recoveries relating to such Home
Equity Loans (including any insurance proceeds or
payments from other credit support) or, to the extent
specified in the related Prospectus Supplement, from
payments or proceeds from other Home Equity Loans. If
and to the extent specified in the related Prospectus
Supplement, the Servicer will be entitled to advance
its own funds to pay for any related expenses of
foreclosure and disposition of any liquidated Home
Equity Loan or related Mortgaged Property (the
'Servicer Advances'). See 'SERVICING OF
LOANS--Advances and Limitations Thereon.' The Servicer
will be entitled to be reimbursed for any such
Servicer Advances as specified in the related
Prospectus Supplement. In performing these functions,
the Servicer will exercise the same degree of skill
and care that it customarily exercises with respect to
similar Home Equity Loans owned or serviced by it.
Under certain limited circumstances, the Servicer may
resign or be removed, in which event either the
Trustee or a third-party servicer will be appointed as
successor servicer. The Servicer will receive a
periodic fee as servicing compensation (the 'Servicing
Fee') and may, as specified in the related Prospectus
Supplement, receive certain additional compensation.
See 'SERVICING OF LOANS--Servicing Compensation and
Payment of Expenses.'
FEDERAL INCOME TAX
CONSIDERATIONS
A. DEBT SECURITIES AND
REMIC RESIDUAL
SECURITIES.......... If (i) an election is made to treat all or a portion
of a Trust Fund for a Series as a 'real estate
mortgage investment conduit' (a 'REMIC') or (ii) so
provided in the related Prospectus Supplement, a
Series of Securities will include one or more Classes
of taxable debt obligations under the Internal Revenue
Code of 1986, as amended (the 'Code'). Stated interest
with respect to such Classes of Securities will be
reported by a Holder in accordance with the Holder's
method of accounting except that, in the case of
Securities constituting 'regular interests' in a REMIC
('Regular Interests'), such interest will be required
to be reported on the accrual method regardless of a
Holder's usual method of accounting. Securities that
are Compound Interest Securities, Zero Coupon
Securities or Interest Only Securities will, and
certain other Classes of Securities may, be issued
with original issue discount that is not de minimis.
In such cases, the Holder will be required to include
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original issue discount in gross income as it accrues,
which may be prior to the receipt of cash attributable
to such income. If a Security is issued at a premium,
the Holder may be entitled to make an election to
amortize such premium on a constant yield method.
In the case of a REMIC election, a Class of Securities
may be treated as REMIC 'residual interests'
('Residual Interest'). A Holder of a Residual Interest
will be required to include in its income its pro rata
share of the taxable income of the REMIC. In certain
circumstances, the Holder of a Residual Interest may
have REMIC taxable income or tax liability
attributable to REMIC taxable income for a particular
period in excess of cash distributions for such period
or have an after-tax return that is less than the
after-tax return on comparable debt instruments. In
addition, a portion (or, in some cases, all) of the income
from a Residual Interest (i) except in certain circumstances
with respect to a Holder classified as a thrift institution
under the Code, may not be subject to offset by losses
from other activities or investments, (ii) for a
Holder that is subject to tax under the Code on
unrelated business taxable income, may be treated as
unrelated business taxable income and (iii) for a
foreign holder, may not qualify for exemption from or
reduction of withholding. In addition, (i) Residual
Interests are subject to transfer restrictions and
(ii) certain transfers of Residual Interests will not
be recognized for federal income tax purposes.
Further, individual holders are subject to limitations
on the deductibility of expenses of the REMIC. See
'FEDERAL INCOME TAX CONSIDERATIONS.'
B. NON-REMIC
PASS-THROUGH
SECURITIES........ If so specified in the related Prospectus Supplement,
the Trust Fund for a Series will be treated as a
grantor trust and will not be classified as an
association taxable as a corporation for federal
income tax purposes and Holders of Securities of such
Series ('Pass-Through Securities') will be treated as
owning directly rights to receive certain payments of
interest or principal, or both, on the Primary Assets
held in the Trust Fund for such Series. All income
with respect to a Stripped Security (as defined
herein) will be accounted for as original issue
discount and, unless otherwise specified in the
related Prospectus Supplement, will be reported by the
Trustee on an accrual basis, which may be prior to the
receipt of cash associated with such income.
C. OWNER TRUST
SECURITIES....... If so specified in the Prospectus Supplement, the
Trust Fund will be treated as a partnership for
purposes of federal and state income tax. Each
Noteholder, by the acceptance of a Note of a given
Series, will agree to treat such Note as indebtedness,
and each Certificateholder, by the acceptance of a
Certificate of a given Series, will agree to treat the
related Trust Fund as a partnership in which such
Certificateholder is a partner for federal income and
state tax purposes. Alternative characterizations of
such Trust Fund and such Certificates are possible,
but would not result in materially adverse tax
consequences to Certificateholders. See 'FEDERAL
INCOME TAX CONSIDERATIONS.'
ERISA CONSIDERATIONS..... Subject to the considerations discussed under 'ERISA
CONSIDERATIONS' herein and in the related Prospectus
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Supplement, the Notes may be eligible for purchase by
employee benefit plans. The related Prospectus
Supplement will provide further information with
respect to the eligibility of a Class of Certificates
for purchase by employee benefit plans.
A fiduciary of any employee benefit plan subject to
the Employee Retirement Income Security Act of 1974,
as amended ('ERISA'), or the Code should carefully
review with its own legal advisors whether the
purchase or holding of Securities could give rise to a
transaction prohibited or otherwise impermissible
under ERISA or the Code. See 'ERISA CONSIDERATIONS'
herein and in the related Prospectus Supplement.
LEGAL INVESTMENT......... Unless otherwise specified in the related Prospectus
Supplement, Securities of each Series offered by this
Prospectus and the related Prospectus Supplement will
not constitute 'mortgage related securities' under the
Secondary Mortgage Market Enhancement Act of 1984
('SMMEA'). Investors whose investment authority is
subject to legal restrictions should consult their own
legal advisors to determine whether and to what extent
the Securities constitute legal investments for them.
See 'LEGAL INVESTMENT.'
RATINGS.................. It will be a requirement for issuance of any Series
that each Class of Securities offered by this
Prospectus and the related Prospectus Supplement be
rated by at least one Rating Agency in one of its four
highest applicable rating categories. The rating or
ratings applicable to Securities of each Series
offered hereby and by the related Prospectus
Supplement will be as set forth in the related
Prospectus Supplement.
A securities rating should be evaluated independently
of similar ratings on different types of securities.
In general, a securities rating addresses the
likelihood that Holders will receive the distributions
to which they are entitled. A securities rating is not
a recommendation to buy, hold or sell securities and
does not address the effect that the rate of
prepayments on the Home Equity Loans or Underlying
Loans relating to Private Securities, as applicable,
for a Series may have on the yield to investors in the
Securities of such Series.
There is no assurance that the rating initially
assigned to such Securities will not be subsequently
lowered or withdrawn by the Rating Agency. In the
event the rating initially assigned to any Securities
is subsequently lowered for any reason, no person or
entity will be obligated to provide any credit
enhancement in addition to the Enhancement, if any,
specified in the related Prospectus Supplement. See
'RISK FACTORS--Ratings Are Not Recommendations.'
</TABLE>
12
<PAGE>
RISK FACTORS
Investors should consider, among other things, the following risk factors
in connection with the purchase of the Securities.
Lack of Secondary Market Limits Liquidity. There will be no market for the
Securities of any Series prior to the issuance thereof, and there can be no
assurance that a secondary market will develop or, if it does develop, that it
will provide Holders with liquidity of investment or will continue for the life
of the Securities of such Series. See 'PLAN OF DISTRIBUTION.'
Primary Assets Are Only Source of Repayment. The Securities of a Series
will be payable solely from the assets of the Trust Fund for such Securities and
any related Enhancement. There will be no recourse to the Seller or any other
person for any default on the Notes or any failure to receive distributions on
the Certificates. Further, unless otherwise stated in the related Prospectus
Supplement, at the times set forth in the related Prospectus Supplement, certain
Primary Assets and/or any balance remaining in the Collection Account,
Certificate Account or Distribution Account immediately after making all
payments due on the Securities of such Series and other payments specified in
the related Prospectus Supplement, may be promptly released or remitted to the
Seller, the Servicer, the Enhancer or any other person entitled thereto and will
no longer be available for making payments to Holders. Consequently, Holders of
Securities of each Series must rely solely upon payments with respect to the
Primary Assets and the other assets constituting the Trust Fund for a Series of
Securities, including, if applicable, any amounts available pursuant to any
Enhancement for such Series, for the payment of principal of and interest on the
Securities of such Series.
Holders of Notes will be required under the Indenture to proceed only
against the Primary Assets and other assets constituting the related Trust Fund
in the case of a default with respect to such Notes and may not proceed against
any assets of the Seller. There is no assurance that the market value of the
Primary Assets or any other assets for a Series will at any time be equal to or
greater than the aggregate principal amount of the Securities of such Series
then outstanding, plus accrued interest thereon. Moreover, upon an event of
default under the Indenture for a Series of Notes and a sale of the assets in
the Trust Fund or upon a sale of the assets of a Trust Fund for a Series of
Certificates, the Trustee, the Servicer, if any, the Enhancer and any other
service provider specified in the related Prospectus Supplement generally will
be entitled to receive the proceeds of any such sale to the extent of unpaid
fees and other amounts owing to such persons under the related Agreement prior
to distributions to Holders of Securities. Upon any such sale, the proceeds
thereof may be insufficient to pay in full the principal of and interest on the
Securities of such Series.
Limited Protection Against Losses. Although any Enhancement is intended to
reduce the risk of delinquent payments or losses to Holders entitled to the
benefit thereof, the amount of such Enhancement will be limited, as set forth in
the related Prospectus Supplement, and will decline and could be depleted under
certain circumstances prior to the payment in full of the related Series of
Securities. As a result Holders may suffer losses. See 'ENHANCEMENT.'
Yield May Vary. The yield to maturity experienced by a Holder of
Securities may be affected by the rate of payment of principal of the Home
Equity Loans or Underlying Loans relating to the Private Securities, as
applicable. The timing of principal payments of the Securities of a Series will
be affected by a number of factors, including the following: (i) the extent of
prepayments of the Home Equity Loans or Underlying Loans relating to the Private
Securities, as applicable; (ii) the manner of allocating principal payments
among the Classes of Securities of a Series as specified in the related
Prospectus Supplement; and (iii) the exercise by the party entitled thereto of
any right of optional termination. See 'DESCRIPTION OF THE SECURITIES--Weighted
Average Life of the Securities.' The rate of prepayments may be affected by the
characteristics of the Home Equity Loans, such as the loans-to-value ratios,
interest rates and purposes of such loans, the prevailing level of interest
rates, demographic, tax, and legal factors and servicing decisions. Prepayments
may also result from repurchases of Home Equity Loans or Underlying Loans
relating to the Private Securities, as applicable, due to material breaches of
the Seller's representations and warranties.
Interest payable on the Securities of a Series on a Distribution Date will
include all interest accrued during the period specified in the related
Prospectus Supplement. In the event interest accrues during the calendar month
prior to a Distribution Date, the effective yield to Holders will be reduced
from the yield that would otherwise be
13
<PAGE>
obtainable if interest payable on the Security were to accrue through the day
immediately preceding each Distribution Date, and the effective yield (at par)
to Holders will be less than the indicated coupon rate. See 'DESCRIPTION OF THE
SECURITIES--Payments of Interest.'
Underwriting Standards May Affect Performance. As described herein under
'THE SELLER AND THE SERVICER--Underwriting,' the Seller's underwriting standards
generally are less stringent than those of Fannie Mae or Freddie Mac with
respect to a borrower's credit history and in certain other respects. A
borrower's past credit history may not preclude the Seller from making a loan;
however, it generally will reduce the size (and consequently the Combined
Loan-to-Value Ratio) of the loan that the Seller is willing to make. As a result
of this approach to underwriting, the Home Equity Loans may experience higher
rates of delinquencies, defaults and foreclosures than mortgage loans
underwritten in a more traditional manner.
Junior Liens Create Additional Risk of Loss. If the Home Equity Loans in a
Trust Fund are secured primarily by junior liens subordinate to the rights of
the mortgagee under the related senior mortgage(s) or deed(s) of trust, the
proceeds from any liquidation, insurance or condemnation proceedings will be
available to satisfy the outstanding balance of such Home Equity Loans only to
the extent that the claims of such senior mortgagees or beneficiaries have been
satisfied in full, including any related foreclosure costs. In addition, a
junior mortgagee may not foreclose on the Mortgaged Property securing a junior
mortgage unless it forecloses subject to the senior mortgages, in which case it
must either pay the entire amount due on the senior mortgages to the senior
mortgagees at or prior to the foreclosure sale or undertake the obligation to
make payments on the senior mortgages in the event the mortgagor is in default
thereunder. The Trust Fund will not have any source of funds to satisfy the
senior mortgages or deeds of trust or make payments due to the senior mortgagees
or beneficiaries.
Property Values May Be Insufficient. There are several factors that could
adversely affect the value of the Mortgaged Properties such that the outstanding
balance of the related Home Equity Loan, together with any senior financing on
the Mortgaged Properties, would equal or exceed the value of the Mortgaged
Properties. Among the factors that could adversely affect the value of the
Mortgaged Properties are an overall decline in the residential real estate
market in the areas in which the Mortgaged Properties are located or a decline
in the general condition of the Mortgaged Properties as a result of failure of
borrowers to maintain adequately the Mortgaged Properties or of natural
disasters that are not necessarily covered by insurance, such as earthquakes and
floods. Any such decline could extinguish the value of a junior interest in a
Property before having any effect on the related senior interest therein. If
such a decline occurs, the actual rates of delinquencies, foreclosure and losses
on the junior Loans could be higher than those currently experienced in the
mortgage and home improvement lending industry in general.
Insufficient Additional Primary Assets May Adversely Affect Yield. The
ability of a Trust Fund to invest in additional Home Equity Loans during the
related Pre-Funding Period will be dependant on the ability of the Seller to
originate or acquire Home Equity Loans that satisfy the requirements for
transfer to the Trust Fund specified in the related Prospectus Supplement. The
ability of the Seller to originate or acquire such Loans will be affected by a
variety of factors, including the prevailing level of market interest rates,
unemployment levels and consumer perceptions of general economic conditions. If
the principal balance of additional Primary Assets delivered to the Trust Fund
during the Pre-Funding Period is less than the Pre-Funded Amount, the Holders of
the Securities of the related Series will receive a prepayment of principal as
and to the extent described in the related Prospectus Supplement. Any such
principal prepayment may adversely affect the yield to maturity of the
applicable Securities. Since prevailing interest rates are subject to
fluctuation, there can be no assurance that investors will be able to reinvest
such a prepayment at yields equaling or exceeding the yields on the related
Securities. It is possible that the yield on any such reinvestment will be
lower, and may be significantly lower, than the yield on the related Securities.
Potential Liability for Environmental Conditions. Real property pledged as
security to a lender may be subject to certain environmental risks. Under the
laws of certain states, contamination of a property may give rise to a lien on
the property to assure the costs of clean-up. In several states, such a lien has
priority over the lien of an existing mortgage or owner's interest against such
property. In addition, under the laws of some states and under the federal
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
('CERCLA'), a lender may be liable, as an 'owner' or 'operator,' for costs of
addressing releases or
14
<PAGE>
threatened releases of hazardous substances that require remedy at a property,
if agents or employees of the lender have become sufficiently involved in the
operations of the borrower, regardless of whether or not the environmental
damage or threat was caused by a prior owner. A lender also risks such liability
on foreclosure of the Mortgaged Property.
Consumer Protection Laws May Affect Loans. Applicable state laws generally
regulate interest rates and other charges and require certain disclosures. In
addition, other state laws, public policy and general principles of equity
relating to the protection of consumers, unfair and deceptive practices and debt
collection practices may apply to the origination, servicing and collection of
the Loans. Depending on the provisions of the applicable law and the specific
facts and circumstances involved, violations of these laws, policies and
principles may limit the ability of the Servicer to collect all or part of the
principal of or interest on the Loans, may entitle the borrower to a refund of
amounts previously paid and, in addition, could subject the owner of the Home
Equity Loan to damages and administrative enforcement.
The Loans are also subject to federal laws, including:
(i) the federal Truth in Lending Act and Regulation Z promulgated
thereunder, which require certain disclosures to the borrowers regarding
the terms of the Loans;
(ii) the Equal Credit Opportunity Act and Regulation B promulgated
thereunder, which prohibit discrimination on the basis of age, race, color,
sex, religion, marital status, national origin, receipt of public
assistance or the exercise of any right under the Consumer Credit
Protection Act, in the extension of credit;
(iii) the Americans with Disabilities Act, which, among other things,
prohibits discrimination on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges, advantages or
accommodations of any place of public accommodation; and
(iv) the Fair Credit Reporting Act, which regulates the use and
reporting of information related to the borrower's credit experience.
Violations of certain provisions of these federal laws may limit the
ability of the Servicer to collect all or part of the principal of or interest
on the Loans and in addition could subject the Trust Fund to damages and
administrative enforcement. The Loans may be subject to the Home Ownership and
Equity Protection Act of 1994 (the 'Act') which amended the Truth in Lending Act
as it applies to mortgages subject to the Act. The Act requires certain
additional disclosures, specifies the timing of such disclosures and limits or
prohibits inclusion of certain provisions in mortgages subject to the Act. The
Act also provides that any purchaser or assignee of a mortgage covered by the
Act is subject to all of the claims and defenses which the borrower could assert
against the original lender. The maximum damages that may be recovered under the
Act from an assignee is the remaining amount of indebtedness plus the total
amount paid by the borrower in connection with the Loan. If the Trust Fund
includes Loans subject to the Act, it will be subject to all of the claims and
defenses which the borrower could assert against the Seller. Any violation of
the Act which would result in such liability would be a breach of the Seller's
representations and warranties, and the Seller would be obligated to cure,
repurchase or, if permitted by the Agreement, substitute for the Home Equity
Loan in question. In addition, numerous other federal and state statutory
provisions, including the federal bankruptcy laws, the Soldiers' and Sailors'
Civil Relief Act of 1940 and state debtor relief laws, may also adversely affect
the Servicer's ability to collect the principal of or interest on the Loans and
also would affect the interests of the Securityholders in such Loans if such
laws result in the Loans being uncollectible. See 'CERTAIN LEGAL ASPECTS OF THE
LOANS.'
Insolvency of Seller May Cause Losses. The Seller intends that its
transfer of the Primary Assets to a Trust Fund will constitute a sale, and the
Seller and the Trust Fund will agree to treat each such transfer as a sale. In
the event of the insolvency of the Seller, the trustee in bankruptcy or the
Seller, as debtor-in-possession, may attempt to recharacterize such a sale as a
loan by the Trust Fund to the Seller secured by the pledge of the related
Primary Assets. If such an attempt were to be successful, Holders of Securities
could receive a prepayment of all or part of their Securities. Any such
prepayment would adversely affect the yield on such Securities and could result
in a loss. Even if such an attempt were to be unsuccessful, Holders of
Securities could experience delays in distributions which would adversely affect
the yield on the related Securities.
15
<PAGE>
Ratings Are not Recommendations. It will be a condition to the issuance of
a Series of Securities that each Class be rated in one of the four highest
rating categories by the Rating Agency identified in the related Prospectus
Supplement. Any such rating would be based on, among other things, the adequacy
of the value of the Primary Assets and any Enhancement with respect to such
Series. In general, a securities rating addresses the likelihood that Holders
will receive the distributions to which they are entitled. Such rating should
not be deemed a recommendation to purchase, hold or sell Securities, inasmuch as
it does not address market price or suitability for a particular investor and
does not address the likelihood of prepayments or the possibility that investors
may receive a lower than anticipated yield. There is also no assurance that any
such rating will remain in effect for any given period of time or may not be
lowered or withdrawn entirely by the Rating Agency if in its judgment
circumstances in the future so warrant. In addition to being lowered or
withdrawn due to any erosion in the adequacy of the value of the Primary Assets,
such rating might also be lowered or withdrawn, among other reasons, because of
an adverse change in the financial or other condition of an Enhancer or a change
in the rating of such Enhancer's long term debt. Any such reduction or
withdrawal in the rating assigned to the Securities may adversely affect the
liquidity of and yield on such Securities.
THE SELLER AND THE SERVICER
GENERAL
Delta Funding Corporation, a New York corporation ('Delta' or the
'Company') is a specialty consumer finance company that has engaged in
originating, acquiring, selling and servicing home equity loans since 1982.
Throughout its 14 years of operating history, Delta has focused on lending to
individuals who generally have impaired or limited credit profiles or higher
debt to income ratios and typically have substantial equity in their homes. The
Company makes loans to these borrowers for such purposes as debt consolidation,
home improvement, refinancing or education, and these loans are primarily
secured by first mortgages on one- to four-family residential properties.
Delta originates home equity loans through licensed mortgage brokers and
other real estate professionals ('brokers') who submit loan applications on
behalf of the borrower ('Brokered Loans'). Delta also purchases from approved
mortgage bankers and financial institutions ('correspondents') loans that
conform to Delta's underwriting guidelines ('Correspondent Loans'). During the
12 month period ended June 30, 1996, the Company has originated loans through
806 brokers and purchased loans through 186 correspondents. The Company believes
that it has a competitive advantage in serving brokers and correspondents in the
nonconforming home equity market that stems from its substantial experience in
this sector and its emphasis on providing quality service that is prompt,
responsive and consistent. The 19 members of the Company's senior management
have an average of over 12 years of nonconforming mortgage loan experience, and
more than one-quarter of the Company's employees have been with the Company for
at least five years. The Company believes this industry- and company-specific
experience, coupled with the systems and programs it has developed over the past
14 years, enable the Company to provide quality services that include
preliminary approval of most Brokered Loans and certain Correspondent Loans
within one day, consistent application of its underwriting guidelines and
funding or purchasing of loans within 14 to 21 days of preliminary approval. In
addition, the Company seeks to establish and maintain productive relationships
with its network of brokers and correspondents by servicing each one with a
business development representative, a team of experienced underwriters and, in
the case of Brokered Loans, a team of loan officers and processors who are
assigned to specific brokers to process all applications submitted by each
broker.
During its first 12 years of operation, Delta concentrated its efforts on
serving brokers and correspondents primarily in New York, New Jersey and
Pennsylvania. Commencing in 1995, the Company began to implement a program to
expand its geographic focus into the New England, Mid-Atlantic and Midwest
regions. The Company currently originates and purchases the majority of its
loans in 21 states and the District of Columbia through a staff of 18 business
development representatives who operate from the Company's main office in New
York, its full service office in Atlanta, Georgia and from nine business
development offices located in Michigan (2), Missouri, New Jersey, Ohio (2),
Pennsylvania, Rhode Island and Virginia. The Company opened a full service
office in Atlanta, Georgia in September 1996. Two members of Delta's senior
management have relocated to this office which will concentrate on developing
Delta's Mid-Atlantic and Southeast markets. As a consequence of its
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<PAGE>
expansion into new markets, as well as of its further penetration of existing
markets, the Company increased its loan production substantially in 1995 and the
first six months of 1996. Total loan originations and purchases increased from
$119.7 million in 1994 to $287.8 million in 1995 and $244.1 million in the first
six months of 1996. Of the total loan production during the first six months of
1996, 56% was originated through the Company's broker network and 44% was
purchased from its correspondent network. The Company is not dependent on any
single or affiliated group of brokers or correspondents.
As of June 30, 1996, Delta had 294 employees. Delta's headquarters are
located in approximately 55,000 square feet in a 230,000 square foot building
located at 1000 Woodbury Road, Woodbury, New York 11797. Its telephone number is
(516) 364-8500.
UNDERWRITING
All of Delta's brokers and correspondents are provided with the Company's
underwriting guidelines. Loan applications received from brokers and
correspondents are classified according to certain characteristics, including
but not limited to: condition and location of the collateral, credit history of
the applicant, ability to pay, loan-to-value ratio and general stability of the
applicant in terms of employment history and time in residence. Delta has
established classifications with respect to the credit profile of the applicant,
and each loan is placed into one of four letter ratings 'A' through 'D', with
subratings within those categories. Terms of loans made by Delta, as well as
maximum loan-to-value ratios and debt-to-income ratios, vary depending on the
classification of the applicant. Loan applicants with less favorable credit
ratings are generally offered loans with higher interest rates and lower
loan-to-value ratios than applicants with more favorable credit ratings. The
general criteria used by Delta's underwriting staff in classifying loan
applicants are set forth below.
UNDERWRITING CRITERIA OF DELTA FUNDING CORPORATION
<TABLE>
<CAPTION>
'A' RISK 'B' RISK 'C' RISK 'D' RISK
--------------------- --------------------- --------------------- ---------------------
<S> <C> <C> <C> <C>
Credit profile....... Excellent credit Good overall credit Good to fair credit Fair to poor credit
history
Existing mortgage
history............ Current at Current at Up to 30 days Mortgage rating not a
application time and application time and delinquent at factor
a maximum of two a maximum of four application time and
30-day late payments 30-day late payments a maximum of four
in the last 12 months in the last 12 months 30-day late payments,
two 60-day late
payments and one
90-day late payment
in the last 12 months
Other credit......... Minor 30-day late Some slow pays Slow pays, some open Not a factor.
items allowed with a allowed but majority delinquencies Derogatory credit
letter of of credit and allowed. Isolated must be paid with
explanation; no open installment debt paid charge-offs, proceeds. Must
collection accounts, as agreed. Small collection accounts demonstrate ability
charge-offs, isolated charge-offs, or judgments to pay
judgments collections, or case-by-case
judgments allowed
case-by-case
Bankruptcy filings... Discharged more than Discharged more than Discharged more than May be open at
four years prior to three years prior to one year prior to closing, but must be
closing and excellent closing and excellent closing and good paid off with
reestablished credit reestablished credit reestablished credit proceeds
Debt Service to
Income ratio....... Generally 45% or less Generally 50% or less Generally 50% or less Generally 50% or less
Maximum loan-to-value
ratio:
Owner-occupied..... Generally 80% (up to Generally 80% (up to Generally 75% (up to Generally 65% (up to
90%*) for a one- to 85%*) for a one- to 80%*) for a one- to 70%*) for a one- to
four-family residence four-family residence four-family residence four-family residence
</TABLE>
17
<PAGE>
<TABLE>
<CAPTION>
'A' RISK 'B' RISK 'C' RISK 'D' RISK
--------------------- --------------------- --------------------- ---------------------
Non-owner Generally 70% (up to Generally 70% (up to Generally 65% (up to Generally 55% (up to
occupied......... 80%*) for a one- to 80%*) for a one- to 75%*) for a one- to 60%*) for a one- to
four-family residence four-family residence four-family residence four-family residence
<S> <C> <C> <C> <C>
Employment........... Minimum 2 years Minimum 2 years Minimum 2 years No minimum required
employment in the employment in the employment in the
same field same field same field
</TABLE>
- ------------------
* On an exception basis
Delta uses the foregoing categories and characteristics as guidelines only.
On a case-by-case basis, the Company may determine that the prospective borrower
warrants an exception, if sufficient compensating factors exist. Examples of
such compensating factors are: low loan-to-value ratio, low debt ratio,
long-term stability of employment and/or residence, excellent payment history on
past mortgages, or a significant reduction in monthly housing expenses.
Except for Balloon Loans, the mortgage loans originated by Delta have
amortization schedules ranging from 5 years to 30 years, generally bear interest
at fixed rates and require equal monthly payments which are due as of a
scheduled day of each month which is fixed at the time of origination.
Substantially all of Delta's mortgage loans are simple interest loans. Delta
primarily purchases fixed rate loans which amortize over a period not to exceed
30 years. Delta also acquires and originates Balloon Loans, which generally
provide for scheduled amortization over 30 years, but in some instances over 20
years, with a due date and a Balloon Payment at the end of the fifteenth year.
The principal amounts of the loans purchased or originated by Delta generally
range from a minimum of $6,000 to a maximum of $325,000. Delta generally does
not acquire or originate any mortgage loans where the Combined Loan-to-Value
Ratio exceeds 90%. The collateral securing loans acquired or originated by Delta
are generally one- to four-family residences, including condominiums and
townhomes, and such properties may or may not be occupied by the owner. It is
Delta's policy not to accept mobile or manufactured housing, commercial
properties or unimproved land as collateral. However, Delta will accept
mixed-use properties such as a property where more than 50% is used for
residential purposes and the balance is used for commercial purposes. Delta does
not purchase loans where any senior mortgage contains open-end advance, negative
amortization or shared appreciation provisions.
Delta's mortgage loan program includes (i) a full documentation program for
salaried borrowers and (ii) a non-income verification program for self-employed
borrowers. Under the full documentation program, the total monthly debt
obligations (which include principal and interest on the new loan and all other
mortgages, loans, charge accounts and scheduled indebtedness) generally cannot
exceed 50% of the borrower's monthly gross income. A higher debt to income ratio
will be considered for a loan with a lower Combined Loan-to-Value Ratio, or with
a combined total gross income greater than $50,000 in conjunction with the loan
applicant's favorable credit history, and each approval for such a loan will be
supported by documentation. Loans to borrowers who are salaried employees must
be supported by current employment information in addition to employment
history. This information for salaried borrowers is verified based on written
confirmation from employers, one or more pay-stubs, recent W-2 tax forms, recent
tax returns or telephone confirmation from the employer. For Delta's non-income
verification program, proof of self-employment in the same business plus proof
of current self-employed status is required. Delta generally requires lower
Combined Loan-to-Value Ratios with respect to loans made to self-employed
borrowers.
Assessment of an applicant's ability and willingness to pay is one of the
principal elements in distinguishing Delta's lending specialty from methods
employed by traditional lenders, such as savings and loans and commercial banks.
All lenders utilize debt ratios and loan-to-value ratios in the approval
process. Many lenders simply use software packages to score an applicant for
loan approval and fund the loan after auditing the data provided by the
borrower. In contrast, Delta employs experienced non-conforming mortgage loan
credit underwriters to scrutinize the applicant's credit profile and to evaluate
whether an impaired credit history is a result of adverse circumstances or a
continuing inability or unwillingness to meet credit obligations in a timely
manner. Personal circumstances including divorce, family illnesses or deaths and
temporary job loss due to layoffs and corporate downsizing will often impair an
applicant's credit record.
Delta has a staff of 25 underwriters, with an average of more than seven
and one-half years of non-conforming underwriting experience. At present, all
underwriting functions are centralized in its Woodbury, New
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<PAGE>
York office. Delta does not delegate underwriting authority to any broker or
correspondent. Delta's Underwriting Department functions independently of its
Business Development and Mortgage Origination Departments and does not report to
any individual directly involved in the origination process. No underwriter at
Delta is compensated on an incentive or commission basis.
Delta has instituted underwriting checks and balances that are designed to
ensure that every loan is reviewed and approved by a minimum of two
underwriters, with certain higher loan amounts requiring a third approval.
Management believes that by requiring each file be seen by a minimum of two
underwriters, a high degree of accuracy and quality control is ensured
throughout the underwriting process and before funding.
Delta's underwriting of every loan submitted consists not only of a
thorough credit review, but also (i) a separate appraisal review conducted by
Delta's Appraisal Review Department, and, (ii) a full compliance review, to
ensure that all documents have been properly prepared, all applicable
disclosures given in a timely fashion, and proper compliance with all federal
and state regulations. Appraisals are performed by third party, fee-based
appraisers or by the Company's staff appraisers and generally conform to current
FNMA/FHLMC secondary market requirements for residential property appraisals.
Each such appraisal includes, among other things, an inspection of the exterior
of the subject property and, where available, data from sales within the
preceding 12 months of similar properties within the same general location as
the subject property. In addition, in certain situations, the Company also
obtains broker price opinions from independent real estate agents.
Delta performs a thorough appraisal review on each loan prior to closing or
prior to purchasing. While Delta recognizes that the general practice by
conventional mortgage lenders is to perform only drive-by appraisals after
closings, management believes this practice does not provide sufficient
protection. In addition to reviewing each appraisal for accuracy, the Company
accesses other sources to validate sales used in the appraisal to determine
market value. These sources include: interfacing with Multiple Listing Services
and Comps, Inc. to access current sales and listing information; its own
in-house database which contains comparable sales from all appraisals ordered by
Delta during the past eight years; and other sources for verification, including
broker price opinions and market analyses by local real estate agents.
Post closing, in addition to its normal due diligence, the Company randomly
selects one out of every ten appraisals, and performs a drive-by appraisal. This
additional step gives the Company an added degree of comfort with respect to
appraisers with which the Company has had limited experience. Delta actively
tracks all appraisers from which it accepts appraisals for quality control
purposes and does not accept work from appraisers who have not conformed to its
review standards.
Upon completion of a broker loan's underwriting and processing, the closing
of the loan is scheduled with a closing attorney or agent approved by Delta. The
closing attorney or agent is responsible for completing the loan closing
transaction in accordance with applicable law and Delta's operating procedures.
Title insurance that insures Delta's interest as mortgagee and evidence of
adequate homeowner's insurance naming Delta as an additional insured party are
required on all loans.
The Company performs a post-funding quality control review to monitor and
evaluate the Company's loan origination policies and procedures. The Quality
Control Department is separate from the Underwriting Department, and reports
directly to a member of senior management.
At least 10% of all loan originations and purchases are subjected to a full
quality control re-underwriting and review, the results of which are reported to
senior management on a monthly basis. Discrepancies noted by the audit are
analyzed and corrective actions are instituted. A typical quality control review
currently includes: (a) obtaining a new drive-by appraisal for each property;
(b) running a new credit report from a different credit report agency; (c)
reviewing loan applications for completeness, signatures, and for consistency
with other processing documents; (d) obtaining new written verification of
income and employment; (e) obtaining new written verification of mortgage to
re-verify any outstanding mortgages; and (f) analyzing the underwriting and
program selection decisions. The quality control process is updated from time to
time as the Company's policies and procedures change.
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SERVICING
Delta has been servicing loans since its inception in 1982, and Delta has
serviced or is servicing substantially all of the loans that it has originated
or purchased. Servicing involves, among other things, collecting payments when
due, remitting payments of principal and interest and furnishing reports to the
current owners of the loans and enforcing such owners' rights with respect to
the loans, including, recovering delinquent payments, instituting foreclosure
and liquidating the underlying collateral. As of June 30, 1996, Delta had a
servicing portfolio of $624.1 million.
Delta services all loans out of its headquarters in Woodbury, New York,
utilizing a leading 'in-house' loan servicing system ('LSAMS') which it
purchased in 1995. LSAMS replaced Delta's former 'service bureau' loan servicing
system, and has provided Delta with considerably more flexibility to adapt the
system to Delta's specific needs as a nonconforming home equity lender. As such,
Delta has achieved significant cost efficiencies by automating a substantial
number of previously manual servicing procedures and functions since its
conversion to LSAMS on July 1, 1995.
At the same time that it upgraded its primary servicing system, Delta
purchased a default management sub-servicing system ('TPLS')--with separate
'modules' for foreclosure, bankruptcy, and REO--to provide it with the ability
to more efficiently monitor and service loans in default. These sub-servicing
modules provide detailed tracking of all key events in foreclosure and
bankruptcy on a loan-by-loan and portfolio-wide basis; the ability to track and
account for all pre- and post-petition payments received in bankruptcy from the
borrower and/or trustee; and the ability to monitor, market and account for all
aspects necessary to liquidate an REO property after foreclosure. Additionally,
Delta's Management Information Systems Department has created a market value
analysis program to run with LSAMS, and provides Delta with the ability to
monitor its equity position on a loan-by-loan and/or portfolio-wide basis.
Centralized controls and standards have been established by Delta for the
servicing and collection of mortgage loans in its portfolio. Delta revises such
policies and procedures from time to time in connection with changing economic
and market conditions and changing legal and regulatory requirements.
Delta's collections policy is designed to identify payment problems
sufficiently early to permit Delta to quickly address delinquency problems and,
when necessary, to act to preserve equity in a preforeclosure property. Delta
believes that these policies, combined with the experience level of independent
appraisers engaged by Delta, help to reduce the incidence of charge-offs of a
first or second mortgage loan.
Borrowers are billed on a monthly basis in advance of the due date.
Collection procedures commence upon identification of a past due account by
Delta's automated servicing system. If timely payment is not received, LSAMS
automatically places the loan in the assigned collector's 'auto queue' and
collection procedures are generally initiated on the day immediately following
the payment due date for chronic late payers, or the day immediately following
the end of the grace period for those borrowers who usually pay within the grace
period or shortly thereafter. LSAMS automatically queues up each loan in the
assigned collector's 'auto queue' at one of these two dates based upon a
particular borrower's payment history over the prior 12 months. The account
remains in the queue unless and until a payment is received, at which point
LSAMS automatically removes the loan from that collector's auto queue until the
next month's payment is due and/or becomes delinquent.
When a loan appears in a collector's auto queue, a collector will telephone
to remind the borrower that a payment is due. Follow-up telephone contacts are
attempted until the account is current or other payment arrangements have been
made. Standard form letters are utilized when attempts to reach the borrower by
telephone fail and/or, in some circumstances, to supplement the phone contacts.
During the delinquency period, the collector will continue to contact the
borrower. Company collectors have computer access to telephone numbers, payment
histories, loan information and all past collection notes. All collection
activity, including the date collection letters were sent and detailed notes on
the substance of each collection telephone call, is entered into a permanent
collection history for each account on LSAMS. Additional guidance with the
collection process is derived through frequent communication with Delta's senior
management.
For those loans in which collection efforts have been exhausted without
success, the Pre-foreclosure Manager recommends the loans be sent to foreclosure
at one of two Foreclosure Committee Meetings held each month. At each such
committee meeting, the Pre-foreclosure Manager meets with the Foreclosure
Manager and a
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member of the Executive Department, to determine whether foreclosure proceedings
are appropriate, based upon their analysis of all relevant factors, including a
market value analysis, reason for default and efforts by the borrower to cure
the default.
Regulations and practices regarding the liquidation of properties (e.g.,
foreclosure) and the rights of a borrower in default vary greatly from state to
state. As such, all foreclosures are assigned to outside counsel, located in the
same state as the secured property. Bankruptcies filed by borrowers are
similarly assigned to appropriate local counsel. All aspects of foreclosures and
bankruptcies are closely monitored by Delta through its TPLS sub-servicing loan
system described above and through monthly status reports from attorneys.
Prior to foreclosure sale, Delta performs an in-depth market value analysis
on all defaulted loans. This analysis includes: (i) a current valuation of the
property obtained through a drive-by appraisal or broker's price opinion
conducted by an independent appraiser and/or a broker from Delta's network of
real estate brokers, complete with a description of the condition of the
property, recent price lists of comparable properties, recent closed
comparables, estimated marketing time and required or suggested repairs, and an
estimate of the sales price; (ii) an evaluation of the amount owed, if any, for
real estate taxes; (iii) an evaluation of the amount owed, if any, to a senior
mortgagee; and (iv) estimated carrying costs, brokers' fee, repair costs and
other related costs associated with real estate owned properties. Delta bases
the amount it will bid at foreclosure sales on this analysis.
If Delta acquires title to a property at a foreclosure sale or otherwise,
the REO Department immediately begins working the file by obtaining an estimate
of the sale price of the property by sending at least two local real estate
brokers to inspect the premises, and then hiring one to begin marketing the
property. If the property is not vacant when acquired, local eviction attorneys
are hired to commence eviction proceedings and/or negotiations are held with
occupants in an attempt to get them to vacate without incurring the additional
time and cost of eviction. Repairs are performed if it is determined that they
will increase the net liquidation proceeds, taking into consideration the cost
of repairs, the carrying costs during the repair period and the marketability of
the property both before and after the repairs.
Delta's loan servicing software also tracks and maintains homeowners'
insurance information and tax and insurance escrow information. Expiration
reports are generated bi-weekly listing all policies scheduled to expire within
the next 15 days. When policies lapse, a letter is issued advising the borrower
of such lapse and notifying the borrower that Delta will obtain force-placed
insurance at the borrower's expense. Delta also has an insurance policy in place
that provides coverage automatically for Delta in the event that Delta fails to
obtain force-placed insurance.
DELINQUENCY AND LOSS EXPERIENCE
The following table sets forth information relating to the delinquency and
loss experience of Delta for its servicing portfolio of mortgage loans
(including mortgage loans serviced for others) for the periods indicated.
The information in the tables below has not been adjusted to eliminate the
effect of the significant growth in the size of Delta's mortgage loan portfolio
during the periods shown. Accordingly, loss and delinquency as percentages of
aggregate principal balance of mortgage loans serviced for each period would be
higher than those shown if a group of mortgage loans were artificially isolated
at a point in time and the information showed the activity only in that isolated
group. However, since most of the mortgage loans in Delta's mortgage loan
portfolio are not fully seasoned, the delinquency and loss information for such
an isolated group would also be distorted to some degree since newly originated
loans have not been in existence long enough to give rise to some or all of the
indicated periods of delinquency in the table.
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DELTA FUNDING CORPORATION'S
HISTORIC SERVICING PORTFOLIO INFORMATION
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------
1993 1994 1995
------- ------- -------
<S> <C> <C> <C>
Total Outstanding Principal Balance.....................
Average Outstandings(1).................................
DELINQUENCY
30-59 Days:
Principal Balance.....................................
Percent of Delinquency by Dollar(2).....................
60-89 Days:
Principal Balance.....................................
Percent of Delinquency by Dollar(2).....................
90 Days or More:
Principal Balance.....................................
Percent of Delinquency by Dollar(2).....................
Total Delinquencies:
Principal Balance.....................................
Percent of Delinquency by Dollar(2).....................
FORECLOSURES
Principal Balance.....................................
Percent of Foreclosures by Dollar(2)....................
REO.....................................................
Net Gains/(Losses) on liquidated loans..................
Percentage of Net Gains/(Losses) on liquidated
loans(2)..............................................
Percentage of Net Gains/(Losses) on liquidated loans
(based on Average Outstanding Principal Balance)......
</TABLE>
- ------------------
(1) Calculated by summing the actual outstanding principal balances at the end
of each month and dividing the total by the number of months in the
applicable period.
(2) Percentages are expressed based upon the total outstanding principal balance
at the end of the indicated period.
[As reflected in the table, the Total Delinquencies (Percent of Delinquency
by Dollar) have [increased] [decreased] from % for 1994 to % for 1995.
At the same time, the Percentage of Net Gains/(Losses) on liquidated loans
[increased] [decreased] from % for 1994 to % for 1995. The Seller
believes that this [increase [decrease] was primarily attributable to .]
While the above delinquency and foreclosure and loss experiences reflect
Delta's experiences for the periods indicated, there can be no assurance that
the delinquency and foreclosure and loss experiences on the Home Equity Loans
will be similar. Accordingly, this information should not be considered to
reflect the credit quality of the Home Equity Loans included in the Trust, or as
a basis of assessing the likelihood, amount or severity of losses on the Home
Equity Loans. The statistical data in the table is based on all of the loans in
Delta's servicing portfolio. The Home Equity Loans may, in general, be more
recently originated than, and are likely to have other characteristics which
distinguish them from, the majority of the loans in Delta's servicing portfolio.
DESCRIPTION OF THE SECURITIES
GENERAL
Each Series of Notes will be issued pursuant to an indenture (the
'Indenture') between the related Trust Fund and the entity named in the related
Prospectus Supplement as trustee (the 'Trustee') with respect to such Series. A
form of Indenture has been filed as an exhibit to the Registration Statement of
which this Prospectus forms a part. The Certificates will also be issued in
Series pursuant to separate agreements (each, a 'Pooling and Servicing
Agreement' or a 'Trust Agreement') among the Seller, the Servicer, if the Series
relates to Loans,
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and the Trustee. A form of Pooling and Servicing Agreement has been filed as an
exhibit to the Registration Statement of which this Prospectus forms a part. A
Series may consist of both Notes and Certificates.
The following summaries describe the material provisions in the Agreements
common to each Series of Securities. The summaries do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, the
provisions of the Agreements and the Prospectus Supplement relating to each
Series of Securities. Where particular provisions or terms used in the
Agreements are referred to, the actual provisions (including definitions of
terms) are incorporated herein by reference as part of such summaries.
Each Series of Securities will consist of one or more Classes of
Securities, one or more of which may be Compound Interest Securities, Variable
Interest Securities, PAC Securities, Zero Coupon Securities, Principal Only
Securities or Interest Only Securities (each of which is generally described in
the 'GLOSSARY OF TERMS'). A Series may also include one or more Classes of
Subordinate Securities. The Securities of each Series will be issued only in
fully registered form, without coupons, in the authorized denominations for each
Class specified in the related Prospectus Supplement. Upon satisfaction of the
conditions, if any, applicable to a Class of a Series, as described in the
related Prospectus Supplement, the transfer of the Securities may be registered
and the Securities may be exchanged at the office of the Trustee specified in
the Prospectus Supplement without the payment of any service charge other than
any tax or governmental charge payable in connection with such registration of
transfer or exchange. If specified in the related Prospectus Supplement, one or
more Classes of a Series may be available in book-entry form only.
Unless otherwise provided in the related Prospectus Supplement, payments of
principal of and interest on a Series of Securities will be made on the
Distribution Dates specified in the related Prospectus Supplement (which may be
different for each Class or for the payment of principal and interest) by check
mailed to Holders of such Series, registered as such at the close of business on
the record date specified in the related Prospectus Supplement applicable to
such Distribution Dates at their addresses appearing on the security register,
except that (a) payments may be made by wire transfer (which, unless otherwise
specified in the related Prospectus Supplement, shall be at the expense of the
Holder requesting payment by wire transfer) in certain circumstances described
in the related Prospectus Supplement and (b) final payments of principal in
retirement of each Security will be made only upon presentation and surrender of
such Security at the office of the Trustee specified in the Prospectus
Supplement. Notice of the final payment on a Security will be mailed to the
Holder of such Security before the Distribution Date on which the final
principal payment on any Security is expected to be made to the holder of such
Security.
Payments of principal of and interest on the Securities will be made by the
Trustee, or a paying agent on behalf of the Trustee, as specified in the related
Prospectus Supplement. Unless otherwise provided in the related Prospectus
Supplement, all payments with respect to the Primary Assets for a Series,
together with reinvestment income thereon, amounts withdrawn from any Reserve
Fund, and amounts available pursuant to any other Enhancement will be deposited
directly into the Collection Account or the Certificate Account. If provided in
the related Prospectus Supplement, such amounts may be net of certain amounts
payable to the Servicer and any other person specified in the Prospectus
Supplement. Such amounts thereafter may be deposited into the Distribution
Account and will be available to make payments on the Securities of such Series
on the next applicable Distribution Date. See 'THE TRUST FUNDS--Collection,
Certificate and Distribution Accounts.'
BOOK-ENTRY SECURITIES
If specified in the related Prospectus Supplement, one or more Classes of
Securities may be issued in book-entry form (the 'Book-Entry Securities').
Persons acquiring beneficial ownership interests in the Book-Entry Securities
('Owners') will hold their Securities through the Depository Trust Company
('DTC') in the United States, or CEDEL Bank societe anonyme ('CEDEL') or the
Euroclear System ('Euroclear') (in Europe) if they are participants of such
systems, or indirectly through organizations which are participants in such
systems. The Book-Entry Secutities will be issued in one or more certificates
which equal the aggregate principal balance of the applicable Class or Classes
of Securities and will initially be registered in the name of Cede & Co., the
nominee of DTC. CEDEL and Euroclear will hold omnibus positions on behalf of
their participants through customers' securities accounts in CEDEL's and
Euroclear's names on the books of their respective depositaries which in turn
will hold such positions in customers' securities accounts in the depositaries'
names on the books
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<PAGE>
of DTC. Citibank N.A. ('Citibank') will act as depositary for CEDEL and The
Chase Manhattan Bank ('Chase') will act as depositary for Euroclear (in such
capacities, individually the 'Relevant Depositary' and collectively the
'European Depositaries'). Except as described below, no person acquiring a
Book-Entry Security will be entitled to receive a physical certificate
representing such Security (a 'Definitive Security'). Unless and until
Definitive Securities are issued, it is anticipated that the only
'Certificateholder' or Noteholder, as applicable, will be Cede & Co., as nominee
of DTC. Owners are only permitted to exercise their rights indirectly through
Participants and DTC.
The Owner's ownership of a Book-Entry Security will be recorded on the
records of the brokerage firm, bank, thrift institution or other financial
intermediary (each, a 'Financial Intermediary') that maintains the beneficial
owner's account for such purpose. In turn, the Financial Intermediary's
ownership of such Book-Entry Security will be recorded on the records of DTC (or
of a participating firm that acts as agent for the Financial Intermediary, whose
interest will in turn he recorded on the records of DTC, if the beneficial
owner's Financial Intermediary is not a DTC participant and on the records of
CEDEL or Euroclear, as appropriate).
Owners will receive all distributions of principal of, and interest on, the
Book-Entry Securities from the Trustee through DTC and DTC participants. While
the Book-Entry Securities are outstanding (except under the circumstances
described below), under the rules, regulations and procedures creating and
affecting DTC and its operations (the 'Rules'), DTC is required to make
book-entry transfers among Participants on whose behalf it acts with respect to
the Securities and is required to receive and transmit distributions of
principal of, and interest on, the Securities. Participants and indirect
participants with whom Certificate Owners have accounts with respect to
Securities are similarly required to make book-entry transfers and receive and
transmit such distributions on behalf of their respective Owners. Accordingly,
although Owners will not possess certificates, the Rules provide a mechanism by
which Owners will receive distributions and will be able to transfer their
interest.
Owners will not receive or be entitled to receive certificates representing
their respective interests in the Securities, except under the limited
circumstances described below. Unless and until Definitive Securities are
issued, Owners who are not Participants may transfer ownership of Securities
only through Participants and indirect participants by instructing such
Participants and indirect participants to transfer Securities, by book-entry
transfer, through DTC for the account of the purchasers of such Securities,
which account is maintained with their respective Participants. Under the Rules
and in accordance with DTC's normal procedures, transfers of ownership of
Securities will be executed through DTC and the accounts of the respective
Participants at DTC will be debited and credited. Similarly, the Participants
and indirect participants will make debits or credits, as the case may be, on
their records on behalf of the selling and purchasing Owners.
Because of time zone differences, credits of securities received in CEDEL
or Euroclear as a result of a transaction with a Participant will be made during
subsequent securities settlement processing and dated the business day following
the DTC settlement date. Such credits or any transactions in such securities
settled during such processing will be reported to the relevant Euroclear or
CEDEL Participants on such business day. Cash received in CEDEL or Euroclear as
a result of sales of securities by or through a CEDEL Participant (as defined
below) or Euroclear Participant (as defined below) to a DTC Participant will be
received with value on the DTC settlement date but will be available in the
relevant CEDEL or Euroclear cash account only as of the business day following
settlement in DTC.
Transfers between Participants will occur in accordance with DTC rules.
Transfers between CEDEL Participants and Euroclear Participants will occur in
accordance with their respective rules and operating procedures.
Cross-market transfers between persons holding directly or indirectly
through DTC, on the one hand, and directly or indirectly through CEDEL
Participants or Euroclear Participants, on the other, will be effected in DTC in
accordance with DTC rules on behalf of the relevant European international
clearing system by the Relevant Depositary; however, such cross market
transactions will require delivery of instructions to the relevant European
international clearing system by the counterparty in such system in accordance
with its rules and procedures and within its established deadlines (European
time). The relevant European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to the
Relevant Depositary to take action to effect final settlement on its behalf by
delivering or receiving securities in DTC, and making or receiving
24
<PAGE>
payment in accordance with normal procedures for same day funds settlement
applicable to DTC. CEDEL Participants and Euroclear Participants may not deliver
instructions directly to the European Depositaries.
DTC, which is a New York-chartered limited purpose trust company, performs
services for its participants, some of which (and/or their representatives) own
DTC. In accordance with its normal procedures, DTC is expected to record the
positions held by each DTC participant in the Book-Entry Certificates, whether
held for its own account or as a nominee for another person. In general,
beneficial ownership of Book-Entry Certificates will be subject to the rules,
regulations and procedures governing DTC and DTC participants as in effect from
time to time.
CEDEL is incorporated under the laws of Luxembourg as a professional
depository. CEDEL holds securities for its participating organizations ('CEDEL
Participants') and facilitates the clearance and settlement of securities
transactions between CEDEL Participants through electronic book-entry changes in
accounts of CEDEL Participants, thereby eliminating the need for physical
movement of certificates. Transactions may be settled in CEDEL in any of 28
currencies, including United States dollars. CEDEL provides to its CEDEL
Participants, among other things, services for safekeeping, administration,
clearance and settlement of internationally traded securities and securities
lending and borrowing. CEDEL interfaces with domestic markets in several
countries. As a professional depository, CEDEL is subject to regulation by the
Luxembourg Monetary Institute. CEDEL participants are recognized financial
institutions around the world, including underwriters, securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. Indirect access to CEDEL is also available to others, such as
banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a CEDEL Participant, either directly or indirectly.
Euroclear was created in 1968 to hold securities for its participants
('Euroclear Participants') and to clear and settle transactions between
Euroclear Participants through simultaneous electronic book-entry delivery
against payment, thereby eliminating the need for physical movement of
certificates and any risk from lack of simultaneous transfers of securities and
cash. Transactions may be settled in any of 32 currencies, including United
States dollars. Euroclear includes various other services, including securities
lending and borrowing and interfaces with domestic markets in several countries
generally similar to the arrangements for cross-market transfers with DTC
described above. Euroclear is operated by the Brussels, Belgium office of Morgan
Guaranty Trust Company of New York (the 'Euroclear Operator'), under contract
with Euroclear Clearance Systems S.C., a Belgian cooperative corporation (the
'Cooperative'). All operations are conducted by the Euroclear Operator, and all
Euroclear securities clearance accounts and Euroclear cash accounts are accounts
with the Euroclear Operator, not the Cooperative. The Cooperative establishes
policy for Euroclear on behalf of Euroclear participants. Euroclear Participants
include banks (including central banks), securities brokers and dealers and
other professional financial intermediaries. Indirect access to Euroclear is
also available to other firms that clear through or maintain a custodial
relationship with a Euroclear Participant, either directly or indirectly.
The Euroclear Operator is the Belgian branch of a New York banking
corporation which is a member bank of the Federal Reserve System. As such, it is
regulated and examined by the Board of Governors of the Federal Reserve System
and the New York State Banking Department, as well as the Belgian Banking
Commission.
Securities clearance accounts and cash accounts with the Euroclear Operator
are governed by the Terms and Conditions Governing Use of Euroclear and the
related Operating Procedures of the Euroclear System and applicable Belgian law
(collectively, the 'Terms and Conditions'). The Terms and Conditions govern
transfers of securities and cash within Euroclear, withdrawals of securities and
cash from Euroclear, and receipts of payments with respect to securities in
Euroclear. All securities in Euroclear are held on a fungible basis without
attribution of specific certificates to specific securities clearance accounts.
The Euroclear Operator acts under the Terms and Conditions only on behalf of
Euroclear Participants, and has no record of or relationship with persons
holding through Euroclear Participants.
Distributions on the Book-Entry Securities will be made on each
Distribution Date by the Trustee to DTC. DTC will be responsible for crediting
the amount of such payments to the accounts of the applicable DTC participants
in accordance with DTC's normal procedures. Each DTC Participant will be
responsible for disbursing such payments to the Owners that it represents and to
each Financial Intermediary for which it acts as agent. Each such Financial
Intermediary will be responsible for disbursing funds to the Owners that it
represents.
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<PAGE>
Under a book-entry format, Owners may experience some delay in their
receipt of payments, since such payments will be forwarded by the Trustee to
Cede. Distributions with respect to Securities held through CEDEL or Euroclear
will be credited to the cash accounts of CEDEL Participants or Euroclear
Participants in accordance with the relevant system's rules and procedures, to
the extent received by the Relevant Depositary. Such distributions will be
subject to tax reporting in accordance with relevant United States tax laws and
regulations. Because DTC can only act on behalf of Financial Intermediaries, the
ability of an Owner to pledge Book-Entry Securities to persons or entities that
do not participate in the Depository system, or otherwise take actions in
respect of such Book-Entry Securities, may be limited due to the lack of
physical certificates for such Book-Entry Securities. In addition, issuance of
the Book-Entry Securities in book-entry form may reduce the liquidity of such
Securities in the secondary market since certain potential investors may be
unwilling to purchase Securities for which they cannot obtain physical
certificates.
Monthly and annual reports on the applicable Trust Fund will be provided to
Cede, as nominee of DTC, and may be made available by Cede to Owners upon
request, in accordance with the rules, regulations and procedures creating and
affecting the Depository, and to the Financial Intermediaries to whose DTC
accounts the Book-Entry Securities of such Owners are credited.
DTC has advised the Trustee that, unless and until Definitive Securities
are issued, DTC will take any action permitted to be taken by the holders of the
Book-Entry Securities under the Agreement only at the direction of one or more
Financial Intermediaries to whose DTC accounts the Book-Entry Securities are
credited, to the extent that such actions are taken on behalf of Financial
Intermediaries whose holdings include such Book-Entry Securities. CEDEL or the
Euroclear Operator, as the case may be, will take any other action permitted to
be taken by a Holder under the Agreement on behalf of a CEDEL Participant or
Euroclear Participant only in accordance with its relevant rules and procedures
and subject to the ability of the Relevant Depositary to effect such actions on
its behalf through DTC. DTC may take actions, at the direction of the related
Participants, with respect to some Securities which conflict with actions taken
with respect to other Securities.
Definitive Securities will be issued to Owners, or their nominees, rather
than to DTC, only if (a) DTC or the Seller advises the Trustee in writing that
DTC is no longer willing, qualified or able to discharge properly its
responsibilities as nominee and depository with respect to the Book-Entry
Securities and the Seller or the Trustee is unable to locate a qualified
successor, (b) the Seller, at its sole option, elects to terminate a book-entry
system through DTC or (c) after the occurrence of an Event of Default (as
defined herein), Owners owning a majority in principal amount of the applicable
Securities advise the Trustee and DTC through the Financial Intermediaries and
the DTC participants in writing that the continuation of a book-entry system
through DTC (or a successor thereto) is no longer in the best interests of
Owners.
Upon the occurrence of any of the events described in the immediately
preceding paragraph, the Trustee will be required to notify all applicable
Owners of the occurrence of such event and the availability through DTC of
Definitive Securities. Upon surrender by DTC of the global certificate or
certificates representing the Book-Entry Securities and instructions for
re-registration, the Trustee will issue Definitive Securities, and thereafter
the Trustee will recognize the holders of such Definitive Securities as
Certificateholders or Noteholders, as applicable, under the Agreement.
Although DTC, CEDEL and Euroclear have agreed to the foregoing procedures
in order to facilitate transfers of Securities among participants of DTC, CEDEL
and Euroclear, they are under no obligation to perform or continue to perform
such procedures and such procedures may be discontinued at any time.
Neither the Seller, the Servicer nor the Trustee will have any
responsibility for any aspect of the records relating to or payments made on
account of beneficial ownership interests of the Book-Entry Securities held by
Cede & Co., as nominee for DTC, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
VALUATION OF THE PRIMARY ASSETS
If specified in the related Prospectus Supplement for a Series of Notes,
each Primary Asset included in the related Trust Fund for a Series will be
assigned an initial 'Asset Value.' Unless otherwise specified in the related
Prospectus Supplement, at any time the Asset Value of the Primary Assets will be
equal to the product of
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the Asset Value Percentage as set forth in the Indenture and the lesser of (a)
the stream of remaining regularly scheduled payments on the Primary Assets, net,
unless otherwise provided in the related Prospectus Supplement, of certain
amounts payable as expenses, together with income earned on each such scheduled
payment received through the day preceding the next Distribution Date at the
Assumed Reinvestment Rate, if any, discounted to present value at the highest
interest rate on the Notes of such Series over periods equal to the interval
between payments on the Notes, and (b) the then principal balance of the Primary
Assets. Unless otherwise specified in the related Prospectus Supplement, the
initial Asset Value of the Primary Assets will be at least equal to the
principal amount of the Notes of the related Series at the date of issuance
thereof.
The 'Assumed Reinvestment Rate,' if any, for a Series will be the highest
rate permitted by the Rating Agency or a rate insured by means of a surety bond,
guaranteed investment contract, or other arrangement satisfactory to the Rating
Agency. If the Assumed Reinvestment Rate is so insured, the related Prospectus
Supplement will set forth the terms of such arrangement.
PAYMENTS OF INTEREST
The Securities of each Class by their terms entitled to receive interest
will bear interest (calculated, unless otherwise specified in the related
Prospectus Supplement, on the basis of a 360 day year of twelve 30-day months)
from the date and at the rate per annum specified, or calculated in the method
described, in the related Prospectus Supplement. Interest on such Securities of
a Series will be payable on the Distribution Date specified in the related
Prospectus Supplement. If so specified in the related Prospectus Supplement, the
Distribution Date for the payment of interest of a Class may be different from,
or occur more or less frequently than, the Distribution Date for the payment of
principal of such Class. The rate of interest on Securities of a Series may be
variable or may change with changes in the annual percentage rates of the Loans
or Underlying Loans relating to the Private Securities, as applicable, included
in the related Trust Fund and/or as prepayments occur with respect to such Loans
or Underlying Loans, as applicable. Principal Only Securities may not be
entitled to receive any interest distributions or may be entitled to receive
only nominal interest distributions. Any interest on Zero Coupon Securities that
is not paid on the related Distribution Date will accrue and be added to the
principal thereof on such Distribution Date.
Interest payable on the Securities on a Distribution Date will include all
interest accrued during the period specified in the related Prospectus
Supplement. In the event interest accrues during the calendar month preceding a
Distribution Date, the effective yield to Holders will be reduced from the yield
that would otherwise be obtainable if interest payable on the Securities were to
accrue through the day immediately preceding such Distribution Date.
PAYMENTS OF PRINCIPAL
On each Distribution Date for a Series, principal payments will be made to
the Holders of the Securities of such Series on which principal is then payable,
to the extent set forth in the related Prospectus Supplement. Such payments will
be made in an aggregate amount determined as specified in the related Prospectus
Supplement and will be allocated among the respective Classes of a Series in the
manner, at the times and in the priority set forth in the related Prospectus
Supplement. The Holders of one or more Classes of Securities may have the right
to request that principal distributions allocable to such Holder's Class of
Securities be distributed to such Holder. If the requests of Holders exceed the
amount of principal to be distributed, the requests generally will be filled in
the order in which they were received. If the amount of principal to be
distributed exceeds the amount of requests, the Trustee will select random lots
of $1,000 each to receive such principal distribution. Thus, some Holders of the
applicable Class of Securities may receive no principal distributions or a
disproportionate amount of such principal distributions. If so specified in the
related Prospectus Supplement, the Distribution Date for the payment of
principal of a Class may be different from, or occur more or less frequently
than, the Distribution Date for the payment of interest for such Class.
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FINAL SCHEDULED DISTRIBUTION DATE
The Final Scheduled Distribution Date with respect to each Class of Notes
is the date no later than the date on which the principal thereof will be fully
paid and with respect to each Class of Certificates will be the date on which
the entire aggregate principal balance of such Class is expected to be reduced
to zero, in each case calculated on the basis of the assumptions applicable to
such Series described in the related Prospectus Supplement. The Final Scheduled
Distribution Date for each Class of a Series will be specified in the related
Prospectus Supplement. Since payments on the Primary Assets will be used to make
distributions in reduction of the outstanding principal amount of the
Securities, it is likely that the actual final Distribution Date of any such
Class will occur earlier, and may occur substantially earlier, than its Final
Scheduled Distribution Date. Furthermore, with respect to a Series of
Certificates, as a result of delinquencies, defaults and liquidations of the
Primary Assets in the Trust Fund, the actual final Distribution Date of any
Certificate may occur later than its Final Scheduled Distribution Date. No
assurance can be given as to the actual prepayment experience with respect to a
Series. See '--Weighted Average Life of the Securities' below.
SPECIAL REDEMPTION
If so specified in the Prospectus Supplement relating to a Series of
Securities having other than monthly Distribution Dates, one or more Classes of
Securities of such Series may be subject to special redemption, in whole or in
part, on the day specified in the related Prospectus Supplement (a 'Special
Redemption Date') if, as a consequence of prepayments on the Loans or Underlying
Loans, as applicable, relating to such Securities or low yields then available
for reinvestment the entity specified in the related Prospectus Supplement
determines, based on assumptions specified in the applicable Agreement, that the
amount available for the payment of interest that will have accrued on such
Securities (the 'Available Interest Amount') through the designated interest
accrual date specified in the related Prospectus Supplement is less than the
amount of interest that will have accrued on such Securities to such date. In
such event and as further described in the related Prospectus Supplement, the
Trustee will redeem a principal amount of outstanding Securities of such Series
as will cause the Available Interest Amount to equal the amount of interest that
will have accrued through such designated interest accrual date for such Series
of Securities outstanding immediately after such redemption.
OPTIONAL REDEMPTION, PURCHASE OR TERMINATION
The Seller, the Servicer, or another entity designated in the related
Prospectus Supplement may, at its option, cause an early termination of one or
more Classes of Securities by purchasing all or part of the Primary Assets from
such Trust Fund on or after a date specified in the related Prospectus
Supplement, or on or after such time as the aggregate outstanding principal
amount of the Securities or Primary Assets, as specified in the related
Prospectus Supplement is less than the amount or percentage specified in the
related Prospectus Supplement. In addition, if so specified in the related
Prospectus Supplement upon certain events of insolvency or receivership of the
Seller or another affiliated entity specified in the related Prospectus
Supplement, the related Primary Assets of the Trust Fund will be liquidated and
the Trust Fund will be terminated, subject to the conditions set forth in the
related Prospectus Supplement. In each such event, the Securities of the related
Series will experience a prepayment. The redemption, purchase or repurchase
price will be set forth in the related Prospectus Supplement. If specified in
the related Prospectus Supplement, in the event that a REMIC election has been
made, the Trustee will receive a satisfactory opinion of counsel that the
optional redemption, purchase or termination will be conducted so as to
constitute a 'qualified liquidation' under Section 860F of the Code.
WEIGHTED AVERAGE LIFE OF THE SECURITIES
Weighted average life refers to the average amount of time that will elapse
from the date of issue of a security until each dollar of principal of such
security will be repaid to the investor. Unless otherwise specified in the
related Prospectus Supplement, the weighted average life of a Class of the
Securities will be influenced by the rate at which the amount financed under the
Loans or Underlying Loans relating to the Private Securities, as applicable,
included in the Trust Fund for a Series is paid, which may be in the form of
scheduled amortization or prepayments.
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Prepayments on loans and other receivables can be measured relative to a
prepayment standard or model. The Prospectus Supplement for a Series of
Securities will describe the prepayment standard or model, if any, used and may
contain tables setting forth the weighted average life of each Class of
Securities of such Series, and the percentage of the original principal amount
of each Class of Securities of such Series that would be outstanding on
specified Distribution Dates for such Series, in each case based on the
assumptions stated in such Prospectus Supplement, including assumptions that
prepayments on the Loans or Underlying Loans relating to the Private Securities,
as applicable, included in the related Trust Fund are made at rates
corresponding to various percentages of the prepayment standard or model
specified in such Prospectus Supplement.
There is, however, no assurance that prepayment of the Loans or Underlying
Loans relating to the Private Securities, as applicable, included in the related
Trust Fund will conform to any level of any prepayment standard or model
specified in the related Prospectus Supplement. The rate of principal
prepayments on pools of loans may be influenced by a variety of factors,
including job related factors such as transfers, layoffs or promotions and
personal factors such as divorce, disability or prolonged illness. Economic
conditions, either generally or within a particular geographic area or industry,
also may affect the rate of principal prepayments. Demographic and social
factors may influence the rate of principal prepayments in that some borrowers
have greater financial flexibility to move or refinance than do other borrowers.
The deductibility of mortgage interest payments, and servicing decisions also
affect the rate of principal prepayments. As a result, there can be no assurance
as to the rate or timing of principal prepayments of the Loans or Underlying
Loans either from time to time or over the lives of such Loans or Underlying
Loans.
The rate of prepayments of conventional housing loans and other receivables
has fluctuated significantly in recent years. In general, however, if prevailing
interest rates fall significantly below the interest rates on the Loans or
Underlying Loans relating to the Private Securities, as applicable, for a
Series, such loans are likely to prepay at rates higher than if prevailing
interest rates remain at or above the interest rates borne by such loans. In
this regard, it should be noted that the Loans or Underlying Loans, as
applicable, for a Series may have different interest rates. In addition, the
weighted average life of the Securities may be affected by the varying
maturities of the Loans or Underlying Loans relating to the Private Securities,
as applicable. If any Loans or Underlying Loans relating to the Private
Securities, as applicable, for a Series have actual terms-to-stated maturity of
less than those assumed in calculating the Final Scheduled Distribution Date of
the related Securities, one or more Classes of the Series may be fully paid
prior to their respective Final Scheduled Distribution Date, even in the absence
of prepayments and a reinvestment return higher than the Assumed Reinvestment
Rate.
THE TRUST FUNDS
GENERAL
The Notes of each Series will be secured by the pledge of the assets of the
related Trust Fund, and the Certificates of each Series will represent interests
in the assets of the related Trust Fund. The Trust Fund of each Series will
include (i) the Primary Assets, (ii) amounts available from the reinvestment of
payments on such Primary Assets at the Assumed Reinvestment Rate, if any,
specified in the related Prospectus Supplement, (iii) any Enhancement or the
rights thereto, (iv) any Mortgaged Property that secured a Home Equity Loan but
which is acquired by foreclosure or deed in lieu of foreclosure or repossession
and (v) the amount, if any, initially deposited in the Pre-Funding Account,
Capitalized Interest Account, Collection Account, Certificate Account or
Distribution Account for a Series as specified in the related Prospectus
Supplement.
The Securities will be non-recourse obligations of the related Trust Fund.
The assets of the Trust Fund specified in the related Prospectus Supplement for
a Series of Securities, unless otherwise specified in the related Prospectus
Supplement, will serve as collateral only for that Series of Securities. Holders
of a Series of Notes may only proceed against such collateral securing such
Series of Notes in the case of a default with respect to such Series of Notes
and may not proceed against any assets of the Seller or the related Trust Fund
not pledged to secure such Notes.
The Primary Assets for a Series will be transferred by the Seller to the
Trust Fund. Loans relating to a Series will be serviced by the Servicer pursuant
to a Pooling and Servicing Agreement, with respect to a Series
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consisting of only Certificates or a Sale and Servicing Agreement (each, a 'Sale
and Servicing Agreement') between the Seller, the Trust Fund and the Servicer,
with respect to a Series that includes Notes.
As used herein, 'Agreement' means, with respect to a Series of
Certificates, the Pooling and Servicing Agreement or Trust Agreement, and with
respect to a Series that includes Notes, the Indenture and the Sale and
Servicing Agreement, as the context requires.
If so specified in the related Prospectus Supplement, a Trust Fund relating
to a Series of Securities may be a business trust formed under the laws of the
state specified in the related Prospectus Supplement pursuant to a trust
agreement (each, a 'Trust Agreement') between the Seller and the Trustee of such
Trust Fund specified in the related Prospectus Supplement.
With respect to each Trust Fund, prior to the initial offering of the
related Series of Securities, the Trust Fund will have no assets or liabilities.
No Trust Fund is expected to engage in any activities other than acquiring,
managing and holding the related Primary Assets and other assets contemplated
herein and in the related Prospectus Supplement and the proceeds thereof,
issuing Securities and making payments and distributions thereon and certain
related activities. No Trust Fund is expected to have any source of capital
other than its assets and any related Enhancement.
Primary Assets included in the Trust Fund for a Series may consist of any
combination of Loans and Private Securities, to the extent and as specified in
the related Prospectus Supplement.
An Agreement may provide that additional Home Equity Loans may be added to
the Trust Fund if such Home Equity Loans were originated or acquired by the
Seller in the ordinary course of its business, the inclusion of such Home Equity
Loans will maintain or increase the level of overcollateralization and the
inclusion of such Home Equity Loans will not result in the withdrawal or
downgrading of the ratings then assigned to the Securities of the related
Series. In addition, an Agreement may provide that Home Equity Loans may be
removed from a Trust Fund from time to time if the actual level of
overcollateralization exceeds the amount of overcollateralization required to be
maintained and such removal will not result in the withdrawal or downgrading of
the ratings then assigned to the Securities of the related Series.
THE LOANS
The Primary Assets for a Series may consist, in whole or in part, of
closed-end home equity loans (the 'Home Equity Loans') secured by mortgages
primarily on Single Family Mortgaged Properties which may be subordinated to
other mortgages on the same Mortgaged Property. The Home Equity Loans may have
fixed interest rates or adjustable interest rates and may provide for other
payment characteristics as described below.
The full principal amount of a Home Equity Loan is advanced at origination
of the loan and generally is repayable in equal (or substantially equal)
installments of an amount sufficient to fully amortize such loan at its stated
maturity. As more fully described in the related Prospectus Supplement, interest
on each Home Equity Loan is calculated on the basis of the outstanding principal
balance of such loan multiplied by the Home Equity Loan Rate thereon and, in the
case of simple interest loans, further multiplied by a fraction, the numerator
of which is the number of days in the period elapsed since the preceding payment
of interest was made and the denominator is the number of days in the annual
period for which interest accrues on such loan. Interest on Home Equity Loans
also may be calculated on the actuarial basis, in which case each monthly
payment consists of a decreasing amount of interest and an increasing amount of
principal, and the payment either earlier or later then the due date therefor
will not affect the relative applications of principal and interest. The Loans
for a Series may include Home Equity Loans that do not amortize their entire
principal balance by their stated maturity in accordance with their terms and
require a balloon payment of the remaining principal balance at maturity, as
specified in the related Prospectus Supplement. The original terms to stated
maturity of Home Equity Loans will generally not exceed 360 months.
The Mortgaged Properties will include Single Family Property (i.e., one- to
four-family residential housing, including Condominium Units and Cooperative
Dwellings) and mixed-use property. Mixed-use properties will consist of
structures of no more than three stories, which include one to four residential
dwelling units and space used for retail, professional or other commercial uses.
Such uses, which will not involve more than 50% of the space in the structure,
may include doctor, dentist or law offices, real estate agencies, boutiques,
newsstands,
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convenience stores or other similar types of uses intended to cater to
individual customers as specified in the related Prospectus Supplement. The
properties may be located in suburban or metropolitan districts. Any such
non-residential use will be in compliance with local zoning laws and
regulations. The Mortgaged Properties may consist of detached individual
dwellings, individual condominiums, townhouses, duplexes, row houses, individual
units in planned unit developments and other attached dwelling units. The
Mortgaged Properties also may include module or manufactured homes which are
treated as real estate under local law. Each Single Family Property will be
located on land owned in fee simple by the borrower or on land leased by the
borrower for a term at least ten years greater than the term of the related
Loan. Attached dwellings may include owner-occupied structures where each
borrower owns the land upon which the unit is built, with the remaining adjacent
land owned in common or dwelling units subject to a proprietary lease or
occupancy agreement in a cooperatively owned apartment building. Mortgages on
Cooperative Dwellings consist of a lien on the shares issued by such Cooperative
Dwelling and the proprietary lease or occupancy agreement relating to such
Cooperative Dwelling.
The aggregate principal balance of Loans secured by Mortgaged Properties
that are owner-occupied will be disclosed in the related Prospectus Supplement.
The sole basis for determining that a given percentage of the Loans are secured
by Single Family Property that is owner-occupied will be either (i) the making
of a representation by the Mortgagor at origination of the Home Equity Loan
either that the underlying Mortgaged Property will be used by the Mortgagor for
a period of at least six months every year or that the Mortgagor intends to use
the Mortgaged Property as a primary residence, or (ii) a finding that the
address of the underlying Mortgaged Property is the Mortgagor's mailing address
as reflected in the Servicer's records. The Mortgaged Properties also may
include non-owner occupied investment properties and vacation and second homes.
Additional Information. The related Prospectus Supplement for each Series
will provide information with respect to the Loans that are Primary Assets as of
the Cut-off Date, including, among other things, and to the extent relevant: (a)
the aggregate unpaid principal balance of the Loans (b) the range and weighted
average Home Equity Loan Rate on the Loans, and, in the case of adjustable rate
Loans, the range and weighted average of the current Home Equity Loan Rates and
the Lifetime Rate Caps, if any; (c) the range and average outstanding principal
balance of the Loans; (d) the weighted average original and remaining
term-to-stated maturity of the Loans and the range of original and remaining
terms-to-stated maturity, if applicable; (e) the range and weighted average of
Combined Loan-to-Value Ratios or Loan-to-Value Ratios for the Loans, as
applicable; (f) the percentage (by outstanding principal balance as of the
Cut-off Date) of Loans that accrue interest at adjustable or fixed interest
rates; (g) any special hazard insurance policy or bankruptcy bond or other
enhancement relating to the Loans; (h) the geographic distribution of the
Mortgaged Properties securing the Loans; (i) the percentage of Loans (by
principal balance as of the Cut-off Date) that are secured by Single Family
Mortgaged Properties, shares relating to Cooperative Dwellings, Condominium
Units, investment property and vacation or second homes; (j) the lien priority
of the Home Equity Loans; and (k) the delinquency status and year of origination
of the Loans. The related Prospectus Supplement will also specify any other
limitations on the types or characteristics of Loans for a Series.
If information of the nature described above respecting the Loans is not
known to the Seller at the time the Securities are initially offered,
approximate or more general information of the nature described above will be
provided in the Prospectus Supplement and additional information will be set
forth in a Current Report on Form 8-K to be available to investors on the date
of issuance of the related Series and to be filed with the Commission within 15
days after the initial issuance of such Securities.
PRIVATE SECURITIES
General. Primary Assets for a Series may consist, in whole or in part, of
Private Securities which include pass-through certificates representing
beneficial interests in loans of the type that would otherwise be eligible to be
Loans (the 'Underlying Loans') or (b) collateralized obligations secured by
Underlying Loans. Such pass-through certificates or collateralized obligations:
(i) will have been registered for sale under the Securities Act of 1933, as
amended; (ii) will have been acquired in the secondary market and not in the
initial offering thereof; (iii) will have been issued by an issuer which is not
involved in the issuance of the related Series and which is not an affiliate of
the Seller; and (iv) will be freely transferable under Rule 144(k) under the
Securities Act of 1933, as amended to the extent such rule is applicable to such
securities.
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Private Securities will have been issued pursuant to a pooling and
servicing agreement, a trust agreement or similar agreement (a 'PS Agreement').
The seller/servicer of the Underlying Loans will have entered into the PS
Agreement with the trustee under such PS Agreement (the 'PS Trustee'). The PS
Trustee or its agent, or a custodian, will possess the Underlying Loans.
Underlying Loans will be serviced by a servicer (the 'PS Servicer') directly or
by one or more sub-servicers who may be subject to the supervision of the PS
Servicer.
The sponsor of the Private Securities (the 'PS Sponsor') will be a
financial institution or other entity engaged generally in the business of
lending; a public agency or instrumentality of a state, local or federal
government; or a limited purpose corporation organized for the purpose of, among
other things, establishing trusts and acquiring and selling loans to such
trusts, and selling beneficial interests in such trusts. The obligations of the
PS Sponsor will generally be limited to certain representations and warranties
with respect to the assets conveyed by it to the related trust. Additionally,
although the Underlying Loans may be guaranteed by an agency or instrumentality
of the United States, the Private Securities themselves will not be so
guaranteed.
Distributions of principal and interest will be made on the Private
Securities on the dates specified in the related Prospectus Supplement. The
Private Securities may be entitled to receive nominal or no principal
distributions or nominal or no interest distributions. Principal and interest
distributions will be made on the Private Securities by the PS Trustee or the PS
Servicer. The PS Sponsor or the PS Servicer may have the right to repurchase the
Underlying Loans after a certain date or under other circumstances specified in
the related Prospectus Supplement. The Underlying Loans may be fixed rate, level
payment, fully amortizing loans or adjustable rate loans or loans having balloon
or other irregular payment features.
Credit Support Relating to Private Securities. Credit support in the form
of Reserve Funds, subordination of other private securities issued under the PS
Agreement, guarantees, letters of credit, cash collateral accounts, insurance
policies or other types of credit support may be provided with respect to the
Underlying Loans or with respect to the Private Securities themselves. The type,
characteristics and amount of credit support will be a function of certain
characteristics of the Underlying Loans and other factors, such as the operating
history and degree of securitization experience of the seller/servicer of the
Underlying Loans and the then current market for various types of credit
enhancement, and will have been established for the Private Securities on the
basis of requirements of the nationally recognized statistical rating
organization that rated the Private Securities.
Additional Information. The Prospectus Supplement for a Series for which
the Primary Assets include Private Securities will specify (such disclosure may
be on an approximate basis and will be as of the date specified in the related
Prospectus Supplement), to the extent relevant and to the extent such
information is reasonably available to the Seller and the Seller reasonably
believes such information to be reliable: (i) the aggregate approximate
principal amount and type of the Private Securities to be included in the Trust
Fund for such Series; (ii) certain characteristics of the Underlying Loans
including (A) the payment features of such Underlying Loans (i.e., whether they
are fixed rate or adjustable rate and whether they provide for fixed level
payments or other payment features), (B) the approximate aggregate principal
balance, if known, of such Underlying Loans insured or guaranteed by a
governmental entity, (C) the servicing fee or range of servicing fees with
respect to the Underlying Loans, (D) the minimum and maximum stated maturities
of such Underlying Loans at origination, (E) the lien priority of such
Underlying Loans, and (F) the delinquency status and year of origination of such
Underlying Loans; (iii) the maximum original term-to-stated maturity of the
Private Securities; (iv) the weighted average term-to-stated maturity of the
Private Securities; (v) the pass-through or certificate rate or ranges thereof
for the Private Securities; (vi) the PS Sponsor, the PS Servicer (if other than
the PS Sponsor) and the PS Trustee for such Private Securities; (vii) certain
characteristics of credit support if any, such as Reserve Funds, insurance
policies, letters of credit or guarantees relating to such Loans underlying the
Private Securities or to such Private Securities themselves; (viii) the terms on
which Underlying Loans may, or are required to, be purchased prior to their
stated maturity or the stated maturity of the Private Securities; and (ix) the
terms on which Underlying Loans may be substituted for those originally
underlying the Private Securities.
If information of the nature described above representing the Private
Securities is not known to the Seller at the time the Securities are initially
offered, approximate or more general information of the nature described above
will be provided in the Prospectus Supplement and the additional information, if
available, will be set forth
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in a Current Report on Form 8-K to be available to investors on the date of
issuance of the related Series and to be filed with the Commission within 15
days of the initial issuance of such Securities.
COLLECTION, CERTIFICATE AND DISTRIBUTION ACCOUNTS
A separate Collection Account or Certificate Account will be established
for each Series of Securities for receipt of all amounts received on or with
respect to the Primary Assets. Certain amounts on deposit in such Collection
Account and certain amounts available pursuant to any Enhancement, as provided
in the related Prospectus Supplement, may be deposited in one or more
Distribution Accounts. Funds in the Collection, Certificate and Distribution
Accounts generally will be invested in Eligible Investments maturing, with
certain exceptions, not later, in the case of funds in the Collection Account,
than the day preceding the date such funds are due to be deposited in the
Distribution Account or otherwise distributed and, in the case of funds in the
Distribution Account and the Certificate Account, than the day preceding the
next Distribution Date for the related Series of Securities. See '--Eligible
Investments' below.
PRE-FUNDING AND CAPITALIZED INTEREST ACCOUNTS
If specified in the related Prospectus Supplement, a Trust Fund will
include one or more segregated trust accounts (each, a 'Pre-Funding Account')
established and maintained with the Trustee for the related Series. If so
specified, on the closing date for such Series, a portion of the proceeds of the
sale of the Securities of such Series not to exceed fifty percent of the
aggregate principal amount of such Series (such amount, the 'Pre-Funded Amount')
may be deposited in the Pre-Funding Account and may be used to purchase
additional Primary Assets during the period of time not to exceed six months
specified in the related Prospectus Supplement (the 'Pre-Funding Period').
Pending the purchase of such additional Primary Assets, funds deposited in the
Pre-Funding Account will be invested in Eligible Investments. If any Pre-Funded
Amount remains on deposit in the Pre-Funding Account at the end of the
Pre-Funding Period, such amount will be applied in the manner specified in the
related Prospectus Supplement to prepay the Notes and/or the Certificates of the
applicable Series.
Each additional Primary Asset must satisfy the eligibility criteria
specified in the related Prospectus Supplement and related Agreements. Such
eligibility criteria will be determined in consultation with each Rating Agency
(and/or any Enhancer) prior to the issuance of the related Series and are
designed to ensure that if such additional Primary Assets were included as part
of the initial Primary Assets, the credit quality of such assets would be
consistent with the initial rating of the Securities of such Series. The
eligibility criteria will apply to the pool of Primary Assets, including the
subsequent Primary Assets, and will include a minimum weighted average interest
rate, a maximum weighted average remaining term to maturity and a maximum
weighted average Combined Loan-to-Value Ratio. Depending on the composition of
the original Primary Assets and the type of Enhancement, additional eligibility
criteria such as a minimum interest rate, a maximum principal balance, a
limitation on geographic concentration and a limit on certain types of Primary
Assets such as Balloon Loans or loans secured by other than primary residences.
The Seller will certify to the Trustee that all conditions precedent to the
transfer of the additional Primary Assets, including the satisfaction of the
eligibility criteria to the Trust Fund, have been satisfied. It is a condition
to the transfer of any additional Primary Assets to the Trust Fund that each
Rating Agency, after receiving prior notice of the proposed transfer of the
additional Primary Assets to the Trust Fund, shall not have advised the Seller
or the Trustee or any Enhancer that the conveyance of such additional Primary
Assets will result in a qualification, modification or withdrawal of its then
current rating of any Class of Notes or Certificates of such Series. Following
the transfer of additional Primary Assets to the Trust Fund, the aggregate
characteristics of the Primary Assets then held in the Trust Fund may vary from
those of the initial Primary Assets of such Trust Fund. As a result, the
additional Primary Assets may adversely affect the performance of the related
Securities.
If a Pre-Funding Account is established, one or more segregated trust
accounts (each, a 'Capitalized Interest Account') may be established and
maintained with the Trustee for the related Series. On the closing date for such
Series, a portion of the proceeds of the sale of the Securities of such Series
will be deposited in the Capitalized Interest Account and used to fund the
excess, if any, of the sum of (i) the amount of interest accrued on the
Securities of such Series and (ii) if specified in the related Prospectus
Supplement, certain fees or expenses during the Pre-Funding Period such as
Trustee fees and credit enhancement fees, over the amount of interest available
therefor from the Primary Assets in the Trust Fund. If so specified in the
related Prospectus
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Supplement, amounts on deposit in the Capitalized Interest Account may be
released to the Seller prior to the end of the Pre-Funding Period subject to the
satisfaction of certain tests specified in the related Prospectus Supplement.
Any amounts on deposit in the Capitalized Interest Account at the end of the
Pre-Funding Period that are not necessary for such purposes will be distributed
to the person specified in the related Prospectus Supplement.
ELIGIBLE INVESTMENTS
Each Agreement generally will define Eligible Investments to include the
following:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided that such obligations are
backed by the full faith and credit of the United States;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than three months from the date of acquisition thereof,
provided that the short-term unsecured debt obligations of the party
agreeing to repurchase such obligations are at the time rated by each
Rating Agency in its highest short-term rating category;
(iii) certificates of deposit, time deposits and bankers' acceptances
of any U.S. depository institution or trust company incorporated under the
laws of the United States or any state thereof and subject to supervision
and examination by federal and/or state banking authorities, provided that
the unsecured short-term debt obligations of such depository institution or
trust company at the date of acquisition thereof have been rated by each
Rating Agency in its highest unsecured short-term debt rating category;
(iv) commercial paper (having original maturities of not more than 90
days) of any corporation incorporated under the laws of the United States
or any state thereof which on the date of acquisition has been rated by
each Rating Agency in their highest short-term rating categories;
(v) short-term investment funds ('STIFS') sponsored by any trust
company or national banking association incorporated under the laws of the
United States or any state thereof which on the date of acquisition has
been rated by each Rating Agency in their respective highest rating
category of long-term unsecured debt; and
(vi) interests in any money market fund which at the date of
acquisition of the interests in such fund and throughout the time as the
interest is held in such fund has a rating of 'Aaa' by Moody's Investors
Service, Inc., and either 'AAAm' or 'AAAm-G' by Standard & Poor's Rating
Group, a division of the McGraw-Hill Companies, Inc.;
provided that no instrument described above may evidence either the right to
receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interst 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 its stated maturity.
To the extent any such investment would require registration of the Trust
Fund as an investment company, such investment will not constitute an Eligible
Investment.
ENHANCEMENT
The amounts and types of credit enhancement ('Enhancement') arrangements
and the provider thereof, if applicable, with respect to a Series or any Class
of Securities will be set forth in the related Prospectus Supplement. If
specified in the applicable Prospectus Supplement, Enhancement for any Series of
Securities may cover one or more Classes of Notes or Certificates, and
accordingly may be exhausted for the benefit of a particular Class of Notes or
Certificates and thereafter be unavailable to such other Classes of Notes or
Certificates. Further information regarding any provider of credit enhancement,
including financial information when material, will be included in the related
Prospectus Supplement.
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If and to the extent provided in the related Prospectus Supplement,
Enhancement may include one or more of the following or any combination thereof:
Financial Guaranty Insurance Policy which will be issued by a monoline
insurance company and which, subject to the terms of such policy, will
guarantee timely payment of interest on, and ultimate (as opposed to
timely) payment of principal of, the applicable Class or Classes of
Securities;
Overcollateralization which will equal the excess of the aggregate
principal balance of the Primary Assets over the aggregate principal
balance of the Securities. Overcollateralization may take the form of the
initial or subsequent deposit of Primary Assets to create such excess or
may build over time from the application of certain excess cash amounts
generated by the Primary Assets to accelerate the amortization of the
applicable Class or Classes of Securities;
Letter of Credit which will be issued by a bank or other financial
institution in a maximum amount which may be permanently reduced as draws
are made or may be replenished as previous draws are repaid from certain
excess cash amounts generated by the Primary Assets. Draws may be made to
cover shortfalls generally in collections, with respect to particular types
of shortfalls such as those due to particular types of losses or with
respect to specific situations such as shortfalls in amounts necessary to
pay current interest;
Cash Reserve Fund which may be partially or fully funded on the date
of issuance or may be funded over time from certain excess cash amounts
generated by the Primary Assets. Withdrawals may be made in circumstances
similar to those for which draws may be made on a letter of credit;
Insurance Policies which may insure a portion of the Home Equity Loans
or Underlying Loans against credit losses, bankruptcy losses, fraud losses
or special hazard losses not covered by typical homeowners insurance
policies;
Subordinate Securities which will be subordinated in the right to
reserve distributions to one or more other Classes of Securities of the
same Series, some or all of which may themselves be subordinated to other
Classes of such Series. Subordination may be with respect to distributions
of interest, principal or both. In addition, all or portions of certain
types of losses on the Primary Assets may be allocated to one or more
Classes of the Subordinate Securities prior to the allocation thereof to
other Classes of Subordinate Certificates and/or the Senior Securities of
the applicable Series; or
Derivative Products which may include a swap to convert floating or
fixed rate payments, as applicable, on the Primary Assets into fixed or
floating rate payments, as applicable, on the Securities or a cap or floor
agreement intended to provide protection against changes in floating rates
of interest payable on the Primary Assets and/or the Securities. Any such
derivative product will constitute or will be structured so as to be an
insurance policy or an exempt security.
The presence of Enhancement is intended to increase the likelihood of
receipt by the Certificateholders and the Noteholders of the full amount of
principal and interest due thereon and to decrease the likelihood that the
Certificateholders and the Noteholders will experience losses, or may be
structured to provide protection against changes in interest rates or against
other risks, to the extent and under the conditions specified in the related
Prospectus Supplement. The Enhancement for a Class of Securities generally will
not provide protection against all risks of loss and may not guarantee repayment
of the entire principal and interest thereon. If losses occur which exceed the
amount covered by any Enhancement or which are not covered by any Enhancement,
Securityholders will bear their allocable share of deficiencies. In addition, if
a form of Enhancement covers more than one Class of Securities of a Series,
Securityholders of any such Class will be subject to the risk that such
Enhancement will be exhausted by the claims of Securityholders of other Classes.
SERVICING OF LOANS
GENERAL
Customary servicing functions with respect to Loans comprising the Primary
Assets in the Trust Fund will be provided by the Servicer directly pursuant to
the related Sale and Servicing Agreement or Pooling and Servicing Agreement, as
the case may be, with respect to a Series of Securities.
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COLLECTION PROCEDURES; ESCROW ACCOUNTS
The Servicer will make reasonable efforts to collect all payments required
to be made under the Loans and will, consistent with the terms of the related
Agreement for a Series and any applicable Enhancement, follow such collection
procedures as it follows with respect to comparable loans held in its own
portfolio. Consistent with the above, the Servicer may, in its discretion, (i)
waive any assumption fee, late payment charge, or other charge in connection
with a Home Equity Loan and (ii) arrange with an obligor a schedule for the
liquidation of delinquencies by extending the Due Dates for Scheduled Payments
on such Loan.
The Servicer, to the extent permitted by law, will establish and maintain
escrow or impound accounts ('Escrow Accounts') with respect to Loans in which
payments by obligors with respect to taxes, assessments, mortgage and hazard
insurance premiums, and other comparable items will be deposited. Loans may not
require such payments under the related loan documents, in which case the
Servicer would not be required to establish any Escrow Account with respect to
such Loans. Withdrawals from the Escrow Accounts are to be made to effect timely
payment of taxes, assessments and mortgage and hazard insurance, to refund to
obligors amounts determined to be overages, to pay interest to obligors on
balances in the Escrow Account to the extent required by law, to repair or
otherwise protect the property securing the related Home Equity Loan and to
clear and terminate such Escrow Account. The Servicer will be responsible for
the administration of the Escrow Accounts and generally will make advances to
such accounts when a deficiency exists therein.
DEPOSITS TO AND WITHDRAWALS FROM THE COLLECTION ACCOUNT OR THE CERTIFICATE
ACCOUNT
The Trustee or the Servicer will establish a separate account (the
'Collection Account' or the 'Certificate Account') in the name or for the
benefit of the Trustee. The Collection Account and/or Certificate Account will
be an account maintained (i) at a depository institution, the long-term
unsecured debt obligations of which at the time of any deposit therein are rated
by each Rating Agency rating the Securities of such Series at levels
satisfactory to each Rating Agency or (ii) in an account or accounts the
deposits in which are insured to the maximum extent available by the Federal
Deposit Insurance Corporation (the 'FDIC') or which are secured in a manner
meeting requirements established by each Rating Agency.
The funds held in the Collection Account or the Certificate Account may be
invested, pending remittance to the Trustee, in Eligible Investments. The
Servicer will be entitled to receive as additional compensation any interest or
other income earned on funds in the Collection Account or Certificate Account.
The Servicer, the Seller or the Trustee will deposit into the Collection
Account for each Series, within the period specified in the related Prospectus
Supplement, the following payments and collections received or made by it (other
than, in respect of principal of and interest on the related Primary Assets due
or, in the case of simple interest Loans, received, on or before such Cut-off
Date):
(i) all payments on account of principal, including prepayments, on
such Primary Assets;
(ii) all payments on account of interest on such Primary Assets after
deducting therefrom, at the discretion of the Servicer but only to the
extent of the amount permitted to be withdrawn or withheld from the
Collection Account in accordance with the related Agreement, the Servicing
Fee in respect of such Primary Assets;
(iii) all amounts received by the Servicer in connection with the
liquidation of Primary Assets or property acquired in respect thereof,
whether through foreclosure sale, repossession or otherwise, including
payments in connection with such Primary Assets received from the obligor,
other than amounts required to be paid or refunded to the obligor pursuant
to the terms of the applicable loan documents or otherwise pursuant to law
('Liquidation Proceeds'), exclusive of, in the discretion of the Servicer,
but only to the extent of the amount permitted to be withdrawn from the
Collection Account or the Certificate Account in accordance with the
related Agreement, the Servicing Fee, if any, in respect of the related
Primary Asset and, to the extent specified in the related Prospectus
Supplement, net of reimbursements for related Delinquency Advances and
Servicer Advances;
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(iv) all proceeds under any title insurance, hazard insurance or other
insurance policy covering any such Primary Asset, other than proceeds to be
applied to the restoration or repair of the related Property or released to
the obligor in accordance with the related Agreement;
(v) all amounts required to be deposited therein from any applicable
Reserve Fund for such Series pursuant to the related Agreement;
(vi) all Delinquency Advances made by the Servicer required pursuant
to the related Agreement; and
(vii) all repurchase prices of any such Primary Assets repurchased by
the Servicer or the Seller pursuant to the related Agreement.
The Servicer is permitted, from time to time, to make withdrawals from the
Collection Account or the Certificate Account for each Series for the following
purposes:
(i) to reimburse itself for Delinquency Advances and Servicing
Advances for such Series made by it pursuant to the related Agreement; the
Servicer's right to reimburse itself for Delinquency Advances and Servicing
Advances is limited to amounts received on or in respect of particular
Loans (including, for this purpose, Liquidation Proceeds and amounts
representing proceeds of insurance policies covering the related Property)
which represent late recoveries of Scheduled Payments respecting which any
such advance was made;
(ii) to reimburse itself for any Delinquency Advances for such Series
that the Servicer determines in good faith it will be unable to recover
from amounts representing late recoveries of Scheduled Payments respecting
which such Advance was made or from Liquidation Proceeds or the proceeds of
insurance policies;
(iii) in the event it has elected not to pay itself the Servicing Fee
out of the interest component of any Scheduled Payment, late payment or
other recovery with respect to a particular Home Equity Loan prior to the
deposit of such Scheduled Payment, late payment or recovery into the
Collection Account, to pay to itself the Servicing Fee, as adjusted
pursuant to the related Agreement, from any such Scheduled Payment, late
payment or such other recovery, to the extent permitted by the related
Agreement;
(iv) to reimburse itself or the Seller for expenses incurred by and
recoverable by or reimbursable to it pursuant to the related Agreement;
(v) to pay to the applicable person with respect to each Primary Asset
or REO Property acquired in respect thereof that has been repurchased or
removed from the Trust Fund by the Seller or the Servicer pursuant to the
related Agreement, all amounts received thereon and not distributed as of
the date on which the related repurchase price was determined;
(vi) to make payments to the Trustee of such Series for deposit into
the Distribution Account, if any, or for remittance to the Holders of such
Series in the amounts and in the manner provided for in the related
Agreement; and
(vii) to clear and terminate the Collection Account pursuant to the
related Agreement.
In addition, if the Servicer deposits in the Collection Account for a
Series any amount not required to be deposited therein, it may, at any time,
withdraw such amount from such Collection Account.
ADVANCES AND LIMITATIONS THEREON
The related Prospectus Supplement will describe the circumstances, if any,
under which the Servicer will make advances with respect to delinquent payments
of principal and/or interest on Loans ('Delinquency Advances'). If specified in
the related Prospectus Supplement, the Servicer will be obligated to make
Delinquency Advances, and such obligation may be limited in amount, or may not
be activated until a certain portion of a specified Reserve Fund is depleted.
Such advances are intended to provide liquidity and, except to the extent
specified in the related Prospectus Supplement, not to guarantee or insure
against losses. Accordingly, to the extent specified in the related Prospectus
Supplement, any funds advanced are recoverable by the Servicer out of amounts
received on particular Loans which represent late recoveries of principal or
interest, proceeds of
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insurance policies or Liquidation Proceeds respecting which any such Delinquency
Advance was made or, to the extent provided in the Prospectus Supplement, from
payments or proceeds from other Loans. If and to the extent specified in the
related Prospectus Supplement, the Servicer will advance its own funds to pay
for any related expenses of foreclosure and disposition of any liquidated
Mortgage Home Equity Loan or related Property (the 'Servicing Advances'). The
Servicer will be entitled to be reimbursed for any such Servicing Advances to
the extent provided in the Prospectus Supplement. If a Servicer Advance is made
and subsequently determined to be nonrecoverable from late collections, proceeds
of insurance policies, or Liquidation Proceeds from the related Loan, the
Servicer may be entitled to reimbursement from other funds in the Collection
Account, Certificate Account or Distribution Account, as the case may be, or
from a specified Reserve Fund as applicable, to the extent specified in the
related Prospectus Supplement.
MAINTENANCE OF INSURANCE POLICIES AND OTHER SERVICING PROCEDURES
Standard Hazard Insurance; Flood Insurance. Except as otherwise specified
in the related Prospectus Supplement, the Servicer will be required to maintain
or to cause the obligor on each Home Equity Home Equity Loan to maintain a
hazard insurance policy naming the Servicer as loss payee thereunder and
providing for extended coverage of the standard form of fire insurance with
extended coverage for certain other hazards as its customary in the state in
which the related Property is located. The standard hazard insurance policies
will provide for coverage at least equal to the applicable state standard form
of fire insurance policy with extended coverage for property of the type
securing the related Loans.
In general, the standard form of fire and extended coverage insurance
policy covers physical damage to or destruction of the improvements on the
property by fire, lightning, explosion, smoke, windstorm and hail, and riot,
strike and civil commotion, subject to the conditions and exclusions specified
in each policy. Although the policies relating to the Home Equity Loans will be
underwritten by different insurers under different state laws in accordance with
different applicable state forms and therefore will not contain identical terms
and conditions, the basic terms thereof are dictated by respective state laws,
and most such policies typically do not cover any physical damage resulting from
any of the following: war, revolution, governmental actions, floods and other
water-related causes, earth movement (including earthquakes, landslides and
mudflows), nuclear reactions, wet or dry rot, vermin, rodents, insects or
domestic animals, theft and, in certain cases, vandalism. The foregoing list is
merely indicative of certain kinds of uninsured risks and is not intended to be
all-inclusive. When a Mortgaged Property is located in a federally designated
special flood hazard area at the time of origination of the related Home Equity
Loan, the Agreement requires the Servicer to cause to be maintained, for each
such Home Equity Loan serviced, flood insurance (to the extent available) in an
amount equal in general to the lesser of the maximum insurance available under
the federal flood insurance program and the sum of the Home Equity Loan Balance
of the applicable Home Equity Home Equity Loan the principal balance of any
mortgage loan senior to such Home Equity Home Equity Loan from time to time.
The hazard insurance policies covering the Mortgaged Properties typically
contain a co-insurance clause that in effect requires the insured at all times
to carry insurance of a specified percentage (generally 80% to 90% of the full
replacement value of the improvements on the property in order to recover the
full amount of any partial loss. If the insured's coverage falls below this
specified percentage, such clause generally provides that the insurer's
liability in the event of partial loss does not exceed the greater of (i) the
replacement cost of the improvements less physical depreciation or (ii) such
proportion of the loss as the amount of insurance carried bears to the specified
percentage of the full replacement cost of such improvements.
Unless otherwise specified in the related Prospectus Supplement, coverage
will be in an amount at least equal to the greater of (i) the amount necessary
to avoid the enforcement of any co-insurance clause contained in the policy or
(ii) the outstanding principal balance of the related loan plus the balance of
any senior mortgage. Unless otherwise specified in the related Prospectus
Supplement, the Servicer will also maintain on REO Property that secured a
defaulted Home Equity Loan and that has been acquired upon foreclosure, deed in
lieu of foreclosure, or repossession, a standard hazard insurance policy in an
amount that is equal to the maximum insurable value of such REO Property. No
earthquake or other additional insurance will be required of any obligor or will
be maintained on REO Property acquired in respect of a default Loan, other than
pursuant to such applicable laws and regulations as shall at any time be in
force and shall require such additional insurance.
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The ability of the Servicer to assure that hazard insurance proceeds are
appropriately applied may depend on its being named as an additional insured
under any hazard insurance policy and under any flood insurance policy, or upon
the extent to which information in this regard is furnished to the Servicer by a
borrower. Except as described below, all amounts collected by the Servicer under
any hazard policy (except for amounts applied or expected to be applied to the
restoration or repair of the Property or released to the borrower in accordance
with the Servicer's normal servicing procedures), will be deposited in the
Collection Account. The Agreement provides that the Servicer may satisfy its
obligation to cause hazard policies to be maintained by maintaining a blanket
policy issued by an insurer acceptable to the Rating Agencies insuring against
hazard losses to the collateral securing the Home Equity Loans. If such blanket
policy contains a deductible clause, the Servicer will deposit into the
Collection Account the amount not otherwise payable under the blanket policy
because of such deductible clause.
REALIZATION UPON DEFAULTED LOANS
The Servicer will use its reasonable best efforts to foreclose upon,
repossess or otherwise comparably convert the ownership of the Mortgaged
Properties securing the related Loans as come into and continue in default and
as to which no satisfactory arrangements can be made for collection of
delinquent payments. In connection with such foreclosure or other conversion,
the Servicer will follow such practices and procedures as it deems necessary or
advisable and as are normal and usual in its servicing activities with respect
to comparable loans serviced by it. However, the Servicer will not be required
to expend its own funds in connection with any foreclosure or towards the
restoration of the Property unless it determines that (i) such restoration or
foreclosure will increase the Liquidation Proceeds in respect of the related
Home Equity Loan available to the Holders after reimbursement to itself for such
expenses and (ii) such expenses will be recoverable by it either through
Liquidation Proceeds or the proceeds of insurance. Notwithstanding anything to
the contrary herein, in the case of a Trust Fund for which a REMIC election has
been made, the Servicer will be required to liquidate any Mortgaged Property
acquired through foreclosure within two years after the acquisition of the
beneficial ownership of such Mortgaged Property. While the holder of a Mortgaged
Property acquired through foreclosure can often maximize its recovery by
providing financing to a new purchaser, the Trust Fund, if applicable, will have
no ability to do so and neither the Servicer nor the Seller will be required to
do so.
ENFORCEMENT OF DUE-ON-SALE CLAUSES
When any Mortgaged Property is being conveyed by the obligor, the Servicer
will be obligated to exercise its rights to accelerate the maturity of the
related Home Equity Loan under the applicable 'due-on-sale' clause, if any,
unless such exercise is not permitted under applicable law or if the enforcement
of such clause would result in loss of coverage under any primary mortgage
insurance policy. In such event, the Servicer is authorized to accept from or
enter into an assumption agreement with the person to whom such property has
been or is about to be conveyed, pursuant to which such person becomes liable
under the Loan. To the extent permitted by applicable law, such assumption will
not release the original borrower from its obligation under the Loan. Any fee
collected in connection with an assumption will be retained by the Servicer as
additional servicing compensation. The terms of a Home Equity Loan may not be
changed in connection with an assumption except to the extent specified in the
related Prospectus Supplement.
SERVICING COMPENSATION AND PAYMENT OF EXPENSES
The Servicer will be entitled to a periodic fee as servicing compensation
(the 'Servicing Fee') in an amount to be determined as specified in the related
Prospectus Supplement. The Servicing Fee may be fixed or variable, as specified
in the related Prospectus Supplement. In addition, the Servicer will be entitled
to servicing compensation in the form of assumption fees, late payment charges
and similar items, or excess proceeds following disposition of Property in
connection with defaulted Loans.
Except to the extent otherwise specified in the related Prospectus
Supplement, the Servicer will pay certain expenses incurred in connection with
the servicing of the Loans, including, without limitation, the payment of the
fees and expenses of the Trustee and independent accountants, payment of
insurance policy premiums and the cost of credit support, if any, and payment of
expenses incurred in preparation of reports to Holders.
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When an obligor makes a principal prepayment in full between Due Dates on
the related Loan, the obligor will generally be required to pay interest on the
amount prepaid only to the date of prepayment. If and to the extent provided in
the related Prospectus Supplement in order that one or more Classes of the
Holders of a Series will not be adversely affected by any resulting shortfall in
interest, the amount of the Servicing Fee may be reduced to the extent necessary
to include in the Servicer's remittance to the Trustee for distribution to
Securityholders an amount equal to one month's interest on the related Home
Equity Loan (less the Servicing Fee). If the aggregate amount of such shortfalls
in a month exceeds the Servicing Fee for such month, a shortfall to Holders may
occur.
The Servicer will be entitled to reimbursement for Servicing Advances. The
related Holders will suffer no loss by reason of such Servicing Advances to the
extent expenses are covered under related insurance policies or from excess
Liquidation Proceeds. If claims are either not made or paid under the applicable
insurance policies or if coverage thereunder has been exhausted, the related
Holders will suffer a loss to the extent that Liquidation Proceeds, after
reimbursement of the Servicing Advances, are less than the outstanding principal
balance of and unpaid interest on the related Home Equity Loan which would be
distributable to Holders. The Servicer is generally also entitled to
reimbursement from the Collection Account for Servicing Advances. In addition,
the Servicer will be entitled to reimbursement for Delinquency Advances as
described above under '--Advances and Limitations Thereon.'
The rights of the Servicer to receive funds from the Collection Account for
a Series, whether as the Servicing Fee or other compensation, or for the
reimbursement of Delinquency Advances and Servicing Advances, expenses or
otherwise, are not subordinate to the rights of Holders of such Series.
EVIDENCE AS TO COMPLIANCE
The applicable Agreement for each Series will provide that each year, a
firm of independent public accountants will furnish a statement to the Trustee
to the effect that such firm has examined certain documents and records relating
to the servicing of the Loans by the Servicer and that such examination, which
has been conducted substantially in compliance with either (i) the audit guide
for audits of non-supervised mortgagees approved by the Department of Housing
and Urban Development or (ii) the requirements of the Uniform Single Attestation
Program for Mortgage Bankers, has disclosed no items of non-compliance with the
provisions of the applicable Agreement that, in the opinion of the firm, are
material, except for such items of non-compliance as shall be referred in the
report.
The applicable Agreement for each Series will also provide for delivery to
the Trustee for such Series of an annual statement signed by an officer of the
Servicer to the effect that the Servicer has fulfilled its material obligations
under such Agreement throughout the preceding calendar year.
CERTAIN MATTERS REGARDING THE SERVICER
If an Event of Default occurs under either a Sale and Servicing Agreement
or a Pooling and Servicing Agreement, the Servicer may be replaced by the
Trustee or a successor Servicer. Unless otherwise specified in the related
Prospectus Supplement, such Events of Default and the rights of the Trustee upon
such a default under the Agreement for the related Series will be substantially
similar to those described under 'THE AGREEMENTS--Events of Default; Rights Upon
Event of Default--Pooling and Servicing Agreement; Sale and Servicing
Agreement.'
The Servicer may assign its rights and delegate its duties and obligations
under the related Agreement for each Series if the successor Servicer accepting
such assignment or delegation (i) services similar loans in the ordinary course
of its business, (ii) is reasonably satisfactory to the Trustee for the related
Series, (iii) would not cause any Rating Agency's rating of the Securities for
such Series in effect immediately prior to such assignment, sale or transfer to
be qualified, downgraded or withdrawn as a result of such assignment, sale or
transfer and (iv) executes and delivers to the Trustee and the Enhancer, if any,
an agreement, in form and substance reasonably satisfactory to the Trustee, and
the Enhancer, if any, which contains an assumption by such Servicer of the due
and punctual performance and observance of each covenant and condition to be
performed or observed by the Servicer under the related Agreement from and after
the date of such agreement. No such assignment will become effective until the
Trustee or a successor Servicer has assumed the servicer's obligations and
duties under
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the related Agreement. To the extent that the Servicer transfers its obligations
to a wholly-owned subsidiary or affiliate, such subsidiary or affiliate need not
satisfy the criteria set forth above; however, in such instance, the assigning
Servicer will remain liable for the servicing obligations under the related
Agreement. Any entity into which the Servicer is merged or consolidated or any
successor corporation resulting from any merger, conversion or consolidation
will succeed to the Servicer's obligations under the related Agreement provided
that such successor or surviving entity meets the requirements for a successor
Servicer set forth above.
The Servicer will not be under any liability to the Trust Fund or the
Securityholders for taking any action or for refraining from taking any action
in good faith pursuant to the Agreement, or for errors in judgment; provided,
however, that the Servicer will not be protected against any liability that
otherwise would be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of its reckless disregard
of its obligations and duties thereunder. Except to the extent otherwise
provided therein, each Agreement further will provide that the Servicer and any
director, officer, employee or agent of the Servicer will be entitled to
indemnification by the Trust Fund and will be held harmless to the extent
provided in the Agreement against any loss, liability or expense incurred in
connection with any legal action relating to the Agreement or the Securities,
other than any loss, liability or expense related to any specific Home Equity
Loan or Loans (except any such loss, liability or expense otherwise reimbursable
pursuant to the Agreement) and any loss, liability or expense incurred by the
Servicer by reason of its willful misfeasance, bad faith or gross negligence in
the performance of its duties thereunder or by reason of the Servicer's reckless
disregard of its obligations and duties thereunder.
Each Agreement will provide that the Servicer will not be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties under the Agreement and that in its opinion may involve
it in any expense or liability. The Servicer, however, in its discretion, may
undertake any such action that it may deem necessary or desirable with respect
to the Agreement and the rights and duties of the parties thereto and the
interest of the Securityholders and the Enhancer, if any, thereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom will be expenses, costs and liabilities of the Trust Fund and the
Servicer will be entitled to be reimbursed therefor to the extent provided in
the Agreement. The Servicer's right to such indemnity or reimbursement will
survive any resignation or termination of the Servicer with respect to any
losses, expenses, costs or liabilities arising prior to such resignation or
termination (or arising from events that occurred prior to such resignation or
termination). Any claims by or on behalf of the Securityholders or the Trust
Fund will be made only against the Servicer, who will be liable with respect to
its own acts and omissions as well as the acts and omissions of its directors,
officer, employees and agents.
THE AGREEMENTS
The following summaries describe the material provisions of the Agreements
common to each Series of Securities. The summaries do not purport to be complete
and are subject to, and qualified in their entirety by reference to, the
provisions of the Agreements. Where particular provisions or terms used in the
Agreements are referred to, such provisions or terms are as specified in the
related Agreements.
ASSIGNMENT OF PRIMARY ASSETS
General. At the time of issuance of the Securities of a Series, the Seller
will transfer, convey and assign to the Trust Fund all right, title and interest
of the Seller in the Primary Assets and other property to be transferred to the
Trust Fund for a Series. Such assignment will include all principal and interest
due or received on or with respect to the Primary Assets after the Cut-off Date
to the extent specified in the related Prospectus Supplement (except for any
Retained Interests). The Trustee will, concurrently with such assignment,
execute and deliver the Securities.
Assignment of Loans. The Seller will, as to each Loan, deliver or cause to
be delivered to the Trustee, or, as specified in the related Prospectus
Supplement a custodian on behalf of the Trustee (the 'Custodian'), the Mortgage
Note endorsed without recourse to the order of the Trustee or in blank, the
original Mortgage with evidence of recording indicated thereon (except for any
Mortgage not returned from the public recording office, in which case the Seller
will certify that the original of such Mortgage was delivered to such recording
office)
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and an assignment of the Mortgage in recordable form. The Trustee, or, if so
specified in the related Prospectus Supplement, the Custodian, will hold such
documents in trust for the benefit of the Holders.
The Seller will, at the time of issuance of the Securities, cause
assignments to the Trustee of the Mortgages relating to the Loans for a Series
to be recorded in the appropriate public office for real property records,
except in states where, in the opinion of counsel acceptable to the Trustee,
such recording is not required to protect the Trustee's interest in the related
Loans. If specified in the related Prospectus Supplement, the Seller will cause
such assignments to be so recorded within the time after issuance of the
Securities as is specified in the related Prospectus Supplement, in which event,
the Agreement may require the Seller to repurchase from the Trustee any Home
Equity Loan the related Mortgage of which is not recorded within such time, at
the price described below with respect to repurchases by reason of defective
documentation. Unless otherwise provided in the related Prospectus Supplement,
the enforcement of the repurchase obligation would constitute the sole remedy
available to the Holders or the Trustee for the failure of a Mortgage to be
recorded.
Each Home Equity Loan will be identified in a schedule appearing as an
exhibit to the related Agreement (the 'Home Equity Loan Schedule'). Such Home
Equity Loan Schedule will specify with respect to each Loan: the original
principal amount and unpaid principal balance as of the Cut-off Date; the
current interest rate; the current Scheduled Payment of principal and interest;
the maturity date, if any, of the related Mortgage Note; and if the Home Equity
Loan is an adjustable rate Loan, the Lifetime Rate Cap, if any, and the index.
The Seller does not intend to file the Home Equity Loan Schedules or the related
Agreements.
Assignment of Private Securities. The Seller will cause Private Securities
to be registered in the name of the Trustee (or its nominee or correspondent).
The Trustee (or its nominee or correspondent) will have possession of any
certificated Private Securities. The Trustee generally will not be in possession
of or be assignee of record of any underlying assets for a Private Security. See
'THE TRUST FUNDS--Private Securities.' Each Private Security will be identified
in a schedule appearing as an exhibit to the related Agreement (the 'Certificate
Schedule'), which will specify the original principal amount, outstanding
principal balance as of the Cut-off Date, annual pass-through rate or interest
rate and maturity date for each Private Security conveyed to the Trust Fund. In
the Agreement, the Seller will represent and warrant to the Trustee regarding
the Private Securities: (i) that the information contained in the Certificate
Schedule is true and correct in all material respects; (ii) that, immediately
prior to the conveyance of the Private Securities, the Seller had good title
thereto, and was the sole owner thereof (subject to any Retained Interest);
(iii) that there has been no other sale by it of such Private Securities; and
(iv) that there is no existing lien, charge, security interest or other
encumbrance (other than any Retained Interest) on such Private Securities.
Repurchase and Substitution of Non-Conforming Primary Assets. If any
document in the file relating to the Primary Assets delivered by the Seller to
the Trustee (or Custodian) is found by the Trustee within 90 days of the
execution of the related Agreement (or promptly after the Trustee's receipt of
any document permitted to be delivered after the Closing Date) to be defective
in any material respect and the Seller does not cure such defect within 90 days,
or within such other period specified in the related Prospectus Supplement, the
Seller will, not later than 90 days or within such other period specified in the
related Prospectus Supplement, after the Trustee's notice to the Seller of the
defect, repurchase the related Primary Asset or any property acquired in respect
thereof from the Trustee at a price equal to, unless otherwise specified in the
related Prospectus Supplement, (a) the outstanding principal balance of such
Primary Asset and (b) accrued and unpaid interest to the date of the
repurchase/substitution of such Primary Asset at the rate set forth in the
related Agreement.
The Seller, may, rather than repurchase the Primary Asset as described
above, remove such Primary Asset from the Trust Fund (the 'Deleted Primary
Asset') and substitute in its place one or more other Primary Assets (each, a
'Qualifying Substitute Primary Asset') provided, however, that (i) with respect
to a Trust Fund for which no REMIC election is made, such substitution must be
effected within 120 days of the date of initial issuance of the Securities and
(ii) with respect to a Trust Fund for which a REMIC election is made, after a
specified time period, the Trustee must have received a satisfactory opinion of
counsel that such substitution will not cause the Trust Fund to lose its status
as a REMIC or otherwise subject the Trust Fund to a prohibited transaction tax.
Any Qualifying Substitute Primary Asset will have, on the date of
substitution, (i) an outstanding principal balance, after deduction of all
Scheduled Payments due in the month of substitution, not in excess of the
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outstanding principal balance of the Deleted Primary Asset (the amount of any
shortfall to be deposited to the Collection Account in the month of substitution
for distribution to Holders), (ii) an interest rate not less than (and not more
than 2% greater than) the interest rate or Margin of the Deleted Primary Asset,
(iii) a remaining term-to-stated maturity not greater than (and not more than
two years less than) that of the Deleted Primary Asset, and will comply with all
of the representations and warranties set forth in the applicable Agreement as
of the date of substitution.
The above-described cure, repurchase or substitution obligations constitute
the sole remedies available to the Holders or the Trustee for a material defect
in a document for a Primary Asset.
The Seller will make representations and warranties with respect to Primary
Assets for a Series. If the Seller cannot cure a breach of any such
representations and warranties in all material respects within the time period
specified in the related Prospectus Supplement after notification by the Trustee
of such breach, and if such breach is of a nature that materially and adversely
affects the value of such Primary Asset, the Seller is obligated to repurchase
the affected Primary Asset or, if provided in the related Prospectus Supplement,
provide a Qualifying Substitute Primary Asset therefor, subject to the same
conditions and limitations on purchases and substitutions as described above.
REPORTS TO HOLDERS
The Trustee or other entity specified in the related Prospectus Supplement
will prepare and forward to each Holder on each Distribution Date, or as soon
thereafter as is practicable, a statement setting forth, to the extent
applicable to any Series, among other things:
(i) the amount of principal distributed to Holders of the related
Securities and the outstanding principal balance of such Securities
following such distribution;
(ii) the amount of interest distributed to Holders of the related
Securities and the current interest on such Securities;
(iii) the amounts of (a) any overdue accrued interest included in such
distribution, (b) any remaining overdue accrued interest with respect to
such Securities or (c) any current shortfall in amounts to be distributed
as accrued interest to Holders of such Securities;
(iv) the amounts of (a) any overdue payments of scheduled principal
included in such distribution, (b) any remaining overdue principal amounts
with respect to such Securities, (c) any current shortfall in receipt of
scheduled principal payments on the related Primary Assets or (d) any
realized losses or Liquidation Proceeds to be allocated as reductions in
the outstanding principal balances of such Securities;
(v) the amount received under any related Enhancement, the remaining
amount available under such Enhancement and the amount reimbursed to the
Enhancer, if any;
(vi) the number and aggregate principal balance of Loans that were
delinquent (a) one monthly payment, (b) two monthly payments and (c) three
or more monthly payments, as of the end of the prior collection period;
(vii) the number and aggregate principal balance of Loans in
foreclosure, as of the end of the prior collection period;
(viii) the aggregate principal balance of Loans which became REO
during the prior collection period;
(ix) the book value of any REO Property acquired by the related Trust
Fund;
(x) the amount of losses realized during the prior collection period;
(xi) the aggregate principal balance of Loans repurchased during the
prior collection period;
(xii) the amount of the Servicing Fee for the prior collection period;
(xiii) during the Pre-Funding Period, the remaining Pre-Funded Amount
and the portion of the Pre-Funding Amount used to acquire additional
Primary Assets since the preceding Distribution Date;
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(xiv) during the Pre-Funding Period, the amount remaining in the
Capitalized Interest Account; and
(xv) such other information as specified in the related Agreement.
In addition, within a reasonable period of time after the end of each
calendar year the Trustee, unless otherwise specified in the related Prospectus
Supplement, will furnish to each Holder of record at any time during such
calendar year (a) the aggregate of amounts reported pursuant to (i), (ii), and
(iv)(d) above for such calendar year and (b) such information specified in the
related Agreement to enable Holders to prepare their tax returns including,
without limitation, the amount of original issue discount accrued on the
Securities, if applicable. Information in the Distribution Date and annual
statements provided to the Holders will not have been examined and reported upon
by an independent public accountant. However, the Servicer will provide to the
Trustee a report by independent public accountants with respect to the
Servicer's servicing of the Loans. See 'SERVICING OF LOANS--Evidence as to
Compliance.'
If so specified in the Prospectus Supplement for a Series of Securities,
such Series or one or more Classes of such Series will be issued in book-entry
form. In such event, owners of beneficial interests in such Securities will not
be considered Holders and will not receive such reports directly from the
Trustee. The Trustee will forward such reports only to the entity or its nominee
which is the registered holder of the global certificate which evidences such
book-entry securities. Beneficial owners will receive such reports from the
participants and indirect participants of the applicable book-entry system in
accordance with the practices and procedures of such entities.
EVENTS OF DEFAULT; RIGHTS UPON EVENT OF DEFAULT
Pooling and Servicing Agreement; Sale and Servicing Agreement. Unless
otherwise specified in the related Prospectus Supplement, Events of Default
under the Pooling and Servicing Agreement or Sale and Servicing Agreement for
each Series of Securities relating to Loans include (i) any failure by the
Servicer to deposit amounts in the Collection Account and/or Certificate Account
and/or Distribution Account required to be made thereunder, which failure
continues unremedied for three business days after the giving of written notice
of such failure to the Servicer by the Trustee for such Series, or to the
Servicer and the Trustee by the Enhancer or by the Holders of such Series
evidencing not less than 51% of the aggregate voting rights of the Securities
for such Series, (ii) any failure by the Servicer duly to observe or perform in
any material respect any other of its covenants or agreements in the applicable
Agreement which continues unremedied for 30 days after the giving of written
notice of such failure to the Servicer by the Trustee, or to the Servicer and
the Trustee by the Enhancer or by the Holders of such Series evidencing not less
than 51% of the aggregate voting rights of the Securities for such Series, and
(iii) certain events of insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings and certain actions by the Servicer
indicating its insolvency, reorganization or inability to pay its obligations.
So long as an Event of Default remains unremedied under the applicable
Agreement for a Series of Securities relating to the servicing of Loans, unless
otherwise specified in the related Prospectus Supplement, the Trustee for such
Series or Holders of Securities of such Series evidencing not less than 51% of
the aggregate voting rights of the Securities for such Series with, if specified
in the related Prospectus Supplement, the consent of the Enhancer, may terminate
all of the rights and obligations of the Servicer as servicer under the
applicable Agreement (other than its right to recovery of other expenses and
amounts advanced pursuant to the terms of such Agreement which rights the
Servicer will retain under all circumstances), whereupon the Trustee will
succeed to all the responsibilities, duties and liabilities of the Servicer
under such Agreement and will be entitled to reasonable servicing compensation
not to exceed the applicable servicing fee, together with other servicing
compensation in the form of assumption fees, late payment charges or otherwise
as provided in such Agreement.
In the event that the Trustee is unwilling or unable so to act, it may
select, or petition a court of competent jurisdiction to appoint, a finance
institution, bank or loan servicing institution with a net worth of at least
$15,000,000 to act as successor Servicer under the provisions of the applicable
Agreement. The successor Servicer would be entitled to reasonable servicing
compensation in an amount not to exceed the Servicing Fee as set forth in the
related Prospectus Supplement, together with the other servicing compensation in
the form of assumption fees, late payment charges or otherwise, as provided in
such Agreement.
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During the continuance of any Event of Default of a Servicer under an
Agreement for a Series of Securities, the Trustee for such Series will have the
right to take action to enforce its rights and remedies and to protect and
enforce the rights and remedies of the Holders of such Series, and, unless
otherwise specified in the related Prospectus Supplement, Holders of Securities
evidencing not less than 51% of the aggregate voting rights of the Securities
for such Series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred upon that Trustee. However, the Trustee will not be under any
obligation to pursue any such remedy or to exercise any of such trusts or powers
unless such Holders have offered the Trustee reasonable security or indemnity
against the cost, expenses and liabilities which may be incurred by the Trustee
therein or thereby. The Trustee may decline to follow any such direction if the
Trustee determines that the action or proceeding so directed may not lawfully be
taken or would involve it in personal liability or be unjustly prejudicial to
the nonassenting Holders.
Indenture. Unless otherwise specified in the related Prospectus
Supplement, Events of Default under the Indenture for each Series of Notes
include: (i) a default for 30 days or more in the payment of any principal of or
interest on any Note of such Series; (ii) failure to perform any other covenant
of the Seller or the Trust Fund in the Indenture which continues for a period of
60 days after notice thereof is given in accordance with the procedures
described in the related Prospectus Supplement; (iii) any representation or
warranty made by the Seller or the Trust Fund in the Indenture or in any
certificate or other writing delivered pursuant thereto or in connection
therewith with respect to or affecting such Series having been incorrect in a
material respect as of the time made, and such breach is not cured within 60
days after notice thereof is given in accordance with the procedures described
in the related Prospectus Supplement; (iv) certain events of bankruptcy,
insolvency, receivership or liquidation of the Seller or the Trust Fund; or (v)
any other Event of Default provided with respect to Notes of that Series.
If an Event of Default with respect to the Notes of any Series at the time
outstanding occurs and is continuing, either the Trustee or the Holders of a
majority of the then aggregate outstanding amount of the Notes of such Series
with, if specified in the related Prospectus Supplement, the consent of the
Enhancer, may declare the principal amount (or, if the Notes of that Series are
Zero Coupon Securities, such portion of the principal amount as may be specified
in the terms of that Series, as provided in the related Prospectus Supplement)
of all the Notes of such Series to be due and payable immediately. Such
declaration may, under certain circumstances, be rescinded and annulled by the
Holders of a majority in aggregate outstanding amount of the Notes of such
Series.
If, following an Event of Default with respect to any Series of Notes, the
Notes of such Series have been declared to be due and payable, the Trustee may,
in its discretion, notwithstanding such acceleration, elect to maintain
possession of the collateral securing the Notes of such Series and to continue
to apply distributions on such collateral as if there had been no declaration of
acceleration if such collateral continues to provide sufficient funds for the
payment of principal of and interest on the Notes of such Series as they would
have become due if there had not been such a declaration. In addition, unless
otherwise specified in the related Prospectus Supplement, the Trustee may not
sell or otherwise liquidate the collateral securing the Notes of a Series
following an Event of Default other than a default in the payment of any
principal or interest on any Note of such Series for 30 days or more, unless (a)
the Holders of 100% of the then aggregate outstanding amount of the Notes of
such Series consent to such sale, (b) the proceeds of such sale or liquidation
are sufficient to pay in full the principal of and accrued interest due and
unpaid on the outstanding Notes of such Series at the date of such sale or (c)
the Trustee determines that such collateral would not be sufficient on an
ongoing basis to make all payments on such Notes as such payments would have
become due if such Notes had not been declared due and payable, and the Trustee
obtains the consent of the Holders of 66 2/3% of the then aggregate outstanding
amount of the Notes of such Series.
In the event that the Trustee liquidates the collateral in connection with
an Event of Default involving a default for 30 days or more in the payment of
principal of or interest on the Notes of a Series, the Indenture provides that
the Trustee will have a prior lien on the proceeds of any such liquidation for
unpaid fees and expenses. As a result, upon the occurrence of such an Event of
Default, the amount available for distribution to the Noteholders may be less
than would otherwise be the case. However, the Trustee may not institute a
proceeding for the enforcement of its lien except in connection with a
proceeding for the enforcement of the lien of the Indenture for the benefit of
the Noteholders after the occurrence of such an Event of Default.
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Unless otherwise specified in the related Prospectus Supplement, in the
event the principal of the Notes of a Series is declared due and payable, as
described above, the Holders of any such Notes issued at a discount from par may
be entitled to receive no more than an amount equal to the unpaid principal
amount thereof less the amount of such discount which is unamortized.
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default shall occur and be continuing with respect
to a Series of Notes, the Trustee will be under no obligation to exercise any of
the rights or powers under the Indenture at the request or direction of any of
the Holders of Notes of such Series, unless such Holders offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in complying with such request or
direction. Subject to such provisions for indemnification and certain
limitations contained in the Indenture, the Holders of a majority of the then
aggregate outstanding amount of the Notes of such Series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Notes of such Series, and the Holders of a majority
of the then aggregate outstanding amount of the Notes of such Series may, in
certain cases, waive any default with respect thereto, except a default in the
payment of principal or interest or a default in respect of a covenant or
provision of the Indenture that cannot be modified without the waiver or consent
of all the Holders of the outstanding Notes of such Series affected thereby.
THE TRUSTEE
The identity of the commercial bank, savings and loan association or trust
company named as the Trustee for each Series of Securities will be set forth in
the related Prospectus Supplement. The entity serving as Trustee may have normal
banking relationships with the Seller. In addition, for the purpose of meeting
the legal requirements of certain local jurisdictions, the Trustee will have the
power to appoint co-trustees or separate trustees of all or any part of the
Trust Fund relating to a Series of Securities. In the event of such appointment,
all rights, powers, duties and obligations conferred or imposed upon the Trustee
by the Agreement relating to such Series will be conferred or imposed upon the
Trustee and each such separate trustee or co-trustee jointly, or, in any
jurisdiction in which the Trustee shall be incompetent or unqualified to perform
certain acts, singly upon such separate trustee or co-trustee who will exercise
and perform such rights, powers, duties and obligations solely at the direction
of the Trustee. The Trustee may also appoint agents to perform any of the
responsibilities of the Trustee, which agents will have any or all of the
rights, powers, duties and obligations of the Trustee conferred on them by such
appointment; provided that the Trustee will continue to be responsible for its
duties and obligations under the Agreement. In the event a Series includes both
Notes and Certificates, a separate Trustee identified in the related Prospectus
Supplement will serve as Trustee for the Certificateholders and for the Notes.
DUTIES OF THE TRUSTEE
The Trustee will not make any representations as to the validity or
sufficiency of the Agreement, the Securities or of any Primary Asset or related
documents. If no Event of Default (as defined in the related Agreement) has
occurred, the Trustee is required to perform only those duties specifically
required of it under the Agreement. Upon receipt of the various certificates,
statements, reports or other instruments required to be furnished to it, the
Trustee is required to examine them to determine whether they are in the form
required by the related Agreement. However, the Trustee will not be responsible
for the accuracy or content of any such documents furnished to it by the Holders
or the Servicer under the Agreement.
The Trustee may be held liable for its own negligent action or failure to
act, or for its own misconduct; provided, however, that the Trustee will not be
personally liable with respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with the direction of the Holders in an
Event of Default. The Trustee is not required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
under the Agreement, or in the exercise of any of its rights or powers, if it
has reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
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RESIGNATION OF TRUSTEE
The Trustee may, upon written notice to the Seller, and if specified in the
related Prospectus Supplement, the Enhancer, if any, resign at any time, in
which event the Seller will be obligated to use its best efforts to appoint a
successor Trustee. If no successor Trustee has been appointed and has accepted
the appointment within the period specified in the Agreement after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for appointment of a successor Trustee. The Trustee may
also be removed at any time (i) if the Trustee ceases to be eligible to continue
as such under the Agreement, (ii) if the Trustee becomes insolvent or (iii) by
the Holders of Securities evidencing over 50% of the aggregate voting rights of
the Securities in the Trust Fund upon written notice to the Trustee and to the
Seller. Any resignation or removal of the Trustee and appointment of a successor
Trustee will not become effective until acceptance of the appointment by the
successor Trustee.
AMENDMENT OF AGREEMENT
The Agreement for each Series of Securities may be amended by the Seller,
the Servicer and the Trustee with respect to such Series, without notice to or
consent of the Holders (i) to cure any ambiguity, (ii) to correct any defective
provisions or to correct or supplement any provision therein, (iii) to add to
the duties of the Seller, the Trust Fund or Servicer, (iv) to add any other
provisions with respect to matters or questions arising under such Agreement or
related Enhancement, (v) to add or amend any provisions of such Agreement as
required by a Rating Agency in order to maintain or improve the rating of the
Securities (it being understood that none of the Seller, the Servicer or Trustee
is obligated to maintain or improve such rating), or (vi) to comply with any
requirements imposed by the Code; provided that any such amendment except
pursuant to clause (vi) above will not materially and adversely affect the
interests of any Holders of such Series or, if specified in the related
Prospectus Supplement, the Enhancer, as evidenced by an opinion of counsel. Any
such amendment except pursuant to clause (vi) of the preceding sentence shall be
deemed not to adversely affect in any material respect the interests of any
Holder if the Trustee receives written confirmation from each Rating Agency
rating such Securities that such amendment will not cause such Rating Agency to
withdraw or reduce the then current rating thereof. The Agreement for each
Series may also be amended by the Trustee, the Servicer, if applicable, and the
Seller with respect to such Series with the consent of the Enhancer, if
specified in the related Prospectus Supplement or the Holders possessing not
less than 51% of the aggregate outstanding principal amount of the Securities of
such Series or, if only certain Classes of such Series are affected by such
amendment, 51% of the aggregate outstanding principal amount of the Securities
of each Class of such Series affected thereby, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
such Agreement or modifying in any manner the rights of Holders of such Series;
provided, however, that no such amendment may (a) reduce the amount or delay the
timing of payments on any Security without the consent of the Holder of such
Security; or (b) reduce the aforesaid percentage of the aggregate outstanding
principal amount of Securities of each Class, the Holders of which are required
to consent to any such amendment or (c) if specified in the related Prospectus
Supplement, adversely affect the interests of the Enhancer, without, in the case
of clauses (a) or (b), the consent of the Holders of 100% of the aggregate
outstanding principal amount of each Class of Securities affected thereby.
VOTING RIGHTS
The related Prospectus Supplement will set forth the method of determining
allocation of voting rights with respect to a Series. Unless otherwise provided
in the related Prospectus Supplement, no Holder of Securities of a Series,
solely by virtue of such Holder's status as a Holder, will have any right under
the applicable Agreement for such Series to institute any proceeding with
respect to such Agreement, unless such Holder previously has given to the
Trustee for such Series written notice of default and unless the Holders of
Securities evidencing not less than 51% of the aggregate voting rights of the
Securities for such Series have made written request upon the Trustee to
institute such proceeding in its own name as Trustee thereunder and have offered
to the Trustee reasonable indemnity, and the Trustee for 60 days has neglected
or refused to institute any such proceeding.
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LIST OF HOLDERS
Upon written request of three or more Holders of record of a Series for
purposes of communicating with other Holders with respect to their rights under
the Agreement, which request is accompanied by a copy of the communication which
such Holders propose to transmit, the Trustee will afford such Holders access
during business hours to the most recent list of Holders of that Series held by
the Trustee.
No Agreement will provide for the holding of any annual or other meeting of
Holders.
BOOK-ENTRY SECURITIES
If specified in the Prospectus Supplement for a Series of Securities, such
Series or one or more Classes of such Series may be issued in book-entry form.
In such event, beneficial owners of such Securities will not be considered
'Holders' under the Agreements and may exercise the rights of Holders only
indirectly through the participants in the applicable book-entry system.
REMIC ADMINISTRATOR
For any Series with respect to which a REMIC election is made, preparation
of certain reports and certain other administrative duties with respect to the
Trust Fund may be performed by a REMIC administrator, who may be the Seller or
an affiliate of the Seller.
TERMINATION
Pooling and Servicing Agreement; Trust Agreement. The obligations created
by the Pooling and Servicing Agreement or Trust Agreement for a Series will
terminate upon the distribution to Holders of all amounts distributable to them
pursuant to such Agreement after the earlier of (i) the later of (a) the final
payment or other liquidation of the last Primary Asset remaining in the Trust
Fund for such Series and (b) the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure or repossession in respect of any
Primary Asset or (ii) the repurchase, as described below, by the Servicer or
other entity specified in the related Prospectus Supplement from the Trustee for
such Series of all Primary Assets and other property at that time subject to
such Agreement. The Agreement for each Series permits, but does not require, the
Servicer or other entity specified in the related Prospectus Supplement to
purchase from the Trust Fund for such Series all remaining Primary Assets at a
price equal to, unless otherwise specified in the related Prospectus Supplement,
100% of the aggregate Principal Balance of such Primary Assets plus, with
respect to any property acquired in respect of a Primary Asset, if any, the
outstanding Principal Balance of the related Primary Asset at the time of
foreclosure, less, in either case, related unreimbursed Advances (in the case of
the Primary Assets, only to the extent not already reflected in the computation
of the aggregate Principal Balance of such Primary Assets) and unreimbursed
expenses (that are reimbursable pursuant to the terms of the Pooling and
Servicing Agreement) plus, in either case, accrued interest thereon at the
weighted average rate on the related Primary Assets through the last day of the
Due Period in which such repurchase occurs; provided, however, that if an
election is made for treatment as a REMIC under the Code, the repurchase price
may equal the greater of (a) 100% of the aggregate Principal Balance of such
Primary Assets, plus accrued interest thereon at the applicable net rates on the
Primary Assets through the last day of the month of such repurchase and (b) the
aggregate fair market value of such Primary Assets plus the fair market value of
any property acquired in respect of a Primary Asset and remaining in the Trust
Fund. The exercise of such right will effect early retirement of the Securities
of such Series, but such entity's right to so purchase is subject to the
aggregate Principal Balance of the Primary Assets at the time of repurchase
being less than a fixed percentage, to be set forth in the related Prospectus
Supplement, of the aggregate Principal Balance of the Primary Assets as of the
Cut-off Date. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of certain persons identified therein. For each Series, the Servicer or the
Trustee, as applicable, will give written notice of termination of the Agreement
to each Holder, and the final distribution will be made only upon surrender and
cancellation of the Securities at an office or agency specified in the notice of
termination. If so provided in the related Prospectus Supplement for a Series,
the Seller or another entity may effect an optional termination of the Trust
Fund under the circumstances described in such Prospectus Supplement. See
'DESCRIPTION OF THE SECURITIES--Optional Redemption, Purchase or Termination.'
Indenture. The Indenture will be discharged with respect to a Series of
Notes (except with respect to certain continuing rights specified in the
Indenture) upon the delivery to the Trustee for cancellation of all the
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Notes of such Series or, with certain limitations, upon deposit with the Trustee
of funds sufficient for the payment in full of all of the Notes of such Series.
In addition to such discharge with certain limitations, the Indenture will
provide that, if so specified with respect to the Notes of any Series, the
related Trust Fund will be discharged from any and all obligations in respect of
the Notes of such Series (except for certain obligations relating to temporary
Notes and exchange of Notes, to register the transfer of or exchange Notes of
such Series, to replace stolen, lost or mutilated Notes of such Series, to
maintain paying agencies and to hold monies for payment in trust) upon the
deposit with the Trustee, in trust, of money and/or direct obligations of or
obligations guaranteed by the United States of America which, through the
payment of interest and principal in respect thereof in accordance with their
terms, will provide money in an amount sufficient to pay the principal of and
each installment of interest on the Notes of such Series on the Final Scheduled
Distribution Date for such Notes and any installment of interest on such Notes
in accordance with the terms of the Indenture and the Notes of such Series. In
the event of any such defeasance and discharge of Notes of such Series, holders
of Notes of such Series would be able to look only to such money and/or direct
obligations for payment of principal and interest, if any, on their Notes until
maturity.
CERTAIN LEGAL ASPECTS OF THE LOANS
The following discussion contains summaries of certain legal aspects of
mortgage loans which are general in nature. Because certain of such legal
aspects are governed by applicable state law (which laws may differ
substantially), the summaries do not purport to be complete nor reflect the laws
of any particular state (other than the state of New York where it is
anticipated that a material percentage of the Mortgaged Properties will be
located), nor encompass the laws of all states in which the properties securing
the Loans are situated.
MORTGAGES
The Home Equity Loans for a Series will be secured by either mortgages or
deeds of trust or deeds to secure debt (such Home Equity Loans are hereinafter
referred to in this section as 'mortgage loans'), depending upon the prevailing
practice in the state in which the property subject to a mortgage loan is
located. In New York, the prevailing practice is a mortgage. The filing of a
mortgage, deed of trust or deed to secure debt creates a lien or title interest
upon the real property covered by such instrument and represents the security
for the repayment of an obligation that is customarily evidenced by a promissory
note. The priority of the liens is important because, among other things, the
foreclosure of a senior lien will extinguish a junior lien, and because the
holder of a senior lien generally will have a right to receive insurance,
condemnation or other proceeds before the holder of a junior lien.
Priority between mortgages and deeds of trust (or other instruments of
record) generally depends in the first instance on the order of filing with the
appropriate government records office. Priority also may be affected by the
express terms of the mortgage or the deed of trust and any subordination
agreement among the lenders.
Although priority among liens on the same property generally depends in the
first instance on the order of filing, there are a number of ways in which a
lien that is a senior lien when it is filed can become subordinate to a lien
filed at a later date. A deed of trust or mortgage generally is not prior to any
liens for real estate taxes and assessments, certain federal liens (including
certain federal criminal liens, environmental liens and tax liens), certain
mechanics and materialmen's liens, and other liens given priority by applicable
law.
There are two parties to a mortgage, the mortgagor, who is the
borrower/property owner or the land trustee (as described below), and the
mortgagee, who is the lender. Under the mortgage instrument, the mortgagor
delivers to the mortgagee a note or bond and the mortgage. In the case of a land
trust, there are three parties because title to the property is held by a land
trustee under a land trust agreement of which the borrower/property owner is the
beneficiary; at origination of a mortgage loan, the borrower executes a separate
undertaking to make payments on the mortgage note. Under a deed of trust, the
homeowner or borrower, called the 'grantor,' grants the security property to a
third-party grantee, called the 'trustee,' for the benefit of the lender, called
the 'beneficiary.' The deed of trust, upon the instructions of the beneficiary,
gives the trustee the authority, if the borrower defaults, to sell the security
property in a 'foreclosure' or 'trustee's sale' and to apply the sale proceeds
to the secured debt. The mortgagee's authority under a mortgage and the
trustee's authority under a deed of trust are governed by the law of the state
in which the real property is located, the express provisions of the mortgage or
deed of trust, and, in some cases, in deed of trust transactions, the directions
of the beneficiary.
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FORECLOSURE
Foreclosure of a mortgage is generally accomplished by judicial action, and
foreclosure of a deed of trust may be accomplished by judicial action.
Generally, the action is initiated by the service of legal pleadings upon all
parties having an interest of record in the real property. Delays in completion
of the foreclosure occasionally may result from difficulties in locating
necessary parties defendant. When the mortgagee's right to foreclosure is
contested, the legal proceedings necessary to resolve the issue can be
time-consuming and expensive. After the completion of a judicial foreclosure
proceeding, the court may issue a judgment of foreclosure and appoint a receiver
or other officer to conduct the sale of the property. In some states, mortgages
may also be foreclosed by advertisement or pursuant to a power of sale provided
in the mortgage. Foreclosure of a mortgage by advertisement is essentially
similar to foreclosure of a deed of trust by nonjudicial power of sale.
If a borrower defaults under a loan secured by a deed of trust, the lender
generally may bring suit against the borrower. The lender generally also may
attempt to collect the loan by causing the deed of trust to be enforced against
the property it encumbers. Enforcement of a deed of trust is accomplished in
most cases by a trustee's sale in which the trustee, upon default of the
grantor, and subject to the expiration of applicable cure periods, sells the
security property at a public sale under the terms of the loan documents and
subject to the applicable procedural provisions of state law. In certain states,
the lender must exhaust the security through foreclosure (either judicially or
non-judicially) prior to collecting on the loan. Whether a lender may thereafter
collect on the unpaid balance of the loan is governed by the anti-deficiency
statute in the applicable state.
The trustee's sale generally must be conducted by public auction in the
county or city in which all or some part of the security property is located. At
the sale, the trustee generally requires a bidder to deposit with the trustee a
set amount or a percentage of the full amount of the bidder's final bid in cash
(or an equivalent thereto satisfactory to the trustee) prior to and as a
condition to recognizing such bid, and may conditionally accept and hold these
amounts for the duration of the sale. The beneficiary of the deed of trust
generally need not bid cash at the sale, but may instead make a 'credit bid' up
to the extent of the total amount due under the deed of trust, including costs
and expenses actually incurred in enforcing the deed of trust, as well as the
trustee's fees and expenses. The trustee will sell the security property to the
highest proper bidder at the sale.
A sale conducted in accordance with the terms of the power of sale
contained in the deed of trust generally is presumed to be conducted regularly
and fairly, and, on a conveyance of the property by trustee's deed, confers
absolute legal title to the property to the purchaser, free of all junior deeds
of trust and free of all other liens and claims subordinate to the deed of trust
under which the sale is made. The purchaser's title, however, is subject to all
senior liens and other senior claims. Thus, if the deed of trust being enforced
is a junior deed of trust, the trustee will convey title to the property to the
purchaser subject to the first deed of trust and any other prior liens and
claims. A trustee's sale or judicial foreclosure under a junior deed of trust
generally has no effect on the first deed of trust, with the possible exception
of the right of a senior beneficiary to accelerate its indebtedness under a
default clause or a 'due-on-sale' clause contained in the senior deed of trust.
See '--Due-on-Sale Clauses in Home Equity Loans' below.
Because a potential buyer at the sale may find it difficult to determine
the exact status of title and other facts about the security property, and
because the physical condition of the security property may have deteriorated,
it generally is more common for the lender, rather than an unrelated third
party, to purchase the security property at a trustee's sale or judicial
foreclosure sale. The lender (or other purchaser at the trustee's sale) will be
subject to the burdens of ownership, including the obligations to service any
senior deed of trust, to obtain hazard insurance and to make such repairs at its
own expense as are necessary to render the security property suitable for
resale. The lender commonly will attempt to resell the security property and
obtain the services of a real estate broker and agree to pay the broker a
commission in connection with the resale. Depending upon market conditions, the
ultimate proceeds of the resale of the security property may not be high enough
to equal the lender's investment.
The proceeds received by the trustee from the sale generally are applied
first to the costs, fees and expenses of sale and then in satisfaction of the
indebtedness secured by the deed of trust under which the sale was conducted.
Any remaining proceeds generally are payable to the holders of junior deeds of
trust and other liens and claims in order of their priority. Any balance
remaining generally is payable to the grantor. Following the sale, if there are
insufficient proceeds to repay the secured debt, the beneficiary under the
foreclosed lien generally may obtain a deficiency judgment against the grantor.
See '--Deficiency Judgments' below.
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Some courts have been faced with the issue of whether federal or state
constitutional due process requires that borrowers under deeds of trust receive
notices in addition to the statutorily prescribed minimum. For the most part,
the courts in these cases have upheld the notice provisions and procedures
described above.
An action to foreclose a mortgage is an action to recover the mortgage debt
by enforcing the mortgagee's rights under the mortgage. It is regulated by
statutes and rules and subject throughout to the court's equitable powers.
Generally, a mortgagor is bound by the terms of the related mortgage note and
the mortgage as made and cannot be relieved from his default if the mortgagee
has exercised his rights in a commercially reasonable manner. However, since a
foreclosure action historically was equitable in nature, the court may exercise
equitable powers to relieve a mortgagor of a default and deny the mortgagee
foreclosure on proof that either the mortgagor's default was neither willful nor
in bad faith or the mortgagee's action established a waiver, fraud, bad faith,
or oppressive or unconscionable conduct such as to warrant a court of equity to
refuse affirmative relief to the mortgagee. Under certain circumstances a court
of equity may relieve the mortgagor from an entirely technical default where
such default was not willful.
A foreclosure action is subject to most of the delays and expenses of other
lawsuits if defenses or counterclaims are interposed, sometimes requiring up to
several years to complete. Moreover, a non-collusive, regularly conducted
foreclosure sale may be challenged as a fraudulent conveyance, regardless of the
parties' intent, if a court determines that the sale was for less than fair
consideration and such sale occurred while the mortgagor was insolvent and
within one year (or within the state statute of limitations if the trustee in
bankruptcy elects to proceed under state fraudulent conveyance law) of the
filing of bankruptcy. Similarly, a suit against the debtor on the related
mortgage note may take several years and, generally, is a remedy alternative to
foreclosure, the mortgagee being precluded from pursuing both at the same time.
In the case of foreclosure under either a mortgage or a deed of trust, the
sale by the referee or other designated officer or by the trustee is a public
sale. However, because of the difficulty potential third party purchasers at the
sale have in determining the exact status of title and because the physical
condition of the property may have deteriorated during the foreclosure
proceedings, it is uncommon for a third party to purchase the property at a
foreclosure sale. Rather, it is common for the lender to purchase the property
from the trustee or referee for an amount which may be equal to the unpaid
principal amount of the mortgage note secured by the mortgage or deed of trust
plus accrued and unpaid interest and the expenses of foreclosure, in which event
the mortgagor's debt will be extinguished or the lender may purchase for a
lesser amount in order to preserve its right against a borrower to seek a
deficiency judgment in states where such a judgment is available. Thereafter,
subject to the right of the borrower in some states to remain in possession
during the redemption period, the lender will assume the burdens of ownership,
including obtaining hazard insurance, paying taxes and making such repairs at
its own expense as are necessary to render the property suitable for sale. The
lender will commonly obtain the services of a real estate broker and pay the
broker's commission in connection with the sale of the property. Depending upon
market conditions, the ultimate proceeds of the sale of the property may not
equal the lender's investment in the property. Any loss may be reduced by the
receipt of any mortgage guaranty insurance proceeds.
RIGHTS OF REDEMPTION
In some states, after sale pursuant to a deed of trust or foreclosure of a
mortgage, the trustor or mortgagor and foreclosed junior lienors are given a
statutory period in which to redeem the property from the foreclosure sale. The
right of redemption should be distinguished from the equity of redemption, which
is a non-statutory right that must be exercised prior to the foreclosure sale.
In some states, redemption may occur only upon payment of the entire principal
balance of the loan, accrued interest and expenses of foreclosure. In other
states, redemption may be authorized if the former borrower pays only a portion
of the sums due. The effect of a statutory right of redemption is to diminish
the ability of the lender to sell the foreclosed property. The exercise of a
right of redemption would defeat the title of any purchaser at a foreclosure
sale, or of any purchaser from the lender subsequent to foreclosure or sale
under a deed of trust. Consequently the practical effect of a right of
redemption is to force the lender to retain the property and pay the expenses of
ownership until the redemption period has run. In some states, there is no right
to redeem property after a trustee's sale under a deed of trust.
In New York, the debtor (or anyone on the debtor's behalf) may cure a
default by paying the entire amount of the debt then due, plus costs and
expenses actually incurred in enforcing the obligation and statutorily limited
attorneys' fees. In addition, the borrower (or its successor) or any other
persons having a subordinate lien or encumbrance may discharge the mortgage or
deed of trust on the security property by paying the entire principal
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due as a result of the acceleration, together with interest and costs, expenses
and fees. In New York, with few exceptions, the right of redemption is forever
barred by a valid foreclosure.
When the lender under a junior mortgage or deed of trust cures the default
and reinstates or redeems the senior mortgage or deed of trust, the amount paid
by the lender for such cure generally becomes a part of the indebtedness secured
by the junior deed of trust.
JUNIOR MORTGAGES; RIGHTS OF SENIOR MORTGAGES
The mortgage loans comprising or underlying the Primary Assets included in
the Trust Fund for a Series will be secured by mortgages or deeds of trust which
may be second or more junior mortgages to other mortgages held by other lenders
or institutional investors. The rights of the Trust Fund (and therefore the
Holders), as mortgagee under a junior mortgage, are subordinate to those of the
mortgagee under the senior mortgage, including the prior rights of the senior
mortgagee to receive hazard insurance and condemnation proceeds and to cause the
property securing the mortgage loan to be sold upon default of the mortgagor,
thereby extinguishing the junior mortgagee's lien unless the junior mortgagee
asserts its subordinate interest in the property in foreclosure litigation and,
possibly, satisfies the defaulted senior mortgage. A junior mortgagee may
satisfy a defaulted senior loan in full and, in some states, may cure such
default and bring the senior loan current, in either event adding the amounts
expended to the balance due on the junior loan. In some states, absent a
provision in the mortgage or deed of trust, no notice of default is required to
be given to a junior mortgagee. In addition, as described above, the rights of
the Trust Fund may be or become subject to liens for real estate taxes and other
obligations. Although the Seller generally does not cure defaults under a senior
deed of trust or other lien, it is the Seller's standard practice to protect its
interest by monitoring any such sale of which it is aware and bidding for
property if it determines that it is in the Seller's best interests to do so.
The standard form of the mortgage used by most institutional lenders, like
that used by the Seller, confers on the mortgagee the right both to receive all
proceeds collected under any hazard insurance policy required to be maintained
by the borrower and all awards made in connection with condemnation proceedings.
The lender generally has the right, subject to the specific provisions of the
deed of trust securing its loan, to apply such proceeds and awards to repair of
any damage to the security property or to payment of any indebtedness secured by
the deed of trust, in such order as the beneficiary may determine. Thus, in the
event improvements on the property are damaged or destroyed by fire or other
casualty, or in the event the property is taken by condemnation, the mortgagee
or beneficiary under underlying senior mortgages will have the prior right to
collect any insurance proceeds payable under a hazard insurance policy and any
award of damages in connection with the condemnation and to apply the same to
the indebtedness secured by the senior mortgages or deeds of trust. If
available, proceeds in excess of the amount of senior mortgage indebtedness, in
most cases, will be applied to the indebtedness of a junior mortgage.
Another provision typically found in the form of the mortgage or deed of
trust used by institutional lenders obligates the mortgagor to pay before
delinquency all taxes and assessments on the property and, when due, all
encumbrances, charges and liens on the property which appear prior to the
mortgage or deed of trust, to provide and maintain fire insurance on the
property, to maintain and repair the property and not to commit or permit any
waste thereof, and to appear in and defend any action or proceeding purporting
to affect the property or the rights of the mortgagee under the mortgage. Upon a
failure of the grantor or mortgagor to perform any of these obligations, the
mortgagee or beneficiary is given the right under certain mortgages to perform
the obligation itself, at its election, with the mortgagor agreeing to reimburse
the mortgagee or beneficiary for any sums expended by the mortgagee or
beneficiary on behalf of the mortgagor or grantor. The mortgage or deed of trust
typically provide that all sums so expended by the mortgagee become part of the
indebtedness secured by the mortgage.
ANTI-DEFICIENCY LEGISLATION AND OTHER LIMITATIONS ON LENDERS
Certain states have imposed statutory prohibitions which limit the remedies
of a beneficiary under a deed of trust or a mortgagee under a mortgage. In some
states, statutes limit the right of the beneficiary or mortgagee to obtain a
deficiency judgment against the borrower following foreclosure or sale under a
deed of trust. A deficiency judgment is a personal judgment against the former
borrower equal in most cases to the difference between the net amount realized
upon the public sale of the real property and the amount due to the lender.
However, some states calculate the deficiency as the difference between the
outstanding indebtedness and the
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greater of the fair market value of the property and the sales price of the
property. Other statutes require the beneficiary or mortgagee to exhaust the
security afforded under a deed of trust or mortgage by foreclosure in an attempt
to satisfy the full debt before bringing a personal action against the borrower.
In certain other states, the lender has the option of bringing a personal action
against the borrower on the debt without first exhausting such security;
however, in some of these states, the lender, following judgment on such
personal action, may be deemed to have elected a remedy and may be precluded
from exercising remedies with respect to the security. Consequently, the
practical effect of the election requirement, when applicable, is that lenders
will usually proceed first against the security rather than bringing a personal
action against the borrower. Finally, other statutory provisions limit any
deficiency judgment against the former borrower following a foreclosure sale to
the excess of the outstanding debt over the fair market value of the property at
the time of the public sale. The purpose of these statutes is generally to
prevent a beneficiary or a mortgagee from obtaining a large deficiency judgment
against the former borrower as a result of low or no bids at the foreclosure
sale. In New York there is no statutory prohibition limiting remedies to the
lender, and the liability for deficiency in a mortgage foreclosure action
depends upon the contract. However, by statute, where no express covenant (or
other separate instrument, such as a guarantee) provides for the liability of a
deficiency, the remedies of a lender are confined to the mortgaged property.
In addition to laws limiting or prohibiting deficiency judgments, numerous
other statutory provisions, including the federal bankruptcy laws, the Federal
Soldiers' and Sailors' Relief Act and state laws affording relief to debtors,
may interfere with or affect the ability of the secured lender to realize upon
collateral and/or enforce a deficiency judgment. For example, with respect to
federal bankruptcy law, the filing of a petition acts as a stay against the
enforcement of remedies for collection of a debt. Moreover, a court with federal
bankruptcy jurisdiction may permit a debtor through a Chapter 13 Bankruptcy Code
rehabilitative plan to cure a monetary default with respect to a loan on a
debtor's residence by paying arrearages within a reasonable time period and
reinstating the original loan payment schedule even though the lender
accelerated the loan and the lender has taken all steps to realize upon his
security (provided no sale of the property has yet occurred) prior to the filing
of the debtor's Chapter 13 petition. Some courts with federal bankruptcy
jurisdiction have approved plans, based on the particular facts of the
reorganization case, that effected the curing of a loan default by permitting
the obligor to pay arrearages over a number of years.
Courts with federal bankruptcy jurisdiction have also indicated that the
terms of a mortgage loan may be modified if the borrower has filed a petition
under Chapter 13. These courts have suggested that such modifications may
include reducing the amount of each monthly payment, changing the rate of
interest, altering the repayment schedule and reducing the lender's security
interest to the value of the residence, thus leaving the lender a general
unsecured creditor for the difference between the value of the residence and the
outstanding balance of the loan. Federal bankruptcy law and limited case law
indicate that the foregoing modifications could not be applied to the terms of a
loan secured by property that is the principal residence of the debtor. In all
cases, the secured creditor is entitled to the value of its security plus
post-petition interest, attorney's fees and costs to the extent the value of the
security exceeds the debt.
In a Chapter 11 case under the Bankruptcy Code, the lender is precluded
from foreclosing without authorization from the bankruptcy court. The lender's
lien may be transferred to other collateral and/or be limited in amount to the
value of the lender's interest in the collateral as of the date of the
bankruptcy. The loan term may be extended, the interest rate may be adjusted to
market rates and the priority of the loan may be subordinated to bankruptcy
court-approved financing. The bankruptcy court can, in effect, invalidate
due-on-sale clauses through confirmed Chapter 11 plans of reorganization.
The Bankruptcy Code provides priority to certain tax liens over the
lender's security. This may delay or interfere with the enforcement of rights in
respect of a defaulted Loan. In addition, substantive requirements are imposed
upon lenders in connection with the origination and the servicing of mortgage
loans by numerous federal and some state consumer protection laws. The laws
include the federal Truth-in-Lending Act, Real Estate Settlement Procedures Act,
Equal Credit Opportunity Act, Fair Credit Billing Act, Fair Credit Reporting Act
and related statutes and regulations. These federal laws impose specific
statutory liabilities upon lenders who originate loans and who fail to comply
with the provisions of the law. In some cases, this liability may affect
assignees of the loans.
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DUE-ON-SALE CLAUSES IN MORTGAGE LOANS
Due-on-sale clauses permit the lender to accelerate the maturity of the
loan if the borrower sells or transfers, whether voluntarily or involuntarily,
all or part of the real property securing the loan without the lender's prior
written consent. The enforceability of these clauses has been the subject of
legislation or litigation in many states, and in some cases, typically involving
single family residential mortgage transactions, their enforceability has been
limited or denied. In any event, the Garn-St Germain Depository Institutions Act
of 1982 (the 'Garn-St Germain Act') preempts state constitutional, statutory and
case law that prohibits the enforcement of due-on-sale clauses and permits
lenders to enforce these clauses in accordance with their terms, subject to
certain exceptions. As a result, due-on-sale clauses have become generally
enforceable except in those states whose legislatures exercised their authority
to regulate the enforceability of such clauses with respect to mortgage loans
that were (i) originated or assumed during the 'window period' under the Garn-St
Germain Act which ended in all cases not later than October 15, 1982, and (ii)
originated by lenders other than national banks, federal savings institutions
and federal credit unions. FHLMC has taken the position in its published
mortgage servicing standards that, out of a total of eleven 'window period
states,' five states (Arizona, Michigan, Minnesota, New Mexico and Utah) have
enacted statutes extending, on various terms and for varying periods, the
prohibition on enforcement of due-on-sale clauses with respect to certain
categories of window period loans. Also, the Garn-St Germain Act does
'encourage' lenders to permit assumption of loans at the original rate of
interest or at some other rate less than the average of the original rate and
the market rate.
In addition, under federal bankruptcy law, due-on-sale clauses may not be
enforceable in bankruptcy proceedings and may, under certain circumstances, be
eliminated in any modified mortgage resulting from such bankruptcy proceeding.
ENFORCEABILITY OF PREPAYMENT AND LATE PAYMENT FEES
Forms of notes, mortgages and deeds of trust used by lenders may contain
provisions obligating the borrower to pay a late charge if payments are not
timely made, and in some circumstances may provide for prepayment fees or
penalties if the obligation is paid prior to maturity. In certain states, there
are or may be specific limitations, upon the late charges which a lender may
collect from a borrower for delinquent payments. Certain states also limit the
amounts that a lender may collect from a borrower as an additional charge if the
loan is prepaid. Late charges and prepayment fees are typically retained by
servicers as additional servicing compensation.
EQUITABLE LIMITATIONS ON REMEDIES
In connection with lenders' attempts to realize upon their security, courts
have invoked general equitable principles. The equitable principles are
generally designed to relieve the borrower from the legal effect of his defaults
under the loan documents. Examples of judicial remedies that have been fashioned
include judicial requirements that the lender undertake affirmative and
expensive actions to determine the causes of the borrower's default and the
likelihood that the borrower will be able to reinstate the loan. In some cases,
courts have substituted their judgment for the lender's judgment and have
required that lenders reinstate loans or recast payment schedules in order to
accommodate borrowers who are suffering from temporary financial disability. In
other cases, courts have limited the right of a lender to realize upon his
security if the default under the security agreement is not monetary, such as
the borrower's failure to adequately maintain the property or the borrower's
execution of secondary financing affecting the property. Finally, some courts
have been faced with the issue of whether or not federal or state constitutional
provisions reflecting due process concerns for adequate notice require that
borrowers under security agreements receive notices in addition to the
statutorily-prescribed minimums. For the most part, these cases have upheld the
notice provisions as being reasonable or have found that, in cases involving the
sale by a trustee under a deed of trust or by a mortgagee under a mortgage
having a power of sale, there is insufficient state action to afford
constitutional protections to the borrower.
Most conventional single-family mortgage loans may be prepaid in full or in
part without penalty. A mortgagee to whom a prepayment in full has been tendered
may be compelled to give either a release of the mortgage or an instrument
assigning the existing mortgage. The absence of a restraint on prepayment,
particularly with respect to mortgage loans having higher mortgage rates, may
increase the likelihood of refinancing or other early retirements of such
mortgage loans.
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APPLICABILITY OF USURY LAWS
New York has usury laws which limit the interest and other amounts that may
be charged under certain loans. Title V of the Depository Institutions
Deregulation and Monetary Control Act of 1980, enacted in March 1980 ('Title
V'), provides that state usury limitations shall not apply to certain types of
residential first mortgage loans originated by certain lenders after March 31,
1980. Similar federal statutes were in effect with respect to mortgage loans
made during the first three months of 1980. Title V authorizes any state to
reimpose interest rate limits by adopting, before April 1, 1983, a state law, or
by certifying that the voters of such state have voted in favor of any
provision, constitutional or otherwise, which expressly rejects an application
of the federal law. Fifteen states adopted such a law prior to the April 1, 1983
deadline. In addition, even where Title V is not so rejected, any state is
authorized by the law to adopt a provision limiting discount points or other
charges on mortgage loans covered by Title V.
ENVIRONMENTAL LEGISLATION
A federal statute, the Comprehensive Environmental Response, Compensation,
and Liability Act, and a growing number of state laws impose a statutory lien
for associated costs on property that is the subject of a cleanup action on
account of hazardous wastes or hazardous substances released or disposed of on
the property. Such a lien generally will have priority over all subsequent liens
on the property and, in certain of these states, will have priority over prior
recorded liens, including the lien of a deed of trust. The priority of the
environmental lien under federal law depends on the time of perfection of the
federal lien compared to the time of perfection of any competing liens under
applicable state law. In addition, under federal environmental legislation and
possibly under state law in a number of states, a secured party that takes a
deed in lieu of foreclosure or acquires a property at a foreclosure sale may be
liable for the costs of cleaning up a contaminated site. Although such costs
could be substantial, they would probably not be imposed on a secured lender
(such as the applicable Trust Fund) if it promptly marketed the foreclosed
property for resale. In the event that a Trust Fund acquired title to a property
securing a Mortgage Home Equity Loan and cleanup costs were incurred in respect
of the property, the holders of the Securities might incur a delay in the
payment if such costs were required to be paid by such Trust Fund.
SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940
Under the Soldiers' and Sailors' Civil Relief Act of 1940, members of all
branches of the military on active duty, including draftees and reservists in
military service, (i) are entitled to have interest rates reduced and capped at
6% per annum, on obligations (including Loans) incurred prior to the
commencement of military service for the duration of military service, (ii) may
be entitled to a stay of proceedings on any kind of foreclosure or repossession
action in the case of defaults on such obligations entered into prior to
military service for the duration of military service and (iii) may have the
maturity of such obligations incurred prior to military service extended, the
payments lowered and the payment schedule readjusted for a period of time after
the completion of military service. However, the benefits of (i), (ii), or (iii)
above are subject to challenge by creditors and if, in the opinion of the court,
the ability of a person to comply with such obligations is not materially
impaired by military service, the court may apply equitable principles
accordingly. If a borrower's obligation to repay amounts otherwise due on a Home
Equity Loan included in a Trust Fund for a Series is relieved pursuant to the
Soldiers' and Sailors' Civil Relief Act of 1940, none of the Trust Fund, the
Servicer, the Seller nor the Trustee will be required to advance such amounts,
and any loss in respect thereof may reduce the amounts available to be paid to
the Holders of the Securities of such Series. Unless otherwise specified in the
related Prospectus Supplement, any shortfalls in interest collections on Loans
or Underlying Loans relating to the Private Securities, as applicable, included
in a Trust Fund for a Series resulting from application of the Soldiers' and
Sailors' Civil Relief Act of 1940 will be allocated to each Class of Securities
of such Series that is entitled to receive interest in respect of such Loans or
Underlying Loans in proportion to the interest that each such Class of
Securities would have otherwise been entitled to receive in respect of such
Loans or Underlying Loans had such interest shortfall not occurred.
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USE OF PROCEEDS
The Seller will apply all or substantially all of the net proceeds from the
sale of each Series of Securities for one or more of the following purposes: (i)
to establish any Reserve Fund, Pre-Funding Account or Capitalized Interest
Account, (ii) to pay costs of structuring and issuing such Securities, including
the costs of obtaining Enhancement and (iii) for its general corporate purposes.
FEDERAL INCOME TAX CONSIDERATIONS
GENERAL
This section sets forth (i) certain federal income tax opinions of Stroock
& Stroock & Lavan, special counsel to the Seller ('Federal Tax Counsel'), and
(ii) a summary, based on the advice of Federal Tax Counsel, of the material
federal income tax consequences of the purchase, ownership and disposition of
Securities. The summary does not purport to deal with all aspects of federal
income taxation that may affect particular investors in light of their
individual circumstances, nor with certain types of investors subject to special
treatment under the federal income tax laws. The summary focuses primarily upon
investors who will hold Securities as 'capital assets' (generally, property held
for investment) within the meaning of Section 1221 of the of the Internal
Revenue Code of 1986, as amended (the 'Code'), but much of the discussion is
applicable to other investors as well. Because tax consequences may vary based
on the status or tax attributes of the owner of a Security, prospective
investors are advised to consult their own tax advisers concerning the federal,
state, local and any other tax consequences to them of the purchase, ownership
and disposition of the Securities. For purposes of this tax discussion (except
with respect to information reporting, or where the context indicates
otherwise), any reference to the 'Holder' means the beneficial owner of a
Security.
The summary is based upon the provisions of the Code, the regulations
promulgated thereunder, including, where applicable, proposed regulations, and
the judicial and administrative rulings and decisions now in effect, all of
which are subject to change or possible differing interpretations. The statutory
provisions, regulations, and interpretations on which this interpretation is
based are subject to change, and such a change could apply retroactively.
The federal income tax consequences to Holders will vary depending on
whether (i) the Securities of a Series are classified as indebtedness for
federal income tax purposes; (ii) an election is made to treat the Trust Fund
(or certain assets of the Trust Fund) relating to a particular Series of
Securities as a real estate mortgage investment conduit ('REMIC') under the
Code; (iii) the Securities represent an ownership interest for federal income
tax purposes in some or all of the assets included in the Trust Fund for a
Series; or (iv) for federal income tax purposes the Trust Fund relating to a
particular Series of Certificates is classified as a partnership. The Prospectus
Supplement for each Series of Securities will specify how the Securities will be
treated for federal income tax purposes and will discuss whether a REMIC
election, if any, will be made with respect to such Series.
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OPINIONS
Federal Tax Counsel is of the opinion that:
(i) If a Prospectus Supplement indicates that one or more Classes of
Securities of the related Series are to be treated as indebtedness for
federal income tax purposes, assuming that all of the provisions of the
applicable Agreement are complied with, the Securities so designated will
be considered indebtedness of the Trust Fund for federal income tax
purposes;
(ii) If a Prospectus Supplement indicates that one or more REMIC
elections will be made with respect to the related Trust Fund, assuming
that such elections are timely made and all of the provisions of the
applicable Agreement are complied with (a) each segregated pool of assets
specified in such Agreement will constitute a REMIC for federal income tax
purposes, (b) the Class or Classes of Securities of the related Series
which are designated as 'regular interests' in such Prospectus Supplement
will be considered 'regular interests' in a REMIC for federal income tax
purposes and (c) the Class of Securities of the related Series which is
designated as the 'residual interest' in such Prospectus Supplement will be
considered the sole class of 'residual interests' in the applicable REMIC
for federal income tax purposes;
(iii) If a Prospectus Supplement indicates that a Trust Fund will be
treated as a grantor trust for federal income tax purposes, assuming
compliance with all of the provisions of the applicable Agreement, (a) the
Trust Fund will be considered to be a grantor trust under Subpart E, Part 1
of Subchapter J of the Code and will not be considered to be an association
taxable as a corporation and (b) a Holder of the related Securities will be
treated for federal income tax purposes as the owner of an undivided
interest in the Primary Assets included in the Trust Fund; and
(iv) If a Prospectus Supplement indicates that a Trust Fund is to be
treated as a partnership for federal income tax purposes, assuming that all
of the provisions of the applicable Agreements are complied with, such
Trust Fund will be considered to be a partnership for federal income tax
purposes and will not be considered to be an association or publicly traded
partnership taxable as a corporation.
Each such opinion is an expression of an opinion only, is not a guarantee
of results and is not binding on the Internal Revenue Service or any
third-party.
TAXATION OF DEBT SECURITIES (INCLUDING REGULAR INTEREST SECURITIES)
Interest and Acquisition Discount. Securities representing regular
interest in a REMIC ('Regular Interest Securities') are generally taxable to
Holders in the same manner as evidences of indebtedness issued by the REMIC.
Stated interest on the Regular Interest Securities will be taxable as ordinary
income and taken into account using the accrual method of accounting, regardless
of the Holder's normal accounting method. Interest (other than original issue
discount) on Securities (other than Regular Interest Securities) that are
characterized as indebtedness for federal income tax purposes will be includible
in income by Holders thereof in accordance with their usual methods of
accounting. Securities characterized as debt for federal income tax purposes and
Regular Interest Securities will be referred to hereinafter collectively as
'Debt Securities.' For Certificates treated as debt for federal income tax
purposes, see 'Certain Certificates Treated as Indebtedness.'
Debt Securities that are Compound Interest Securities will, and certain of
the other Debt Securities may, be issued with 'original issue discount' ('OID').
The following discussion is based in part on the rules governing OID which are
set forth in Sections 1271-1275 of the Code and the Treasury regulations issued
thereunder on February 2, 1994 (the 'OID Regulations'). A Holder should be
aware, however, that the OID Regulations do not adequately address certain
issues relevant to prepayable securities, such as the Debt Securities.
In general, OID, if any, will equal the difference between the stated
redemption price at maturity of a Debt Security and its issue price. A Holder of
a Debt Security must include such OID in gross income as ordinary interest
income as it accrues under a prescribed method which takes into account an
economic accrual of the discount. In general, OID must be included in income in
advance of the receipt of the cash representing that income. The amount of OID
on a Debt Security will be considered to be zero if it is less than a de minimis
amount determined under the Code.
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The issue price of a Debt Security is the first price at which a
substantial amount of Debt Securities of that class are sold to the public
(excluding bond houses, brokers, underwriters or wholesalers). If less than a
substantial amount of a particular class of Debt Securities is sold for cash on
or prior to the Closing Date, the issue price for such class will be treated as
the fair market value of such class on the Closing Date. The stated redemption
price at maturity of a Debt Security includes the original principal amount of
the Debt Security, but generally will not include distributions of interest if
such distributions constitute 'qualified stated interest.'
Under the OID Regulations, interest payments will not be qualified stated
interest unless the interest payments are 'unconditionally payable.' The OID
Regulations state that interest is unconditionally payable if late payment of
interest (other than late payment that occurs within a reasonable grace period)
or nonpayment of interest is expected to be penalized or reasonable remedies
exist to compel payment. The meaning of 'penalized' under the OID regulations is
unclear particularly in the case of obligations based on other debt obligations.
Interest payments on Debt Securities which do not have reasonable remedies to
compel timely payment of interest may not be qualified stated interest, and such
Debt Securities may have original issue discount.
Certain Debt Securities will provide for distributions of interest based on
a period that is the same length as the interval between Distribution Dates but
ends prior to each Distribution Date. Any interest that accrues prior to the
Closing Date may be treated under the OID Regulations either (i) as part of the
issue price and the stated redemption price at maturity of the Debt Securities
or (ii) as not included in the issue price or stated redemption price. The OID
Regulations provide a special application of the de minimis rule for debt
instruments with long first accrual periods where the interest payable for the
first period is at a rate which is effectively less than that which applies in
all other periods. In such cases, for the sole purpose of determining whether
original issue discount is de minimis, the OID Regulations provide that the
stated redemption price is equal to the instrument's issue price plus the
greater of the amount of foregone interest or the excess (if any) of the
instrument's stated principal amount over its issue price.
Under the de minimis rule, OID on a Debt Security will be considered to be
zero if such OID is less than 0.25% of the stated redemption price at maturity
of the Debt Security multiplied by the weighted average maturity of the Debt
Security. For this purpose, the weighted average maturity of the Debt Security
is computed as the sum of the amounts determined by multiplying the number of
full years (i.e., rounding down partial years) from the issue date until each
distribution in reduction of stated redemption price at maturity is scheduled to
be made by a fraction, the numerator of which is the amount of each distribution
included in the stated redemption price at maturity of the Debt Security and the
denominator of which is the stated redemption price at maturity of the Debt
Security. Holders generally must report de minimis OID pro rata as principal
payments are received, and such income will be capital gain if the Debt Security
is held as a capital asset. However, accrual method Holders may elect to accrue
all de minimis OID as well as market discount under a constant interest method.
See '--Election to Treat All Interest as Original Issue Discount.'
The Holder of a Debt Security issued with OID must include in gross income,
for all days during its taxable year on which it holds such Debt Security, the
sum of the 'daily portions' of such original issue discount. The amount of OID
includible in income by a Holder will be computed by allocating to each day
during a taxable year a pro rata portion of the original issue discount that
accrued during the relevant accrual period. In the case of a Debt Security that
is not a Regular Interest Security and the principal payments on which are not
subject to acceleration resulting from prepayments on the Loans, the amount of
OID includible in income of a Holder for an accrual period (generally the period
over which interest accrues on the debt instrument) will equal the product of
the yield to maturity of the Debt Security and the adjusted issue price of the
Debt Security, reduced by any payments of qualified stated interest. The
adjusted issue price is the sum of its issue price plus prior accruals of OID,
reduced by the total payments made with respect to such Debt Security in all
prior periods, other than qualified stated interest payments.
The amount of OID to be included in income by a Holder of a debt
instrument, such as certain Classes of the Debt Securities, that is subject to
acceleration due to prepayments on other debt obligations securing such
instruments (a 'Pay-Through Security'), is computed by taking into account the
anticipated rate of prepayments assumed in pricing the debt instrument (the
'Prepayment Assumption'). The amount of OID that will accrue during an accrual
period on a Pay-Through Security is the excess (if any) of the sum of (a) the
present value of all
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payments remaining to be made on the Pay-Through Security as of the close of the
accrual period and (b) the payments during the accrual period of amounts
included in the stated redemption price of the Pay-Through Security, over the
adjusted issue price of the Pay-Through Security at the beginning of the accrual
period. The present value of the remaining payments is to be determined on the
basis of three factors: (i) the original yield to maturity of the Pay-Through
Security (determined on the basis of compounding at the end of each accrual
period and properly adjusted for the length of the accrual period), (ii) events
which have occurred before the end of the accrual period and (iii) the
assumption that the remaining payments will be made in accordance with the
original Prepayment Assumption. The effect of this method is to increase the
portions of OID required to be included in income by a Holder to take into
account prepayments with respect to the Loans at a rate that exceeds the
Prepayment Assumption, and to decrease (but not below zero for any period) the
portions of OID required to be included in income by a Holder of a Pay-Through
Security to take into account prepayments with respect to the Loans at a rate
that is slower than the Prepayment Assumption. Although OID will be reported to
Holders of Pay-Through Securities based on the Prepayment Assumption, no
representation is made to Holders that Loans will be prepaid at that rate or at
any other rate.
The Seller may adjust the accrual of OID on a Class of Regular Interest
Securities (or other regular interests in a REMIC) in a manner that it believes
to be appropriate, to take account of realized losses on the Loans, although the
OID Regulations do not provide for such adjustments. If the Internal Revenue
Service were to require that OID be accrued without such adjustments, the rate
of accrual of OID for a Class of Regular Interest Securities could increase.
Certain classes of Regular Interest Securities may represent more than one
class of REMIC regular interests. Unless the applicable Prospectus Supplement
specifies otherwise, the Trustee intends, based on the OID Regulations, to
calculate OID on such Securities as if, solely for the purposes of computing
OID, the separate regular interests were a single debt instrument.
A subsequent Holder of a Debt Security will also be required to include OID
in gross income, but such a Holder who purchases such Debt Security for an
amount that exceeds its adjusted issue price will be entitled (as will an
initial Holder who pays more than a Debt Security's issue price) to offset such
OID by comparable economic accruals of portions of such excess.
Effects of Defaults and Delinquencies. Holders will be required to report
income with respect to the related Securities under an accrual method without
giving effect to delays and reductions in distributions attributable to a
default or delinquency on the Loans, except possibly to the extent that it can
be established that such amounts are uncollectible. As a result, the amount of
income (including OID) reported by a Holder of such a Security in any period
could significantly exceed the amount of cash distributed to such Holder in that
period. The Holder will eventually be allowed a loss (or will be allowed to
report a lesser amount of income) to the extent that the aggregate amount of
distributions on the Securities is reduced as a result of a Home Equity Loan
default. However, the timing and character of such losses or reductions in
income are uncertain and, accordingly, Holders of Securities should consult
their own tax advisors on this point.
Interest-Only Debt Securities. The Trust Fund intends to report income
from interest-only classes of Debt Securities to the Internal Revenue Service
and to Holders of interest-only Debt Securities based on the assumption that the
stated redemption price at maturity is equal to the sum of all payments
determined under the applicable prepayment assumption. As a result, such
interest-only Debt Securities Certificates will be treated as having original
issue discount.
Variable Rate Debt Securities. Under the OID Regulations, Debt Securities
paying interest at a variable rate (a 'Variable Rate Debt Security') are subject
to special rules. A Variable Rate Debt Security will qualify as a 'variable rate
debt instrument' if (i) its issue price does not exceed the total noncontingent
principal payments due under the Variable Rate Debt Security by more than a
specified de minimis amount and (ii) it provides for stated interest, paid or
compounded at least annually, at (a) one or more qualified floating rates, (b) a
single fixed rate and one or more qualified floating rates, (c) a single
objective rate or (d) a single fixed rate and a single objective rate that is a
qualified inverse floating rate.
A 'qualified floating rate' is any variable rate where variations in the
value of such rate can reasonably be expected to measure contemporaneous
variations in the cost of newly borrowed funds in the currency in which
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the Variable Rate Debt Security is denominated. A multiple of a qualified
floating rate will generally not itself constitute a qualified floating rate for
purposes of the OID Regulations. However, a variable rate equal to (i) the
product of a qualified floating rate and a fixed multiple that is greater than
zero but not more than 1.35 or (ii) the product of a qualified floating rate and
a fixed multiple that is greater than zero but not more than 1.35, increased or
decreased by a fixed rate will constitute a qualified floating rate for purposes
of the OID Regulations. In addition, under the OID Regulations, two or more
qualified floating rates that can reasonably be expected to have approximately
the same values throughout the term of the Variable Rate Debt Security will be
treated as a single qualified floating rate (a 'Presumed Single Qualified
Floating Rate'). Two or more qualified floating rates with values within 25
basis points of each other as determined on the Variable Rate Debt Security's
issue date will be conclusively presumed to be a Presumed Single Qualified
Floating Rate. Notwithstanding the foregoing, a variable rate that would
otherwise constitute a qualified floating rate but which is subject to one or
more restrictions such as a cap or floor, will not be a qualified floating rate
for purposes of the OID Regulations unless the restriction is fixed throughout
the term of the Variable Rate Debt Security or the restriction will not
significantly affect the yield of the Variable Rate Debt Security.
An 'objective rate' is a rate that is not itself a qualified floating rate
but which is determined using a single fixed formula and which is based upon (i)
one or more qualified floating rates, (ii) one or more rates where each rate
would be a qualified floating rate for a debt instrument denominated in a
currency other than the currency in which the Variable Rate Debt Security is
denominated, (iii) either the yield or changes in the price of one or more items
of actively traded personal property or (iv) a combination of rates described in
(i), (ii) and (iii). The OID Regulations also provide that other variable rates
may be treated as objective rates if so designated by the Internal Revenue
Service in the future. Despite the foregoing, a variable rate of interest on a
Variable Rate Debt Security will not constitute an objective rate if it is
reasonably expected that the average value of such rate during the first half of
the Variable Rate Debt Security's term will be either significantly less than or
significantly greater than the average value of the rate during the final half
of the Variable Rate Debt Security's term. An objective rate will qualify as a
'qualified inverse floating rate' if such rate is equal to a fixed rate minus a
qualified floating rate and variations in the rate can reasonably be expected to
inversely reflect contemporaneous variations in the cost of newly borrowed
funds. The OID Regulations also provide that if a Variable Rate Debt Security
provides for stated interest at a fixed rate for an initial period of less than
one year followed by a variable rate that is either a qualified floating rate or
an objective rate and if the variable rate on the Variable Rate Debt Security's
issue date is intended to approximate the fixed rate, then the fixed rate and
the variable rate together will constitute either a single qualified floating
rate or objective rate, as the case may be (a 'Presumed Single Variable Rate').
If the value of the variable rate and the initial fixed rate are within 25 basis
points of each other as determined on the Variable Rate Debt Security's issue
date, the variable rate will be conclusively presumed to approximate the fixed
rate.
For Variable Rate Debt Securities that qualify as a 'variable rate debt
instrument' under the OID Regulations and provide for interest at either a
single qualified floating rate, a single objective rate, a Presumed Single
Qualified Floating Rate or a Presumed Single Variable Rate throughout the term
(a 'Single Variable Rate Debt Security'), original issue discount is computed as
described above based on the following: (i) stated interest on the Single
Variable Rate Debt Security which is unconditionally payable in cash or property
(other than debt instruments of the issuer) at least annually will constitute
qualified stated interest and (ii) by assuming that the variable rate on the
Single Variable Debt Security is a fixed rate equal to: (a) in the case of a
Single Variable Rate Debt Security with a qualified floating rate or a qualified
inverse floating rate, the value of, as of the issue date, of the qualified
floating rate or the qualified inverse floating rate or (b) in the case of a
Single Variable Rate Debt Security with an objective rate (other than a
qualified inverse floating rate), a fixed rate which reflects the reasonably
expected yield for such Single Variable Debt Security.
In general, any Variable Rate Debt Security other than a Single Variable
Rate Debt Security (a 'Multiple Variable Rate Debt Security') that qualifies as
a 'variable rate debt instrument' will be converted into an 'equivalent' fixed
rate debt instrument for purposes of determining the amount and accrual of
original issue discount and qualified stated interest on the Multiple Variable
Rate Debt Security. The OID Regulations generally require that such a Multiple
Variable Rate Debt Security be converted into an 'equivalent' fixed rate debt
instrument by substituting any qualified floating rate or qualified inverse
floating rate provided for under the terms of the Multiple Variable Rate Debt
Security with a fixed rate equal to the value of the qualified floating
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rate or qualified inverse floating rate, as the case may be, as of the Multiple
Variable Rate Debt Security's issue date. Any objective rate (other than a
qualified inverse floating rate) provided for under the terms of the Multiple
Variable Rate Debt Security is converted into a fixed rate that reflects the
yield that is reasonably expected for the Multiple Variable Rate Debt Security.
In the case of a Multiple Variable Rate Debt Security that qualifies as a
'variable rate debt instrument' and provides for stated interest at a fixed rate
in addition to either one or more qualified floating rates or a qualified
inverse floating rate, the fixed rate is initially converted into a qualified
floating rate (or a qualified inverse floating rate, if the Multiple Variable
Rate Debt Security provides for a qualified inverse floating rate). Under such
circumstances, the qualified floating rate or qualified inverse floating rate
that replaces the fixed rate must be such that the fair market value of the
Multiple Variable Rate Debt Security as of the Multiple Variable Rate Debt
Security's issue date is approximately the same as the fair market value of an
otherwise identical debt instrument that provides for either the qualified
floating rate or qualified inverse floating rate rather than the fixed rate.
Subsequent to converting the fixed rate into either a qualified floating rate or
a qualified inverse floating rate, the Multiple Variable Rate Debt Security is
then converted into an 'equivalent' fixed rate debt instrument in the manner
described above.
Once the Multiple Variable Rate Debt Security is converted into an
'equivalent' fixed rate debt instrument pursuant to the foregoing rules, the
amount of original issue discount and qualified stated interest, if any, are
determined for the 'equivalent' fixed rate debt instrument by applying the
original issue discount rules to the 'equivalent' fixed rate debt instrument in
the manner described above. A Holder of the Multiple Variable Rate Debt Security
will account for such original issue discount and qualified stated interest as
if the Holder held the 'equivalent' fixed rate debt instrument. Each accrual
period appropriate adjustments will be made to the amount of qualified stated
interest or original issue discount assumed to have been accrued or paid with
respect to the 'equivalent' fixed rate debt instrument in the event that such
amounts differ from the accrual amount of interest accrued or paid on the
Multiple Variable Rate Debt Security during the accrual period.
The OID Regulations do not clearly address the treatment of a Variable Rate
Debt Security that is based on a weighted average of the interest rates on
underlying Loans. Under the OID Regulations, interest payments on such a
Variable Rate Debt Security may be characterized as qualified stated interest
which is includible in income in a manner similar to that described in the
previous paragraph. However, it is also possible that interest payments on such
a Variable Rate Debt Security would be treated as contingent interest (possibly
includible in income when the payments become fixed) or in some other manner.
If a Variable Rate Debt Security does not qualify as a 'variable rate debt
instrument' under the OID Regulations, then the Variable Rate Debt Security
would be treated as a contingent payment debt obligation. It is not clear under
current law how a Variable Rate Debt Security would be taxed if such Debt
Security were treated as a contingent payment debt obligation.
Market Discount. A purchaser of a Security may be subject to the market
discount rules of Sections 1276-1278 of the Code. A Holder that acquires a Debt
Security with more than a prescribed de minimis amount of 'market discount'
(generally, the excess of the principal amount of the Debt Security over the
purchaser's purchase price) will be required to include accrued market discount
in income as ordinary income in each month, but limited to an amount not
exceeding the principal payments on the Debt Security received in that month
and, if the Securities are sold, the gain realized. Such market discount would
accrue in a manner to be provided in Treasury regulations but, until such
regulations are issued, such market discount would in general accrue either (i)
on the basis of a constant yield (in the case of a Pay-Through Security, taking
into account a prepayment assumption) or (ii) in the ratio of (a) in the case of
Securities (or in the case of a Pass-Through Security, as set forth below, the
Loans underlying such Security) not originally issued with original issue
discount, stated interest payable in the relevant period to total stated
interest remaining to be paid at the beginning of the period or (b) in the case
of Securities (or, in the case of a Pass-Through Security, as described below,
the Loans underlying such Security) originally issued at a discount, OID in the
relevant period to total OID remaining to be paid.
Section 1277 of the Code provides that, regardless of the origination date
of the Debt Security (or, in the case of a Pass-Through Security, the Loans),
the excess of interest paid or accrued to purchase or carry a Security (or, in
the case of a Pass-Through Security, as described below, the underlying Loans)
with market discount over interest received on such Security is allowed as a
current deduction only to the extent such excess is greater than
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the market discount that accrued during the taxable year in which such interest
expense was incurred. In general, the deferred portion of any interest expense
will be deductible when such market discount is included in income, including
upon the sale, disposition, or repayment of the Security (or in the case of a
Pass-Through Security, an underlying Loan). A Holder may elect to include market
discount in income currently as it accrues, on all market discount obligations
acquired by such Holder during the taxable year such election is made and
thereafter, in which case the interest deferral rule will not apply.
Premium. A Holder who purchases a Debt Security (other than an Interest
Weighted Security to the extent described above) at a cost greater than its
stated redemption price at maturity, generally will be considered to have
purchased the Security at a premium, which it may elect to amortize as an offset
to interest income on such Security (and not as a separate deduction item) on a
constant yield method. Although no regulations addressing the computation of
premium accrual on securities similar to the Securities have been issued, the
legislative history of the 1986 Act indicates that premium is to be accrued in
the same manner as market discount. Accordingly, it appears that the accrual of
premium on a Class of Pay-Through Securities will be calculated using the
prepayment assumption used in pricing such Class. If a Holder makes an election
to amortize premium on a Debt Security, such election will apply to all taxable
debt instruments (including all REMIC regular interests and all pass-through
certificates representing ownership interests in a trust holding debt
obligations) held by the Holder at the beginning of the taxable year in which
the election is made, and to all taxable debt instruments acquired thereafter by
such Holder, and will be irrevocable without the consent of the Internal Revenue
Service. Purchasers who pay a premium for the Securities should consult their
tax advisers regarding the election to amortize premium and the method to be
employed.
Election to Treat All Interest as Original Issue Discount. The OID
Regulations permit a Holder Debt Security to elect to accrue all interest,
discount (including de minimis market or original issue discount) and premium in
income as interest, based on a constant yield method for Debt Securities
acquired on or after April 4, 1994. If such an election were to be made with
respect to a Debt Security with market discount, the Holder of the Debt Security
would be deemed to have made an election to include in income currently market
discount with respect to all other debt instruments having market discount that
such Holder of the Debt Security acquires during the year of the election or
thereafter. Similarly, a Holder of a Debt Security that makes this election for
a Debt Security that is acquired at a premium will be deemed to have made an
election to amortize bond premium with respect to all debt instruments having
amortizable bond premium that such Holder owns or acquires. The election to
accrue interest, discount and premium on a constant yield method with respect to
a Debt Security is irrevocable.
Sale or Exchange. A Holder's tax basis in its Debt Security is the price
such Holder pays for a Debt Security, plus amounts of OID or market discount
included in income and reduced by any payments received (other than qualified
stated interest payments) and any amortized premium. Gain or loss recognized on
a sale, exchange, or redemption of a Debt Security, measured by the difference
between the amount realized and the Debt Security's basis as so adjusted, will
generally be capital gain or loss, assuming that the Debt Security is held as a
capital asset. In the case of a Debt Security held by a bank, thrift, or similar
institution described in Section 582 of the Code, however, gain or loss realized
on the sale or exchange of a Debt Security will be taxable as ordinary income or
loss. In addition, gain from the disposition of a Regular Interest Security that
might otherwise be capital gain will be treated as ordinary income to the extent
of the excess, if any, of (i) the amount that would have been includible in the
Holder's income if the yield on such Regular Interest Security had equaled 110%
of the applicable federal rate as of the beginning of such Holder' s holding
period, over the amount of ordinary income actually recognized by the Holder
with respect to such Regular Interest Security. Currently, the maximum tax rate
on ordinary income for individual taxpayers is 39.6% and the maximum tax rate on
long-term capital gains for such taxpayers is 28%. The maximum tax rate on both
ordinary income and long-term capital gains of corporate taxpayers is 35%.
TAXATION OF THE REMIC AND ITS HOLDERS
Status of Regular Interest Securities as Real Property Loans. Regular
Interest Securities and Securities representing a residual interest in a REMIC
(both types of securities collectively referred to as 'REMIC Securities') will
be 'qualifying real property loans' within the meaning of Section 593(d) of the
Code, 'real estate assets' for purposes of Section 856(c)(5)(A) of the Code and
assets described in Section 7701(a)(19)(C) of
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the Code (assets qualifying under one or more of those sections, applying each
section separately, 'qualifying assets') to the extent that the REMIC's assets
are qualifying assets. However, if at least 95 percent of the REMIC's assets are
qualifying assets, then 100 percent of the REMIC Securities will be qualifying
assets. Similarly, income on the REMIC Securities will be treated as 'interest
on obligations secured by mortgages on real property' within the meaning of
Section 856(c)(3)(B) of the Code, subject to the limitations of the preceding
two sentences. In addition to Loans, the REMIC's assets will include payments on
Loans held pending distribution to Holders of REMIC Securities, amounts in
reserve accounts (if any), other credit enhancements (if any) and possibly
buydown funds ('Buydown Funds'). The Loans generally will be qualifying assets
under all three of the foregoing sections of the Code. However, Loans that are
not secured by residential real property or real property used primarily for
church purposes may not constitute qualifying assets under Section
7701(a)(19)(C)(v) of the Code, and Loans that are not secured by improved real
property or real property which is to be improved using Home Equity Loan
proceeds will not constitute qualifying assets under Section 593(d) of the Code.
In addition, to the extent that the principal amount of a Home Equity Loan
exceeds the value of the property securing the Loan, it is unclear and Federal
Tax Counsel is unable to opine whether the Loans will be qualifying assets. The
regulations under Sections 860A through 860G of the Code (the 'REMIC
Regulations') treat credit enhancements as part of the mortgage or pool of
mortgages to which they relate, and therefore credit enhancements generally
should be qualifying assets. Regulations issued in conjunction with the REMIC
Regulations provide that amounts paid on Loans and held pending distribution to
Holders of Regular Interest Securities ('cash flow investments') will be treated
as qualifying assets. It is unclear whether reserve funds or Buydown Funds would
also constitute qualifying assets under any of those provisions.
REMIC EXPENSES; SINGLE CLASS REMICS
As a general rule, all of the expenses of a REMIC will be taken into
account by Holders of the Residual Interest Securities. In the case of a 'single
class REMIC,' however, the expenses will be allocated, under Treasury
regulations, among the Holders of the Regular Interest Securities and the
Holders of the Residual Interest Securities on a daily basis in proportion to
the relative amounts of income accruing to each Holder on that day. In the case
of a Holder of a Regular Interest Security who is an individual or a
'pass-through interest Holder' (including certain pass-through entities but not
including real estate investment trusts), such expenses will be deductible only
to the extern that such expenses, plus other 'miscellaneous itemized deductions'
of the Holder, exceed 2% of such Holder's adjusted gross income and such Holder
may not be able to deduct such fees and expenses to any extent in computing such
Holder's alternative minimum tax liability. In addition, the amount of itemized
deductions otherwise allowable for the taxable year for an individual whose
adjusted gross income exceeds the applicable amount (for 1996, such amount is
$117,950 for all taxpayers except married taxpayers filling separately, for whom
such amount is $58,975) will be reduced by the lesser of (i) 3% of the excess of
adjusted gross income over the applicable amount, or (ii) 80% of the amount of
itemized deductions otherwise allowable for such taxable year. The reduction or
disallowance of this deduction may have a significant impact on the yield of the
Regular Interest Security to such a Holder. In general terms, a single class
REMIC is one that either (i) would qualify, under existing Treasury regulations,
as a grantor trust if it were not a REMIC (treating all interests as ownership
interests, even if they would be classified as debt for federal income tax
purposes) or (ii) is similar to such a trust and which is structured with the
principal purpose of avoiding the single class REMIC rules. Unless otherwise
stated in the applicable Prospectus Supplement, the expenses of the REMIC will
be allocated to Holders of the related Residual Interest Securities.
TAXATION OF THE REMIC
General. Although a REMIC is a separate entity for federal income tax
purposes, a REMIC is not generally subject to entity-level tax. Rather, the
taxable income or net loss of a REMIC is taken into account by the Holders of
residual interests. As described above, the regular interests are generally
taxable as debt of the REMIC.
Tiered REMIC Structures. For certain Series of Securities, two or more
separate elections may be made to treat designated portions of the related Trust
Fund as REMICs ('Tiered REMICs') for federal income tax purposes. Solely for
purposes of determining whether the REMIC Certificates will be 'qualifying real
property loans' under Section 593(d) of the Code, 'real estate assets' within
the meaning of Section 856(c)(5)(A) of the
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Code, and 'loans secured by an interest in real property' under Section
7701(a)(19)(C) of the Code, and whether the income on such Certificates is
interest described in Section 856(c)(3)(B) of the Code, the Tiered REMICs will
be treated as one REMIC.
Calculation of REMIC Income. The taxable income or net loss of a REMIC is
determined under an accrual method of accounting and in the same manner as in
the case of an individual, with certain adjustments. In general, the taxable
income or net loss will be the difference between (i) the gross income produced
by the REMIC's assets, including stated interest and any original issue discount
or market discount on loans and other assets, and (ii) deductions, including
stated interest and original issue discount accrued on Regular Interest
Securities, amortization of any premium with respect to Loans, and servicing
fees and other expenses of the REMIC. A Holder of a Residual Interest Security
that is an individual or a 'pass-through interest Holder' (including certain
pass-through entities, but not including real estate investment trusts) will be
unable to deduct servicing fees payable on the Loans or other administrative
expenses of the REMIC for a given taxable year, to the extent that such
expenses, when aggregated with such Holder's other miscellaneous itemized
deductions for that year, do not exceed two percent of such Holder's adjusted
gross income and such Holder may not be able to deduct such fees and expenses to
any extent in computing such holders alternative minimum tax liability.
For purposes of computing its taxable income or net loss, the REMIC should
have an initial aggregate tax basis in its assets equal to the aggregate fair
market value of the regular interests and the residual interests on the Startup
Day (generally, the day that the interests are issued). Such aggregate basis
will be allocated among the assets of the REMIC in proportion to their
respective fair market values.
The OID provisions of the Code apply to loans of individuals originated on
or after March 2, 1984, and the market discount provisions apply to loans.
Subject to possible application of the de minimis rules, the method of accrual
by the REMIC of OID income on such loans will be equivalent to the method under
which Holders of Pay-Through Securities accrue original issue discount (i.e.,
under the constant yield method taking into account the Prepayment Assumption).
The REMIC will deduct OID on the Regular Interest Securities in the same manner
that the Holders of the Regular Interest Securities include such discount in
income, but without regard to the de minimis rules. See 'Taxation of Debt
Securities (Including Regular Interest Securities)' above. However, a REMIC that
acquires loans at a market discount must include such market discount in income
currently, as it accrues, on a constant interest basis.
To the extent that the REMIC's basis allocable to loans that it holds
exceeds their principal amounts, the resulting premium, if attributable to
mortgages originated after September 27, 1985, will be amortized over the life
of the loans (presumably taking into account the Prepayment Assumption) on a
constant yield method. Although the law is somewhat unclear regarding recovery
of premium attributable to loans originated on or before such date, it is
possible that such premium may be recovered in proportion to payments of loan
principal.
Prohibited Transactions and Contributions Tax. The REMIC will be subject
to a 100% tax on any net income derived from a 'prohibited transaction.' For
this purpose, net income will be calculated without taking into account any
losses from prohibited transactions or any deductions attributable to any
prohibited transaction that resulted in a loss. In general, prohibited
transactions include: (i) subject to limited exceptions, the sale or other
disposition of any qualified mortgage transferred to the REMIC; (ii) subject to
a limited exception, the sale or other disposition of a cash flow investment;
(iii) the receipt of any income from assets not permitted to be held by the
REMIC pursuant to the Code; or (iv) the receipt of any fees or other
compensation for services rendered by the REMIC. It is anticipated that a REMIC
will not engage in any prohibited transactions in which it would recognize a
material amount of net income. In addition, subject to a number of exceptions, a
tax is imposed at the rate of 100% on amounts contributed to a REMIC after the
Startup Day. The Holders of Residual Interest Securities will generally be
responsible for the payment of any such taxes imposed on the REMIC. To the
extent not paid by such Holders or otherwise, however, such taxes will be paid
out of the Trust Fund and will be allocated pro rata to all outstanding Classes
of Securities of such REMIC.
TAXATION OF HOLDERS OF RESIDUAL INTEREST SECURITIES
The Holder of a Security representing a residual interest (a 'Residual
Interest Security') will take into account the 'daily portion' of the taxable
income or net loss of the REMIC for each day during the taxable year on which
such Holder held the Residual Interest Security. The daily portion is determined
by allocating to each
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day in any calendar quarter its ratable portion of the taxable income or net
loss of the REMIC for such quarter, and by allocating that amount among the
Holders (on such day) of the Residual Interest Securities in proportion to their
respective holdings on such day.
The Holder of a Residual Interest Security must report its proportionate
share of the taxable income of the REMIC whether or not it receives cash
distributions from the REMIC attributable to such income or loss. The reporting
of taxable income without corresponding distributions could occur, for example,
in certain REMIC issues in which the Loans held by the REMIC were issued or
acquired at a discount, since mortgage prepayments cause recognition of discount
income, while the corresponding portion of the prepayment could be used in whole
or in part to make principal payments on REMIC Regular Interests issued without
any discount or at an insubstantial discount. (If this occurs, it is likely that
cash distributions will exceed taxable income in later years.) Taxable income
may also be greater in earlier years of certain REMIC issues as a result of the
fact that interest expense deductions, as a percentage of outstanding principal
on REMIC Regular Interest Securities, will typically increase over time as lower
yielding Securities are paid, whereas interest income with respect to loans will
generally remain constant over time as a percentage of loan principal.
In any event, because the Holder of a residual interest is taxed on the net
income of the REMIC, the taxable income derived from a Residual Interest
Security in a given taxable year will not be equal to the taxable income
associated with investment in a corporate bond or stripped instrument having
similar cash flow characteristics and pretax yield. Therefore, the after-tax
yield on the Residual Interest Security may be less than that of such a bond or
instrument.
Limitation on Losses. The amount of the REMIC's net loss that a Holder may
take into account currently is limited to the Holder's adjusted basis at the end
of the calendar quarter in which such loss arises. A Holder's basis in a
Residual Interest Security will initially equal such Holder's purchase price,
and will subsequently be increased by the amount of the REMIC's taxable income
allocated to the Holder, and decreased (but not below zero) by the amount of
distributions made and the amount of the REMIC's net loss allocated to the
Holder. Any disallowed loss may be carried forward indefinitely, but may be used
only to offset income of the REMIC generated by the same REMIC. The ability of
Holders of Residual Interest Securities to deduct net losses may be subject to
additional limitations under the Code, as to which such Holders should consult
their tax advisers.
Distributions. Distributions on a Residual Interest Security (whether at
their scheduled times or as a result of prepayments) will generally not result
in any additional taxable income or loss to a Holder of a Residual Interest
Security. If the amount of such payment exceeds a Holder's adjusted basis in the
Residual Interest Security, however, the Holder will recognize gain (treated as
gain from the sale of the Residual Interest Security) to the extent of such
excess.
Sale or Exchange. A Holder of a Residual Interest Security will recognize
gain or loss on the sale or exchange of a Residual Interest Security equal to
the difference, if any, between the amount realized and such Holder's adjusted
basis in the Residual Interest Security at the time of such sale or exchange.
Except to the extent provided in regulations, which have not yet been issued,
any loss upon disposition of a Residual Interest Security will be disallowed if
the selling Holder acquires any residual interest in a REMIC or similar mortgage
pool within six months before or after such disposition.
Excess Inclusions. The portion of the REMIC taxable income of a Holder of
a Residual Interest Security consisting of 'excess inclusion' income may not be
offset by other deductions or losses, including net operating losses, on such
Holder's federal income tax return. An exception applies to organizations to
which Code Section 593 applies (generally, certain thrift institutions);
however, such exception will not apply if the aggregate value of the Residual
Interest Securities is not considered to be 'significant,' as described below.
Further, if the Holder of a Residual Interest Security is an organization
subject to the tax on unrelated business income imposed by Code Section 511,
such Holder's excess inclusion income will be treated as unrelated business
taxable income of such Holder. In addition, under Treasury regulations yet to be
issued, if a real estate investment trust, a regulated investment company, a
common trust fund, or certain cooperatives were to own a Residual Interest
Security, a portion of dividends (or other distributions) paid by the real
estate investment trust (or other entity) would be treated as excess inclusion
income. If a Residual Security is owned by a foreign person, excess inclusion
income is subject to tax at a rate of 30% which may not be reduced by treaty, is
not eligible for treatment as 'portfolio interest' and is subject to certain
additional limitations. See 'Tax Treatment of Foreign
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Investors.' Regulations provide that a Residual Interest Security has
significant value only if (i) the aggregate issue price of the Residual Interest
Security is at least 2% of the aggregate of the issue prices of all Regular
Interest Securities and Residual Interest Securities in the REMIC and (ii) the
anticipated weighted average life (determined as specified in the Proposed
Regulations) of the Residual Interest Securities is at least 20% of the weighted
average life of the REMIC.
The excess inclusion portion of a REMIC's income is generally equal to the
excess, if any, of REMIC taxable income for the quarterly period allocable to a
Residual Interest Security, over the daily accruals for such quarterly period of
(i) 120% of the long term applicable federal rate on the Startup Date multiplied
by (ii) the adjusted issue price of such Residual Interest Security at the
beginning of such quarterly period. The adjusted issue price of a Residual
Interest Security at the beginning of each calendar quarter will equal its issue
price (calculated in a manner analogous to the determination of the issue price
of a Regular Interest Security), increased by the aggregate of the daily
accruals for prior calendar quarters, and decreased (but not below zero) by the
amount of loss allocated to a Holder and the amount of distributions made on the
Residual Interest Security before the beginning of the quarter. The long-term
federal rate, which is announced monthly by the Treasury Department, is an
interest rate that is based on the average market yield of outstanding
marketable obligations of the United States government having remaining
maturities in excess of nine years.
Under the REMIC Regulations, in certain circumstances, transfers of
Residual Interest Securities may be disregarded. See '--Restrictions on
Ownership and Transfer of Residual Interest Securities' and 'Tax Treatment of
Foreign Investors' below.
Restrictions on Ownership and Transfer of Residual Interest Securities. As
a condition to qualification as a REMIC, reasonable arrangements must be made to
prevent the ownership of a REMIC residual interest by any 'Disqualified
Organization.' Disqualified Organizations include the United States, any State
or political subdivision thereof, any foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, a rural
electric or telephone cooperative described in Section 1381(a)(2)(C) of the
Code, or any entity exempt from the tax imposed by Sections 1-1399 of the Code,
if such entity is not subject to tax on its unrelated business income.
Accordingly, the applicable Agreement will prohibit Disqualified Organizations
from owning a Residual Interest Security. In addition, no transfer of a Residual
Interest Security will be permitted unless the proposed transferee shall have
furnished to the Trustee an affidavit representing and warranting that it is
neither a Disqualified Organization nor an agent or nominee acing on behalf of a
Disqualified Organization.
If a Residual Interest Security is transferred to a Disqualified
Organization (in violation of the restrictions set forth above), a substantial
tax will be imposed on the transferor of such Residual Interest Security at the
time of the transfer. In addition, if a Disqualified Organization holds an
interest in a pass-through entity (including, among others, a partnership,
trust, real estate investment trust, regulated investment company, or any person
holding as nominee an interest in a pass-through entity), that owns a Residual
Interest Security, the pass-through entity will be required to pay an annual tax
on its allocable share of the excess inclusion income of the REMIC.
The REMIC Regulations provide that a transfer of a 'noneconomic residual
interest' will be disregarded for all federal income tax purposes unless
impeding the assessment or collection of tax was not a significant purpose of
the transfer. A residual interest will be treated as a 'noneconomic residual
interest' unless, at the time of the transfer (1) the present value of the
expected future distributions on the residual interest at least equals the
product of (x) the present value of all anticipated excess inclusions with
respect to the residual interest and (y) the highest corporate tax rate,
currently 35 percent, and (2) the transferor reasonably expects that for each
anticipated excess inclusion, the transferee will receive distributions from the
REMIC, at or after the time at which taxes on such excess inclusion accrue,
sufficient to pay the taxes thereon. A significant purpose to impede the
assessment or collection of tax exists if the transferor, at the time of the
transfer, either knew or should have known (had 'improper knowledge') that the
transferee would be unwilling or unable to pay taxes due on its share of the
taxable income of the REMIC. A transferor will be presumed not to have improper
knowledge if (i) the transferor conducts, at the time of the transfer, a
reasonable investigation of the financial condition of the transferee and, as a
result of the investigation, the transferor finds that the transferee has
historically paid its debts as they came due and finds no significant evidence
to indicate that the transferee will not continue to pay its debts as they come
due in the future, and (ii) the transferee represents to the transferor that (A)
the transferee understands that it might incur tax liabilities in excess of any
cash received with respect to the residual interest
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and (B) the transferee intends to pay the taxes associated with owning the
residual interest as they come due. A different formulation of this rule applies
to transfers of Residual Interest Security by or to foreign transferees. See
'Tax Treatment to Foreign Investors'.
Mark to Market Rules. Prospective purchasers of a Residual Interest
Security should be aware that on December 28, 1993, the Internal Revenue Service
released temporary regulations (the 'Temporary Mark to Market Regulations')
relating to the requirement that a securities dealer mark-to-market securities
held for sale to customers. This mark-to-market requirement applies to all
securities of a dealer, except to the extent that the dealer has specifically
identified a security as held for investment. The Temporary Mark to Market
Regulations provide that for purposes of this mark-to-market requirement, a
'negative value' Residual Interest Security is not treated as a security and
thus may not be marked to market. In addition, a dealer is not required to
identify such Residual Interest Security as held for investment. In general, a
Residual Interest Security has negative value if, as of the date a taxpayer
acquires the Residual Interest Security, the present value of the tax
liabilities associated with holding the Residual Interest Security exceeds the
sum of (i) the present value of the expected future distributions on the
Residual Interest Security, and (ii) the present value of the anticipated tax
savings associated with holding the Residual Interest Security as the REMIC
generates losses. The amounts and present values of the anticipated tax
liabilities, expected future distributions and anticipated tax savings are all
to be determined using (i) the prepayment and reinvestment assumptions adopted
under Section 1272(a)(6), or that would have been adopted had the REMIC's
regular interests been issued with OID, (ii) any required or permitted clean up
calls, or required qualified liquidation provided for in the REMIC's
organizational documents and (iii) a discount rate equal to the 'applicable
Federal rate' (as specified in Section 1274(d)(1) that would apply to a debt
instrument issued on the date of acquisition of the Residual Interest Security.
Furthermore, the Temporary Mark to Market Regulations provide the IRS with the
authority to treat any Residual Interest Security having substantially the same
economic effect as a 'negative value' residual interest as a 'negative value'
residual interest.
On January 3, 1995, the IRS released proposed regulations under Section 475
(the 'Proposed Mark-to-Market Regulations'). The Proposed Mark-to-Market
Regulations provide that any REMIC Residual Interest acquired after January 3,
1995 cannot be marked to market, regardless of the value of such REMIC residual
interest. The Temporary Mark-to-Market Regulations described above still apply
to any REMIC Residual Interest acquired on or prior to January 3, 1995.
ADMINISTRATIVE MATTERS
The REMIC's books must be maintained on a calendar year basis and the REMIC
must file an annual federal income tax return. The REMIC will also be subject to
the procedural and administrative rules of the Code applicable to partnerships,
including the determination of any adjustments to, among other things, items of
REMIC income, gain, loss, deduction, or credit, by the IRS in a unified
administrative proceeding.
TAX STATUS AS A GRANTOR TRUST
General. As further described below, each Holder of a Security issued by a
grantor trust (a 'Pass-Through Security') must report on its federal income tax
return the gross income from the portion of the Mortgages that is allocable to
such Pass-Through Security and may deduct the portion of the expenses incurred
or accrued by the Trust Fund that is allocable to such Pass-Through Security, at
the same time and to the same extent as such items would be reported by such
Holder if it had purchased and held directly such interest in the Mortgages and
received or accrued directly its share of the payments on the Mortgages and
incurred or accrued directly its share of expenses incurred or accrued by the
Trust Fund when those amounts are received, incurred or accrued by the Trust
Fund.
A Holder of a Pass-Through Security that is an individual, estate, or trust
will be allowed deductions for such expenses only to the extent that the sum of
those expenses and the Holder's other miscellaneous itemized deductions exceeds
two percent of such Holder's adjusted gross income. Moreover, a Holder of a
Pass-Through Security that is not a corporation cannot deduct such expenses for
purposes of the alternative minimum tax (if applicable). Such deductions will
include servicing, guarantee and administrative fees paid to the servicer of the
Mortgage Loans. As a result, the Trust Fund will report additional taxable
income to Holders of Pass-Through
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Securities in an amount equal to their allocable share of such deductions, and
individuals, estates, or trusts holding Pass-Through Securities may have taxable
income in excess of the cash received.
Status of the Pass-Through Securities as Real Property Loans. The
Pass-Through Securities will be 'qualifying real property loans' within the
meaning of Section 593(d) of the Code, 'real estate assets' for purposes of
Section 856(c)(5)(A) of the Code and 'loans.......secured by an interest in real
property' within the meaning of Section 7701(a)(19)(C)(v) of the Code (assets
qualifying under one or more of those sections, applying each section
separately, 'qualifying assets') to the extent that the Trust Fund's assets are
qualifying assets. The Pass-Through Securities may not be qualifying assets
under any of the foregoing sections of the Code to the extent that the Trust
Fund's assets include Buydown Funds, reserve funds, or payments on mortgages
held pending distribution to CertificateHolders. Further, the Pass- Through
Securities may not be 'qualifying real property loans' to the extent loans held
by the Trust Fund are not secured by improved real property or real property
which is to be improved using the loan proceeds, may not be 'real estate assets'
to the extent loans held by the trust are not secured by real property, and may
not be 'loanssecured by an interest in real property' to the extent loans held
by the trust are not secured by residential real property or real property used
primarily for church purposes. In addition, to the extent that the principal
amount of a loan exceeds the value of the property securing the loan, it is
unclear and Federal Tax Counsel is unable to opine whether the loans will be
qualifying assets.
Taxation of Pass-Through Securities Under Stripped Bond Rules. The federal
income tax treatment of the Pass-Through Securities will depend on whether they
are subject to the rules of section 1286 of the Code (the 'stripped bond
rules'). The Pass-Through Securities will be subject to those rules if stripped
interest-only Certificates are issued. In addition, whether or not stripped
interest-only Certificates are issued, the Internal Revenue Service may contend
that the stripped bond rules apply on the ground that the Servicer's servicing
fee, or other amounts, if any, paid to (or retained by) the Servicer or its
affiliates, as specified in the applicable Prospectus Supplement, represent
greater than an arm's length consideration for servicing the Loans and should be
characterized for federal income tax purposes as an ownership interest in the
Loans. The Internal Revenue Service has taken the position in Revenue Ruling
91-46 that a retained interest in excess of reasonable compensation for
servicing is treated as a 'stripped coupon' under the rules of Code Section
1286.
If interest retained for the Servicer's servicing fee or other interest is
treated as a 'stripped coupon,' the Pass-Through Securities will either be
subject to the OID rules or the market discount rules. A Holder of a Pass-
Through Security will account for any discount on the Pass-Through Security as
market discount rather than OID if either (i) the amount of OID with respect to
the Pass-Through Security was treated as zero under the OID de minimis rule when
the Pass-Through Security was stripped or (ii) no more than 100 basis points
(including any amount of servicing in excess of reasonable servicing) is
stripped off from the Loans. If neither of the above exceptions applies, the OID
rules will apply to the Pass-Through Securities.
If the OID rules apply, the Holder of a Pass-Through Security (whether a
cash or accrual method taxpayer) will be required to report interest income from
the Pass-Through Security in each taxable year equal to the income that accrues
on the Pass-Through Security in that year calculated under a constant yield
method based on the yield of the Pass-Through Security (or, possibly, the yield
of each Mortgage underlying such Pass-Through Security) to such Holder. Such
yield would be computed at the rate (assuming monthly compounding) that, if used
in discounting the Holder's share of the payments on the Mortgages, would cause
the present value of those payments to equal the price at which the Holder
purchased the Pass-Through Security. With respect to certain categories of debt
instruments, Section 1272(a)(6) of the Code requires that OID be accrued based
on a prepayment assumption determined in a manner prescribed by forthcoming
regulations. It is unclear whether such regulations would apply this rule to the
Pass-Through Securities, whether Section 1272(a)(6) might apply to the
Pass-Through Securities in the absence of such regulations, or whether the
Internal Revenue Service could require use of a reasonable prepayment assumption
based on other tax law principles and Federal Tax Counsel is unable to opine
with respect to this issue. If required to report interest income on the
Pass-Through Securities to the Internal Revenue Service under the stripped bond
rules, it is anticipated that the Trustee will calculate the yield of the
Pass-Through Securities based on a representative initial offering price of the
Pass-Through Securities and a reasonable assumed rate of prepayment of the
Mortgages (although such yield may differ from the yield to any particular
Holder that would be used in calculating the interest income of such Holder).
The Prospectus Supplement for each series of Pass-Through Securities will
describe the prepayment assumption that
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will be used for this purpose, but no representation is made that the Mortgages
will prepay at that rate or at any other rate.
Assume that Holders are not taxed as directly owning the Loans, in the case
of a Pass-Through Security acquired at a price equal to the principal amount of
the Mortgages allocable to the Pass-Through Security, the use of a reasonable
prepayment assumption would not have any significant effect on the yield used in
calculating accruals of interest income. In the case, however, of a Pass-Through
Security acquired at a discount or premium (that is, at a price less than or
greater than such principal amount, respectively), the use of a reasonable
prepayment assumption would increase or decrease such yield, and thus accelerate
or decelerate the reporting of interest income, respectively.
If a Mortgage Home Equity Loan is prepaid in full, the Holder of a
Pass-Through Security acquired at a discount or premium generally will recognize
ordinary income or loss equal to the difference between the portion of the
prepaid principal amount of the Home Equity Loan that is allocable to the
Pass-Through Security and the portion of the adjusted basis of the Pass-Through
Security (see 'Sales of Pass-Through Securities' below) that is allocable to the
Loan. The method of allocating such basis among the Loans may differ depending
on whether a reasonable prepayment assumption is used in calculating the yield
of the Pass-Through Securities for purposes of accruing OID. It is not clear
whether any other adjustments would be required to reflect differences between
the prepayment rate that was assumed in calculating yield and the actual rate of
prepayments.
Pass-Through Securities of certain series ('Variable Rate Pass-Through
Securities') may provide for a Pass-Through Rate based on the weighted average
of the interest rates of the Mortgages held by the Trust Fund, which interest
rates may be fixed or variable. In the case of a Variable Rate Pass-Through
Security that is subject to the OID rules, the daily portions of OID generally
will be calculated under the principles discussed in '--Taxation of Debt
Securities (Including Regular Interest Securities)-Variable Rate Debt
Securities.'
Taxation of Pass-Through Securities If Stripped Bond Rules Do Not
Apply. If the stripped bond rules do not apply to a Pass-Through Security, then
the Holder will be required to include in income its share of the interest
payments on the Mortgages in accordance with its tax accounting method. In
addition, if the Holder purchased the Pass-Through Security at a discount or
premium, the Holder will be required to account for such discount or premium in
the manner described below. The treatment of any discount will depend on whether
the discount is OID as defined in the Code and, in the case of discount other
than OID, whether such other discount exceeds a de minimis amount. In the case
of OID, the Holder (whether a cash or accrual method taxpayer) will be required
to report as additional interest income in each month the portion of such
discount that accrues in that month, calculated based on a constant yield
method. In general it is not anticipated that the amount of OID to be accrued in
each month, if any, will be significant relative to the interest paid currently
on the Mortgages. However, OID could arise with respect to a Home Equity Loan
('ARM') that provides for interest at a rate equal to the sum of an index of
market interest rates and a fixed number. The OID for ARMs generally will be
determined under the principles discussed in 'Taxation of Debt Securities
(Including Regular Interest Securities)--Variable Rate Debt Securities.'
If discount other than OID exceeds a de minimis amount (described below),
the Holder will also generally be required to include in income in each month
the amount of such discount accrued through such month and not previously
included in income, but limited, with respect to the portion of such discount
allocable to any Mortgage, to the amount of principal on such Mortgage received
by the Trust Fund in that month. Because the Mortgages will provide for monthly
principal payments, such discount may be required to be included in income at a
rate that is not significantly slower than the rate at which such discount
accrues (and therefore at a rate not significantly slower than the rate at which
such discount would be included in income if it were OID). The Holder may elect
to accrue such discount under a constant yield method based on the yield of the
Pass-Through Security to such Holder (or possibly based on the yields of each
Loan). In the absence of such an election, it may be necessary to accrue such
discount under a more rapid straight-line method. Under the de minimis rule,
market discount with respect to a Pass-Through Security will be considered to be
zero if it is less than the product of (i) 0.25% of the principal amount of the
Mortgages allocable to the Pass-Through Security and (ii) the weighted average
life (in complete years) of the Mortgages remaining at the time of purchase of
the Pass-Through Security.
If a Holder purchases a Pass-Through Security at a premium, such Holder may
elect under Section 171 of the Code to amortize the portion of such premium that
is allocable to a Home Equity Loan under a constant yield
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method based on the yield of the Mortgage Home Equity Loan to such Holder,
provided that such Home Equity Loan was originated after September 27, 1985.
Premium allocable to a Home Equity Loan originated on or before that date should
be allocated among the principal payments on the Home Equity Loan and allowed as
an ordinary deduction as principal payments are made or, perhaps, upon
termination.
It is not clear whether the foregoing adjustments for discount or premium
would be made based on the scheduled payments on the Loans or taking account of
a reasonable prepayment assumption, and Federal Tax Counsel is unable to opine
on this issue.
If a Home Equity Loan is prepaid in full, the Holder of a Pass-Through
Security acquired at a discount or premium will recognize ordinary income or
loss equal to the difference between the portion of the prepaid principal amount
of the Home Equity Loan that is allocable to the Pass-Through Security and the
portion of the adjusted basis of the Pass-Through Security (see 'Sales of
Pass-Through Securities' below) that is allocable to the Loan. The method of
allocating such basis among the Mortgage Loans may differ depending on whether a
reasonable prepayment assumption is used in calculating the yield of the
Pass-Through Securities for purposes of accruing OID. Other adjustments might be
required to reflect differences between the prepayment rate that was assumed in
accounting for discount or premium and the actual rate of prepayments.
MISCELLANEOUS TAX ASPECTS
Backup Withholding A Holder, other than a Holder of a Residual Interest
Security, may, under certain circumstances, be subject to 'backup withholding'
at a rate of 31% with respect to distributions or the proceeds of a sale of
certificates to or through brokers that represent interest or original issue
discount on the Securities. This withholding generally applies if the Holder of
a Security (i) fails to furnish the Trustee with its taxpayer identification
number ('TIN'); (ii) furnishes the Trustee an incorrect TIN; (iii) fails to
report properly interest, dividends or other 'reportable payments' as defined in
the Code; or (iv) under certain circumstances, fails to provide the Trustee or
such Holder's securities broker with a certified statement, signed under penalty
of perjury, that the TIN provided is its correct number and that the Holder is
not subject to backup withholding. Backup withholding will not apply, however,
with respect to certain payments made to Holders, including payments to certain
exempt recipients (such as exempt organizations) and to certain Nonresidents (as
defined below). Holders should consult their tax advisers as to their
qualification for exemption from backup withholding and the procedure for
obtaining the exemption.
The Trustee will report to the Holders and to the Servicer for each
calendar year the amount of any 'reportable payments' during such year and the
amount of tax withheld, if any, with respect to payments on the Securities.
TAX TREATMENT OF FOREIGN INVESTORS
Subject to the discussion below with respect to Trust Funds which are
treated as partnerships for federal income tax purposes and with respect to
Certificates treated as debt for federal income tax purposes, unless interest
(including OID) paid on a Security (other than a Residual Interest Security) is
considered to be 'effectively connected' with a trade or business conducted in
the United States by a nonresident alien individual, foreign partnership or
foreign corporation ('foreign investors'), such interest will normally qualify
as portfolio interest (except where (i) the recipient is a Holder, directly or
by attribution, of 10% or more of the capital or profits interest in the issuer,
or (ii) the recipient is a controlled foreign corporation to which the issuer is
a related person) and will be exempt from federal income tax. See '--Tax
Consequences to Holders of the Certificates Issued by a Partnership--Tax
Consequences to Foreign Certificateholders' and '--Certain Certificates Treated
as Indebtedness--Foreign Investors'. Upon receipt of appropriate ownership
statements, the issuer normally will be relieved of obligations to withhold tax
from such interest payments. These provisions supersede the generally applicable
provisions of United States law that would otherwise require the issuer to
withhold at a 30% rate (unless such rate were reduced or eliminated by an
applicable tax treaty) on, among other things, interest and other fixed or
determinable, annual or periodic income paid to Nonresidents. Holders of Pass-
Through Securities however, may be subject to withholding to the extent that the
Loans were originated on or before July 18, 1984.
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Interest and OID of Holders who are foreign persons are not subject to
withholding if they are effectively connected with a United States business
conducted by the Holder and timely provide an IRS Form 4224. They will, however,
generally be subject to the regular United States income tax.
Payments to Holders of Residual Interest Securities who are foreign persons
will generally be treated as interest for purposes of the 30% (or lower treaty
rate) United States withholding tax. Holders should assume that such income does
not qualify for exemption from United States withholding tax as 'portfolio
interest.' It is clear that, to the extent that a payment represents a portion
of REMIC taxable income that constitutes excess inclusion income, a Holder of a
Residual Interest Security will not be entitled to an exemption from or
reduction of the 30% (or lower treaty rate) withholding tax rule. If the
payments are subject to United States withholding tax, they generally will be
taken into account for withholding tax purposes only when paid or distributed
(or when the Residual Interest Security is disposed of). The Treasury has
statutory authority, however, to promulgate regulations which would require such
amounts to be taken into account at an earlier time in order to prevent the
avoidance of tax. Such regulations could, for example, require withholding prior
to the distribution of cash in the case of Residual Interest Securities that do
not have significant value. Under the REMIC Regulations, if a Residual Interest
Security has tax avoidance potential, a transfer of a Residual Interest Security
to a Nonresident will be disregarded for all federal tax purposes. A Residual
Interest Security has tax avoidance potential unless, at the time of the
transfer the transferor reasonably expects that the REMIC will distribute to the
transferee residual interest Holder amounts that will equal at least 30% of each
excess inclusion, and that such amounts will be distributed at or after the time
at which the excess inclusions accrue and not later than the calendar year
following the calendar year of accrual. If a Nonresident transfers a Residual
Interest Security to a United States person, and if the transfer has the effect
of allowing the transferor to avoid tax on accrued excess inclusions, then the
transfer is disregarded and the transferor continues to be treated as the owner
of the Residual Interest Security for purposes of the withholding tax provisions
of the Code. See 'Taxation of Holders of Residual Interest Securities--Excess
Inclusions.'
Subject to the discussion in the previous paragraph, any capital gain
realized on the sale, redemption, retirement or other taxable disposition of a
Security by a foreign person will be exempt from United States federal income
and withholding tax, provided that (i) such gain is not effectively connected
with the conduct of a trade or business in the United States by the foreign
person and (ii) in the case of an individual foreign person, the foreign person
is not present in the United States for 183 days or more in the taxable year.
TAX CHARACTERIZATION OF THE TRUST AS A PARTNERSHIP
If a Trust Fund is intended to be a partnership for federal income tax
purposes the applicable Agreements will provide that (1) the Trust Fund will not
have certain characteristics necessary for a business trust to be classified as
an association taxable as a corporation and (2) the nature of the income of the
Trust Fund will exempt it from the rule that certain publicly traded
partnerships are taxable as corporations or the issuance of the Certificates
will be structured as a private placement under an IRS safe harbor, so that the
Trust Fund will not be characterized as a publicly traded partnership taxable as
a corporation.
If the Trust Fund were taxable as a corporation for federal income tax
purposes, the Trust Fund would be subject to corporate income tax on its taxable
income. The Trust Fund's taxable income would include all its income, possibly
reduced by its interest expense on the Notes. Any such corporate income tax
could materially reduce cash available to make payments on the Notes and
distributions on the Certificates, and Certificateholders could be liable for
any such tax that is unpaid by the Trust Fund. In additions, all distributions
to the Certificateholders would be taxable as dividends.
TAX CONSEQUENCES TO HOLDERS OF THE NOTES ISSUED BY A PARTNERSHIP
Treatment of the Notes as Indebtedness. The Trust Fund will agree, and the
NoteHolders will agree by their purchase of Notes, to treat the Notes as debt
for federal income tax purposes. Except as otherwise provided in the related
Prospectus Supplement, Federal Tax Counsel will advise the Seller that the Notes
will be classified as debt for federal income tax purposes. Consequently,
Holders of Notes will be subject to taxation as described in 'Taxation of Debt
Securities (Including Regular Interest Securities)' above for Debt Securities
which are not Regular Interest Securities.
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Possible Alternative Treatments of the Notes. If, contrary to the opinion
of Federal Tax Counsel, the IRS successfully asserted that one or more of the
Notes did not represent debt for federal income tax purposes, the Notes might be
treated as equity interests in the Trust Fund. If so treated, the Trust Fund
might be taxable as a corporation with the adverse consequences described above
(and the taxable corporation would not be able to reduce its taxable income by
deductions for interest expense on Notes recharacterized as equity).
Alternatively, and most likely in the view of Federal Tax Counsel, the Trust
Fund might be treated as a publicly traded partnership that would not be taxable
as a corporation because it would meet certain qualifying income tests.
Nonetheless, treatment of the Notes as equity interests in such a publicly
traded partnership could have adverse tax consequences to certain Holders. For
example, income to foreign Holders generally would be subject to U.S. federal
income tax and U.S. federal income tax return filing and withholding
requirements, and individual Holders might be subject to certain limitations on
their ability to deduct their share of the Trust Fund's expenses.
TAX CONSEQUENCES TO HOLDERS OF THE CERTIFICATES ISSUED BY A PARTNERSHIP
Treatment of the Trust Fund as a Partnership. In the case of a Trust Fund
intended to qualify as a partnership for federal income tax purposes, the Trust
Fund and the Seller will agree, and the Certificateholders will agree by their
purchase of Certificates, to treat the Trust Fund as a partnership for purposes
of federal and state income tax, franchise tax and any other tax measured in
whole or in part by income, with the assets of the partnership being the assets
held by the Trust Fund, the partners of the partnership being the
Certificateholders, and the Notes, if any, being debt of the partnership.
However, the proper characterization of the arrangement involving the Trust
Fund, the Certificates, the Notes, the Trust Fund and the Servicer is not clear
because there is no authority on transactions closely comparable to that
contemplated herein.
A variety of alternative characterizations are possible. For example,
because the Certificates have certain features characteristic of debt, the
Certificates might be considered debt of the Trust Fund. Any such
characterization would not result in materially adverse tax consequences to
Certificateholders as compared to the consequences from treatment of the
Certificates as equity in a partnership, described below. The following
discussion assumes that the Certificates represent equity interests in a
partnership. The following discussion also assumes that all payments on the
Certificates are denominated in U.S. dollars, none of the Certificates have
interest rates which would qualify as contingent interest under the OID
regulations, and that a Series of Securities includes a single Class of
Certificates. If these conditions are not satisfied with respect to any given
Series of Certificates, additional tax considerations with respect to such
Certificates will be disclosed in the applicable Prospectus Supplement.
Partnership Taxation. As a partnership, the Trust Fund will not be subject
to federal income tax. Rather, each CertificateHolder will be required to
separately take into account such Holder's allocated share of income, gains,
losses, deductions and credits of the Trust Fund. The Trust Fund's income will
consist primarily of interest and finance charges earned on the Loans (including
appropriate adjustments for market discount, OID and bond premium) and any gain
upon collection or disposition of Loans. The Trust Fund's deductions will
consist primarily of interest and OID accruing with respect to the Notes,
servicing and other fees, and losses or deductions upon collection or
disposition of Loans.
The tax items of a partnership are allocable to the partners in accordance
with the Code, Treasury regulations and the partnership agreement (here, the
Trust Agreement and related documents). The Trust Agreement will provide, in
general, that the Certificateholders will be allocated taxable income of the
Trust Fund for each month equal to the sum of (i) the interest that accrues on
the Certificates in accordance with their terms for such month, including
interest accruing at the Pass-Through Rate for such month and interest on
amounts previously due on the Certificates but not yet distributed; (ii) any
Trust Fund income attributable to discount on the Loans that corresponds to any
excess of the principal amount of the Certificates over their initial issue
price; (iii) prepayment premium payable to the Certificateholders for such
month; and (iv) any other amounts of income payable to the Certificateholders
for such month. Such allocation will be reduced by any amortization by the Trust
Fund of premium on Loans that corresponds to any excess of the issue price of
Certificates over their principal amount. All remaining taxable income of the
Trust Fund will be allocated to the Seller. Based on the economic arrangement of
the parties, this approach for allocating Trust Fund income should be
permissible under applicable Treasury regulations, although no assurance can be
given that the IRS would not require a greater amount of income to be allocated
to Certificateholders. Moreover, even under the foregoing method of allocation,
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Certificateholders may be allocated income equal to the entire Pass-Through Rate
plus the other items described above even though the Trust Fund might not have
sufficient cash to make current cash distributions of such amount. Thus, cash
basis Holders will in effect be required to report income from the Certificates
on the accrual basis and Certificateholders may become liable for taxes on Trust
Fund income even if they have not received cash from the Trust Fund to pay such
taxes. In addition, because tax allocations and tax reporting will be done on a
uniform basis for all Certificateholders but Certificateholders may be
purchasing Certificates at different times and at different prices,
Certificateholders may be required to report on their tax returns taxable income
that is greater or less than the amount reported to them by the Trust Fund.
If Notes are also issued, all of the taxable income allocated to a
Certificateholder that is a pension, profit sharing or employee benefit plan or
other tax-exempt entity (including an individual retirement account) will
constitute 'unrelated business taxable income' generally taxable to such a
Holder under the Code.
An individual taxpayer's share of expenses of the Trust Fund (including
fees to the Servicer but not interest expense) would be miscellaneous itemized
deductions. Such deductions might be disallowed to the individual in whole or in
part and might result in such Holder being taxed on an amount of income that
exceeds the amount of cash actually distributed to such Holder over the life of
the Trust Fund.
The Trust Fund intends to make all tax calculations relating to income and
allocations to Certificateholders on an aggregate basis. If the IRS were to
require that such calculations be made separately for each Loan, the Trust Fund
might be required to incur additional expense but it is believed that there
would not be a material adverse effect on Certificateholders.
Discount and Premium. It is believed that the Loans will not have been
issued with OID and, therefore, the Trust should not have OID income. However,
the purchase price paid by the Trust Fund for the Loans may be greater or less
than the remaining principal balance of the Loans at the time of purchase. If
so, the Home Equity Loan will have been acquired at a premium or discount, as
the case may be. (As indicated above, the Trust Fund will make this calculation
on an aggregate basis, but might be required to recompute it on a Home Equity
Loan by Home Equity Loan basis.)
If the Trust Fund acquires the Loans at a market discount or premium, the
Trust Fund will elect to include any such discount in income currently as it
accrues over the life of the Loans or to offset any such premium against
interest income on the Loans. As indicated above, a portion of such market
discount income or premium deduction may be allocated to CertificateHolders.
Section 708 Termination. Under Section 708 of the Code, the Trust Fund
will be deemed to terminate for federal income tax purposes if 50% or more of
the capital and profits interests in the Trust Fund are sold or exchanged within
a 12-month period. If such a termination occurs, the Trust Fund will be
considered to distribute its assets to the partners, who would then be treated
as recontributing those assets to the Trust Fund as a new partnership. The Trust
Fund will not comply with certain technical requirements that might apply when
such a constructive termination occurs. As a result, the Trust Fund may be
subject to certain tax penalties and may incur additional expenses if it is
required to comply with those requirements. Furthermore, the Trust Fund might
not be able to comply due to lack of data.
Disposition of Certificates. Generally, capital gain or loss will be
recognized on a sale of Certificates in an amount equal to the difference
between the amount realized and the seller's tax basis in the Certificates sold.
A Certificateholder's tax basis in a Certificate will generally equal the
Holder's cost increased by the Holder's share of Trust Fund income (includible
in income) and decreased by any distributions received with respect to such
Certificate. In addition, both the tax basis in the Certificates and the amount
realized on a sale of a Certificate would include the Holder's share of the
Notes and other liabilities of the Trust Fund. A Holder acquiring Certificates
at different prices may be required to maintain a single aggregate adjusted tax
basis in such Certificates, and, upon sale or other disposition of some of the
Certificates, allocate a portion of such aggregate tax basis to the Certificates
sold (rather than maintaining a separate tax basis in each Certificate for
purposes of computing gain or loss on a sale of that Certificate).
Any gain on the sale of a Certificate attributable to the Holder's share of
unrecognized accrued market discount on the Loans would generally be treated as
ordinary income to the Holder and would give rise to special
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tax reporting requirements. The Trust Fund does not expect to have any other
assets that would give rise to such special reporting requirements. Thus, to
avoid those special reporting requirements, the Trust Fund will elect to include
market discount in income as it accrues.
If a Certificateholder is required to recognize an aggregate amount of
income (not including income attributable to disallowed itemized deductions
described above) over the life of the Certificates that exceeds the aggregate
cash distributions with respect thereto, such excess will generally give rise to
a capital loss upon the retirement of the Certificates.
Allocations Between Sellers and Transferees. In general, the Trust Fund's
taxable income and losses will be determined monthly and the tax items for a
particular calendar month will be apportioned among the Certificateholders in
proportion to the principal amount of Certificates owned by them as of the close
of the last day of such month. As a result, a Holder purchasing Certificates may
be allocated tax items (which will affect its tax liability and tax basis)
attributable to periods before the actual transaction.
The use of such a monthly convention may not be permitted by existing
regulations. If a monthly convention is not allowed (or only applies to
transfers of less than all of the partner's interest), taxable income or losses
of the Trust Fund might be reallocated among the Certificateholders. The Trust
Fund's method of allocation between transferors and transferees may be revised
to conform to a method permitted by future regulations.
Section 754 Election. In the event that a Certificateholder sells its
Certificates at a profit (loss), the purchasing Certificateholder will have a
higher (lower) basis in the Certificates than the selling Certificateholder had.
The tax basis of the Trust Fund' s assets will not be adjusted to reflect that
higher (or lower) basis unless the Trust Fund were to file an election under
Section 754 of the Code. In order to avoid the administrative complexities that
would be involved in keeping accurate accounting records, as well as potentially
onerous information reporting requirements, the Trust Fund currently does not
intend to make such election. As a result, Certificateholders might be allocated
a greater or lesser amount of Trust Fund income than would be appropriate based
on their own purchase price for Certificates.
Administrative Matters. The Owner Trustee is required to keep or have kept
complete and accurate books of the Trust Fund. Such books will be maintained for
financial reporting and tax purposes on an accrual basis and the fiscal year of
the Trust Fund will be the calendar year. The Trustee will file a partnership
information return (IRS Form 1065) with the IRS for each taxable year of the
Trust Fund and will report each Certificateholder's allocable share of items of
Trust Fund income and expense to Holders and the IRS on Schedule K-1. The Trust
Fund will provide the Schedule K-1 information to nominees that fail to provide
the Trust Fund with the information statement described below and such nominees
will be required to forward such information to the beneficial owners of the
Certificates. Generally, Holders must file tax returns that are consistent with
the information return filed by the Trust Fund or be subject to penalties unless
the Holder notifies the IRS of all such inconsistencies.
Under Section 6031 of the Code, any person that holds Certificates as a
nominee at any time during a calendar year is required to furnish the Trust Fund
with a statement containing certain information on the nominee, the beneficial
owners and the Certificates so held. Such information includes (i) the name,
address and taxpayer identification number of the nominee and (ii) as to each
beneficial owner (x) the name, address and identification number of such person,
(y) whether such person is a United States person, a tax-exempt entity or a
foreign government, an international organization, or any wholly owned agency or
instrumentality of either of the foregoing, and (z) certain information on
Certificates that were held, bought or sold on behalf of such person throughout
the year. In addition, brokers and financial institutions that hold Certificates
through a nominee are required to furnish directly to the Trust Fund information
as to themselves and their ownership of Certificates. A clearing agency
registered under Section 17A of the Exchange Act is not required to furnish any
such information statement to the Trust Fund. The information referred to above
for any calendar year must be furnished to the Trust Fund on or before the
following January 31. Nominees, brokers and financial institutions that fail to
provide the Trust Fund with the information described above may be subject to
penalties.
The Seller will be designated as the tax matters partner in the related
Trust Agreement and, as such, will be responsible for representing the
Certificateholders in any dispute with the IRS. The Code provides for
administrative examination of a partnership as if the partnership were a
separate and distinct taxpayer. Generally,
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the statute of limitations for partnership items does not expire before three
years after the date on which the partnership information return is filed. Any
adverse determination following an audit of the return of the Trust Fund by the
appropriate taxing authorities could result in an adjustment of the returns of
the Certificateholders, and, under certain circumstances, a Certificateholder
may be precluded from separately litigating a proposed adjustment to the items
of the Trust Fund. An adjustment could also result in an audit of a
Certificateholder's returns and adjustments of items not related to the income
and losses of the Trust Fund.
Tax Consequences to Foreign Certificateholders. It is not clear whether
the Trust Fund would be considered to be engaged in a trade or business in the
United States for purposes of federal withholding taxes with respect to non-U.S.
persons because there is no clear authority dealing with that issue under facts
substantially similar to those described herein. Although it is not expected
that the Trust Fund would be engaged in a trade or business in the United States
for such purposes, the Trust Fund will withhold as if it were so engaged in
order to protect the Trust Fund from possible adverse consequences of a failure
to withhold. The Trust Fund expects to withhold on the portion of its taxable
income that is allocable to foreign Certificateholders pursuant to Section 1446
of the Code, as if such income were effectively connected to a U.S. trade or
business, at a rate of 35% for foreign Holders that are taxable as corporations
and 39.6% for all other foreign Holders. Subsequent adoption of Treasury
regulations or the issuance of other administrative pronouncements may require
the Trust Fund to change its withholding procedures.
Each foreign Holder might be required to file a U.S. individual or
corporate income tax return (including, in the case of a corporation, the branch
profits tax) on its share of the Trust Fund's income. Each foreign Holder must
obtain a taxpayer identification number from the IRS and submit that number to
the Trust Fund on Form W-8 in order to assure appropriate crediting of the taxes
withheld. A foreign Holder generally would be entitled to file with the IRS a
claim for refund with respect to taxes withheld by the Trust Fund taking the
position that no taxes were due because the Trust Fund was not engaged in a U.S.
trade or business. However, interest payments made (or accrued) to a
Certificateholder who is a foreign person generally will be considered
guaranteed payments to the extent such payments are determined without regard to
the income of the Trust Fund. If these interest payments are properly
characterized as guaranteed payments, then the interest probably will not be
considered 'portfolio interest.' As a result, Certificateholders will be subject
to United States federal income tax and withholding tax at a rate of 30%, unless
reduced or eliminated pursuant to an applicable treaty. In such case, a foreign
Holder would only be entitled to claim a refund for that portion of the taxes,
if any, in excess of the taxes that should be withheld with respect to the
guaranteed payments.
Backup Withholding. Distributions made on the Certificates and proceeds
from the sale of the Certificates will be subject to a 'backup' withholding tax
of 31% if, in general, the Certificateholder fails to comply with certain
identification procedures, unless the Holder is an exempt recipient under
applicable provisions of the Code.
STATE TAX CONSIDERATIONS
In addition to the federal income tax consequences described in 'Federal
Income Tax Considerations,' potential investors should consider the state and
local income tax consequences of the acquisition, ownership, and disposition of
the Securities. State and local income tax law may differ substantially from the
corresponding federal law, and this discussion does not purport to describe any
aspect of the income tax laws of any state or locality. Therefore, potential
investors should consult their own tax advisors with respect to the various
state and local tax consequences of an investment in the Securities.
ERISA CONSIDERATIONS
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ('ERISA'), and Section 4975 of the Code prohibit a pension, profit
sharing or other employee benefit plan (each, a 'Benefit Plan') from engaging in
certain transactions involving 'plan assets' with persons that are 'parties in
interest' under ERISA or 'disqualified persons' under the Code with respect to
the plan. ERISA also imposes certain duties and certain prohibitions on persons
who are fiduciaries of plans subject to ERISA. Under ERISA, generally any person
who exercises any authority or control with respect to the management or
disposition of the
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assets of a plan is considered to be a fiduciary of such plan. A violation of
these 'prohibited transaction' rules may generate excise tax and other
liabilities under ERISA and the Code for such persons.
Certain transactions involving the related Trust Fund might be deemed to
constitute prohibited transactions under ERISA and the Code with respect to a
Benefit Plan that purchased Securities if assets of the related Trust Fund were
deemed to be assets of the Benefit Plan. Under a regulation issued by the United
States Department of Labor (the 'Plan Assets Regulation'), the assets of a Trust
Fund would be treated as plan assets of a Benefit Plan for the purposes of ERISA
and the Code only if the Benefit Plan acquired an 'equity interest' in the Trust
Fund and none of the exceptions contained in the Plan Assets Regulation was
applicable. An equity interest is defined under the Plan Assets Regulation as an
interest other than an instrument which is treated as indebtedness under
applicable local law and which has no substantial equity features. The likely
treatment of Notes and Certificates will be discussed in the related Prospectus
Supplement.
Employee benefit plans that are governmental plans (as defined in Section
3(32) of ERISA) and certain church plans (as defined in Section 3(33) of ERISA)
are not subject to ERISA requirements.
A plan fiduciary considering the purchase of Securities should consult its
tax and/or legal advisors regarding whether the assets of the Trust Fund would
be considered plan assets, the possibility of exemptive relief from the
prohibited transaction rules and other issues and their potential consequences.
LEGAL INVESTMENT
Unless otherwise specified in the related Prospectus Supplement, the
Securities will not constitute 'mortgage-related securities' within the meaning
of SMMEA. Accordingly, investors whose investment authority is subject to legal
restrictions should consult their own legal advisors to determine whether and
the extent to which the Securities constitute legal investments for them.
PLAN OF DISTRIBUTION
On the terms and conditions set forth in an underwriting agreement (the
'Underwriting Agreement') with respect to each Trust Fund, the Seller will agree
to sell to each of the underwriters named therein and in the related Prospectus
Supplement, and each of such underwriters will severally agree to purchase from
the Seller, the principal amount of each Class of Securities of the related
Series set forth therein and in the related Prospectus Supplement.
In each Underwriting Agreement, the several underwriters will agree,
subject to the terms and conditions set forth therein, to purchase all of the
Securities described therein which are offered hereby and by the related
Prospectus Supplement if any of such Securities are purchased. In the event of a
default by any such underwriter, each Underwriting Agreement will provide that,
in certain circumstances, purchase commitments of the nondefaulting underwriters
may be increased, or the Underwriting Agreement may be terminated.
Each Prospectus Supplement will either (i) set forth the price at which
each Class of Securities being offered thereby will be offered to the public and
any concessions that may be offered to certain dealers participating in the
offering of such Securities or (ii) specify that the related Securities are to
be resold by the underwriters in negotiated transactions at varying prices to be
determined at the time of such sale. After the initial public offering of any
Securities, the public offering price and such concessions may be changed.
Each Underwriting Agreement will provide that the Seller will indemnify
underwriters against certain liabilities, including liabilities under the
Securities Act.
Under each Underwriting Agreement, the closing of the sale of any Class of
Securities subject thereto will be conditioned on the closing of the sale of all
other such Classes.
The place and time of delivery for the Securities in respect of which this
Prospectus is delivered will be set forth in the related Prospectus Supplement.
LEGAL MATTERS
Unless otherwise specified in the related Prospectus Supplement, certain
legal matters in connection with the Securities will be passed upon for the
Seller by Stroock & Stroock & Lavan, New York, New York.
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GLOSSARY OF TERMS
The following are abbreviated definitions of certain capitalized terms used
in this Prospectus. Unless otherwise provided in a 'Supplemental Glossary' or
'Index of Principal Terms' in the Prospectus Supplement for a Series, such
definitions will apply to capitalized terms used in such Prospectus Supplement.
The definitions may vary from those in the related Agreement for a Series and
the related Agreement for a Series generally provides a more complete definition
of certain of the terms. Reference should be made to the related Agreement for a
Series for a more complete definition of such terms.
'Accrual Termination Date' means, with respect to a Class of Compound
Interest Securities, the Distribution Date on which accrued interest on such
Securities becomes payable currently.
'Agreement' means, with respect to a Series of Certificates, the Pooling
and Servicing Agreement or Trust Agreement, and, with respect to a Series of
Notes, the Indenture and the Sale and Servicing Agreement, as the context
requires.
'Appraised Value' means, with respect to property securing a Loan, the
lesser of the appraised value determined in an appraisal obtained at origination
of the Home Equity Loan or sales price of such property at such time.
'Asset Group' means, with respect to the Primary Assets and other assets
comprising the Trust Fund of a Series, a group of such Primary Assets and other
assets having the characteristics described in the related Prospectus
Supplement.
'Assumed Reinvestment Rate' means, with respect to a Series, the per annum
rate or rates specified in the related Prospectus Supplement for a particular
period or periods as the 'Assumed Reinvestment Rate' for funds held in any fund
or account for the Series.
'Available Distribution Amount' means the amount in the Distribution
Account (including amounts deposited therein from any reserve fund or other fund
or account) eligible for distribution to Holders on a Distribution Date.
'Bankruptcy Code' means the federal bankruptcy code, 11 United States Code
101 et seq., and related rules and regulations promulgated thereunder.
'Business Day' means a day that, in the City of New York or in the city or
cities in which the corporate trust office of the Trustee are located, is
neither a legal holiday nor a day on which banking institutions are authorized
or obligated by law, regulations or executive order to be closed.
'Certificates' means the Asset-Backed Certificates.
'Certificate Account' or 'Collection Account' means, with respect to a
Series, the account established for the deposit by the Servicer of payments
received from the Primary Assets.
'Class' means a Class of Securities of a Series.
'Closing Date' means, with respect to a Series, the date specified in the
related Prospectus Supplement as the date on which Securities of such Series are
first issued.
'Code' means the Internal Revenue Code of 1986, as amended, and regulations
(including proposed regulations) or other pronouncements of the Internal Revenue
Service promulgated thereunder.
'Combined Loan-to-Value Ratio' means, with respect to a Loan, the
percentage equivalent of a fraction, the numerator of which is the sum of (i)
the original principal amount of such Loan at the date of origination thereof
and (ii) the outstanding principal amount of any senior loan on the Mortgaged
Property at the time of origination of such Loan, and the denominator of which
is the Appraised Value of such Mortgaged Property at such date of origination.
'Commission' means the Securities and Exchange Commission.
'Compound Interest Security' means any Security of a Series on which all or
a portion of the interest accrued thereon is added to the principal balance of
such Security on each Distribution Date, through the Accrual Termination Date,
and with respect to which no interest shall be payable until such Accrual
Termination Date, after which interest payments will be made on the Compound
Value thereof.
'Compound Value' means, with respect to a Class of Compound Interest
Securities, the original principal balance of such Class, plus all accrued and
unpaid interest, if any, previously added to the principal balance
77
<PAGE>
thereof and reduced by any payments of principal previously made on such Class
of Compound Interest Securities.
'Condominium' means a form of ownership of real property wherein each owner
is entitled to the exclusive ownership and possession of his or her individual
Condominium Unit and also owns a proportionate undivided interest in all parts
of the Condominium Building (other than the individual Condominium Units) and
all areas or facilities, if any, for the common use of the Condominium Units.
'Condominium Association' means the person(s) appointed or elected by the
Condominium Unit owners to govern the affairs of the Condominium.
'Condominium Building' means a multi-unit building or buildings, or a group
of buildings whether or not attached to each other, located on property subject
to Condominium ownership.
'Condominium Loan' means a Home Equity Loan secured by a Mortgage on a
Condominium Unit (together with its appurtenant interest in the common
elements).
'Condominium Unit' means an individual housing unit in a Condominium
Building.
'Cooperative' means a corporation owned by tenant-stockholders who, through
the ownership of stock, shares or membership securities in the corporation,
receive proprietary leases or occupancy agreements which confer exclusive rights
to occupy specific units and which is described in Section 216 of the Code.
'Cooperative Dwelling' means an individual housing unit in a building owned
by a Cooperative.
'Cooperative Loan' means a housing loan made with respect to a Cooperative
Dwelling and secured by an assignment by the borrower (tenant-stockholder) or
security interest in shares issued by the applicable Cooperative.
'Cut-off Date' means the date designated as such in the related Prospectus
Supplement for a Series.
'Debt Securities' means Securities characterized as indebtedness for
federal income tax purposes, and Regular Interest Securities.
'Deferred Interest' means the excess of the interest accrued on the
outstanding principal balance of a Home Equity Loan during a specified period
over the amount of interest required to be paid by an obligor on such Home
Equity Loan on the related Due Date.
'Delinquency Advance' means cash advanced by the Servicer in respect of
delinquent payments of principal of and/or interest on a Home Equity Loan to the
extent specified in the related Prospectus Supplement.
'Disqualified Organization' means the United States, any State or political
subdivision thereof, any possession of the United States, any foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, a rural electric or telephone cooperative described in
section 1381(a)(2)(C) of the Code, or any entity exempt from the tax imposed by
sections 1-1399 of the Code, if such entity is not subject to tax on its
unrelated business income.
'Distribution Account' means, with respect to a Series, the account or
accounts established for the deposit of remittances from the Collection Account
for distribution to Securityholders.
'Distribution Date' means, with respect to a Series or Class of Securities,
each date specified as a distribution date for such Series or Class in the
related Prospectus Supplement.
'Due Date' means each date, as specified in the related Prospectus
Supplement for a Series, on which any payment of principal or interest is due
and payable by the obligor on any Primary Asset pursuant to the terms thereof.
'Eligible Investments' means any one or more of the obligations or
securities described herein under 'THE TRUST FUNDS--Eligible Investments.'
'Enhancement' means a mechanism or instrument which is intended to provide
limited protection to Holders of the applicable Class or Classes of Securities
against losses on the related Primary Assets or other shortfalls in funds
necessary to make required distributions on such Class or Classes of Securities.
'Enhancer' means the provider of the Enhancement for a Series specified in
the related Prospectus Supplement.
'ERISA' means the Employee Retirement Income Security Act of 1974, as
amended.
78
<PAGE>
'Escrow Account' means an account, established and maintained by the
Servicer for a Loan, into which payments by borrowers to pay taxes, assessments,
mortgage and hazard insurance premiums and other comparable items required to be
paid to the mortgagee are deposited.
'FDIC' means the Federal Deposit Insurance Corporation.
'FHLMC' or 'Freddie Mac' means the Federal Home Loan Mortgage Corporation.
'Final Scheduled Distribution Date' means, with respect to a Class of Notes
of a Series, the date no later than which principal thereof will be fully paid
and with respect to a Class of Certificates of a Series, the date after which no
Certificates of such Class will remain outstanding, in each case based on the
assumptions set forth in the related Prospectus Supplement.
'FNMA' or 'Fannie Mae' means the Federal National Mortgage Association.
'Holder' or 'Securityholder' means the person or entity in whose name a
Security is registered.
'Home Equity Loan' means a closed-end home equity loan secured by a
Mortgaged Property.
'Home Equity Loan Rate' means, unless otherwise indicated herein or in the
Prospectus Supplement, the interest rate borne by a Loan.
'HUD' means the United States Department of Housing and Urban Development.
'Indenture' means the indenture relating to a Series of Notes between the
Trust Fund and the Trustee.
'Insurance Policies' means certain mortgage insurance, hazard insurance and
other insurance policies required to be maintained with respect to Loans.
'Insurance Proceeds' means amount paid by the insurer under any of the
Insurance Policies covering any Home Equity Loan or Mortgaged Property.
'Interest Only Securities' means a Class of Securities entitled solely or
primarily to distributions of interest and which is identified as such in the
related Prospectus Supplement.
'IRS' means the Internal Revenue Service.
'Lifetime Rate Cap' means the lifetime limit if any, on the Home Equity
Loan Rate during the life of each adjustable rate Loan.
'Liquidation Proceeds' means amounts received by the Servicer in connection
with the liquidation of a Loan, net of liquidation expenses.
'Loan-to-Value Ratio' means, with respect to a Loan, the percentage
equivalent of a fraction, the numerator of which is the original principal
amount of such Loan at the time of origination thereof, and the denominator of
which is the Appraised Value of the related Mortgaged Property at such time of
origination.
'Minimum Rate' means the lifetime minimum Home Equity Loan Rate during the
life of each adjustable rate Loan.
'Mixed-Use Properties' means structures of no more than three stories,
which include one to four residential dwelling units and 50% or less of the
space in which is used for retail, professional or other commercial uses
including doctor, dentist or law offices, real estate agencies, boutiques,
newsstands, convenience stores or other uses intended to cater to individual
customers.
'Mortgage' means the mortgage, deed of trust or other similar security
instrument securing a Mortgage Note.
'Mortgaged Property' means the real property and improvements thereon
securing a Home Equity Loan.
'Mortgage Note' means the note or other evidence of indebtedness of a
Mortgagor under the Loan.
'Mortgagor' means the obligor on a Mortgage Note.
'1986 Act' means the Tax Reform Act of 1986.
'Notes' means the Asset-Backed Notes.
'Notional Amount' means the amount set forth in the related Prospectus
Supplement for a Class of Interest Only Securities.
'OTS' means the Office of Thrift Supervision.
79
<PAGE>
'PAC' ('Planned Amortization Class Securities') means a Class of Securities
of a Series on which payments of principal are made in accordance with a
schedule specified in the related Prospectus Supplement, based on certain
assumptions stated therein.
'Pay Through Security' means Regular Interest Securities and certain Debt
Securities that are subject to acceleration due to prepayment on the underlying
Primary Assets.
'Person' means any individual, corporation, partnership, joint venture,
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization, or government or any agency or political
subdivision thereof.
'Pooling and Servicing Agreement' means the pooling and servicing agreement
relating to a Series of Certificates among the Seller, the Servicer (if such
Series relates to Loans) and the Trustee.
'Primary Assets' means the Private Securities and/or Loans, as the case may
be, which are included in the Trust Fund for such Series. A Primary Asset refers
to a specific Private Security or Loan, as the case may be.
'Principal Balance' means, with respect to a Primary Asset and as of a Due
Date, the original principal amount of the Primary Asset, plus the amount of any
Deferred Interest added to such principal amount, reduced by all payments, both
scheduled or otherwise, received on such Primary Asset prior to such Due Date
and applied to principal in accordance with the terms of the Primary Asset.
'Principal Only Securities' means a Class of Securities entitled solely or
primarily to distributions of principal and identified as such in the Prospectus
Supplement.
'Private Security' means a participation or pass-through certificate
representing a fractional, undivided interest in Underlying Loans or
collateralized obligations secured by Underlying Loans.
'PS Agreement' means the pooling and servicing agreement, indenture, trust
agreement or similar agreement pursuant to which a Private Security is issued.
'PS Servicer' means the servicer of the Underlying Loans.
'PS Sponsor' means, with respect to Private Securities, the sponsor or
depositor under a PS Agreement.
'PS Trustee' means the trustee designated under a PS Agreement.
'Qualified Insurer' means a mortgage guarantee or 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.
'Rating Agency' means the nationally recognized statistical rating
organization (or organizations) which was (or were) requested by the Seller to
rate the Securities upon the original issuance thereof.
'Regular Interest' means a regular interest in a REMIC.
'REMIC' means a real estate mortgage investment conduit.
'REMIC Administrator' means the Person, if any, specified in the related
Prospectus Supplement for a Series for which a REMIC election is made, to serve
as administrator of the Series.
'REMIC Provisions' means the provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations, including proposed regulations and rulings, and
administrative pronouncements promulgated thereunder, as the foregoing may be in
effect from time to time.
'REO Property' means real property which secured a defaulted Loan,
beneficial ownership of which has been acquired upon foreclosure, deed in lieu
of foreclosure, repossession or otherwise.
'Reserve Fund' means, with respect to a Series, a segregated trust account
into which funds may be deposited on the Closing Date and/or over time in order
to provide a source of funds to provide limited protection to the Holders of one
or more Classes of Securities against losses on the related Primary Assets or
other shortfalls in amounts necessary to make required distributions to such
Holders.
'Residual Interest' means a residual interest in a REMIC.
'Retained Interest' means, with respect to a Primary Asset, the amount or
percentage specified in the related Prospectus Supplement which is not included
in the Trust Fund for the related Series.
80
<PAGE>
'Scheduled Payments' means the scheduled payments of principal and interest
to be made by the borrower on a Primary Asset.
'Securities' means the Notes or the Certificates.
'Seller' means Delta Funding Corporation, or its successors.
'Senior Securityholder' means a holder of a Senior Security.
'Senior Securities' means a Class of Securities as to which the holders'
rights to receive distributions of principal and interest are senior to the
rights of holders of Subordinate Securities, to the extent specified in the
related Prospectus Supplement.
'Series' means a separate series of Securities sold pursuant to this
Prospectus and the related Prospectus Supplement.
'Servicer' means Delta Funding Corporation, or its successors or assigns.
'Servicing Fee' means the fee payable to the Servicer on a periodic basis
for servicing and administering the Primary Assets in a Trust Fund and
calculated at the rate and on the basis set forth in the related Prospectus
Supplement.
'Single Family Property' means property securing a Home Equity Loan
consisting of one- to four-family attached or detached residential housing,
including Cooperative Dwellings.
'Stripped Securities' means Pass-Through Securities representing interests
in Primary Assets with respect to which all or a portion of the principal
payments have been separated from all or a portion of the interest payments.
'Subordinated Securities' means a Class of Securities as to which the
rights of holders to receive distributions of principal, interest or both is
subordinated to the rights of holders of Senior Securities or other Classes of
securities which are themselves subordinate to other Classes, and may be
allocated losses and shortfalls prior to the allocation thereof to other Classes
of Securities, to the extent and under the circumstances specified in the
related Prospectus Supplement.
'Trustee' means the trustee under the applicable Agreement and its
successors.
'Trust Fund' means, with respect to any Series of Securities, the trust
holding all money, instruments, securities and other property, including all
proceeds thereof, which are, with respect to a Series of Certificates, held for
the benefit of the Holders by the Trustee under the Pooling and Servicing
Agreement or Trust Agreement or, with respect to a Series of Notes, pledged to
the Trustee under the Indenture as a security for such Notes, including, without
limitation, the Primary Assets (except any Retained Interests), rights to all
amounts in the Distribution Account Collection Account, Certificate Account,
Pre-Funding Account, Capitalized Interest Account or Reserve Funds, if any,
distributions on the Primary Assets (net of servicing fees), and reinvestment
earnings on such net distributions and rights to any Enhancement and all other
property and interest held by or pledged to the Trustee pursuant to the related
Agreement for such Series.
'UCC' means the Uniform Commercial Code.
'Underlying Loans' means loans of the type eligible to be Loans underlying
or securing Private Securities. 'Variable Interest Security' means a Security on
which interest accrues at a rate that is adjusted, based upon a predetermined
index, at fixed periodic intervals, all as set forth in the related Prospectus
Supplement.
'Variable Interest Securities' means a Class of Securities on which
interest will accrue at a per annum rate that will vary from Distribution Date
to Distribution Date based on changes in the weighted average of the interest
rates borne by the related Primary Assets or changes in the level of an index
used to calculate such per annum rate of interest.
'Zero Coupon Security' means a Security entitled to receive payments of
principal only.
81
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON. THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS DO NOT CONSTITUTE
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES
OFFERED HEREBY, NOR AN OFFER OF SUCH SECURITIES IN ANY STATE OR JURISDICTION IN
WHICH, OR TO ANY PERSON TO WHOM, SUCH OFFER WOULD BE UNLAWFUL. THE DELIVERY OF
THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT THE
INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
ITS DATE.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PROSPECTUS SUPPLEMENT PAGE
<S> <C>
Page Summary............................ S- 3
Risk Factors............................ S-14
The Certificate Insurer................. S-16
Description of the Home Equity Loans.... S-18
Prepayment and Yield Considerations..... S-24
Description of the Certificates......... S-29
Use of Proceeds......................... S-42
Federal Income Tax Considerations....... S-43
ERISA Considerations.................... S-44
Legal Investment Considerations......... S-45
Underwriting............................ S-46
Experts................................. S-46
Legal Matters........................... S-46
Ratings................................. S-46
PROSPECTUS
Prospectus Supplement................... 2
Reports to Holders...................... 2
Available Information................... 2
Incorporation of Certain Documents by
Reference............................. 3
Summary of Terms........................ 4
Risk Factors............................ 13
The Seller and the Servicer............. 16
Description of the Securities........... 22
The Trust Funds......................... 29
Enhancement............................. 34
Servicing of Loans...................... 35
The Agreements.......................... 41
Certain Legal Aspects of the Loans...... 49
Use of Proceeds......................... 56
Federal Income Tax Consequences......... 56
State Tax Considerations................ 75
ERISA Considerations.................... 75
Legal Investment........................ 76
Plan of Distribution.................... 76
Legal Matters........................... 76
Glossary of Terms....................... 77
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$
DELTA FUNDING CORPORATION
SELLER AND SERVICER
ASSET BACKED CERTIFICATES,
SERIES 199 -
----------------------------------
PROSPECTUS SUPPLEMENT
----------------------------------
------------------------------------
, 199
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution*
The following is an itemized list of the estimated expenses to be incurred
in connection with the offering of the securities being offered hereunder other
than underwriting discounts and commissions.
<TABLE>
<S> <C>
SEC Registration Fee............... $517,241.38
Printing and Engraving............. $ 25,000.00
Trustee's Fees..................... $ 20,000.00
Legal Fees and Expenses............ $ 75,000.00
Accountant's Fees and Expenses..... $ 35,000.00
Rating Agency Fees................. $100,000.00
Miscellaneous Fees and Expenses.... $ 5,000.00
-----------
Total Expenses................ $777,241.38
-----------
-----------
</TABLE>
- ------------------
* All amounts, other than the SEC Registration Fee, are estimates of expenses to
be incurred in connection with the issuance and distribution of a Series of
Securities in an aggregate principal amount assumed for these purposes to be
$200,000,000 of Securities registered hereby.
Item 15. Indemnification of Directors and Officers
The New York Business Corporation Law (the 'NYBCL') authorizes a New York
corporation to indemnify any person who is, or is threatened to be made, a party
in any civil or criminal proceeding (other than an action by or in the right of
the corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another entity, against
judgments, fines, amounts paid in settlement and reasonable expenses (including
attorneys' fees), actually and reasonably incurred by such person as a result of
such action or proceeding or any appeal therein. With respect to actions by or
in the right of the corporation, the NYBCL authorizes indemnification of such
person against reasonable expenses, including attorneys' fees and amounts paid
in settlement. To be entitled to indemnification, a person must have acted in
good faith and in a manner he reasonably believed to be in, or not opposed to,
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Court approval is required as a prerequisite to indemnification of expenses in
respect of any claim as to which a person has been adjudged liable to the
corporation. The NYBCL requires indemnification against expenses actually and
reasonably incurred by any director, officer, employee or agent in connection
with a proceeding against such person for action in such capacity to the extent
that the person has been successful on the merits or otherwise. Advancement of
expenses (i.e., payment prior to a determination on the merits) is permitted,
but not required, by the NYBCL, which further requires that any director or
officer must undertake to repay such expenses if it is ultimately determined
that he is not entitled to indemnification. The disinterested members of the
board of directors (or independent legal counsel or the shareholders) must
determine, in each instance where indemnification is not required by the NYBCL,
that such director, officer, employee or agent is entitled to indemnification.
The NYBCL provides that the indemnification provided by statute is not
exclusive.
The form of the Underwriting Agreement, filed as Exhibit 1.1 to this
Registration Statement, provides that the Seller will indemnify and reimburse
the Underwriter(s) and each controlling person of the Underwriter(s) with
respect to certain expenses and liabilities, including liabilities under the
Securities Act of 1933 or other federal or state regulations or under the common
law, which arise out of or are based on certain material misstatements or
omissions in the Registration Statement. In addition, the Underwriting Agreement
provides that the Underwriter(s) will similarly indemnify and reimburse the
Seller and each director, each officer who signed the Registration Statement and
each controlling person of the Seller with respect to certain material
II-1
<PAGE>
misstatements or omissions in the Registration Statement which are based on
certain written information furnished by the Underwriter(s) for use in
connection with the preparation of the Registration Statement.
The Company maintains directors and officers liability insurance for its
directors and officers.
Item 16. Exhibits
(a) Financial Statements:
None.
(b) Exhibits:
<TABLE>
<S> <C>
*1.1 -- Form of Underwriting Agreement.
*3.1 -- Certificate of Incorporation of Delta Funding Corporation.
*3.2 -- By-Laws of Delta Funding Corporation.
*4.1 -- Form of Indenture.
*4.2 -- Form of Pooling and Servicing Agreement.
*4.3 -- Form of Trust Agreement.
5.1 -- Opinion of Stroock & Stroock & Lavan with respect to the
securities being registered.
8.1 -- Opinion of Stroock & Stroock & Lavan with respect to tax
matters (included as part of Exhibit 5.1).
*10.1 -- Form of Sale and Servicing Agreement.
23.1 -- Consent of Stroock & Stroock & Lavan (included as part of
Exhibit 5.1).
*24.1 -- Powers of Attorney of Directors and Officers of Delta Funding
Corporation (included on signature page).
*25.1 -- Statement of Eligibility and Qualification of Trustee (Form
T-1).
</TABLE>
- ------------------
* Previously filed.
Item 17. Undertakings
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, as amended (the 'Securities Act'), the information omitted from
the form of prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as of the
time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised 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.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
(4) For purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934, as amended
II-2
<PAGE>
(the 'Exchange Act') 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 that
time shall be deemed to be the initial bona fide offering thereof.
(5) To provide to the Underwriters at the closing specified in the
Underwriting Agreement certificates in such denominations and registered in
such names as required by the Underwriters to permit prompt delivery to
each purchaser.
(6) 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 of 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.
(7) That, for the purpose of determining any 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.
(8) 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in Woodbury,
State of New York, on November 7, 1996.
DELTA FUNDING CORPORATION
By: /s/ HUGH MILLER
----------------------------------
Hugh Miller
President
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment to the Registration Statement has been signed on November 7, 1996
by the following persons in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------- ----------------------------------------------------
<S> <C>
/s/ HUGH MILLER President (Principal Executive Officer) and Director
- -------------------------
Hugh Miller
/s/ SIDNEY A. MILLER* Director
- -------------------------
Sidney A. Miller
/s/ IRWIN FEIN* Treasurer (Principal Accounting Officer and
- ------------------------- Principal Financial Officer) and Director
Irwin Fein
*By: /s/ HUGH MILLER
-------------------------
(Attorney-in-fact)
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT PAGE
----- --------------------------------------------------------------- ----
<S> <C> <C>
*1.1 -- Form of Underwriting Agreement.
*3.1 -- Certificate of Incorporation of Delta Funding Corporation.
*3.2 -- By-Laws of Delta Funding Corporation.
*4.1 -- Form of Indenture.
*4.2 -- Form of Pooling and Servicing Agreement.
*4.3 -- Form of Trust Agreement.
5.1 -- Opinion of Stroock & Stroock & Lavan with respect to the
securities being registered.
8.1 -- Opinion of Stroock & Stroock & Lavan with respect to tax
matters (included as part of Exhibit 5.1).
*10.1 -- Form of Sale and Servicing Agreement.
23.1 -- Consent of Stroock & Stroock & Lavan (included as part of
Exhibit 5.1).
*24.1 -- Powers of Attorney of Directors and Officers of Delta Funding
Corporation (included on signature page).
*25.1 -- Statement of Eligibility and Qualification of Trustee (Form
T-1).
</TABLE>
- ------------------
* Previously filed.
II-5
<PAGE>
Exhibit 5.1
<PAGE>
Stroock & Stroock & Lavan
7 Hanover Square
New York, New York 10004
November 7, 1996
Delta Funding Corporation
l000 Woodbury Road
Woodbury, New York ll797
Gentlemen:
We have acted as special counsel to Delta Funding Corporation, a New York
corporation (the "Company"), in connection with the preparation of the
registration statement on Form S-3 (No. 333-3418) (the "Registration Statement")
relating to the proposed offering from time to time in one or more series (each,
a "Series") by one or more trusts of asset backed notes (the "Notes") and asset
backed certificates (the "Certificates," and, together with the Notes, the
"Securities"). The Registration Statement has been filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"). As set forth in the Registration Statement, each Series of
Securities is to be issued under and pursuant to the terms of a separate pooling
and servicing agreement, or sale and servicing agreement, trust agreement, and
indenture (each, an "Agreement") between the Company, as seller and servicer and
an independent trustee (the "Trustee") to be identified in the prospectus
supplement for each Series of Securities.
As such counsel, we have examined copies of the Certificate of Incorporation and
By-Laws of the Company, the Registration Statement, the base Prospectus and form
of Prospectus Supplement included therein, the form of each Agreement, and
originals or copies of such other corporate minutes, records, agreements and
other instruments of the Company, certificates of public officials and other
documents and have made such examinations of law, as we have deemed necessary to
form the basis for the opinions hereinafter expressed. In our examination of
such materials, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all copies submitted to us. As to various questions of
fact material to such opinions, we have relied, to the extent we deemed
appropriate, upon representations, statements and certificates of officers and
representatives of the Company and
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Delta Funding Corporation
November 7, 1996
Page 2
others.
Attorneys involved in the preparation of this opinion are admitted to practice
law in the State of New York and we do not express any opinion herein concerning
any law other than the federal laws of the United States of America, the laws of
the State of New York and the General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, we are of the opinion that:
1. When the issuance, execution and delivery of each Series of Notes
have been authorized by all necessary corporate action of the Company in
accordance with the provisions of the related Agreement or Agreements, and when
such Notes have been duly executed and delivered, authenticated by the Trustee
and sold as described in the Registration Statement, assuming that the terms of
such Notes are otherwise in compliance with applicable law at such time, such
Notes will constitute valid and binding obligations of the issuer thereof in
accordance with their terms and the terms of such Agreement or Agreements. This
opinion is subject to the effect of bankruptcy, insolvency, moratorium,
fraudulent conveyance and similar laws relating to or affecting creditors'
rights generally and court decisions with respect thereto and we express no
opinion with respect to the application of equitable principles or remedies in
any proceeding, whether at law or in equity.
2. When the issuance, execution and delivery of each Series of
Certificates have been authorized by all necessary corporate action of the
Company in accordance with the provisions of the related Agreement or
Agreements, and when such Certificates have been duly executed and delivered,
authenticated by the Trustee and sold as described in the Registration
Statement, assuming that the terms of such Certificates are otherwise in
compliance with applicable law at such time, such Certificates will be legally
issued, fully paid and non-assessable and entitled to the benefits of the
related Agreement.
3. The statements set forth in the Prospectus under the heading
"Federal Income Tax Considerations," to the extent they constitute matters of
law or legal conclusions with respect thereto, are correct in all material
respects.
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Delta Funding Corporation
November 7, 1996
Page 3
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, to the references to this firm in the Prospectus and the
related Prospectus Supplement which forms a part of the Registration Statement
and to the filing of this opinion as an exhibit to any application made by or on
behalf of the Company or any dealer in connection with the registration of the
Securities under the securities or blue sky laws of any state or jurisdiction.
In giving such consent, we do not admit hereby that we come within the category
of persons whose consent is required under Section 7 of the Act or the Rules and
Regulations of the Commission thereunder.
Very truly yours,
/s/ Stroock & Stroock & Lavan
STROOCK & STROOCK & LAVAN
