PROSPECTUS SUPPLEMENT
- -----------------------------------
(To Prospectus Dated April 17, 1996)
$900,000,000
ContiMortgage Home Equity Loan Trust 1996-4
ContiMortgage Corporation
Seller and Servicer
ContiWest Corporation
Seller
ContiSecurities Asset Funding Corp.
Depositor
The ContiMortgage Home Equity Loan Pass-Through Certificates, Series
1996-4 (the "Certificates") will consist of (i) the Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-6 Certificates, Class A-7 Certificates, Class A-8
Certificates and the Class A-9 Certificates (collectively, the "Fixed Rate Group
Certificates"), (ii) the Class A-10 Certificates (the "Adjustable Rate Group
Certificates"), (iii) the Class A-11IO Certificates* and the Class A-12IO
Certificates** (collectively, the "Class A-IO Certificates"; the Class A-IO
Certificates, the Fixed Rate Group Certificates and the Adjustable Rate Group
Certificates are collectively referred to as the "Class A Certificates"), (iv)
one or more classes of subordinate Certificates and (v) a residual class (the
"Class R Certificates"; and together with such other subordinate Certificates,
the "Subordinate Certificates"). Only the Class A Certificates are offered
hereby.
The Certificates represent undivided ownership interests in one of two
pools (each, a "Home Equity Loan Group") of fixed and adjustable rate home
equity loans (the "Home Equity Loans") held by ContiMortgage Home Equity Loan
Trust 1996-4 (the "Trust"). The Fixed Rate Group Certificates and the Class
A-11IO Certificates will represent undivided ownership interests in the Home
Equity Loans in the Fixed Rate Group, which are secured by first and second lien
mortgages or deeds of trust. The Adjustable Rate Group Certificates and the
Class A-12IO Certificates will represent undivided ownership interests in the
Home Equity Loans in the Adjustable Rate Group, which are secured solely by
first lien mortgages or deeds of trust.
On or before the issuance of the Certificates, the Servicer will obtain
from MBIA Insurance Corporation (the "Certificate Insurer") two certificate
guaranty insurance policies relating to the Class A Certificates (the
"Certificate Insurance Policies") in favor of the Trustee. One of the
Certificate Insurance Policies will be issued with respect to the Fixed Rate
Group Certificates and the Class A-11IO Certificates and the other will be
issued with respect to the Adjustable Rate Group Certificates and the Class
A-12IO Certificates; together, the Certificate Insurance Policies will provide
interest due on, the Fixed Rate Group Certificates and the Adjustable Rate Group
Certificates and 100% coverage of the scheduled interest due on the Class A-IO
Certificates.
(Cover continued on next page)
[GRAPHIC OMITED]
For a discussion of significant matters affecting investment in the
Certificates, see "Risk Factors" beginning on Page S-16 herein, "Prepayment and
Yield Considerations" beginning on page S-37 herein and "Risk Factors" beginning
on page 6 in the Prospectus.
THE CLASS A CERTIFICATES REPRESENT BENEFICIAL INTERESTS IN THE TRUST ONLY AND DO
NOT REPRESENT INTERESTS IN OR OBLIGATIONS OF THE DEPOSITOR, THE SELLERS, THE
SERVICER OR ANY OF THEIR AFFILIATES. NEITHER THE CLASS A 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.
<TABLE>
<CAPTION>
====================================================================================================================================
Initial Certificate Pass-Through Price to Underwriting Proceeds to
Class Principal Balance Rate Public (1) Discount Depositor (1)(2)
- ----- ----------------- ---- ---------- -------- ----------------
<S> <C> <C> <C> <C> <C>
Per Class A-1 Certificate........... $ 96,650,000 Variable (3) 100.00000% 0.125% 99.87500%
Per Class A-2 Certificate........... $113,600,000 6.23% 99.99591% 0.150% 99.84591%
Per Class A-3 Certificate........... $136,100,000 6.19% 99.99276% 0.200% 99.79276%
Per Class A-4 Certificate........... $ 66,800,000 6.37% 99.97770% 0.250% 99.72770%
Per Class A-5 Certificate........... $ 69,000,000 6.60% 99.99770% 0.300% 99.69770%
Per Class A-6 Certificate........... $ 40,750,000 6.71% 99.95786% 0.350% 99.60786%
Per Class A-7 Certificate........... $ 57,700,000 6.99% 99.95017% 0.375% 99.57517%
Per Class A-8 Certificate........... $ 44,400,000 7.22% 99.97610% 0.400% 99.57610%
Per Class A-9 Certificate........... $ 50,000,000 6.88% 99.98684% 0.427% 99.55984%
Per Class A-10 Certificate.......... $225,000,000 Variable (3) 100.00000% 0.250% 99.75000%
Total............................... $900,000,000 $899,905,901 $2,250,013 $897,655,889
====================================================================================================================================
</TABLE>
(1) Plus accrued interest, if any, from November 23, 1996 with respect to the
Fixed Rate Group Certificates (other than the Class A-1 Certificates).
(2) Before deducting expenses, estimated to be $850,000.
(3) The Pass-Through Rates on the Class A-1 and Class A-10 Certificates are
adjustable based on one-month LIBOR as described herein.
* Interest will be calculated on the Class A-11IO Certificates on the basis of
a Notional Principal Amount equal to the aggregate outstanding Certificate
Principal Balance of the Fixed Rate Group Certificates subject to certain
limitations as described herein.
** Interest will be calculated on the Class A-12IO Certificates on the basis of
a Notional Principal Amount equal to the aggregate outstanding Certificate
Principal Balance of the Adjustable Rate Group Certificates.
--------------------
Underwriters of the Fixed Rate Group Certificates and the Adjustable
Rate Group Certificates
Bear, Stearns & Co. Inc.
CS First Boston
ContiFinancial Services Corporation
Greenwich Capital Markets, Inc.
Lehman Brothers
Merrill Lynch & Co.
Morgan Stanley & Co.
--------------------
Underwriter of the Class A-IO Certificates
Greenwich Capital Markets, Inc.
--------------------
The date of this Prospectus Supplement is November 15, 1996
<PAGE>
(Cover continued from previous page)
The Class A Certificates also will represent undivided ownership
interests in all monies due under the Home Equity Loans after November 22, 1996
(the "Cut-Off Date"), security interests in the properties which secure the Home
Equity Loans (the "Mortgaged Properties"), two certificate guaranty insurance
policies, funds on deposit in certain trust accounts, and certain other
property. The Home Equity Loans were originated or purchased by the Sellers. The
Trust will be created pursuant to a Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") to be dated as of December 1, 1996, among the
Depositor, ContiMortgage Corporation, as a Seller and the Servicer, ContiWest
Corporation, as a Seller and Manufacturers and Traders Trust Company, as the
Trustee (the "Trustee").
The Home Equity Loan Pool will be divided into two groups (each, a
"Home Equity Loan Group" or a "Group"). The Fixed Rate Group Certificates will
represent an undivided ownership interest in a group of fixed-rate Home Equity
Loans (the "Fixed Rate Group"). The Adjustable Rate Group Certificates will
represent an undivided ownership interest in a group of adjustable-rate Home
Equity Loans (the "Adjustable Rate Group").
It is a condition to issuance of the Class A Certificates that each
Class of the Class A Certificates be rated in the highest rating category by
Moody's, Standard & Poor's and Fitch.
Distributions of interest will be made to the Owners of the
Certificates on the 15th day of each month (or, if such day is not a business
day, the next business day) beginning January 15, 1997. Interest will be passed
through on each Payment Date to the Owners of the Class A Certificates based on
the related Certificate Principal Balance (as defined herein) or Notional
Principal Amount (as defined herein), and at the rate applicable to each Class
of the Class A Certificates (each, a "Pass-Through Rate"). The Pass-Through Rate
for each Class of the Fixed Rate Group Certificates (other than the Class A-1
Certificates) is set out on the cover hereof. The Pass-Through Rates for the
Class A-1 Certificates and the Adjustable Rate Group Certificates adjust monthly
based upon one-month LIBOR (as defined herein) or as otherwise described herein.
The Pass-Through Rate for each Class of the Class A-IO Certificates is described
under "Summary of Terms-Certificates Offered" herein. Distributions of principal
in reduction of the Certificate Principal Balances will be made on each Payment
Date in the manner and the amounts described herein. Distributions on the
Subordinate Certificates are subordinate to distributions on the Class A
Certificates to the extent described herein.
The Class A-IO Certificates are interest-only Certificates. The yield
to investors on the Class A-IO Certificates will, and the yield to investors on
the Class A Certificates (other than the Class A-IO Certificates) sold at prices
other than par may, be extremely sensitive to the rate and timing of principal
payments (including prepayments, repurchases, defaults and liquidations) on the
related Home Equity Loans, which may vary over time. A rapid rate of such
principal payments on the related Home Equity Loans could result in the failure
of investors in the related Class of Class A-IO Certificates to recover their
initial investments. See "Summary of Terms -- Nature of Class A-IO
Certificates," "Prepayment and Yield Considerations" herein and "Risk Factors"
in the Prospectus.
The Trust Estate will consist primarily of two segregated asset pools,
with respect to which elections will be made to treat each as a "real estate
mortgage investment conduit" (a "REMIC") for federal income tax purposes. As
described more fully herein, all of the Class A Certificates (other than, and
only to the extent interest on the Class A-1 Certificates is paid with, funds
representing the Supplemental Interest Amount) will constitute "regular
interests" in the Upper-Tier REMIC (as defined herein).
See "Certain Federal Income Tax Consequences" herein and in the Prospectus.
Prior to their issuance there has been no market for the Class A
Certificates nor can there be any assurance that one will develop or if it does
develop, that it will provide the Owners of the Class A Certificates with
liquidity or will continue for the life of the Certificates. The Underwriters
intend, but are not obligated, to make a market in the Certificates.
----------
UNTIL 90 DAYS AFTER THE DATE OF THIS PROSPECTUS SUPPLEMENT, ALL DEALERS
EFFECTING TRANSACTIONS IN THE CLASS A CERTIFICATES, WHETHER OR NOT PARTICIPATING
IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS TO WHICH IT RELATES. THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS
TO DELIVER A PROSPECTUS SUPPLEMENT AND PROSPECTUS WHEN ACTING AS UNDERWRITERS
AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
The Certificates offered by this Prospectus Supplement will be part of
a separate series of Certificates being offered by the Depositor pursuant to its
Prospectus dated April 17, 1996, of which this Prospectus Supplement is a part
and which accompanies this Prospectus Supplement. The Prospectus contains
important information regarding this offering which is not contained herein, and
prospective investors are urged to read the Prospectus and this Prospectus
Supplement in full.
<PAGE>
AVAILABLE INFORMATION
The Depositor has filed with the Securities and Exchange Commission
(the "Commission") a Registration Statement under the Securities Act of 1933
with respect to the Certificates. This Prospectus Supplement and the related
Prospectus, which form a part of the Registration Statement, omit certain
information contained in such Registration Statement pursuant to the Rules and
Regulations of the Commission. The Registration Statement can be inspected and
copied at the Public Reference Room of the Commission at 450 Fifth Street, N.W.,
Washington, D.C., and the Commission's regional offices at Seven World Trade
Center, 13th Floor, New York, New York 10048, and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such materials
can be obtained at prescribed rates from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and electronically
through the Commission's Electronic Data Gathering, Analysis and Retrieval
system at the Commission's web site (http:\\www.sec.gov).
REPORTS TO OWNERS
Monthly and annual reports concerning the Certificates and the Trust
will be sent by the Trustee to the Owners of Class A Certificates. So long as
any Class A Certificate is in book-entry form, such reports will be sent to Cede
& Co., as the nominee of DTC and as Owner of such Class A Certificates pursuant
to the Pooling and Servicing Agreement. DTC will supply such reports to Owners
of any such Class A Certificates in accordance with its procedures. The
Depositor will file or cause to be filed with the Commission such periodic
reports with respect to the Trust as are required under the Securities Exchange
Act of 1934 and the rules and regulations of the Commission thereunder. It is
the Depositor's intent to suspend the filing of such reports as soon as such
reports are no longer statutorily required.
<PAGE>
TABLE OF CONTENTS
Prospectus Supplement
Page
----
SUMMARY OF TERMS...........................................................S-1
RISK FACTORS...............................................................S-16
THE SELLERS AND THE SERVICER...............................................S-19
General...............................................................S-19
Credit and Underwriting Guidelines....................................S-20
Indemnification by the Depositor......................................S-21
Delinquency, Loan Loss and Foreclosure Information....................S-22
USE OF PROCEEDS............................................................S-23
THE DEPOSITOR..............................................................S-23
THE HOME EQUITY LOAN POOL..................................................S-23
General...............................................................S-23
Home Equity Loans -- Fixed Rate Group.................................S-24
Home Equity Loans -- Adjustable Rate Group............................S-30
Interest Payments on the Home Equity Loans............................S-36
PREPAYMENT AND YIELD CONSIDERATIONS........................................S-37
General...............................................................S-37
Projected Prepayment and Yield for Class A Certificates...............S-37
Payment Lag Feature of Class A Certificates...........................S-44
Yield Sensitivity of the Class A-IO Certificates......................S-44
FORMATION OF THE TRUST AND TRUST PROPERTY..................................S-46
ADDITIONAL INFORMATION.....................................................S-46
DESCRIPTION OF THE CLASS A CERTIFICATES....................................S-47
General...............................................................S-47
Payment Dates.........................................................S-47
Distributions.........................................................S-47
Calculation of LIBOR..................................................S-50
Book Entry Registration of the Class A Certificates...................S-50
Assignment of Rights..................................................S-54
THE CERTIFICATE INSURER....................................................S-54
CREDIT ENHANCEMENT.........................................................S-58
Certificate Insurance Policies........................................S-58
Overcollateralization Provisions......................................S-58
Crosscollateralization Provisions.....................................S-60
THE POOLING AND SERVICING AGREEMENT........................................S-60
Covenant of the Sellers to Take Certain Actions with Respect
to the Home Equity Loans in Certain Situations....................S-60
Assignment of Home Equity Loans.......................................S-61
Servicing and Sub-Servicing...........................................S-62
Removal and Resignation of Servicer...................................S-65
The Trustee...........................................................S-65
Reporting Requirements................................................S-65
Removal of Trustee for Cause..........................................S-67
Governing Law.........................................................S-67
Amendments............................................................S-67
Termination of the Trust..............................................S-67
Optional Termination..................................................S-68
CERTAIN FEDERAL INCOME TAX CONSEQUENCES....................................S-68
REMIC Elections.......................................................S-68
The Class A-1 Certificates............................................S-69
Taxation of Foreign Investors.........................................S-70
ERISA CONSIDERATIONS.......................................................S-70
RATINGS....................................................................S-72
LEGAL INVESTMENT CONSIDERATIONS............................................S-73
UNDERWRITING...............................................................S-73
REPORT OF EXPERTS..........................................................S-76
CERTAIN LEGAL MATTERS......................................................S-76
Prospectus
Page
----
SUMMARY OF PROSPECTUS....................................................... 1
RISK FACTORS................................................................ 6
DESCRIPTION OF THE CERTIFICATES............................................. 9
General................................................................. 9
Classes of Certificates................................................ 10
Distributions of Principal and Interest................................ 11
Book Entry Registration................................................ 13
List Owners of Certificates............................................ 13
THE TRUSTS.................................................................. 13
Mortgage Loans......................................................... 14
Contracts.............................................................. 15
Mortgage-Backed Securities............................................. 16
Other Mortgage Securities.............................................. 17
CREDIT ENHANCEMENT.......................................................... 17
SERVICING OF MORTGAGE LOANS AND CONTRACTS................................... 22
Payments on Mortgage Loans............................................. 22
Advances............................................................... 23
Collection and Other Servicing Procedures.............................. 23
Primary Mortgage Insurance............................................. 25
Standard Hazard Insurance.............................................. 25
Title Insurance Policies............................................... 26
Claims Under Primary Mortgage Insurance Policies and Standard Hazard
Insurance Policies; Other Realization Upon Defaulted Loan.......... 26
Servicing Compensation and Payment of Expenses......................... 27
Master Servicer........................................................ 27
ADMINISTRATION.............................................................. 28
Assignment of Mortgage Assets.......................................... 28
Evidence as to Compliance.............................................. 30
The Trustee............................................................ 30
Administration of the Certificate Account.............................. 31
Reports................................................................ 32
Forward Commitments; Pre-Funding....................................... 32
Servicer Events of Default............................................. 32
Rights Upon Servicer Event of Default.................................. 33
Amendment.............................................................. 33
Termination............................................................ 33
USE OF PROCEEDS............................................................. 34
THE DEPOSITOR................................................................34
CERTAIN LEGAL ASPECTS OF THE MORTGAGE ASSETS................................ 34
General................................................................ 34
Foreclosure............................................................ 35
Soldiers' and Sailors' Civil Relief Act................................ 40
The Contracts.......................................................... 40
The Title I Program.................................................... 43
LEGAL INVESTMENT MATTERS.................................................... 47
ERISA CONSIDERATIONS........................................................ 48
CERTAIN FEDERAL INCOME TAX CONSEQUENCES..................................... 50
Federal Income Tax Consequences For REMIC Certificates................. 50
Taxation of Regular Certificates....................................... 51
Taxation of Residual Certificates...................................... 57
Treatment of Certain Items of REMIC Income and Expense................. 59
Tax-Related Restrictions on Transfer of Residual Certificates.......... 61
Sale or Exchange of a Residual Certificate............................. 63
Taxes That May Be Imposed on the REMIC Pool............................ 63
Liquidation of the REMIC Pool.......................................... 64
Administrative Matters................................................. 64
Limitations on Deduction of Certain Expenses........................... 64
Taxation of Certain Foreign Investors.................................. 65
Backup Withholding..................................................... 66
Reporting Requirements................................................. 66
Federal Income Tax Consequences for Certificates as to Which
No REMIC Election Is Made.......................................... 67
Standard Certificates ................................................. 67
Premium and Discount................................................... 68
Stripped Certificates.................................................. 70
Reporting Requirements and Backup Withholding.......................... 72
Taxation of Certain Foreign Investors.................................. 72
Taxation of Securities Classified as Partnership Interests............. 73
PLAN OF DISTRIBUTION........................................................ 73
LEGAL MATTERS............................................................... 73
FINANCIAL INFORMATION....................................................... 73
INDEX TO LOCATION OF PRINCIPAL DEFINED TERMS................................A-1
<PAGE>
- --------------------------------------------------------------------------------
SUMMARY OF TERMS
This summary is qualified in its entirety by reference to the detailed
information appearing elsewhere in this Prospectus Supplement and the
accompanying Prospectus. Reference is made to the Index of Principal Defined
Terms for the location of certain capitalized terms.
Issuer: ContiMortgage Home Equity Loan Trust 1996-4 (the "Trust").
Certificates Offered: $900,000,000 Home Equity Loan Pass-Through Certificates,
Series 1996-4, to be issued in the following Classes
(each, a "Class"):
Initial Certificate Pass-Through
Principal Balance Rate Class
----------------- ---- -----
$96,650,000 (1) Class A-1 Certificates
$113,600,000 6.23% Class A-2 Certificates
$136,100,000 6.19% Class A-3 Certificates
$66,800,000 6.37% Class A-4 Certificates
$69,000,000 6.60% Class A-5 Certificates
$40,750,000 6.71% Class A-6 Certificates
$57,700,000 6.99% Class A-7 Certificates
$44,400,000 7.22% Class A-8 Certificates
$50,000,000 6.88% Class A-9 Certificates
$225,000,000 (2) Class A-10 Certificates
$0 (3) 1.10 (4) Class A-11IO Certificates
$0 (3) 1.05% Class A-12IO Certificates
(1) On each Payment Date, the Class A-1 Pass-Through
Rate will be equal to the rate equal to the London
interbank offered rate for United States Dollar deposits
("LIBOR") (calculated as described under "Description of
the Class A Certificates-Calculation of LIBOR" herein)
plus 0.04% per annum. For tax purposes, Owners of the
Class A-1 Certificates will be treated as owning two
separate investments as described under "Certain Federal
Income Tax Consequences-The Class A-1 Certificates" in
this Summary.
(2) On each Payment Date, the Class A-10 Pass-Through
Rate will be equal to the lesser of (x) with respect to
any Payment Date which occurs on or prior to the
Clean-Up Call Date (as defined herein), LIBOR plus 0.24%
per annum and for any Payment Date thereafter, LIBOR
plus 0.48% per annum, and (y) the weighted average of
the Coupon Rates on the Home Equity Loans in the
Adjustable Rate Group, less approximately 1.66% per
annum prior to the thirteenth Payment Date and less
approximately 2.16% for any Payment Date thereafter (the
rate described in this clause (y), the "Class A-10
Available Funds Cap").
(3) Interest will be calculated on the Class A-11IO
Certificates on the basis of a "Notional Principal
Amount" equal to the aggregate outstanding Certificate
Principal Balances of the Fixed Rate Group Certificates
(as defined below) and interest will be calculated on
the Class A-12IO Certificates on the basis of a Notional
Principal Amount equal to the Certificate Principal
Balance of the Adjustable Rate Group Certificates.
Reference to the Notional Principal Amount of either
Class of the Class A-IO Certificates is solely for
convenience in certain calculations and does not
represent the right to receive any distribution
allocable to principal.
(4) The Class A-11IO Pass-Through Rate is equal to the
lesser of (x) 1.10% per annum and (y) the excess of (i)
the weighted average of the Coupon Rates on the Home
Equity Loans in the Fixed Rate Group over (ii) the
weighted average of the Pass-Through Rates of the Fixed
Rate Group Certificates, plus approximately 0.61% per
annum (the amount in clause (y), the "Class A-11IO
Available Funds Cap").
The Class A-1 Certificates, Class A-2 Certificates,
Class A-3 Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-6 Certificates, Class A-7
Certificates, Class A-8 Certificates and Class A-9
Certificates are collectively referred to herein as the
"Fixed Rate Group Certificates," and the Class A-10
Certificates are also referred to herein as the
"Adjustable Rate Group Certificates." The Class A-11IO
Certificates and the Class A-12IO Certificates are
collectively referred to herein as the "Class A-IO
Certificates." The Fixed
- --------------------------------------------------------------------------------
S-1
<PAGE>
- --------------------------------------------------------------------------------
Rate Group Certificates, the Adjustable Rate Group
Certificates and the Class A-IO Certificates are
collectively referred to herein as the "Class A
Certificates."
On any date after the Closing Date, the "Certificate
Principal Balance" or the "Class A Certificate Principal
Balance" is the Initial Certificate Principal Balance
set out above less all amounts previously distributed to
the Owners of each Class of the Class A Certificates
(other than the Class A-IO Certificates) on account of
principal.
Depositor: ContiSecurities Asset Funding Corp. (the "Depositor"), a
Delaware corporation.
Servicer: ContiMortgage Corporation (the "Servicer"), a Delaware
corporation.
Sellers: ContiMortgage Corporation, a Delaware corporation and
ContiWest Corporation, a Nevada corporation (each a
"Seller" and collectively, the "Sellers").
Originator: ContiMortgage Corporation (the "Originator"), a Delaware
corporation.
Trustee: Manufacturers and Traders Trust Company (the "Trustee"),
a New York banking corporation.
Cut-Off Date: As of the close of business on November 22, 1996.
Closing Date: On or about December 12, 1996.
Description of
the Certificates: The Home Equity Loan Pass-Through Certificates (the
"Certificates") will consist of the Class A
Certificates, one or more classes of subordinate
Certificates and a residual class (the "Class R
Certificates" and together with such other subordinate
Certificates, the "Subordinate Certificates"). The
Certificates will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing
Agreement") to be dated as of December 1, 1996, among
the Depositor, the Sellers, the Servicer and the
Trustee. Only the Class A Certificates will be offered
hereby.
Denominations: The Fixed Rate Group Certificates and the Adjustable
Rate Group Certificates are issuable in book entry form
in minimum original principal amounts of $1,000 and
integral multiples thereof. The Class A-IO Certificates
are issuable in book entry form in minimum original
notional principal amounts of $1,000 and integral
multiples thereof.
The Home Equity Loans: Unless otherwise noted, all statistical percentages in
this Prospectus Supplement are approximate and measured
by the aggregate Loan Balance of the related home equity
loans (the "Home Equity Loans"), in relation to the Home
Equity Loans in the applicable Home Equity Loan Group,
or of all of the Home Equity Loans in the Trust (the
"Original Aggregate Loan Balance") in each case as of
the Cut-Off Date. See "Additional Information" in this
Prospectus Supplement. The Home Equity Loans will
consist of fixed and adjustable rate conventional home
equity loans evidenced by promissory notes (the "Notes")
secured by first and second lien deeds of trust,
security deeds or mortgages (the "Mortgages"). The
properties securing the Home Equity Loans (the
"Properties") are located in 49 states and the District
of Columbia and consist primarily of single-family
residences (which may be attached, detached, part of a
two-to-four family dwelling, a condominium unit or a
unit in a planned unit development) and also include
mixed use properties and manufactured housing. The
Properties may
- --------------------------------------------------------------------------------
S-2
<PAGE>
- --------------------------------------------------------------------------------
be owner-occupied or non-owner occupied investment
properties. No Combined Loan-to-Value Ratio (based upon
appraisals made at the time of origination) exceeded 95%
as of the Cut-Off Date. The Home Equity Loans are not
insured by either primary or pool mortgage insurance
policies; however, certain distributions due to the
Owners of the Class A Certificates (the "Owners") are
insured by the Certificate Insurer pursuant to the
Certificate Insurance Policies. See "Credit Enhancement"
herein. The Home Equity Loans are not guaranteed by the
Sellers or any affiliate thereof. The Home Equity Loans
will be serviced by the Servicer generally in accordance
with the standards and procedures required by FNMA for
FNMA mortgage-backed securities.
Fixed Rate Group. As of the Cut-Off Date, the average
Loan Balance of the Home Equity Loans in the Fixed Rate
Group was $59,107; the interest rates (the "Coupon
Rates") of such Home Equity Loans ranged from 8.15% to
19.29%; the weighted average Loan-to-Value Ratio of such
Home Equity Loans was 71.89%; the weighted average
Combined Loan-to-Value Ratio of such Home Equity Loans
was 75.04%; the weighted average Coupon Rate of such
Home Equity Loans was 11.87%; and the weighted average
remaining term to maturity of such Home Equity Loans was
212 months. The remaining terms to maturity as of the
Cut-Off Date of the Home Equity Loans in the Fixed Rate
Group ranged from 45 months to 360 months. The maximum
Loan Balance of the Home Equity Loans in the Fixed Rate
Group as of the Cut-Off Date was $449,768. Home Equity
Loans in the Fixed Rate Group containing "balloon"
payments represented not more than 54.72% of the
Original Aggregate Loan Balance of the Fixed Rate Group.
No Home Equity Loan in the Fixed Rate Group will mature
later than December 1, 2026. 10,031 of the Home Equity
Loans in the Fixed Rate Group are secured by first
mortgages representing in the aggregate 93.16% of the
Original Aggregate Loan Balance of the Fixed Rate Group
and 1,389 of the Home Equity Loans in the Fixed Rate
Group are secured by second lien mortgages representing
in the aggregate 6.84% of the Original Aggregate Loan
Balance of the Fixed Rate Group. As a percentage of the
Original Aggregate Loan Balance of the Fixed Rate Group,
85.89% were secured by mortgages on single-family
detached dwellings, 2.86% by mortgages on single-family
attached dwellings, 7.65% by mortgages on two-to-four
family dwellings, 0.81% by condominiums, 1.45% by
manufactured housing and 1.34% by other types of
dwellings. See "The Home Equity Loan Pool -- Home Equity
Loans -- Fixed Rate Group" herein.
Adjustable Rate Group. As of the Cut-Off Date, the
average Loan Balance of the Home Equity Loans in the
Adjustable Rate Group was $80,443; the Coupon Rates of
such Home Equity Loans ranged from 6.99% to 16.10%; the
weighted average Loan-to-Value Ratio of such Home Equity
Loans was 74.51%; the weighted average Coupon Rate of
such Home Equity Loans was 10.42%; and the weighted
average remaining term to maturity of such Home Equity
Loans was 356 months. The remaining terms to maturity as
of the Cut-Off Date of the Home Equity Loans in the
Adjustable Rate Group ranged from 119 months to 360
months. The maximum Loan Balance of the Home Equity
Loans in the Adjustable Rate Group as of the Cut-Off
Date was $444,459. Home Equity Loans in the Adjustable
Rate Group containing "balloon" payments represented not
more than 0.28% of the Original Aggregate Loan Balance.
No Home Equity Loan in the Adjustable Rate Group will
mature later than December 1, 2026. All of the Home
Equity Loans in the Adjustable Rate Group are secured by
first mortgages. As a percentage of the Original
Aggregate Loan Balance of the Adjustable Rate Group,
91.33% were secured by mortgages on single-family
detached dwellings, 1.21% by mortgages on single-family
attached dwellings, 3.87% by mortgages on two-to-four
family dwellings, 1.04% by condominiums, 1.68% by
manufactured housing and 0.87% by other types of
dwellings. See
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"The Home Equity Loan Pool-- Home Equity Loans--
Adjustable Rate Group" herein.
All of the Home Equity Loans in the Adjustable Rate
Group have maximum Coupon Rates. The weighted average
maximum Coupon Rate of the Home Equity Loans in the
Adjustable Rate Group is 16.70%, with maximum Coupon
Rates that range from approximately 11.40% to 22.10%.
The Home Equity Loans in the Adjustable Rate Group have
a weighted average gross margin as of the Cut-Off Date
of 6.77%. The gross margin for the Home Equity Loans in
the Adjustable Rate Group ranges from 3.75% to 11.49%.
Approximately $180,731,025 or 80.33% of the Home Equity
Loans in the Adjustable Rate Group by aggregate Loan
Balance as of the Cut-Off Date bear interest at rates
that adjust, along with the related monthly payments,
semiannually based on Six-month LIBOR (the "Six-Month
LIBOR Loans"). The Six-Month LIBOR Loans have periodic
reset caps ranging from 1% to 6% with substantially all
of such loans having lifetime reset caps ranging from 6%
to 7%.
Approximately $34,312,112 or 15.25% of the Home Equity
Loans in the Adjustable Rate Group by aggregate Loan
Balance as of the Cut-Off Date bear interest at a fixed
rate for two years after origination and thereafter have
periodic adjustments at frequencies in the same manner
as the Six-Month LIBOR Loans (as described above) (the
"2/28 Loans"). After the first adjustment, the 2/28
Loans have periodic reset caps ranging from 1% to 6% and
lifetime reset caps ranging from 6% to 9%.
Approximately $9,956,366 or 4.43% of the Home Equity
Loans in the Adjustable Rate Group by aggregate Loan
Balance as of the Cut-Off Date bear interest at a fixed
rate for three years after origination and thereafter
have periodic adjustments at frequencies in the same
manner as the Six-Month LIBOR Loans (as described above)
(the "3/27 Loans"). After the first adjustment, the 3/27
Loans have periodic reset caps ranging from 1% to 3% and
lifetime reset caps ranging from 6% to 7%.
Final Scheduled
Payment Dates: The Final Scheduled Payment Dates for each of the
respective classes of Class A Certificates are as
follows, although it is anticipated that the actual
final Payment Date for each Class will occur earlier
than the Final Scheduled Payment Date. See "Prepayment
and Yield Considerations" herein.
Final Scheduled
Class Payment Date
----- ------------
Class A-1 Certificates: May 15, 2006
Class A-2 Certificates: October 15, 2011
Class A-3 Certificates: October 15, 2011
Class A-4 Certificates: October 15, 2011
Class A-5 Certificates: October 15, 2011
Class A-6 Certificates: June 15, 2014
Class A-7 Certificates: March 15, 2021
Class A-8 Certificates: January 15, 2028
Class A-9 Certificates: January 15, 2028
Class A-10 Certificates: January 15, 2028
Class A-11IO Certificates: January 15, 2028
Class A-12IO Certificates: January 15, 2028
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Distributions--General: On the 15th day of each month, or, if such day is not a
Business Day, then the next succeeding Business Day,
commencing January 15, 1997 (each such day being a
"Payment Date"), the Trustee will be required to
distribute to the Owners of the Class A Certificates
(other than the Class A-1 Certificates and Class A-10
Certificates) of record as of the last day of the
calendar month immediately preceding the calendar month
in which such Payment Date occurs and to the Owners of
the Class A-1 Certificates and the Class A-10
Certificates of record as of the day immediately
preceding such Payment Date (each such date, the "Record
Date") the "Class A Distribution Amount" which shall be
the sum of (x) Current Interest and (y) the Principal
Distribution Amount (each as defined below).
For each Payment Date, interest due with respect to the
Class A Certificates (other than the Class A-1
Certificates and Class A-10 Certificates) will be
interest which has accrued on the related Certificate
Principal Balance or Notional Principal Amount, as the
case may be, during the calendar month immediately
preceding the month in which such Payment Date occurs;
provided that for the first Payment Date the Accrual
Period shall be the period from November 23, 1996
through and including December 31, 1996. The interest
due with respect to the Class A-1 Certificates and the
Class A-10 Certificates will be the interest which has
accrued on the related Certificate Principal Balance
from the preceding Payment Date (or from the Closing
Date in the case of the first Payment Date) to and
including the day prior to the current Payment Date.
Each such period relating to the accrual of interest is
the "Accrual Period" for the related Class of Class A
Certificates. All calculations of interest on the Class
A Certificates (other than the Class A-1 Certificates
and Class A-10 Certificates) will be made on the basis
of a 360-day year assumed to consist of twelve 30-day
months. Calculations of interest on the Class A-1
Certificates and Class A-10 Certificates will be made on
the basis of the actual number of days elapsed in the
related Accrual Period and in a year of 360 days.
A "Business Day" is any day other than a Saturday,
Sunday or a day on which banking institutions in New
York City or in the city in which the corporate trust
office of the Trustee is located are authorized or
obligated by law or executive order to close.
Allocations of Interest
and Principal: The Class A Distribution Amount relating to each Group
of Home Equity Loans for each Payment Date (to the
extent funds are available therefor) shall be allocated
among the Class A Certificates in the following amounts
and in the following order of priority:
(i) First, with respect to each Group, to the Owners of
the Class A Certificates of such Group (including for
this purpose the related Class of the Class A-IO
Certificates), the related Class A Current Interest for
such Certificates on a pro rata basis based on each such
Class A Certificate's Current Interest without any
priority among such Class A Certificates.
(ii) Second, with respect to each Group, to the Owners
of the Class A Certificates of such Group (other than
the Class A-IO Certificates) the Principal Distribution
Amount (as defined below under the heading "Principal").
The Principal Distribution Amount applicable to the
Fixed Rate Group shall be distributed as follows: (I) to
the Owners of the Class A-9 Certificates an amount equal
to the Class A-9 Lockout Distribution Amount (as defined
below under the heading "Principal") and (II) the
remainder of such Principal Distribution Amount as
follows: first, to the Owners of the Class A-1
Certificates until the Class A-1 Certificate Principal
Balance is reduced to zero;
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second, to the Owners of the Class A-2 Certificates
until the Class A-2 Certificate Principal Balance is
reduced to zero; third, to the Owners of the Class A-3
Certificates until the Class A-3 Certificate Principal
Balance is reduced to zero; fourth, to the Owners of the
Class A-4 Certificates until the Class A-4 Certificate
Principal Balance is reduced to zero; fifth, to the
Owners of the Class A-5 Certificates until the Class A-5
Certificate Principal Balance is reduced to zero; sixth,
to the Owners of the Class A-6 Certificates until the
Class A-6 Certificate Principal Balance is reduced to
zero; seventh, to the Owners of the Class A-7
Certificates until the Class A-7 Certificate Principal
Balance is reduced to zero; eighth, to the Owners of the
Class A-8 Certificates until the Class A-8 Certificate
Principal Balance is reduced to zero; and ninth, to the
Owners of the Class A-9 Certificates until the Class A-9
Certificate Principal Balance is reduced to zero. The
Principal Distribution Amount applicable to the
Adjustable Rate Group shall be distributed to the Owners
of the Class A-10 Certificates until the Class A-10
Certificate Principal Balance is reduced to zero.
"Current Interest" with respect to each Class of Class A
Certificates means, with respect to any Payment Date (i)
the aggregate amount of interest accrued during the
preceding Accrual Period on the Certificate Principal
Balance of the related Class A Certificates (other than
the Class A-IO Certificates) or, in the case of the
Class A-IO Certificates, on the Notional Principal
Amount of the related Class A-IO Certificates plus (ii)
the Preference Amount as it relates to interest
previously paid on such Class of the Class A
Certificates prior to such Payment Date plus (iii) the
portion of the Carry Forward Amount relating to
interest, if any, with respect to such Class of Class A
Certificates.
The "Carry Forward Amount" with respect to any Class of
the Class A Certificates for any Payment Date is the sum
of (x) the amount, if any, by which (i) the Class A
Distribution Amount allocable to such Class as of the
immediately preceding Payment Date exceeded (ii) the
amount of the actual distribution made to the Owners of
such Class of Class A Certificates on such immediately
preceding Payment Date plus (y) 30 days' interest on
such amount, calculated at the related Pass-Through Rate
in effect with respect to such Class of Class A
Certificates.
The credit enhancement provisions of the Trust result in
a limited acceleration of principal payments to the
Owners of the Class A Certificates (other than the Class
A-IO Certificates); such provisions are more fully
described under "Credit Enhancement --
Overcollateralization Provisions" and "Credit
Enhancement -Crosscollateralization Provisions" herein.
Such credit enhancement provisions also have an effect
on the weighted average lives of the Class A
Certificates; see "Prepayment and Yield Considerations"
herein.
Class A-1 Pass-
Through Rate: On each Payment Date, the "Class A-1 Pass-Through Rate"
will be equal to LIBOR plus 0.04% per annum. The excess,
if any, of (x) the interest due on the Class A-1
Certificates calculated at the Class A-1 Pass-Through
Rate over (y) the interest due on the Class A-1
Certificates calculated at the Class A-1 Internal
Pass-Through Rate is the "Supplemental Interest Amount"
for such Payment Date.
The "Class A-1 Internal Pass-Through Rate" is a fixed
rate described in the Pooling and Servicing Agreement.
Supplemental Interest
Amount: In the event that on any Payment Date there is a
shortfall between the amount of interest due to the
Owners of the Class A-1 Certificates calculated at the
Class A-1 Pass-Through Rate and the amount of interest
calculated at the Class
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A-1 Internal Pass-Through Rate, such Owners shall
receive a payment of the Supplemental Interest Amount.
The Supplemental Interest Amount will be distributed by
the Trustee from amounts on deposit in the Supplemental
Interest Account, which account will hold payments from
the Cap Agreement (as defined in the Pooling and
Servicing Agreement) and certain other amounts held by
the Trustee for the benefit of such Owners. Any
Supplemental Interest Amount distributed to Owners of
the Class A-1 Certificates will be treated for tax
purposes as a non-REMIC distribution. See "Certain
Federal Income Tax Consequences-The Class A-1
Certificates" herein.
Principal: The Fixed Rate Group Certificates (other than the Class
A-9 Certificates) are "sequential pay" classes such that
the Owners of the Class A-8 Certificates will receive no
payments of principal until the Class A-7 Certificate
Principal Balance is reduced to zero, the Owners of the
Class A-7 Certificates will receive no payments of
principal until the Class A-6 Certificate Principal
Balance is reduced to zero, the Owners of the Class A-6
Certificates will receive no payments of principal until
the Class A-5 Certificate Principal Balance is reduced
to zero, the Owners of the Class A-5 Certificates will
receive no payments of principal until the Class A-4
Certificate Principal Balance has been reduced to zero,
the Owners of the Class A-4 Certificates will receive no
payments of principal until the Class A-3 Certificate
Principal Balance has been reduced to zero, the Owners
of the Class A-3 Certificates will receive no payments
of principal until the Class A-2 Certificate Principal
Balance has been reduced to zero, and the Owners of the
Class A-2 Certificates will receive no payments of
principal until the Class A-1 Certificate Principal
Balance has been reduced to zero. The Principal
Distribution Amount applicable to the Adjustable Rate
Group shall be distributed to the Owners of the Class
A-10 Certificates until the Class A-10 Certificate
Principal Balance has been reduced to zero.
The Owners of the Class A-9 Certificates are entitled to
receive payments of the Class A-9 Lockout Distribution
Amount specified herein; provided, that if on any
Payment Date the Class A-8 Certificate Principal Balance
is zero, the Owners of the Class A-9 Certificates will
be entitled to receive the entire Principal Distribution
Amount applicable to the Fixed Rate Group for such
Payment Date.
The Class A-IO Certificates are interest-only
Certificates and are not entitled to receive
distributions of principal.
On each Payment Date, distributions in reduction of the
Certificate Principal Balance of the Class A
Certificates (other than the Class A-IO Certificates)
will be made in the amounts described herein. The
"Principal Distribution Amount" for each Home Equity
Loan Group and Payment Date shall be the lesser of:
(a) the Total Available Funds (as defined below) for the
related Home Equity Loan Group plus any related Insured
Payments minus the related Current Interest with respect
to the related Class A Certificates; and
(b) the excess, if any, of (i) the sum of:
(A) the Preference Amount with respect to principal
owed to the Owners of the Class A Certificates for the
related Group that remains unpaid as of such Payment
Date;
(B) the principal actually collected by the Servicer
with respect to the Home Equity Loans in the related
Home Equity Loan Group during the related Remittance
Period;
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(C) the Loan Balance of each Home Equity Loan in the
related Home Equity Loan Group that was repurchased by a
Seller or purchased by the Servicer on or prior to the
related Monthly Remittance Date, to the extent such Loan
Balance is actually received by the Trustee on or prior
to the related Monthly Remittance Date;
(D) any Substitution Amounts (i.e., the excess, if
any, of the Loan Balance of a Home Equity Loan being
replaced over the outstanding principal balance of a
replacement Home Equity Loan) delivered by a Seller on
the related Monthly Remittance Date in connection with a
substitution of a Home Equity Loan in the related Home
Equity Loan Group, to the extent such Substitution
Amounts are actually received by the Trustee on or prior
to the related Monthly Remittance Date;
(E) all Net Liquidation Proceeds actually collected
by the Servicer with respect to the Home Equity Loans in
the related Home Equity Loan Group during the related
Remittance Period (to the extent such Net Liquidation
Proceeds are related to principal) to the extent such
Net Liquidation Proceeds are actually received by the
Trustee on or prior to the related Monthly Remittance
Date;
(F) the amount of any Subordination Deficit with
respect to the related Home Equity Loan Group for such
Payment Date;
(G) the portion of the proceeds received with
respect to the related Home Equity Loan Group by the
Trustee upon termination of the Trust (to the extent
such proceeds relate to principal);
(H) the amount of any Subordination Increase Amount
with respect to the related Home Equity Loan Group for
such Payment Date to the extent of any Net Monthly
Excess Cash Flow available for such purpose; and
(I) the portion of any Carry Forward Amount relating
to principal with respect to the related Home Equity
Loan Group for such Payment Date;
over
(ii) the amount of any Subordination Reduction Amount
with respect to the related Home Equity Loan Group for
such Payment Date.
In addition to the following definitions, the above
discussion makes use of a number of terms which are
defined under "Credit EnhancementOvercollateralization
Provisions" herein.
The sum of Current Interest and the Principal
Distribution Amount with respect to each Home Equity
Loan Group and any Payment Date is the "Class A
Distribution Amount" for such Home Equity Loan Group and
Payment Date.
The "Class A-9 Lockout Distribution Amount" for any
Payment Date will be the product of (i) the applicable
Class A-9 Lockout Percentage for such Payment Date and
(ii) the Class A-9 Lockout Pro Rata Distribution Amount
for such Payment Date.
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The "Class A-9 Lockout Percentage" for each Payment Date
shall be as follows:
Payment Dates Lockout Percentage
------------- ------------------
January 1997 - December 1999 0%
January 2000 - December 2001 45%
January 2002 - December 2002 80%
January 2003 - December 2003 100%
January 2004 and thereafter 140%
The "Class A-9 Lockout Pro Rata Distribution Amount" for
any Payment Date will be an amount equal to the product
of (x) a fraction, the numerator of which is the
Certificate Principal Balance of the Class A-9
Certificates immediately prior to such Payment Date and
the denominator of which is the aggregate Certificate
Principal Balance of the Fixed Rate Group Certificates
immediately prior to such Payment Date and (y) the
Principal Distribution Amount with respect to the Fixed
Rate Group for such Payment Date.
The "Remittance Period" with respect to any Monthly
Remittance Date is the calendar month immediately
preceding the calendar month in which the Monthly
Remittance Date occurs; provided that the initial
Remittance Period shall be the period from November 23,
1996 through December 31, 1996. A "Monthly Remittance
Date" is any date on which funds on deposit in the
Principal and Interest Account are remitted to the
Certificate Account, which is the 10th day of each month
or, if such day is not a Business Day, the next
succeeding Business Day, commencing in the month
following the month in which the Closing Date occurs.
A "Liquidated Home Equity Loan" is, in general, a
defaulted Home Equity Loan as to which the Servicer has
determined that all amounts that it expects to recover
on such Home Equity Loan have been recovered (exclusive
of any possibility of a deficiency judgment).
The Owners of the Class A Certificates (other than the
Class A-IO Certificates) are entitled to receive
ultimate recovery of Realized Losses which occur in the
related Home Equity Loan Group to the extent such
Realized Losses create a Subordination Deficit in the
related Home Equity Loan Group, and payment in recovery
of such losses will be in the form of an Insured Payment
payable in accordance with the terms of the applicable
Certificate Insurance Policy on the next following
Payment Date if not covered through Net Monthly Excess
Cashflow from the related Home Equity Loan Group or
crosscollateralization from the other Home Equity Loan
Group.
A "Subordination Deficit" with respect to a Home Equity
Loan Group and a Payment Date is the amount, if any, by
which (x) the aggregate related Class A Certificate
Principal Balance, after taking into account all
distributions to be made on such Payment Date, exceeds
(y) the aggregate Loan Balances of the Home Equity Loans
in the related Home Equity Loan Group as of the close of
business on the last day of the related Remittance
Period.
"Preference Amount" means any amount previously
distributed to an Owner on a Class A Certificate that is
recoverable and sought to be recovered as a voidable
preference by a trustee in bankruptcy under 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.
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Monthly Servicing Fee: The Servicer is entitled to a fee (the "Servicing Fee")
equal to 0.50% per annum (subject to certain limitations
described in the Pooling and Servicing Agreement),
payable monthly at one-twelfth the annual rate, of the
then outstanding principal amount of each Home Equity
Loan as of the first day of each calendar month.
Credit Enhancement: The Credit Enhancement provided for the benefit of the
Owners of the Class A Certificates consists of (x) the
overcollateralization and crosscollateralization
mechanics which utilize the internal cash flows of the
Trust and (y) the Certificate Insurance Policies (as
defined below).
Overcollateralization. The credit enhancement provisions
of the Trust result in a limited acceleration of the
Classes of Class A Certificates then entitled to receive
distributions of principal relative to the amortization
of the related Home Equity Loans in the early months of
the transaction. The accelerated amortization is
achieved by the application of certain excess interest
and excess principal to the payment of principal on the
Fixed Rate Group Certificates and the Adjustable Rate
Group Certificates. This acceleration feature creates,
with respect to each Home Equity Loan Group,
overcollateralization (i.e., the excess of the aggregate
outstanding Loan Balance of the Home Equity Loans in the
related Home Equity Loan Group, over the aggregate
related Class A Certificate Principal Balance). Once the
required level of overcollateralization is reached, and
subject to the provisions described in the next
paragraph, the acceleration feature will cease, until
necessary to maintain the required level of
overcollateralization.
The Pooling and Servicing Agreement provides that,
subject to certain floors, caps and triggers, the
required level of overcollateralization with respect to
a Home Equity Loan Group may increase or decrease over
time. An increase would result in a temporary period of
accelerated amortization of the Classes of Class A
Certificates then entitled to receive distributions of
principal to increase the actual level of
overcollateralization to its required level; a decrease
would result in a temporary period of decelerated
amortization to reduce the actual level of
overcollateralization to its required level.
As a result of the "sequential pay" feature of the Fixed
Rate Group Certificates any such accelerated principal
will be paid to that class of the Fixed Rate Group
Certificates then entitled to receive distributions of
principal.
Crosscollateralization. In addition to the foregoing,
the Pooling and Servicing Agreement provides for
crosscollateralization through the application of excess
amounts generated by one Home Equity Loan Group to fund
shortfalls in Available Funds and the required
overcollateralization level in the other Home Equity
Loan Group, subject to certain prior debt service and
credit enhancement requirements of such Home Equity Loan
Group.
See "Prepayment and Yield Considerations," "Credit
Enhancement - Overcollateralization Provisions" and
"Credit Enhancement - Crosscollateralization Provisions"
herein and "Credit Enhancement" in the Prospectus.
Certificate Insurance Policies. MBIA Insurance
Corporation, a New York stock insurance company (the
"Certificate Insurer"), will provide two Certificate
Insurance Policies with respect to the Class A
Certificates, one with respect to the Fixed Rate Group
Certificates and the Class A-11IO Certificates and the
other with respect to the Adjustable Rate Group
Certificates and the Class A-12IO Certificates.
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Subject to the terms thereof, each Certificate Insurance
Policy unconditionally and irrevocably guarantees the
obligation of the Trust on any Payment Date to pay
Current Interest and any Subordination Deficit.
The Certificate Insurance Policies are noncancellable
for any reason.
"Insured Payments" means, with respect to any Home
Equity Loan Group and Payment Date, without duplication,
(A) the excess, if any, of (i) the sum of the related
Current Interest and the then existing Subordination
Deficit for the related Home Equity Loan Group, if any,
over (ii) Total Available Funds (net of the Premium
Amount for such Home Equity Loan Group) for such Home
Equity Loan Group after taking into account (x) the
portion of any Principal Distribution Amount to be
actually distributed on such Payment Date without regard
to any Insured Payment to be made with respect to such
Payment Date and (y) the application of the
crosscollateralization provisions of the Trust plus (B)
an amount equal to the Preference Amount with respect to
such Home Equity Loan Group.
Insured Payments do not cover Realized Losses except to
the extent that a Subordination Deficit exists. Insured
Payments do not cover the Servicer's failure to make
Delinquency Advances, except to the extent that a
Subordination Deficit would otherwise result therefrom.
Nevertheless, the effect of each Certificate Insurance
Policy is to guarantee the timely payment of interest on
all classes of the Class A Certificates and the ultimate
payment of the principal amount of the Class A
Certificates (other than the Class A-IO Certificates).
The Certificate Insurance Policies do not guarantee any
specified rate of prepayments, nor do the Certificate
Insurance Policies provide funds to redeem the
Certificates on any specified date. The Certificate
Insurer's obligation under the Certificate Insurance
Policies will be discharged to the extent that funds are
received by the Trustee for distribution to the Owners
of the Class A Certificates. See "The Certificate
Insurer" herein.
Nature of Class A-IO
Certificates: General Character as an Interest-Only Security. As the
owners of interest-only strip securities, the Owners of
the Class A-IO Certificates will be entitled to receive
monthly distributions only of interest, as described
herein. Because they will not receive any distributions
of principal, the Owners of the Class A-IO Certificates
will be affected by prepayments, liquidations and other
dispositions (including optional redemptions described
herein) of the Home Equity Loans in the related Home
Equity Loan Group as well as by accelerated amortization
creating overcollateralization to a greater degree than
will the Owners of the Fixed Rate Group Certificates or
Adjustable Rate Group Certificates. As an extreme
illustration, in the event that the entire pool of Home
Equity Loans prepay in full during the first month, then
on the initial Payment Date the Owners of the Fixed Rate
Group Certificates and the Adjustable Rate Group
Certificates will receive the full par value of their
Certificates while the Owners of the Class A-IO
Certificates will suffer nearly a complete loss (except
for one month's interest) on their investment. Because,
however, the Fixed Rate Group contains 11,420 Home
Equity Loans and the Adjustable Rate Group contains
2,797 Home Equity Loans, the prepayment experience of
any one Home Equity Loan in either of the Home Equity
Loans Groups will not be material to an investor's
overall return.
In general, losses due to liquidations, repurchases by
the Servicer and other dispositions of Home Equity Loans
from the Trust will have the same effect on
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the Owners of the Class A-IO Certificates as do
prepayments of principal and are collectively referred
to as "Prepayments."
Because the yield to the Owners of the Class A-IO
Certificates is highly sensitive to rates of prepayment,
it is advisable for potential investors in the Class
A-IO Certificates to consider carefully, and to make
their own evaluation of, the effect of any particular
assumption regarding the rates and the timing of
prepayments. In general, when interest rates decline,
prepayments in a pool of receivables such as the Home
Equity Loans will increase as borrowers seek to
refinance at lower rates. This will have the effect of
reducing the future stream of payments available to an
owner of an interest-only security based on such
receivables pool, thus adversely affecting such
investor's yield. Conversely, when interest rates
increase, prepayments will tend to decrease (because
attractive refinancing opportunities are not available)
and the future stream of payments available to such an
owner of an interest-only security may not decline as
rapidly as originally anticipated, thus positively
affecting such investor's yield. See "Prepayment and
Yield Considerations -- Yield Sensitivity of the Class
A-IO Certificates" herein for other factors which may
also influence prepayment rates.
Applicability of Credit Enhancement to the Class A-IO
Certificates. The overcollateralization feature of the
Trust includes provisions which subordinate the
distributions on the Subordinate Certificates for each
Payment Date for the purpose, inter alia, of funding the
full amounts due on each Class of the Class A
Certificates, including the Class A-IO Certificates, on
each Payment Date. The related Certificate Insurance
Policy will guarantee payment of Current Interest on the
Class A-IO Certificates.
In general, the protection afforded by the
overcollateralization feature and by the related
Certificate Insurance Policy is for credit risk and not
for prepayment risk. The overcollateralization feature
does not, nor may a claim be made under the related
Certificate Insurance Policy to, guarantee or insure
that any particular rate of prepayment is experienced by
the Trust. If the entire pool of Home Equity Loans were
to prepay in the initial month, with the result that the
Owners of each Class of the Class A-IO Certificates
receive only a single month's interest and thus suffer a
nearly complete loss on their investments, no amounts
would be available from the overcollateralization
feature or from the related Certificate Insurance Policy
to mitigate such loss.
Accrual of "Original Issue Discount." The Class A-IO
Certificates will be issued with "original issue
discount" within the meaning of the Code. As a result,
in certain rapid prepayment environments the effect of
the rules governing the accrual of original issue
discount may require Owners of the Class A-IO
Certificates to accrue original issue discount at a rate
in excess of the rate at which distributions are
received by such Owners. See "Certain Federal Income Tax
Consequences" herein and in the Prospectus.
Optional Termination: The Owners of Class R Certificates and, in limited
circumstances, the Certificate Insurer will have the
right to purchase all the Home Equity Loans on any
Monthly Remittance Date when the aggregate Loan Balances
of the Home Equity Loans has declined to less than 10%
of the Original Aggregate Loan Balances of the Home
Equity Loans as of the Closing Date (the "Clean-Up Call
Date"). See "The Pooling and Servicing
Agreement--Optional Termination" herein.
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S-12
<PAGE>
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Book-Entry
Registration of the
Class A Certificates: The Class A Certificates will initially be issued in
book-entry form. Persons acquiring beneficial ownership
interests in such Class A Certificates ("Beneficial
Owners") may elect to hold their interests through The
Depository Trust Company ("DTC"), in the United States,
or Centrale de Livraison de Valeurs Mobilieres, S.A.
("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 Certificates
(as defined herein), 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
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" and
together with Citibank, the "European Depositaries"),
the relevant depositaries of CEDEL and Euroclear,
respectively, and each a participating member of DTC.
The Class A Certificates will initially be registered in
the name of Cede. The interests of the Owners of such
Certificates will be represented by book-entries on the
records of DTC and participating members thereof. No
Beneficial Owner will be entitled to receive a
definitive certificate representing such person's
interest, except in the event that Definitive
Certificates (as defined herein) are issued under the
limited circumstances described herein. All references
in this Prospectus Supplement to any Class A
Certificates reflect the rights of Beneficial Owners
only as such rights may be exercised through DTC and its
participating organizations for so long as such Class A
Certificates are held by DTC. See "Description of the
Class A Certificates-- Book-Entry Registration of the
Class A Certificates" herein, and Annex I hereto, and
"Description of the Certificates--Book-Entry
Registration" in the Prospectus.
Ratings: It is a condition of issuance of the Class A
Certificates that the Class A Certificates (other than
the Class A-IO Certificates) receive ratings of "AAA" by
Standard & Poor's, a division of the McGraw-Hill
Companies ("Standard & Poor's"), "Aaa" by Moody's
Investors Service, Inc. ("Moody's") and "AAA"by Fitch
Investors Service, L.P. ("Fitch"). It is a condition of
issuance of the Class A-IO Certificates that such
Certificates receive ratings of "AAAr" by Standard &
Poor's, "Aaa" by Moody's and "AAA" by Fitch. Standard &
Poor's, Moody's and Fitch are referred to herein
collectively as the "Rating Agencies." A security 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 entity. See "Prepayment and Yield
Considerations" and "Ratings" herein.
Ratings of the Class A-IO Certificates. Ratings which
are assigned to securities such as the Class A-IO
Certificates generally evaluate the ability of the
issuer (i.e., the Trust) and any guarantor (i.e., the
Certificate Insurer) to make payments, as required by
such securities. The amounts distributable on the Class
A-IO Certificates consist only of interest. In general,
the ratings of such Certificates address only credit
risk and not prepayment risk. See "Ratings" and "Summary
of Terms--Nature of Class A-IO Certificates" herein.
The "r" symbol is appended to the rating by Standard &
Poor's of the Class AIO Certificates because they are
interest-only Certificates that Standard & Poor's
believes may experience high volatility or high
variability in expected returns
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S-13
<PAGE>
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due to non-credit risks created by the terms of such
Certificates. The absence of an "r" symbol in the
ratings of the other Class A Certificates should not be
taken as an indication that such Certificates will
experience no volatility or variability in total return.
See "Ratings" and "Summary of Terms--Nature of Class
A-IO Certificates" herein.
Risk Factors: Credit Considerations. For information with regard to
the Home Equity Loans and their related risks, see "The
Home Equity Loan Pool" herein.
Prepayment Considerations. For information regarding the
consequences of prepayments of the Home Equity Loans,
see "Prepayment and Yield Considerations" and "Risk
Factors--Sensitivity to Prepayments" herein.
Other Considerations. For a discussion of other risk
factors that should be considered by prospective
investors in the Class A Certificates, see "Risk
Factors" herein and in the Prospectus.
Federal Tax Aspects: For federal income tax purposes, the Trust Estate
created by the Pooling and Servicing Agreement will
consist of two segregated asset pools (the "Upper-Tier
REMIC" and the "Lower-Tier REMIC") with respect to which
elections will be made to treat each as a separate "real
estate mortgage investment conduit" ("REMIC"). The Class
A Certificates (other than, and only to the extent
interest on the Class A-1 Certificates is paid with,
funds representing the Supplemental Interest Amount)
will constitute "regular interests" in the Upper- Tier
REMIC. See "Certain Federal Income Tax Consequences"
herein.
Owners of the Class A Certificates, including Owners
that generally report income on the cash method of
accounting, will be required to include interest on the
Class A Certificates in income in accordance with the
accrual method of accounting. In addition, the Class
A-IO Certificates will, and other Class A Certificates
may, be considered to have been issued with original
issue discount. Any such original issue discount will be
includable in the income of the Owner as it accrues
under a method taking into account the compounding of
interest and using the Prepayment Assumption. See
"Prepayment and Yield Considerations" and "Certain
Federal Income Tax Consequences" herein. In addition,
certain Class A Certificates may be issued at a premium.
Premium may be deductible by the Owner either as it
accrues or when principal is received. No representation
is made as to whether the Home Equity Loans will prepay
in accordance with the Prepayment Assumption, or any
other rate. In general, as a result of the qualification
of the Class A Certificates (other than, and only to the
extent interest on the Class A-1 Certificates is paid
with, funds representing the Supplemental Interest
Amount) as regular interests in a REMIC, the Class A
Certificates will be treated as "regular . . .
interest(s) in a REMIC" under Section 7701(a)(19)(C) of
the Internal Revenue Code of 1986, as amended (the
"Code") and "real estate assets" under Section 856(c) of
the Code in the same proportion that the assets in the
Upper-Tier REMIC consist of qualifying assets under such
sections. In addition, interest on the Class A
Certificates will be treated as "interest on obligations
secured by mortgages on real property" under Section
856(c) of the Code to the extent that such Certificates
are treated as "real estate assets" under Section 856(c)
of the Code.
ERISA Considerations: As described under "ERISA Considerations" herein, the
Class A Certificates may be purchased by employee
benefit plans that are subject to the Employee
Retirement Income Security Act of 1974, as amended. See
"ERISA Considerations" herein and in the Prospectus.
Special considerations that apply to the purchase of the
Class A-1 Certificates by employee benefit plans are
described under "ERISA Considerations" herein.
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S-14
<PAGE>
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Legal Investment
Considerations: Although the Fixed Rate Group Certificates and the Class
A-11IO Certificates are expected to be rated "AAA" or
"AAAr", as the case may be, by Standard & Poor's, "Aaa"
by Moody's and "AAA" by Fitch, such Certificates will
not constitute "mortgage related securities" for
purposes of the Secondary Mortgage Market Enhancement
Act of 1984 ("SMMEA") because the Home Equity Loans in
the Fixed Rate Group include second liens. 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
Fixed Rate Group Certificates and Class A-11IO
Certificates.
The Adjustable Rate Group Certificates and the Class
A-12IO Certificates will constitute "mortgage related
securities" for purposes of SMMEA for so long as they
are rated in one of the two highest rating categories by
one or more nationally recognized statistical rating
organizations. As such, the Adjustable Rate Group
Certificates and the Class A-12IO Certificates will be
legal investments for certain entities to the extent
provided in SMMEA, subject to state laws overriding
SMMEA. In addition, institutions whose investment
activities are subject to review by federal or state
regulatory authorities may be or may become subject to
restrictions, which may be retroactively imposed by such
regulatory authorities, on the investment by such
institutions in certain forms of mortgage related
securities. Furthermore, certain states have enacted
legislation overriding the legal investment provisions
of SMMEA. In addition, institutions whose activities are
subject to review by federal or state regulatory
authorities may be or may become subject to
restrictions, which may be retroactively imposed by such
regulatory authorities, on the investment by such
institutions in certain forms of mortgage related
securities.
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S-15
<PAGE>
RISK FACTORS
Prospective investors in the Class A Certificates should consider the
following risk factors (as well as the risk factors set forth under "Risk
Factors" in the Prospectus) in connection with the purchase of the Class A
Certificates.
Sensitivity to Prepayments. A majority of the Home Equity Loans may be
prepaid in whole or in part at any time without penalty. In addition, a
substantial portion of the Home Equity Loans contain due-on-sale provisions
which, to the extent enforced by the Servicer, will result in prepayment of such
Home Equity Loans. See "Prepayment and Yield Considerations" herein and "Certain
Legal Aspects of Mortgage Assets--Enforceability of Certain Provisions" in the
Prospectus. The rate of prepayments on fixed-rate mortgage loans, such as the
Home Equity Loans in the Fixed Rate Group, is sensitive to prevailing interest
rates. Generally, if prevailing interest rates fall significantly below the
interest rates on the Home Equity Loans, the Home Equity Loans are likely to be
subject to higher prepayment rates than if prevailing rates remain at or above
the interest rates on the Home Equity Loans. Conversely, if prevailing interest
rates rise significantly above the interest rates on the Home Equity Loans, the
rate of prepayments is likely to decrease. The average life of the Class A
Certificates (other than the Class A-IO Certificates), and, if purchased at
other than par, the yields realized by Owners of the Class A Certificates (other
than the Class A-IO Certificates) will be sensitive to levels of payment
(including prepayments relating to the Home Equity Loans (the "Prepayments")) on
the Home Equity Loans. In general, the yield on a Class A Certificate (other
than a Class A-IO Certificate) that is purchased at a premium from the
outstanding principal amount thereof will be adversely affected by a higher than
anticipated level of Prepayments of the Home Equity Loans and enhanced by a
lower than anticipated level. Conversely, the yield on a Class A Certificate
(other than a Class A-IO Certificate) that is purchased at a discount from the
outstanding principal amount thereof will be enhanced by a higher than
anticipated level of Prepayments and adversely affected by a lower than
anticipated level. The yields realized by Owners of the Class A-IO Certificates
will be extremely sensitive to the rate of prepayments on the Home Equity Loans.
See "Prepayment and Yield Considerations" herein.
Nature of Collateral. Because 6.84% of the Home Equity Loans in the
Fixed Rate Group by aggregate Loan Balance as of the Cut-Off Date, are secured
by second liens subordinate to the rights of the mortgagee or beneficiary under
the related first mortgage or deed of trust, the proceeds from any liquidation,
insurance or condemnation proceedings with respect to such Home Equity Loans
will be available to satisfy the outstanding balance of a Home Equity Loan only
to the extent that the claims of such first mortgagee or beneficiary have been
satisfied in full, including any related foreclosure costs. In addition, a
second mortgagee may not foreclose on the property securing a second mortgage
unless it forecloses subject to the first mortgage, in which case it must either
pay the entire amount due on the first mortgage to the first mortgagee at or
prior to the foreclosure sale or undertake the obligation to make payments on
the first mortgage. In servicing second mortgages in its portfolio, it is
generally the Servicer's practice to satisfy the first mortgage at or prior to
the foreclosure sale. The Servicer may also advance funds to keep the first
mortgage current until such time as the Servicer satisfies the first mortgage.
The Trust will have no source of funds (and may not be permitted under the REMIC
provisions of the Code) to satisfy the first mortgage or make payments due to
the first mortgagee. See "The Pooling and Servicing Agreement-Servicing and
Sub-Servicing" herein.
An overall decline in the residential real estate market, the general
condition of a Property, or other factors, could adversely affect the value of
the Property such that the outstanding balance of the Home Equity Loans,
together with any senior liens on the Property, equal or exceed the value of the
Property. A decline in the value of a Property would affect the interest of the
Trust in the Property before having any effect on the interest of the related
first mortgagee, and could cause the Trust's interest in the Property to be
extinguished. If such a decline occurs, the actual rates of delinquencies,
foreclosures and losses on the Home Equity Loans could be higher than those
currently experienced in the mortgage lending industry in general. In addition,
adverse economic conditions (which may or may not affect real property values)
may affect the timely payment by borrowers of scheduled payments of principal
and interest on the Home Equity Loans and, accordingly, the actual rates of
delinquencies, foreclosures and losses with respect to the Trust.
S-16
<PAGE>
Risk of Home Equity Loan Rates Reducing the Class A-10 Pass-Through
Rate. The calculation of the Class A-10 Pass-Through Rate is based upon (i) the
value of an index (LIBOR) which is different from the value of the index
applicable to the Home Equity Loans in the Adjustable Rate Group as described
under "The Home Equity Loan Pool -- Home Equity Loans -- Adjustable Rate Group"
(either as a result of the use of a different index, rate determination date or
rate adjustment date) and (ii) the weighted average of the Coupon Rates of the
Adjustable Rate Group Home Equity Loans, which are subject to periodic
adjustment caps, maximum rate caps and minimum rate floors. 80.33% of the Home
Equity Loans in the Adjustable Rate Group by aggregate Loan Balance as of the
Cut-Off Date adjust semi-annually based upon the London interbank offered rate
for six-month United States dollar deposits ("Six-Month LIBOR"), whereas the
Pass-Through Rate on the Class A-10 Certificates adjusts monthly based upon
LIBOR as described under "Description of the Class A Certificates -- Calculation
of LIBOR" herein, subject to the Class A-10 Available Funds Cap. Consequently,
the interest which becomes due on the Home Equity Loans in the Adjustable Rate
Group (net of the Servicing Fee, the Premium Amount, the Trustee Fee, the Class
A-12IO Pass-Through Rate and certain reductions required by the Certificate
Insurer) during any Remittance Period may not equal the amount of interest that
would accrue at LIBOR plus the margin on the Class A-10 Certificates during the
related Accrual Period. 15.25% of the Home Equity Loans in the Adjustable Rate
Group by aggregate Loan Balance as of the Cut-Off Date are 2/28 Loans that
provide for a fixed interest rate for a period of approximately two years
following origination. 4.43% of the Home Equity Loans in the Adjustable Rate
Group by aggregate Loan Balance as of the Cut-Off Date are 3/27 Loans that
provide for a fixed interest rate for a period of approximately three years
following origination. Thereafter, such Home Equity Loans provide for interest
rate and payment adjustments in a manner similar to the Six-Month LIBOR Loans.
In particular, the Class A-10 Pass-Through Rate adjusts monthly, while the
interest rates of the Home Equity Loans in the Adjustable Rate Group adjust less
frequently with the result that the Class A-10 Available Funds Cap may limit
increases in the Class A-10 Pass-Through Rate for extended periods in a rising
interest rate environment. In addition, LIBOR and Six-Month LIBOR may respond to
different economic and market factors, and there is not necessarily a
correlation between them. Thus, it is possible, for example, that LIBOR may rise
during periods in which Six-Month LIBOR is stable or is falling or that, even if
both LIBOR and Six-Month LIBOR rise during the same period, LIBOR may rise more
rapidly than Six-Month LIBOR. Furthermore, if the Class A-10 Available Funds Cap
determines the Class A-10 Pass-Through Rate for a Payment Date, the value of the
Class A-10 Certificates will be temporarily or permanently reduced.
Other Legal Considerations. Applicable state laws generally regulate
interest rates and other charges, require certain disclosure, and require
licensing of the Sellers. 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 Home Equity Loans. The related Seller will be
required to repurchase any Home Equity Loans which, at the time of origination,
did not comply with applicable federal and state laws and regulations. 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 Trust to collect all or part of the principal of or interest on
the Home Equity Loans, may entitle the borrower to a refund of amounts
previously paid and, in addition, could subject the Sellers to damages and
administrative enforcement. See "Certain Legal Aspects of Mortgage Assets" in
the Prospectus.
The Home Equity 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 Home Equity 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; and
(iii) the Fair Credit Reporting Act, which regulates the use
and reporting of information related to the borrower's credit
experience.
S-17
<PAGE>
Violations of certain provisions of these federal laws may limit the ability of
the Sellers to collect all or part of the principal of or interest on the Home
Equity Loans and in addition could subject the Sellers to damages and
administrative enforcement. The related Seller will be required to repurchase
any Home Equity Loans which, at the time of origination, did not comply with
such federal laws or regulations. See "Certain Legal Aspects of the Mortgage
Assets" in the Prospectus.
The federal Soldiers' and Sailors' Civil Relief Act of 1940 may affect
the ability of the Servicer to collect full amounts of interest on certain Home
Equity Loans and could interfere with the ability of the Servicer to foreclose
on certain properties. See "Certain Legal Aspects of the Mortgage
Assets--Soldiers' and Sailors' Civil Relief Act of 1940" in the Prospectus.
It is possible that some of the Home Equity Loans will be subject to
the Riegle Community Development and Regulatory Improvement Act of 1994 (the
"Riegle Act") which incorporates the Home Ownership and Equity Protection Act of
1994. The Riegle Act adds certain additional provisions to Regulation Z, the
implementing regulation of the Truth-In-Lending Act. These provisions impose
additional disclosure and other requirements on creditors with respect to
non-purchase money mortgage loans with high interest rates or high upfront fees
and charges. In general, mortgage loans within the purview of the Riegle Act
have annual percentage rates over 10% greater than the yield on Treasury
Securities of comparable maturity and/or fees and points which exceed the
greater of 8% of the total loan amount or $400. The provisions of the Riegle Act
apply on a mandatory basis to all mortgage loans originated on or after October
1, 1995. These provisions can impose specific statutory liabilities upon
creditors who fail to comply with their provisions and may affect the
enforceability of the related loans. In addition, any assignee of the creditor
would generally be subject to all claims and defenses that the consumer could
assert against the creditor, including, without limitation, the right to rescind
the mortgage loan.
Risk of Higher Default Rates for Home Equity Loans with Balloon
Payments. 54.72% of the Home Equity Loans in the Fixed Rate Group by aggregate
Loan Balance as of the Cut-Off Date are "balloon loans" that provide for the
payment of the unamortized Loan Balance of such Home Equity Loan in a single
payment at maturity ("Balloon Loans"). 0.28% of the Home Equity Loans in the
Adjustable Rate Group by aggregate Loan Balance as of the Cut-Off Date are
Balloon Loans. Such Balloon Loans provide for equal monthly payments, consisting
of principal and interest, generally based on a 30-year amortization schedule,
and a single payment of the remaining balance of the Balloon Loan 15 years after
origination. Amortization of a Balloon Loan based on a scheduled period that is
longer than the term of the loan results in a remaining principal balance at
maturity that is substantially larger than the regular scheduled payments. The
Depositor does not have any information regarding the default history or
prepayment history of payments on Balloon Loans. Because borrowers of Balloon
Loans are required to make substantial single payments upon maturity, it is
possible that the default risk associated with the Balloon Loans is greater than
that associated with fully-amortizing Home Equity Loans.
Risk of Seller Insolvency. Each Seller believes that the transfer of
the Home Equity Loans to the Depositor and by the Depositor to the Trust
constitutes a sale by such Seller to the Depositor and by the Depositor to the
Trust and, accordingly, that such Home Equity Loans will not be part of the
assets of either Seller in the event of the insolvency of such Seller and will
not be available to the creditors of such Seller. However, in the event of an
insolvency of a Seller, it is possible that a bankruptcy trustee or a creditor
of such Seller may argue that the transaction between such Seller and the
Depositor was a pledge of such Home Equity Loans in connection with a borrowing
by such Seller rather than a true sale. Such an attempt, even if unsuccessful,
could result in delays in distributions on the Certificates.
On the Closing Date, the Trustee and the Sellers will have received an
opinion of Arter & Hadden, counsel to the Sellers, with respect to the true sale
of the Home Equity Loans from each of the Sellers to the Depositor and from the
Depositor to the Trustee, in form and substance satisfactory to the Trustee, the
Certificate Insurer and the Rating Agencies.
S-18
<PAGE>
THE SELLERS AND THE SERVICER
General
ContiMortgage Corporation, a Delaware corporation, will act as the
Servicer and the Originator as well as one of the two Sellers and has been
engaged in the mortgage banking business since 1987. It is engaged in
originating or purchasing and servicing home equity loans secured by first and
second mortgages and deeds of trust in at least 49 states and the District of
Columbia. It is a subsidiary of ContiFinancial Corporation, a subsidiary of
Continental Grain Company and an affiliate of ContiFinancial Services
Corporation, one of the Underwriters and ContiWest Corporation, the other
Seller. ContiFinancial Corporation completed a public offering of certain shares
of its common stock on February 14, 1996.
ContiWest Corporation, a Nevada corporation, will act as the other
Seller and has been engaged in the mortgage banking business since September
1996. It is engaged in the purchase of home equity loans secured by first and
second mortgages and deeds of trust. It is a wholly-owned subsidiary of
ContiFinancial Corporation, a subsidiary of Continental Grain Company and an
affiliate of ContiFinancial Services Corporation, one of the Underwriters and
ContiMortgage Corporation.
The Originator has originated or purchased each of the Home Equity
Loans. A portion of the Home Equity Loans were purchased by ContiWest
Corporation from the Originator. ContiWest Corporation and the Originator (in
its capacity as Seller) are selling the Home Equity Loans to the Depositor. The
Sellers will sell and assign their respective Home Equity Loans to the Depositor
in consideration of the net proceeds from the sale of the Class A Certificates,
which are being offered hereby, and the Subordinate Certificates which are being
issued to affiliates of the Sellers. The Servicer will service each Home Equity
Loan.
The Servicer may not assign its obligations under the Pooling and
Servicing Agreement, in whole or in part, unless it shall have first obtained
the written consent of the Trustee and the Certificate Insurer, which consent is
required not to be unreasonably withheld; provided, however, that any assignee
must meet the eligibility requirements for a successor servicer set forth in the
Pooling and Servicing Agreement.
With the consent of the Certificate Insurer, the Servicer may enter
into sub-servicing agreements (the "SubServicing Agreements") with qualified
sub-servicers (the "Sub-Servicers") with respect to the servicing of the Home
Equity Loans. Under the Pooling and Servicing Agreement, such sub-servicing
arrangements will not discharge the Servicer from its servicing obligations. See
"The Pooling and Servicing Agreement--Servicing and Sub-Servicing" herein.
The Trustee or the Certificate Insurer may remove the Servicer, and the
Servicer may resign, only in accordance with the terms of the Pooling and
Servicing Agreement. No removal or resignation shall become effective until the
Trustee or a successor servicer shall have assumed the Servicer's
responsibilities and obligations in accordance therewith.
Any collections received by the Servicer after removal or resignation
shall be endorsed by it to the Trustee and remitted directly to the Trustee.
Upon removal or resignation of the Servicer, the Trustee may solicit
bids for a successor Servicer and, pending the appointment of a successor
Servicer as a result of soliciting such bids, will be required to serve as
Servicer. If the Trustee is unable to obtain a qualifying bid and is prevented
by law from acting as servicer, the Trustee will be required to appoint, or
petition a court of competent jurisdiction to appoint, an eligible successor.
Any successor is required to be a housing and home finance institution, bank or
mortgage servicing institution which has been designated as an approved
seller-servicer by FNMA or FHLMC for second mortgage loans, having equity of not
less than $5,000,000 as determined in accordance with generally accepted
accounting principles, which is acceptable to the Certificate Insurer and which
shall assume all or any part of the responsibilities, duties or liabilities of
the Servicer.
S-19
<PAGE>
The Certificates will not represent an interest in or obligation of,
nor are the Home Equity Loans guaranteed by, the Sellers or any of their
affiliates.
Credit and Underwriting Guidelines
The following is a description of the underwriting guidelines
customarily employed by the Originator with respect to home equity loans which
it purchases or originates. Each Home Equity Loan was underwritten according to
these guidelines. The Originator believes its standards are consistent with
those utilized by home equity lenders generally. The underwriting process is
intended to assess both the prospective borrower's ability to repay and the
adequacy of the real property security as collateral for the loan granted. In
certain cases, loans may be made outside of those guidelines with the prior
approval of an underwriting manager of the Originator.
The Originator generally originates or purchases loans which either
fully amortize over a period not to exceed 360 months or provide for
amortization over a 360 month schedule with a "balloon" payment required at the
maturity date, which will not be less than five years after origination. The
loan amounts generally range from a minimum of $10,000 to a maximum of $350,000
unless a higher amount is specifically approved by a senior official of the
Originator. The Originator primarily originates or purchases non-purchase money
first or second mortgage loans although the Originator has programs for
origination of certain purchase money first mortgages.
The homes used for collateral to secure the loans may be either primary
residential (which includes second and vacation homes) or investor owned one- to
four- family homes, condominiums or townhouses and may include manufactured
housing. Generally, each home must have a minimum Appraised Value (as defined
below) of $35,000. Mobile housing or agricultural land are not accepted as
collateral. In addition, mixed-use loans secured by owner-occupied properties,
including one-to-four family and small multifamily residences, are made where
the proceeds may be used for business purposes. In some cases, the loan may be
secured by the owner-occupied residence plus additional collateral such as
rental units and small multifamily properties which may have a storefront.
Each property proposed as security for a loan must be appraised not
more than 6 months prior to the date of such loan. The combined loan-to-value
ratio of the first and second mortgages generally may not exceed 85%. If a prior
mortgage exists, the Originator first reviews the first mortgage history. If it
contains open end, advance or negative amortization provisions, the maximum
potential first mortgage balance is used in calculating the combined
loan-to-value ratio which determines the maximum loan amount. The Originator
does not originate or purchase loans where the first mortgage contains a shared
appreciation clause.
For the Originator's full documentation process, each mortgage
applicant must provide, and the Originator must verify, personal financial
information. The applicant's total monthly obligations (which includes principal
and interest on each mortgage, tax assessments, other loans, charge accounts and
all other scheduled indebtedness) generally cannot exceed 50% of the applicant's
gross monthly income. Applicants who are salaried employees must provide current
employment information in addition to two recent years of employment history and
the Originator verifies this information. Verifications are based on written
confirmation from employers or a combination of the two most recent pay stubs,
the two most recent years' W-2 tax forms and telephone confirmation from the
employer. Self-employed applicants must be self-employed in the same field for a
minimum of two years. The self-employed applicant must provide signed copies of
complete federal income tax returns (including schedules) filed for the most
recent two years.
For the Originator's non-income verifier program, proof of two year's
history of self employment plus proof of current self-employed status is
required. The applicant's debt-to-income ratio is calculated based on income as
certified by the borrower on the application and must be reasonable. The maximum
loan-to-value ratio may not exceed 75% for the non-income verifier program.
Non-income verifier loans are also available to borrowers other than
self-employed borrowers on one-to-four family, owner-occupied properties up to a
loan-to-value ratio not to exceed 65%.
S-20
<PAGE>
The Originator has a "pay for performance" program, permitting the
lower-credit borrower to which the program applies to receive pre-determined
reductions of the Coupon Rate (0.5% per year) at the end of each of the first
three years of the loan, which reductions are dependent upon the borrower's
making monthly payments on the loan on time and in accordance with its terms.
A credit report by an independent credit reporting agency is required
reflecting the applicant's complete credit history. The credit report should
reflect all delinquencies of 30 days or more, repossessions, judgments,
foreclosures, garnishments, bankruptcies, divorce actions and similar adverse
credit practices that can be discovered by a search of public records. If the
report is obtained more than 60 days prior to the loan closing, the lender must
determine that the reported information has not changed. Written verification is
obtained of any first mortgage balance, its status and whether local taxes,
interest, insurance and assessments are included in the applicant's monthly
payment. All taxes and assessments not included in the payment must be verified
as current.
Generally, the applicant should have an acceptable credit history given
the amount of equity available, the strength of the applicant's employment
history and the level of the applicant's income to debt obligations. The
rescission period must have expired prior to funding a loan. The rescission
period may not be waived by the applicant except as permitted by law. Either an
ALTA title insurance policy or an attorney's opinion of title is required for
all loans.
The applicant is required to secure property insurance in an amount
sufficient to cover the new loan and any prior mortgage. If the sum of the
outstanding first mortgage, if any, and the home equity loan exceeds replacement
value, insurance equal to replacement value may be accepted. The Originator must
ensure that its name and address is properly added to the "Mortgagee Clause" of
the insurance policy. In the event the Originator's name is added to a "Loss
Payee Clause" and the policy does not provide for written notice of policy
changes or cancellation, an endorsement adding such provision is required.
The Originator's credit underwriting guidelines require that any major
deferred maintenance on any property must be cured from the proceeds of the
loan.
Indemnification by the Depositor
Under the Pooling and Servicing Agreement, the Depositor agrees to
indemnify and hold the Trustee, the Certificate Insurer and each Owner harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, fees and expenses that the
Trustee, the Certificate Insurer or any Owner may sustain in any way related to
the failure of the Depositor to perform its duties in compliance with the terms
of the Pooling and Servicing Agreement. The Depositor will immediately notify
the Trustee, the Certificate Insurer, and each Owner if a claim is made by a
third party with respect to the Pooling and Servicing Agreement, and the
Depositor will assume (with the consent of the Trustee) the defense of any such
claim and pay all expenses in connection therewith, including reasonable counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against the Servicer, the Sellers, the Trustee, the Certificate
Insurer, and/or the Owner in respect of such claim. The Trustee may, if
necessary, reimburse the Depositor from amounts otherwise distributable on the
Subordinate Certificates for all amounts advanced by the Depositor pursuant to
the immediately preceding sentence, except when the claim relates directly to
the failure of the Servicer, if it is an affiliate of the Depositor to perform
its duties in compliance with the terms of the Pooling and Servicing Agreement
or the failure of the Depositor to perform its duties in compliance with the
terms of the Pooling and Servicing Agreement.
S-21
<PAGE>
Delinquency, Loan Loss and Foreclosure Information
The following tables set forth information relating to the delinquency,
loan loss and foreclosure experience of the Servicer for its servicing portfolio
of home equity loans for the past three years.
The information in the tables below has not been adjusted to eliminate
the effect of the significant growth in the size of the Servicer's home equity
loan portfolio during the periods shown. Accordingly, loss and delinquency as
percentages of aggregate principal balance of Home Equity Loans serviced for
each period would be higher than those shown if a group of Home Equity Loans
were artificially isolated at a point in time and the information showed the
activity only in that isolated group.
Delinquency and Foreclosure Experience of the
Servicer's Servicing Portfolio
of Home Equity Loans
(Dollars in Thousands)
<TABLE>
<CAPTION>
Nine Months Ending
September 30, Year Ending December 31,
------------- ------------------------
1996 1995 1994 1993
---- ---- ---- ----
Number of Dollar Number Dollar Number of Dollar Number of Dollar
Loans Amount of Loans Amount Loans Amount Loans Amount
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Portfolio At 80,347 $4,852,045 58,459 $3,427,190 33,270 $1,879,920 16,671 $869,779
Delinquency
Percentage (1)
30-59 days 2.73% 2.45% 2.32% 2.02% 0.82% 0.67% 0.91% 0.79%
60-89 days 0.63% 0.58% 0.69% 0.70% 0.19% 0.20% 0.23% 0.25%
90 days and over 0.21% 0.23% 0.95% 1.01% 0.55% 0.57% 0.32% 0.30%
----- ----- ----- ----- ----- ----- ---- ----
Total Delinquency 3.57% 3.26% 3.96% 3.73% 1.56% 1.44% 1.46% 1.34%
Total Delinquency 2,865 $158,323 2,316 $128,063 518 $26,993 243 $11,655
Amount
Default
Percentage (2)
Foreclosure 2.63% 2.79% 1.17% 1.15% 0.33% 0.34% 0.52% 0.53%
Bankruptcy 1.07% 1.03% 0.68% 0.69% 0.34% 0.33% 0.22% 0.21%
Real Estate Owned 0.31% 0.35% 0.07% 0.08% 0.11% 0.11% 0.08% 0.09%
Forbearance 0.16% 0.16% 0.10% 0.12% N/A N/A N/A N/A
----- ------ ----- ----- ----- ----- ----- -----
Total Default 4.17% 4.33% 2.02% 2.04% 0.78% 0.78% 0.82% 0.83%
Total Default 3,348 $210,180 1,182 $69,962 260 $14,717 137 $7,219
Amount
- ---------------
(1) The delinquency percentage represents the number and dollar value of
payments contractually past due, exclusive of home equity loans in
foreclosure, bankruptcy, real estate owned or forbearance.
(2) The default percentage represents the number and dollar value of
delinquent payments on home equity loans in foreclosure, bankruptcy,
real estate owned or forbearance.
</TABLE>
S-22
<PAGE>
Loan Loss Experience on the
Servicer's Servicing Portfolio
of Home Equity Loans
(Dollars in Thousands)
<TABLE>
<CAPTION>
Nine Months Ending
September 30, Year Ending December 31,
------------- ------------------------
1996 1995 1994 1993
---- ---- ---- ----
<S> <C> <C> <C> <C>
Average Amount Outstanding (1) $3,961,400 $2,641,686 $1,400,163 $606,272
Gross Losses (2) 5,233 2,754 1,203 1,469
Recoveries (3) 77 65 0 0
Net Losses (4) 5,156 2,689 1,203 1,469
Net Losses as a Percentage of
Average Amount Outstanding (5) 0.17% 0.10% 0.08% 0.24%
- -----------------
(1) "Average Amount Outstanding" during the period is the arithmetic
average of the principal balances of the home equity loans outstanding
on the last business day of each month during the period.
(2) "Gross Losses" are actual losses incurred on liquidated properties for
each respective period. Losses include all principal, foreclosure costs
and all accrued interest.
(3) "Recoveries" are recoveries from liquidation proceeds and deficiency
judgments.
(4) "Net Losses" means "Gross Losses" minus "Recoveries."
(5) For the 9 months ending September 30, 1996 "Net Losses as a Percentage
of Average Amount Outstanding" was annualized by multiplying "Net
Losses" by 1.33 before calculating the percentage of "Average Amount
Outstanding".
</TABLE>
USE OF PROCEEDS
The Depositor will sell the Home Equity Loans to the Trust concurrently
with delivery of the Certificates. Net proceeds from the sale of the Class A
Certificates will be applied by the Depositor to the purchase of the Home Equity
Loans from the Sellers. Such net proceeds will (together with the Subordinate
Certificates retained by the Depositor or its affiliates) represent the purchase
price to be paid by the Trust to the Depositor for the Home Equity Loans.
THE DEPOSITOR
The Depositor was incorporated in the State of Delaware on January 31,
1991 and is a wholly-owned subsidiary of ContiFinancial Corporation and an
affiliate of ContiFinancial Services Corporation, one of the Underwriters. The
Depositor maintains its principal offices at 277 Park Avenue, New York, New York
10172. Neither the Depositor, the Sellers nor the Servicer nor any of their
affiliates will insure or guarantee distributions on the Certificates.
ContiFinancial Corporation completed a public offering of certain shares of its
common stock February 14, 1996.
THE HOME EQUITY LOAN POOL
General
The statistical information presented in this Prospectus Supplement
concerning the pool of Home Equity Loans is based on the pool of Home Equity
Loans as of the Cut-Off Date. After the Cut-Off Date and prior to the Closing
Date, certain loans included in the pools may prepay in full, or may be
determined not to meet the eligibility requirements. As a result of the
foregoing, the statistical distribution of characteristics as of the Closing
Date for the final Home Equity Loan pools will vary from the statistical
distribution of such characteristics as of the Cut-Off Date as presented in this
Prospectus Supplement.
S-23
<PAGE>
The Home Equity Loan pool consists of fixed-rate and adjustable-rate
Home Equity Loans with remaining terms to maturity of not more than 360 months
(including both fully amortizing Home Equity Loans and Balloon Loans). The Home
Equity Loans have the characteristics set forth below as of the Cut-Off Date.
Percentages expressed herein based on Loan Balances and number of Home Equity
Loans have been rounded, and in the tables set forth herein the sum of the
percentages may not equal the respective totals due to such rounding.
Each Home Equity Loan in the Trust will be assigned to one of two home
equity loan groups comprised of Home Equity Loans which bear fixed interest
rates only, in the case of the Fixed Rate Group, and Home Equity Loans which
bear adjustable interest rates only, in the case of the Adjustable Rate Group.
The Fixed Rate Group Certificates and the Class A-11IO Certificates represent
undivided ownership interests in all Home Equity Loans contained in the Fixed
Rate Group, and distributions on the Fixed Rate Group Certificates and the Class
A-11IO Certificates will be based primarily on amounts available for
distribution in respect of Home Equity Loans in the Fixed Rate Group. The
Adjustable Rate Group Certificates and the Class A-12IO Certificates represent
undivided ownership interests in all Home Equity Loans contained in the
Adjustable Rate Group, and distributions on the Adjustable Rate Group
Certificates and the Class A-12IO Certificates will be based primarily on
amounts available for distribution in respect of Home Equity Loans in the
Adjustable Rate Group.
The Loan-to-Value Ratios and Combined Loan-to-Value Ratios shown below
were calculated based upon the appraised values of the Properties at the time of
origination (the "Appraised Values"). In a limited number of circumstances, and
within the Originator's underwriting guidelines, the Originator has reduced the
Appraised Value of Properties where the Properties are unique, have a high value
or where the comparables are not within FNMA guidelines. The purpose for making
these reductions is to value the Properties more conservatively than would
otherwise be the case if the appraisal were accepted as written.
No assurance can be given that values of the Properties have remained
or will remain at their levels on the dates of origination of the related Home
Equity Loans. If the residential real estate market has experienced or should
experience an overall decline in property values such that the outstanding
balance of any Home Equity Loan, together with the outstanding balance of any
first mortgage, become equal to or greater than the value of the Property, the
actual rates of delinquencies, foreclosures and losses could be higher than
those now generally experienced in the mortgage lending industry.
Home Equity Loans -- Fixed Rate Group
As of the Cut-Off Date, the average Loan Balance of the Home Equity
Loans in the Fixed Rate Group was $59,107; the Coupon Rates of the Home Equity
Loans in the Fixed Rate Group ranged from 8.15% to 19.29%; the weighted average
Loan-to-Value Ratio of the Home Equity Loans in the Fixed Rate Group was 71.89%;
the weighted average Combined Loan-to-Value Ratio of the Home Equity Loans in
the Fixed Rate Group was 75.04%; the weighted average Coupon Rate of the Home
Equity Loans in the Fixed Rate Group was 11.87%; the weighted average remaining
term to maturity of the Home Equity Loans in the Fixed Rate Group was 212
months; and the weighted average original term to maturity of the Home Equity
Loans in the Fixed Rate Group was 213 months. The remaining terms to maturity as
of the Cut-Off Date of the Home Equity Loans in the Fixed Rate Group ranged from
45 months to 360 months. The minimum and maximum Loan Balances of the Home
Equity Loans in the Fixed Rate Group as of the Cut-Off Date were $3,738 and
$449,768, respectively. Home Equity Loans in the Fixed Rate Group containing
"balloon" payments represented not more than 54.72% of the Original Aggregate
Loan Balance of Home Equity Loans in the Fixed Rate Group. No Home Equity Loan
in the Fixed Rate Group will mature later than December 1, 2026.
S-24
<PAGE>
Geographic Distribution of Mortgaged Properties -- Fixed Rate Group
The geographic distribution of Home Equity Loans in the Fixed Rate
Group by state, as of the Cut-Off Date, was as follows:
Number of Home Aggregate % of Aggregate
State Home Equity Loans Loan Balance Loan Balance
- ----- ----------------- ------------ ------------
Alabama 5 $ 233,131.63 0.03%
Arizona 106 7,057,566.35 1.05
Arkansas 58 3,045,659.36 0.45
California 178 17,019,435.35 2.52
Colorado 131 8,508,069.76 1.26
Connecticut 99 8,749,253.56 1.30
Delaware 64 4,124,907.94 0.61
District of Columbia 47 3,685,296.55 0.55
Florida 741 42,218,080.33 6.25
Georgia 328 17,506,896.91 2.59
Hawaii 2 368,573.60 0.05
Idaho 37 2,446,047.38 0.36
Illinois 774 43,056,889.50 6.38
Indiana 553 24,732,074.88 3.66
Iowa 15 457,059.22 0.07
Kansas 51 3,251,553.27 0.48
Kentucky 195 10,737,015.13 1.59
Louisiana 7 440,655.09 0.07
Maine 19 852,199.92 0.13
Maryland 435 32,198,668.48 4.77
Massachusetts 269 20,873,205.53 3.09
Michigan 1,468 67,030,419.97 9.93
Minnesota 76 4,309,045.09 0.64
Mississippi 16 673,782.77 0.10
Missouri 252 12,101,461.81 1.79
Montana 3 278,193.54 0.04
Nebraska 6 242,555.60 0.04
Nevada 26 1,669,807.10 0.25
New Hampshire 22 1,048,512.58 0.16
New Jersey 508 39,315,417.62 5.82
New Mexico 83 5,848,134.57 0.87
New York 696 58,943,174.83 8.73
North Carolina 759 39,584,816.07 5.86
Ohio 1,216 66,954,310.23 9.92
Oklahoma 55 2,572,473.77 0.38
Oregon 46 3,393,171.78 0.50
Pennsylvania 740 42,167,085.56 6.25
Rhode Island 71 4,649,896.24 0.69
South Carolina 324 16,361,481.06 2.42
South Dakota 1 44,807.63 0.01
Tennessee 243 13,337,163.47 1.98
Texas 84 5,706,661.62 0.85
Utah 139 10,510,573.89 1.56
Vermont 2 146,948.70 0.02
Virginia 280 14,262,941.59 2.11
Washington 71 6,340,825.39 0.94
West Virginia 9 275,052.28 0.04
Wisconsin 107 5,569,377.00 0.83
Wyoming 3 98,569.92 0.01
------ --------------- ------
Total 11,420 $674,998,901.42 100.00%
====== =============== =======
S-25
<PAGE>
Original Loan-to-Value Ratios -- Fixed Rate Group
The original loan-to-value ratios as of the date of origination of the
Home Equity Loans in the Fixed Rate Group (based upon appraisals made at the
time of origination thereof) (the "Loan-to-Value Ratios") as of the Cut-Off Date
were distributed as follows:
Range of Number of Aggregate % of Aggregate
Original LTV's Equity Loans Loan Balance Loan Balance
- -------------- ------------ ------------ ------------
0.01 to 5.00% 2 $ 16,713.59 0.00%
5.01 to 10.00 51 814,831.34 0.12
10.01 to 15.00 255 5,562,203.11 0.82
15.01 to 20.00 390 10,129,167.49 1.50
20.01 to 25.00 343 10,254,792.30 1.52
25.01 to 30.00 276 9,779,162.34 1.45
30.01 to 35.00 228 7,443,167.98 1.10
35.01 to 40.00 288 10,318,400.37 1.53
40.01 to 45.00 231 9,045,631.15 1.34
45.01 to 50.00 417 14,995,261.97 2.22
50.01 to 55.00 293 13,702,242.15 2.03
55.01 to 60.00 553 27,801,654.17 4.12
60.01 to 65.00 756 40,489,486.85 6.00
65.01 to 70.00 1,092 62,695,012.27 9.29
70.01 to 75.00 1,387 90,714,897.77 13.44
75.01 to 80.00 2,568 170,717,255.34 25.29
80.01 to 85.00 1,361 106,104,415.50 15.72
85.01 to 90.00 874 79,436,037.00 11.77
90.01 to 95.00 55 4,978,568.73 0.74
--- ------------- -----
Total 11,420 $674,998,901.42 100.00%
====== =============== =======
S-26
<PAGE>
Combined Loan-to-Value Ratios -- Fixed Rate Group
The original combined loan-to-value ratios as of the dates of
origination of the Home Equity Loans in the Fixed Rate Group (based upon
appraisals made at the time of origination hereunder) (the "Combined
Loan-to-Value Ratios") as of the Cut-Off Date were distributed as follows:
Range of Number of Aggregate % of Aggregate
Original CLTV's me Equity Loans Loan Balance Loan Balance
- --------------- --------------- ------------ ------------
5.01 to 10.00% 5 79,250.36 0.01%
10.01 to 15.00 25 536,296.80 0.08
15.01 to 20.00 41 746,817.46 0.11
20.01 to 25.00 88 1,987,205.09 0.29
25.01 to 30.00 100 2,646,324.92 0.39
30.01 to 35.00 133 3,580,752.68 0.53
35.01 to 40.00 224 7,249,899.24 1.07
40.01 to 45.00 194 7,297,204.20 1.08
45.01 to 50.00 419 14,426,489.94 2.14
50.01 to 55.00 296 13,220,685.90 1.96
55.01 to 60.00 587 28,368,124.82 4.20
60.01 to 65.00 825 42,569,720.30 6.31
65.01 to 70.00 1,216 67,862,234.68 10.05
70.01 to 75.00 1,551 96,366,477.86 14.28
75.01 to 80.00 2,951 183,029,457.59 27.12
80.01 to 85.00 1,764 118,480,062.10 17.55
85.01 to 90.00 944 81,555,081.92 12.08
90.01 to 95.00 57 4,996,815.56 0.74
------ ------------- ------
Total 11,420 $674,998,901.42 100.00%
====== =============== =======
Cut-Off Date Coupon Rates -- Fixed Rate Group
The Coupon Rates borne by the Notes relating to the Home Equity Loans
in the Fixed Rate Group were distributed as follows as of the Cut-Off Date:
Range of Number of Aggregate % of Aggregate
Coupon Rates ome Equity Loans Loan Balance Loan Balance
- ------------ ---------------- ------------ ------------
8.01 to 9.00% 104 $ 9,466,957.47 1.40%
9.01 to 10.00 888 69,156,866.75 10.25
10.01 to 11.00 2,236 155,405,496.49 23.02
11.01 to 12.00 2,812 178,990,800.23 26.52
12.01 to 13.00 2,382 132,670,119.47 19.65
13.01 to 14.00 1,478 72,546,603.13 10.75
14.01 to 15.00 810 33,138,897.72 4.91
15.01 to 16.00 447 15,861,351.13 2.35
16.01 to 17.00 127 4,238,154.35 0.63
17.01 to 18.00 114 2,914,615.03 0.43
18.01 to 19.00 19 561,082.94 0.08
19.01 to 20.00 3 47,956.71 0.01
-- ---------- -----
Total 11,420 $674,998,901.42 100.00%
====== =============== =======
S-27
<PAGE>
Cut-Off Date Loan Balances -- Fixed Rate Group
The distribution of the outstanding principal amounts of the Home
Equity Loans in the Fixed Rate Group as of the Cut-Off Date was as follows:
Number of Aggregate of Aggregate
Range of Loan Balances Home Equity Loans Loan Balance Loan Balance
- ---------------------- ----------------- ------------ ------------
$ 0.00 to $25,000.00 1,757 $ 33,093,661.74 4.90%
25,000.01 to 50,000.00 4,165 156,790,996.46 23.23
50,000.01 to 75,000.00 2,766 168,962,931.89 25.03
75,000.01 to 100,000.00 1,310 113,024,628.45 16.74
100,000.01 to 125,000.00 660 73,530,573.16 10.89
125,000.01 to 150,000.00 322 43,840,447.80 6.49
150,000.01 to 175,000.00 191 30,904,093.56 4.58
175,000.01 to 200,000.00 109 20,292,557.76 3.01
200,000.01 to 225,000.00 57 12,157,807.39 1.80
225,000.01 to 250,000.00 33 7,853,615.50 1.16
250,000.01 to 275,000.00 20 5,171,494.73 0.77
275,000.01 to 300,000.00 15 4,306,749.59 0.64
300,000.01 to 325,000.00 9 2,829,983.78 0.42
325,000.01 to 350,000.00 3 1,010,138.30 0.15
350,000.01 to 375,000.00 1 372,000.00 0.06
400,000.01 to 425,000.00 1 407,452.83 0.06
425,000.01 to 450,000.00 1 449,768.48 0.07
-- ----------- -----
Total 11,420 $674,998,901.42 100.00%
====== =============== =======
Types of Mortgaged Properties -- Fixed Rate Group
The Properties securing the Home Equity Loans in the Fixed Rate Group
as of the Cut-Off Date were of the property types as follows:
Number of Aggregate of Aggregate
Property Types Home Equity Loans Loan Balance Loan Balance
- -------------- ----------------- ------------ ------------
Condominium 97 $ 5,457,649.96 0.81%
Manufactured Housing 197 9,810,605.46 1.45
Mixed Use 40 4,220,094.03 0.63
Planned Unit Development 54 4,772,132.89 0.71
Single Family Attached 417 19,312,098.49 2.86
Single Family Detached 9,879 579,757,187.78 85.89
Two-to-Four Family 736 51,669,132.81 7.65
---- -------------- -----
Total 11,420 $674,998,901.42 100.00%
====== =============== =======
S-28
<PAGE>
Distribution of Months Since Origination -- Fixed Rate Group
The distribution of the number of months since the date of origination
of the Home Equity Loans in the Fixed Rate Group as of the Cut-Off Date was as
follows:
Months Elapsed Number of Aggregate % of Aggregate
Since Origination Home Equity Loans Loan Balance Loan Balance
- ----------------- ----------------- ------------ ------------
0 to 1 3,905 $234,243,237.85 34.70%
2 to 12 7,507 440,352,702.62 65.24
13 to 24 8 402,960.95 0.06
------ --------------- -----
Total 11,420 $674,998,901.42 100.00%
====== =============== =======
Distribution of Remaining Terms to Maturity -- Fixed Rate Group
The distribution of the number of months remaining to maturity of the
Home Equity Loans in the Fixed Rate Group as of the Cut-Off Date was as follows:
Months Remaining Number of Aggregate % of Aggregate
to Maturity ome Equity Loans Loan Balance Loan Balance
- ----------- ---------------- ------------ ------------
0 to 120 527 $ 13,259,361.84 1.96%
121 to 180 7,557 457,942,694.64 67.84
181 to 240 2,079 111,193,024.25 16.47
241 + 1,257 92,603,820.69 13.72
------ -------------- ------
Total 11,420 $674,998,901.42 100.00%
====== =============== =======
Occupancy Status -- Fixed Rate Group
The occupancy status of the Properties securing the Home Equity Loans
in the Fixed Rate Group as of the Cut-Off Date was as follows:
Number of Aggregate % of Aggregate
Occupancy Status Home Equity Loans Loan Balance Loan Balance
- ---------------- ----------------- ------------ ------------
Investor Owned 666 $ 32,799,856.28 4.86%
Owner Occupied 10,754 642,199,045.14 95.14
-------- ------------ ------
Total 11,420 $674,998,901.42 100.00%
====== =============== =======
S-29
<PAGE>
Home Equity Loans -- Adjustable Rate Group
As of the Cut-Off Date, the average Loan Balance of the Home Equity
Loans in the Adjustable Rate Group was $80,443; the Coupon Rates of the Home
Equity Loans in the Adjustable Rate Group ranged from 6.99% to 16.10%; the
weighted average Loan-to-Value Ratio of the Home Equity Loans in the Adjustable
Rate Group was 74.51%; the weighted average Coupon Rate of the Home Equity Loans
in the Adjustable Rate Group was 10.42%; the weighted average remaining term to
maturity of the Home Equity Loans in the Adjustable Rate Group was 356 months;
and the weighted average original term to maturity of the Home Equity Loans in
the Adjustable Rate Group was 357 months. The remaining terms to maturity as of
the Cut-Off Date of the Home Equity Loans in the Adjustable Rate Group ranged
from 119 months to 360 months. The minimum and maximum Loan Balances of the Home
Equity Loans in the Adjustable Rate Group as of the Cut-Off Date were $10,000
and $444,459, respectively. Home Equity Loans in the Adjustable Rate Group
containing "balloon" payments represented not more than 0.28% of the Original
Aggregate Loan Balance. No Home Equity Loan in the Adjustable Rate Group will
mature later than December 1, 2026.
All of the Home Equity Loans in the Adjustable Rate Group have maximum
Coupon Rates. The weighted average maximum Coupon Rate of the Home Equity Loans
in the Adjustable Rate Group was 16.70%, with maximum Coupon Rates that range
from 11.40% to 22.10%. The Home Equity Loans in the Adjustable Rate Group have a
weighted average gross margin as of the Cut-Off Date of 6.77%. The gross margin
for the Home Equity Loans in the Adjustable Rate Group ranges from 3.75% to
11.49%.
Approximately $180,731,025 or 80.33% of the Home Equity Loans in the
Adjustable Rate Group by aggregate Loan Balance as of the Cut-Off Date are
Six-Month LIBOR Loans. The Six-Month LIBOR Loans have periodic reset caps
ranging from 1% to 6%, with substantially all of such loans having lifetime
reset caps ranging from 6% to 7%.
Approximately $34,312,112 or 15.25% of the Home Equity Loans in the
Adjustable Rate Group by aggregate Loan Balance as of the Cut-Off Date are 2/28
Loans. After the first adjustment, the 2/28 Loans have periodic reset caps
ranging from 1% to 6% and lifetime reset caps ranging from 6% to 9%.
Approximately $9,956,366 or 4.43% of the Home Equity Loans in the
Adjustable Rate Group by aggregate Loan Balance as of the Cut-Off Date are 3/27
Loans. After the first adjustment, the 3/27 Loans have periodic reset caps
ranging from 1% to 3% and lifetime reset caps ranging from 6% to 7%.
S-30
<PAGE>
Geographic Distribution of Mortgaged Properties -- Adjustable Rate Group
The geographic distribution of Home Equity Loans in the Adjustable Rate
Group by state, as of the Cut-Off Date, was as follows:
Number of Aggregate % of Aggregate
State Home Equity Loans Loan Balance Loan Balance
- ----- ----------------- ------------ ------------
Arizona 74 $ 6,830,418.66 3.04%
California 175 24,088,535.00 10.71
Colorado 85 7,890,511.19 3.51
Connecticut 20 2,983,173.60 1.33
Delaware 4 424,187.47 0.19
District of Columbia 5 569,767.71 0.25
Florida 14 1,269,782.03 0.56
Georgia 15 1,021,695.23 0.45
Hawaii 1 244,872.72 0.11
Idaho 27 1,803,553.59 0.80
Illinois 181 14,522,984.94 6.45
Indiana 76 4,676,142.25 2.08
Iowa 33 1,372,529.51 0.61
Kansas 22 1,249,141.32 0.56
Kentucky 22 1,731,876.70 0.77
Maine 1 49,973.53 0.02
Maryland 43 4,744,159.76 2.11
Massachusetts 27 2,965,333.27 1.32
Michigan 1,168 77,066,388.75 34.25
Minnesota 43 2,851,793.79 1.27
Mississippi 1 22,925.34 0.01
Missouri 37 2,583,072.57 1.15
Montana 2 167,737.45 0.07
Nebraska 10 765,057.72 0.34
Nevada 3 296,038.98 0.13
New Hampshire 1 88,081.01 0.04
New Jersey 38 4,239,133.77 1.88
New Mexico 40 3,863,100.67 1.72
New York 48 5,203,309.50 2.31
North Carolina 18 1,798,010.01 0.80
North Dakota 1 42,250.00 0.02
Ohio 118 9,493,566.67 4.22
Oklahoma 1 52,479.14 0.02
Oregon 32 2,566,180.28 1.14
Pennsylvania 78 5,500,974.85 2.44
Rhode Island 7 720,267.94 0.32
South Carolina 8 438,584.37 0.19
Tennessee 16 1,707,122.83 0.76
Texas 49 3,724,983.56 1.66
Utah 79 7,904,449.18 3.51
Vermont 1 44,984.81 0.02
Virginia 18 1,336,810.25 0.59
Washington 67 8,242,985.23 3.66
West Virginia 18 805,566.45 0.36
Wisconsin 65 4,636,570.46 2.06
Wyoming 5 398,438.66 0.18
----- -------------- ----
Total 2,797 $224,999,502.72 100.00%
===== =============== =======
S-31
<PAGE>
Original Loan-to-Value Ratios -- Adjustable Rate Group
The original Loan-to-Value Ratios of the Home Equity Loans in the
Adjustable Rate Group as of the CutOff Date were distributed as follows:
Range of Number of Aggregate % of Aggregate
Original LTV's Home Equity Loans Loan Balance Loan Balance
- -------------- ----------------- ------------ ------------
10.01 to 15.00% 1 $ 15,000.00 0.01%
15.01 to 20.00 3 39,000.00 0.02
20.01 to 25.00 11 378,514.73 0.17
25.01 to 30.00 20 878,135.21 0.39
30.01 to 35.00 19 758,565.50 0.34
35.01 to 40.00 36 1,603,615.61 0.71
40.01 to 45.00 33 1,732,730.29 0.77
45.01 to 50.00 85 4,801,087.49 2.13
50.01 to 55.00 54 2,688,560.01 1.19
55.01 to 60.00 144 8,606,874.71 3.83
60.01 to 65.00 228 15,287,112.52 6.79
65.01 to 70.00 315 25,111,190.36 11.16
70.01 to 75.00 514 42,544,753.42 18.91
75.01 to 80.00 890 76,923,467.91 34.19
80.01 to 85.00 389 37,987,888.62 16.88
85.01 to 90.00 55 5,643,006.34 2.51
--- ------------ ----
Total 2,797 $224,999,502.72 100.00%
===== =============== =======
Cut-Off Date Coupon Rates -- Adjustable Rate Group
The Coupon Rates borne by the Notes relating to the Home Equity Loans
in the Adjustable Rate Group were distributed as follows as of the Cut-Off Date:
Range of Number of Aggregate % of Aggregate
Coupon Rates Home Equity Loans Loan Balance Loan Balance
- ------------ ----------------- ------------ ------------
6.01 to 7.00% 1 277,542.03 0.12%
7.01 to 8.00 38 4,189,580.71 1.86
8.01 to 9.00 229 23,276,791.11 10.35
9.01 to 10.00 744 68,746,196.23 30.55
10.01 to 11.00 862 69,875,447.18 31.06
11.01 to 12.00 574 38,736,881.12 17.22
12.01 to 13.00 216 12,439,566.81 5.53
13.01 to 14.00 74 4,618,222.73 2.05
14.01 to 15.00 48 2,395,295.22 1.06
15.01 to 16.00 10 403,984.04 0.18
16.01 to 17.00 1 39,995.54 0.02
----- --------- ----
Total 2,797 $224,999,502.72 100.00%
===== =============== =======
S-32
<PAGE>
Cut-Off Date Loan Balances -- Adjustable Rate Group
The distribution of the outstanding principal amounts of the Home
Equity Loans in the Adjustable Rate Group as of the Cut-Off Date was as follows:
Number of Aggregate % of Aggregate
Range of Loan Balances Home Equity Loans Loan Balance Loan Balance
- ---------------------- ----------------- ------------ ------------
$ 0.00 to $25,000.00 136 $ 2,831,142.39 1.26%
25,000.01 to 50,000.00 739 28,318,875.74 12.59
50,000.01 to 75,000.00 768 47,829,697.04 21.26
75,000.01 to 100,000.00 475 41,435,298.41 18.42
100,000.01 to 125,000.00 256 28,693,619.25 12.75
125,000.01 to 150,000.00 169 22,963,765.09 10.21
150,000.01 to 175,000.00 96 15,583,141.93 6.93
175,000.01 to 200,000.00 56 10,337,881.11 4.59
200,000.01 to 225,000.00 33 6,942,607.67 3.09
225,000.01 to 250,000.00 20 4,808,748.19 2.14
250,000.01 to 275,000.00 11 2,884,189.07 1.28
275,000.01 to 300,000.00 15 4,331,247.02 1.93
300,000.01 to 325,000.00 10 3,132,526.11 1.39
325,000.01 to 350,000.00 4 1,362,175.59 0.61
350,000.01 to 375,000.00 4 1,441,619.70 0.64
375,000.01 to 400,000.00 1 394,111.23 0.18
400,000.01 to 425,000.00 3 1,264,398.15 0.56
425,000.01 to 450,000.00 1 444,459.03 0.20
----- --------------- ------
Total 2,797 $224,999,502.72 100.00%
===== =============== =======
Types of Mortgaged Properties -- Adjustable Rate Group
The Properties securing the Home Equity Loans in the Adjustable Rate
Group as of the Cut-Off Date were of the property types as follows:
Number of Aggregate % of Aggregate
Property Types Home Equity Loans Loan Balance Loan Balance
- -------------- ----------------- ------------ ------------
Condominium 33 $2,340,254.26 1.04%
Manufactured Housing 61 3,790,443.72 1.68
Mixed Use 1 168,945.39 0.08
Planned Unit Development 13 1,792,081.95 0.80
Single Family Attached 37 2,711,716.55 1.21
Single Family Detached 2,555 205,500,458.45 91.33
Two-to-Four Family 97 8,695,602.40 3.87
--- ------------- -----
Total 2,797 $224,999,502.72 100.00%
===== =============== =======
S-33
<PAGE>
Distribution of Months Since Origination -- Adjustable Rate Group
The distribution of the number of months since the date of origination
of the Home Equity Loans in the Adjustable Rate Group as of the Cut-Off Date was
as follows:
Months Elapsed Number of Aggregate % of Aggregate
Since Origination Home Equity Loans Loan Balance Loan Balance
- ----------------- ----------------- ------------ ------------
0 to 1 1,050 $ 82,519,057.99 36.68%
2 to 12 1,747 142,480,444.73 63.32
----- -------------- ------
Total 2,797 $224,999,502.72 100.00%
===== =============== =======
Distribution of Remaining Terms to Maturity -- Adjustable Rate Group
The distribution of the number of months remaining to maturity of the
Home Equity Loans in the Adjustable Rate Group as of the Cut-Off Date was as
follows:
Months Remaining Number of Aggregate % of Aggregate
to Maturity Home Equity Loans Loan Balance Loan Balance
- ----------- ----------------- ------------ ------------
0 to 120 4 $ 136,720.77 0.06%
121 to 180 56 2,852,760.30 1.27
181 to 240 12 498,949.04 0.22
241 + 2,725 221,511,072.61 98.45
----- --------------- ------
Total 2,797 $224,999,502.72 100.00%
===== =============== =======
Occupancy Status -- Adjustable Rate Group
The occupancy status of the Properties securing the Home Equity Loans
in the Adjustable Rate Group as of the Cut-Off Date was as follows:
Number of Aggregate % of Aggregate
Occupancy Status Home Equity Loans Loan Balance Loan Balance
- ---------------- ----------------- ------------ ------------
Investor Owned 127 $ 7,893,691.89 3.51%
Owner Occupied 2,670 217,105,810.83 96.49
----- --------------- ------
Total 2,797 $224,999,502.72 100.00%
===== =============== =======
S-34
<PAGE>
Distribution of Margins -- Adjustable Rate Group
The margins borne by the Notes relating to the Home Equity Loans in the
Adjustable Rate Group as of the Cut-Off Date was as follows:
Number of Aggregate of Aggregate
Margins Home Equity Loans Loan Balance Loan Balance
------- ----------------- ------------ ------------
3.00 to 3.99% 8 $ 945,602.63 0.42%
4.00 to 4.99 64 6,781,250.52 3.01
5.00 to 5.99 503 54,105,851.31 24.05
6.00 to 6.99 892 71,745,123.05 31.89
7.00 to 7.99 794 60,037,868.57 26.68
8.00 to 8.99 365 22,232,674.02 9.88
9.00 to 9.99 151 7,774,938.87 3.46
10.00 to 10.99 19 1,316,693.75 0.59
11.00 to 11.99 1 59,500.00 0.03
----- -------------- ------
Total 2,797 $224,999,502.72 100.00%
===== =============== =======
Distribution of Maximum Coupon Rates -- Adjustable Rate Group
The maximum Coupon Rates borne by the Notes relating to the Home Equity
Loans in the Adjustable Rate Group as of the Cut-Off Date was as follows:
Maximum Number of Aggregate % of Aggregate
Coupon Rates Home Equity Loans Loan Balance Loan Balance
------------ ----------------- ------------ ------------
11.00 to 11.99% 1 $ 98,554.53 0.04%
13.00 to 13.99 19 1,927,095.94 0.86
14.00 to 14.99 138 14,440,229.64 6.42
15.00 to 15.99 580 53,442,088.82 23.75
16.00 to 16.99 901 73,745,248.48 32.78
17.00 to 17.99 702 52,840,992.18 23.48
18.00 to 18.99 290 18,701,639.04 8.31
19.00 to 19.99 95 5,993,363.82 2.66
20.00 to 20.99 56 2,973,873.06 1.32
21.00 to 21.99 14 796,421.67 0.35
22.00 to 22.99 1 39,995.54 0.02
----- --------------- ------
Total 2,797 $224,999,502.72 100.00%
===== =============== =======
S-35
<PAGE>
Distribution of Coupon Rates Change -- Adjustable Rate Group
The number of months until the next Coupon Rate change for each of the
Notes relating to the Home Equity Loans in the Adjustable Rate Group as of the
Cut-Off Date was as follows:
Month of Next Coupon Number of Aggregate % of Aggregate
Rate Change Home Equity Loans Loan Balance Loan Balance
----------- ----------------- ------------ ------------
December, 1996............. 2 $ 88,143.02 0.04%
January, 1997.............. 35 2,805,881.09 1.25
February, 1997............. 222 17,583,988.87 7.82
March, 1997................ 717 57,682,287.69 25.64
April, 1997................ 907 69,180,186.76 30.75
May, 1997.................. 435 31,771,046.45 14.12
June, 1997................. 30 1,619,490.86 0.72
July, 1997................. 1 70,897.33 0.03
July, 1998................. 13 1,220,507.79 0.54
August, 1998............... 72 7,380,300.29 3.28
September, 1998............ 67 6,215,132.05 2.76
October, 1998.............. 152 15,468,203.30 6.87
November, 1998............. 50 3,981,757.68 1.77
December, 1998............. 1 46,211.00 0.02
April, 1999................ 1 113,760.41 0.05
June, 1999................. 1 120,580.91 0.05
July, 1999................. 10 1,232,068.92 0.55
August, 1999............... 18 1,625,695.31 0.72
September, 1999............ 13 1,314,105.02 0.58
October, 1999.............. 29 3,139,294.97 1.40
November, 1999............. 19 2,135,213.00 0.95
December, 1999............. 2 204,750.00 0.09
----- ---------- ----
Total 2,797 $224,999,502.72 100.00%
===== =============== =======
Interest Payments on the Home Equity Loans
There are a number of Home Equity Loans on which interest is charged to
the obligor (the "Mortgagor") at the Coupon Rate on the outstanding principal
balance calculated based on the number of days elapsed between receipt of the
Mortgagor's last payment through receipt of the Mortgagor's most current payment
(such Home Equity Loans, "Date-of-Payment Loans"). Such interest is deducted
from the Mortgagor's payment amount and the remainder, if any, of the payment is
applied as a reduction to the outstanding principal balance of such Note.
Although the Mortgagor is required to remit equal monthly payments on a
specified monthly payment date that would reduce the outstanding principal
balance of such Note to zero at such Note's maturity date, payments that are
made by the Mortgagor after the due date therefor would cause the outstanding
principal balance of such Note not to be reduced to zero on its maturity date.
In such a case, the Mortgagor would be required to make an additional principal
payment at the maturity date for such Note. If it were assumed that all the
Mortgagors on the Date-of-Payment Loans were to pay on the latest date possible
without the Date-of-Payment Loans being in default, the amount of such
additional principal payment would be a de minimis amount of the aggregate Loan
Balance of the Home Equity Loans. On the other hand, if a Mortgagor makes a
payment (other than a Prepayment) before the due date therefor, the reduction in
the outstanding principal balance of such Note would occur over a shorter period
of time than would have occurred had it been based on the schedule of
amortization in effect on the Cut-Off Date. Accordingly, the timing of principal
payments to the Owners of the Class A Certificates (other than the Class
S-36
<PAGE>
A-IO Certificates) and the timing of the reduction of the Notional Principal
Amount on the Class A-IO Certificates may be affected by the fact that actual
Mortgagor payments may not be made on the due date therefor.
The Home Equity Loans which are not Date-of-Payment Loans (the
"Actuarial 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. Scheduled monthly payments
made by the Mortgagors on the Actuarial Loans either earlier or later than the
scheduled due dates thereof will not affect the amortization schedule or the
relative application of such payments to principal and interest.
PREPAYMENT AND YIELD CONSIDERATIONS
General
The weighted average life of, and, if purchased at other than par
(disregarding, for purposes of this dis cussion, the effect on an investor's
yield resulting from the timing of the settlement date and those considerations
discussed below under "Payment Lag Feature of Certificates"), the yield to
maturity on the Class A Certificates will relate to the rate of payment of
principal of the Home Equity Loans in the related Home Equity Loan Group,
including for this purpose Prepayments, liquidations due to defaults, casualties
and condemnations, and repurchases by the Sellers of Home Equity Loans and any
accelerated payment of principal. The actual rate of principal prepayments on
pools of mortgage loans is influenced by a variety of economic, tax, geographic,
demographic, social, legal and other factors and has fluctuated considerably in
recent years. In addition, the rate of principal prepayments may differ among
pools of mortgage loans at any time because of specific factors relating to the
mortgage loans in the particular pool, including, among other things, the age of
the mortgage loans, the geographic locations of the properties securing the
loans and the extent of the mortgagors' equity in such properties, and changes
in the mortgagors' housing needs, job transfers and unemployment.
As with fixed rate obligations generally, the rate of prepayment on a
pool of home equity loans with fixed rates such as the Home Equity Loans in the
Fixed Rate Group is affected by prevailing market rates for home equity loans of
a comparable term and risk level. When the market interest rate is below the
mortgage coupon, mortgagors may have an increased incentive to refinance their
home equity loans. Depending on prevailing market rates, the future outlook for
market rates and economic conditions generally, some mortgagors may sell or
refinance mortgaged properties in order to realize their equity in the mortgaged
properties, to meet cash flow needs or to make other investments.
All of the Home Equity Loans in the Adjustable Rate Group are
adjustable-rate home equity loans. As is the case with conventional fixed-rate
home equity loans, adjustable-rate home equity loans may be subject to a greater
rate of principal prepayments in a declining interest rate environment. For
example, if prevailing interest rates fall significantly, adjustable-rate home
equity loans could be subject to higher prepayment rates than if prevailing
interest rates remain constant because the availability of fixed-rate home
equity loans at competitive interest rates may encourage mortgagors to refinance
their adjustable-rate home equity loan to "lock in" a lower fixed interest rate.
However, no assurance can be given as to the level of prepayments that the Home
Equity Loans will experience.
In addition to the foregoing factors affecting the weighted average
life of each Class of the Class A Certificates, the subordination provisions of
the Trust result in a limited acceleration of the Class A Certificates relative
to the amortization of the related Home Equity Loans in early months of the
transaction. The accelerated amortization is achieved by the application of
certain excess interest and principal to the payment of the related Class A
Certificate Principal Balance. This acceleration feature creates
overcollateralization which results from the excess of the aggregate Loan
Balances of the Home Equity Loans in each Home Equity Loan Group over the
related Class A Certificate Principal Balance. Once the required level of
overcollateralization is reached, the acceleration feature will cease, unless
necessary to maintain the required level of overcollateralization.
Projected Prepayment and Yield for Class A Certificates
As indicated above, if purchased at other than par, the yield to
maturity on a Class A Certificate will be affected by the rate of the payment of
principal of the Home Equity Loans. If the actual rate of payments on the
related Home Equity Loans is slower than the rate anticipated by an investor who
purchases a Class A Certificate at a discount, the actual yield to such investor
will be lower than such investor's anticipated yield. If the actual rate of
payments on the related Home Equity Loans is faster than the rate anticipated by
an investor who purchases a
S-37
<PAGE>
Class A Certificate at a premium, the actual yield to such investor will be
lower than such investor's anticipated yield.
The "Final Scheduled Payment Date" for each Class of the Class A
Certificates is as set forth in the Summary of Terms hereof. For the Class A
Certificates, other than the Class A-8, Class A-9, Class A-10, Class A-11IO and
Class A-12IO Certificates, such dates are the dates on which the "Initial
Certificate Principal Balance" set forth in the Summary of Terms hereof for the
related Class as of the Closing Date less all amounts previously distributed to
the Owners on account of principal would be reduced to zero assuming that no
Prepayments are received on the Home Equity Loans, that scheduled monthly
payments of principal of and interest on each of the Home Equity Loans are
timely received and that no Net Monthly Excess Cashflow will be used to make
accelerated payments of principal (i.e., Subordination Increase Amounts) to the
Owners of the Class A Certificates. The Final Scheduled Payment Date for the
Class A-8 Certificates, Class A-9 Certificates and Class A-11IO Certificates is
the thirteenth Payment Date following the calendar month in which the Loan
Balances of all Home Equity Loans in the Fixed Rate Group have been reduced to
zero assuming that the Home Equity Loans in such Group pay in accordance with
their terms. The Final Scheduled Payment Date for the Class A-10 Certificates
and Class A-12IO Certificates is the thirteenth Payment Date following the
calendar month in which the Loan Balances of all Home Equity Loans in the
Adjustable Rate Group have been reduced to zero assuming that the Home Equity
Loans in such Group pay in accordance with their terms. The weighted average
life of the Class A Certificates is likely to be shorter than would be the case
if payments actually made on the Home Equity Loans conformed to the foregoing
assumptions, and the final Payment Date with respect to the Class A Certificates
could occur significantly earlier than the related Final Scheduled Payment Date
because (i) Prepayments are likely to occur and (ii) the owners of the Class R
Certificates and, in limited circumstances, the Certificate Insurer may cause a
termination of the Trust on or after the Clean-Up Call Date.
"Weighted average life" refers to the average amount of time that will
elapse from the date of issuance of a security until each dollar of principal of
such security will be repaid to the investor. The weighted average life of any
Class of the Class A Certificates (other than either Class of the Class A-IO
Certificates) will be influenced by, among other things, the rate at which
principal of the Home Equity Loans in the related Home Equity Loan Group is
paid, which may be in the form of scheduled amortization or prepayments (for
this purpose, the term "prepayment" includes Prepayments and liquidations due to
default).
It is very unlikely that the Home Equity Loans will prepay at rates
consistent with the Prepayment Assumption until maturity or that all of the Home
Equity Loans in the related Home Equity Loan Group will prepay at the same rate.
There will be discrepancies between the actual characteristics of the Home
Equity Loans included in the Trust and the assumed characteristics used in
preparing the following tables. Any discrepancy may have an effect upon the
percentages of Initial Certificate Principal Balance outstanding set forth in
the table and the weighted average lives of the Class A Certificates (other than
the Class A-IO Certificate).
The model used in this Prospectus Supplement with respect to the Fixed
Rate Group is the prepayment assumption (the "Prepayment Assumption") which
represents an assumed rate of prepayment each month relative to the then
outstanding principal balance of a pool of mortgage loans for the life of such
mortgage loans. With respect to the Fixed Rate Group, a 100% Prepayment
Assumption assumes conditional prepayment rates of 4% per annum of the then
outstanding principal balance of the Home Equity Loans in the Fixed Rate Group
in the first month of the life of the mortgage loans and an additional 1.455%
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, 100% Prepayment Assumption assumes a conditional prepayment rate of 20%
per annum each month. As used in the table below, 0% Prepayment Assumption
assumes prepayment rates equal to 0% of the Prepayment Assumption i.e., no
prepayments. Correspondingly, 100% Prepayment Assumption assumes prepayment
rates equal to 100% of the Prepayment Assumption, and so forth. The Prepayment
Assumption does not purport to be a 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. The Depositor believes that no
existing statistics of which it is aware provide a reliable basis for holders of
Class A Certificates to predict the amount or the timing of receipt of
prepayments on the Home Equity Loans.
Since the tables were prepared on the basis of the assumptions in the
following paragraph, there are discrepancies between the 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 Certificate Principal Balances outstanding and weighted
average lives of the Class A Certificates (other than the
Class A-IO Certificate) set forth in the tables. In addition, since the actual
Home Equity Loans in the Trust have
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<PAGE>
characteristics which differ from those assumed in preparing the tables set
forth below, the distributions of principal on the Class A Certificates (other
than the Class A-IO 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 of each Home Equity Loan Group which consist of pools of loans with
level-pay and balloon amortization methodologies, Cut-Off Date Loan Balances,
mortgage rates net mortgage rates, original and remaining terms to maturity, and
original amortization terms as applicable, are as set forth below, (ii) the
Closing Date for the Certificates occurs on December 12, 1996, (iii)
distributions on the Certificates are made on the 15th day of each month
regardless of the day on which the Payment Date actually occurs, commencing
January 15, 1997, in accordance with the priorities described herein, (iv) the
difference between the Gross Coupon Rate and the Net Coupon Rate is equal to the
Servicing Fee and the Net Coupon Rate is further reduced by the Premium Amount
and the Trustee Fee, (v) the Home Equity Loans' prepayment rates with respect to
the Fixed Rate Group are a multiple of the applicable Prepayment Assumption and
with respect to the Adjustable Rate Group are constant percentages of
conditional prepayment rates (CPR) each as stated in the "Prepayment Scenarios"
table below; (vi) prepayments include 30 days' interest thereon, (vii) no
optional termination or mandatory termination is exercised, (viii) the
"Specified Subordinated Amount" (as defined under "Credit Enhancement --
Overcollateralization Provisions") for each Home Equity Loan Group is set
initially as specified in the Pooling and Servicing Agreement and thereafter
decreases in accordance with the provisions of the Pooling and Servicing
Agreement, (ix) the Class A-1 Pass-Through Rate remains constant at 5.415%, (x)
the Coupon Rate for each Home Equity Loan in the Adjustable Rate Group is
adjusted on its next rate adjustment date (and on subsequent rate adjustment
dates, if necessary) to equal the sum of (a) the assumed level of the applicable
index is 5.54% and (b) the respective gross margin (such sum being subject to
the applicable periodic adjustment cap and maximum interest rate) and (xi) the
Class A-10 Pass-Through Rate remains constant at 5.615% up to and including the
Clean-Up Call Date and, thereafter, 5.855%.
PREPAYMENT SCENARIOS
<TABLE>
<CAPTION>
Scenario I Scenario II Scenario III Scenario IV Scenario V Scenario VI
---------- ----------- ------------ ----------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C>
Fixed Rate Group (1) 0% 50% 100% 120% 150% 200%
Adjustable Rate Group (2) 0% 8% 16% 21% 24% 32%
- -------------------------
(1) As a percentage of the Prepayment Assumption.
(2) As a conditional prepayment rate (CPR) percentage.
</TABLE>
S-39
<PAGE>
FIXED RATE GROUP
----------------
<TABLE>
<CAPTION>
Original Remaining Original
Term to Term to Amortization
Pool Principal Gross Coupon Net Coupon Maturity Maturity Term Amortization
Number Balance Rate Rate (in months) (in months) (in months) Method
------ ------- ---- ---- ----------- ----------- ----------- ------
<S> <C> <C> <C> <C> <C> <C> <C>
1 $ 882,445.97 11.511% 11.011% 60 58 60 Level Pay
2 12,352,036.18 12.186 11.686 118 116 118 Level Pay
3 88,619,923.67 11.867 11.367 180 178 180 Level Pay
4 111,193,024.25 11.779 11.279 240 238 240 Level Pay
5 1,644,658.96 11.634 11.134 300 299 300 Level Pay
6 90,959,161.73 11.398 10.898 360 358 360 Level Pay
7 369,347,650.66 12.004 11.504 180 178 360 Balloon
</TABLE>
ADJUSTABLE RATE GROUP
---------------------
<TABLE>
<CAPTION>
Original
Gross Net Months Term to
Pool Principal Coupon Coupon to Rate Periodic Life Maturity
Number Balance Rate Rate Change Margin Cap Cap (in months)
------ ------- ---- ---- ------ ------ --- --- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 $ 2,894,024.11 10.474% 9.974% 2 6.672% 1.0 16.619% 350
2 17,583,988.87 10.553 10.053 3 6.948 1.0 16.768 355
3 57,682,287.69 10.365 9.865 4 6.838 1.0 16.660 357
4 69,180,186.76 10.337 9.837 5 6.902 1.0 16.543 358
5 33,461,434.64 10.211 9.711 6 6.994 1.0 16.372 356
6 1,220,507.79 11.122 10.622 20 6.655 2.8 17.627 360
7 7,380,300.29 10.696 10.196 21 6.086 3.0 17.338 360
8 6,215,132.05 10.678 10.178 22 6.268 2.9 17.219 355
9 15,468,203.30 10.601 10.101 23 6.151 2.7 17.212 360
10 4,027,968.68 11.008 10.508 24 6.554 2.7 17.328 360
11 1,466,410.24 10.739 10.239 32 5.867 3.0 16.882 360
12 1,625,695.31 10.840 10.340 33 6.131 3.0 16.903 360
13 1,314,105.02 10.976 10.476 34 6.156 3.2 17.541 360
14 3,139,294.97 11.016 10.516 35 6.337 2.9 17.261 360
15 2,339,963.00 10.705 10.205 36 6.602 3.2 16.856 360
Remaining Original
Term to Amortization
Pool Maturity Term Amortization
Number (in months) (in months) Method
- ------ ----------- ----------- ------
<S> <C> <C> <C>
1 345 350 Level Pay
2 352 355 Level Pay
3 355 357 Level Pay
4 357 358 Level Pay
5 356 356 Level Pay
6 356 360 Level Pay
7 357 360 Level Pay
8 353 355 Level Pay
9 359 360 Level Pay
10 360 360 Level Pay
11 356 360 Level Pay
12 357 360 Level Pay
13 358 360 Level Pay
14 359 360 Level Pay
15 360 360 Level Pay
</TABLE>
S-40
<PAGE>
The following tables set forth the percentages of the initial principal
amount of the Class A Certificates (other than the Class A-I0 Certificates) that
would be outstanding after each of the dates shown, based on prepayment
scenarios described in the table entitled "Prepayment Scenarios." The
percentages have been rounded to the nearest 1%.
PERCENTAGE OF INITIAL CERTIFICATE PRINCIPAL BALANCE
<TABLE>
Class A-1 Class A-2
Scenario Scenario
--------------------------------------------------------- ---------------------------------------------------
Payment Date I II III IV V VI I II III IV V VI
- -- --- -- - -- - -- --- -- - --
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Initial Percent 100 100 100 100 100 100 100 100 100 100 100 100
12/12/96 100 100 100 100 100 100 100 100 100 100 100 100
12/15/97 77 27 0 0 0 0 100 100 79 62 36 0
12/15/98 70 0 0 0 0 0 100 63 0 0 0 0
12/15/99 61 0 0 0 0 0 100 9 0 0 0 0
12/15/00 52 0 0 0 0 0 100 0 0 0 0 0
12/15/01 42 0 0 0 0 0 100 0 0 0 0 0
12/15/02 31 0 0 0 0 0 100 0 0 0 0 0
12/15/03 19 0 0 0 0 0 100 0 0 0 0 0
12/15/04 5 0 0 0 0 0 100 0 0 0 0 0
12/15/05 0 0 0 0 0 0 92 0 0 0 0 0
12/15/06 0 0 0 0 0 0 78 0 0 0 0 0
12/15/07 0 0 0 0 0 0 64 0 0 0 0 0
12/15/08 0 0 0 0 0 0 48 0 0 0 0 0
12/15/09 0 0 0 0 0 0 30 0 0 0 0 0
12/15/10 0 0 0 0 0 0 9 0 0 0 0 0
12/15/11 0 0 0 0 0 0 0 0 0 0 0 0
12/15/12 0 0 0 0 0 0 0 0 0 0 0 0
12/15/13 0 0 0 0 0 0 0 0 0 0 0 0
12/15/14 0 0 0 0 0 0 0 0 0 0 0 0
12/15/15 0 0 0 0 0 0 0 0 0 0 0 0
12/15/16 0 0 0 0 0 0 0 0 0 0 0 0
12/15/17 0 0 0 0 0 0 0 0 0 0 0 0
12/15/18 0 0 0 0 0 0 0 0 0 0 0 0
12/15/19 0 0 0 0 0 0 0 0 0 0 0 0
12/15/20 0 0 0 0 0 0 0 0 0 0 0 0
12/15/21 0 0 0 0 0 0 0 0 0 0 0 0
12/15/22 0 0 0 0 0 0 0 0 0 0 0 0
12/15/23 0 0 0 0 0 0 0 0 0 0 0 0
12/15/24 0 0 0 0 0 0 0 0 0 0 0 0
12/15/25 0 0 0 0 0 0 0 0 0 0 0 0
12/15/26 0 0 0 0 0 0 0 0 0 0 0 0
Weighted Average Life to 4.13 0.80 0.55 0.50 0.44 0.37 11.74 2.29 1.32 1.15 0.98 0.81
Maturity Years(1)
Weighted Average Life to 4.13 0.80 0.55 0.50 0.44 0.37 11.74 2.29 1.32 1.15 0.98 0.81
Call Years (1)
</TABLE>
<TABLE>
Class A-3 Class A-4
Scenario Scenario
---------------------------------------------------------- ---------------------------------------------------
Payment Date I II III IV V VI I II III IV V VI
- -- --- -- - -- - -- --- -- - --
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Initial Percent 100 100 100 100 100 100 100 100 100 100 100 100
12/12/96 100 100 100 100 100 100 100 100 100 100 100 100
12/15/97 100 100 100 100 100 93 100 100 100 100 100 100
12/15/98 100 100 79 51 12 0 100 100 100 100 100 3
12/15/99 100 100 9 0 0 0 100 100 100 52 0 0
12/15/00 100 69 0 0 0 0 100 100 17 0 0 0
12/15/01 100 34 0 0 0 0 100 100 0 0 0 0
12/15/02 100 4 0 0 0 0 100 100 0 0 0 0
12/15/03 100 0 0 0 0 0 100 58 0 0 0 0
12/15/04 100 0 0 0 0 0 100 15 0 0 0 0
12/15/05 100 0 0 0 0 0 100 0 0 0 0 0
12/15/06 100 0 0 0 0 0 100 0 0 0 0 0
12/15/07 100 0 0 0 0 0 100 0 0 0 0 0
12/15/08 100 0 0 0 0 0 100 0 0 0 0 0
12/15/09 100 0 0 0 0 0 100 0 0 0 0 0
12/15/10 100 0 0 0 0 0 100 0 0 0 0 0
12/15/11 0 0 0 0 0 0 0 0 0 0 0 0
12/15/12 0 0 0 0 0 0 0 0 0 0 0 0
12/15/13 0 0 0 0 0 0 0 0 0 0 0 0
12/15/14 0 0 0 0 0 0 0 0 0 0 0 0
12/15/15 0 0 0 0 0 0 0 0 0 0 0 0
12/15/16 0 0 0 0 0 0 0 0 0 0 0 0
12/15/17 0 0 0 0 0 0 0 0 0 0 0 0
12/15/18 0 0 0 0 0 0 0 0 0 0 0 0
12/15/19 0 0 0 0 0 0 0 0 0 0 0 0
12/15/20 0 0 0 0 0 0 0 0 0 0 0 0
12/15/21 0 0 0 0 0 0 0 0 0 0 0 0
12/15/22 0 0 0 0 0 0 0 0 0 0 0 0
12/15/23 0 0 0 0 0 0 0 0 0 0 0 0
12/15/24 0 0 0 0 0 0 0 0 0 0 0 0
12/15/25 0 0 0 0 0 0 0 0 0 0 0 0
12/15/26 0 0 0 0 0 0 0 0 0 0 0 0
Weighted Average Life 14.83 4.63 2.46 2.08 1.70 1.31 14.84 7.27 3.71 3.08 2.46 1.85
to Maturity Years (1)
Weighted Average Life 14.83 4.63 2.46 2.08 1.70 1.31 14.84 7.27 3.71 3.08 2.46 1.85
to Call Years(1)
- -----------------------------
</TABLE>
(1) The weighted average life of the Class A Certificates is determined by
(i) multiplying the amount of each principal payment by the number of
years from the date of issuance to the related Payment Date, (ii)
adding the results, and (iii) dividing the sum by the initial
respective Certificate Principal Balance for such Class of Class A
Certificates.
S-41
<PAGE>
PERCENTAGE OF INITIAL CERTIFICATE PRINCIPAL BALANCE
<TABLE>
Class A-5 Class A-6
Scenario Scenario
---------------------------------------------------------- ----------------------------------------------------
Payment Date I II III IV V VI I II III IV V VI
- -- --- -- - -- - -- --- -- - --
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Initial Percent 100 100 100 100 100 100 100 100 100 100 100 100
12/12/96 100 100 100 100 100 100 100 100 100 100 100 100
12/15/97 100 100 100 100 100 100 100 100 100 100 100 100
12/15/98 100 100 100 100 100 100 100 100 100 100 100 100
12/15/99 100 100 100 100 65 0 100 100 100 100 100 14
12/15/00 100 100 100 51 0 0 100 100 100 100 48 0
12/15/01 100 100 41 0 0 0 100 100 100 62 0 0
12/15/02 100 100 0 0 0 0 100 100 75 0 0 0
12/15/03 100 100 0 0 0 0 100 100 5 0 0 0
12/15/04 100 100 0 0 0 0 100 100 0 0 0 0
12/15/05 100 77 0 0 0 0 100 100 0 0 0 0
12/15/06 100 42 0 0 0 0 100 100 0 0 0 0
12/15/07 100 11 0 0 0 0 100 100 0 0 0 0
12/15/08 100 0 0 0 0 0 100 72 0 0 0 0
12/15/09 100 0 0 0 0 0 100 28 0 0 0 0
12/15/10 100 0 0 0 0 0 100 0 0 0 0 0
12/15/11 0 0 0 0 0 0 56 0 0 0 0 0
12/15/12 0 0 0 0 0 0 31 0 0 0 0 0
12/15/13 0 0 0 0 0 0 2 0 0 0 0 0
12/15/14 0 0 0 0 0 0 0 0 0 0 0 0
12/15/15 0 0 0 0 0 0 0 0 0 0 0 0
12/15/16 0 0 0 0 0 0 0 0 0 0 0 0
12/15/17 0 0 0 0 0 0 0 0 0 0 0 0
12/15/18 0 0 0 0 0 0 0 0 0 0 0 0
12/15/19 0 0 0 0 0 0 0 0 0 0 0 0
12/15/20 0 0 0 0 0 0 0 0 0 0 0 0
12/15/21 0 0 0 0 0 0 0 0 0 0 0 0
12/15/22 0 0 0 0 0 0 0 0 0 0 0 0
12/15/23 0 0 0 0 0 0 0 0 0 0 0 0
12/15/24 0 0 0 0 0 0 0 0 0 0 0 0
12/15/25 0 0 0 0 0 0 0 0 0 0 0 0
12/15/26 0 0 0 0 0 0 0 0 0 0 0 0
Weighted Average Life 14.84 9.85 4.95 4.08 3.20 2.33 15.57 12.56 6.40 5.20 4.05 2.88
to Maturity Years(1)
Weighted Average Life 14.84 9.85 4.95 4.08 3.20 2.33 15.57 12.56 6.40 5.20 4.05 2.88
to Call Years(1)
</TABLE>
<TABLE>
Class A-7 Class A-8
Scenario Scenario
-------------------------------------------------------------------------------------------------------------
Payment Date I II III IV V VI I II III IV V VI
- -- --- -- - -- - -- --- -- - --
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Initial Percent 100 100 100 100 100 100 100 100 100 100 100 100
12/12/96 100 100 100 100 100 100 100 100 100 100 100 100
12/15/97 100 100 100 100 100 100 100 100 100 100 100 100
12/15/98 100 100 100 100 100 100 100 100 100 100 100 100
12/15/99 100 100 100 100 100 100 100 100 100 100 100 100
12/15/00 100 100 100 100 100 16 100 100 100 100 100 100
12/15/01 100 100 100 100 57 0 100 100 100 100 100 52
12/15/02 100 100 100 85 12 0 100 100 100 100 100 25
12/15/03 100 100 100 44 0 0 100 100 100 100 78 13
12/15/04 100 100 67 16 0 0 100 100 100 100 56 10
12/15/05 100 100 38 0 0 0 100 100 100 90 39 5
12/15/06 100 100 13 0 0 0 100 100 100 67 26 1
12/15/07 100 100 0 0 0 0 100 100 91 49 16 0
12/15/08 100 100 0 0 0 0 100 100 69 35 9 0
12/15/09 100 100 0 0 0 0 100 100 52 24 4 0
12/15/10 100 92 0 0 0 0 100 100 39 16 * 0
12/15/11 100 0 0 0 0 0 100 55 3 0 0 0
12/15/12 100 0 0 0 0 0 100 44 1 0 0 0
12/15/13 100 0 0 0 0 0 100 34 0 0 0 0
12/15/14 79 0 0 0 0 0 100 25 0 0 0 0
12/15/15 53 0 0 0 0 0 100 17 0 0 0 0
12/15/16 28 0 0 0 0 0 100 10 0 0 0 0
12/15/17 21 0 0 0 0 0 100 8 0 0 0 0
12/15/18 14 0 0 0 0 0 100 5 0 0 0 0
12/15/19 6 0 0 0 0 0 100 3 0 0 0 0
12/15/20 0 0 0 0 0 0 95 1 0 0 0 0
12/15/21 0 0 0 0 0 0 82 0 0 0 0 0
12/15/22 0 0 0 0 0 0 67 0 0 0 0 0
12/15/23 0 0 0 0 0 0 51 0 0 0 0 0
12/15/24 0 0 0 0 0 0 32 0 0 0 0 0
12/15/25 0 0 0 0 0 0 12 0 0 0 0 0
12/15/26 0 0 0 0 0 0 0 0 0 0 0 0
Weighted Average Life to 19.56 14.69 8.70 7.00 5.26 3.65 26.93 16.70 13.18 11.40 8.84 5.64
Maturity Years(1)
Weighted Average Life to 19.56 14.69 8.70 7.00 5.26 3.65 26.24 14.84 10.59 8.59 6.94 4.84
Call Years(1)
- -----------------------------
</TABLE>
(1) The weighted average life of the Class A Certificates is determined by
(i) multiplying the amount of each principal payment by the number of
years from the date of issuance to the related Payment Date, (ii)
adding the results, and (iii) dividing the sum by the initial
respective Certificate Principal Balance for such Class of Class A
Certificates.
* Indicates an outstanding Certificate Principal Balance greater than 0%
and less than 0.5% of the Initial Certificate Principal Balance.
S-42
<PAGE>
PERCENTAGE OF INITIAL CERTIFICATE PRINCIPAL BALANCE
<TABLE>
<CAPTION>
Class A-9 Class A-10
Scenario Scenario
-------------------------------------------------------- -----------------------------------------------
Payment Date I II III IV V VI I II III IV V VI
- -- --- -- - -- - -- --- -- - --
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Initial Percent 100 100 100 100 100 100 100 100 100 100 100 100
12/12/96 100 100 100 100 100 100 100 100 100 100 100 100
12/15/97 100 100 100 100 100 100 97 89 81 76 73 65
12/15/98 100 100 100 100 100 100 97 81 68 59 55 43
12/15/99 100 100 100 100 100 100 96 74 56 46 41 30
12/15/00 99 95 90 88 85 79 96 68 47 36 31 20
12/15/01 99 89 81 77 72 62 95 62 39 29 24 14
12/15/02 97 81 67 61 53 39 95 56 32 22 18 9
12/15/03 95 71 52 45 36 21 94 51 27 18 13 6
12/15/04 92 59 37 30 20 8 93 47 22 14 10 4
12/15/05 88 49 26 19 11 2 92 42 19 11 7 2
12/15/06 84 41 18 12 6 * 91 39 16 8 6 1
12/15/07 81 33 12 7 3 0 90 35 13 6 4 1
12/15/08 76 27 8 4 1 0 88 32 11 5 3 *
12/15/09 71 22 5 3 * 0 87 29 9 4 2 *
12/15/10 66 18 3 1 * 0 85 26 7 3 1 0
12/15/11 * 0 0 0 0 0 83 23 6 2 1 0
12/15/12 * 0 0 0 0 0 81 21 5 1 * 0
12/15/13 * 0 0 0 0 0 78 19 4 1 * 0
12/15/14 * 0 0 0 0 0 76 17 3 * 0 0
12/15/15 * 0 0 0 0 0 72 15 2 * 0 0
12/15/16 * 0 0 0 0 0 69 13 2 0 0 0
12/15/17 * 0 0 0 0 0 65 11 1 0 0 0
12/15/18 * 0 0 0 0 0 60 9 1 0 0 0
12/15/19 * 0 0 0 0 0 55 8 1 0 0 0
12/15/20 * 0 0 0 0 0 49 6 * 0 0 0
12/15/21 * 0 0 0 0 0 42 5 * 0 0 0
12/15/22 * 0 0 0 0 0 35 4 0 0 0 0
12/15/23 * 0 0 0 0 0 27 2 0 0 0 0
12/15/24 * 0 0 0 0 0 18 1 0 0 0 0
12/15/25 * 0 0 0 0 0 7 * 0 0 0 0
12/15/26 0 0 0 0 0 0 0 0 0 0 0 0
Weighted Average Life to 13.24 9.43 7.53 7.01 6.39 5.64 21.68 9.41 5.23 3.96 3.43 2.48
Maturity Years(1)
Weighted Average Life to 13.24 9.43 7.23 6.55 5.80 4.62 21.29 7.93 4.61 3.54 3.01 2.17
Call Years(1)
</TABLE>
- -----------------------------
(1) The weighted average life of the Class A Certificates is determined by
(i) multiplying the amount of each principal payment by the number of
years from the date of issuance to the related Payment Date, (ii)
adding the results, and (iii) dividing the sum by the initial
respective Certificate Principal Balance for such Class of Class A
Certificates.
* Indicates an outstanding Certificate Principal Balance greater than 0%
and less than 0.5% of the Initial Certificate Principal Balance.
S-43
<PAGE>
Payment Lag Feature of Class A Certificates
Pursuant to the Pooling and Servicing Agreement, an amount equal to
Mortgagor payments with respect to each Home Equity Loan (net of the Servicing
Fee) received by the Servicer during each Remittance Period is to be remitted to
the Trustee on or prior to the related Monthly Remittance Date; the Trustee will
not be required to distribute any such amounts to the Owners until the next
succeeding Payment Date. As a result, the monthly distributions to the Owners
generally reflect Mortgagor payments during the prior calendar month, and the
first Payment Date will not occur until January 15, 1997. Thus, the effective
yield to the Owners of the Class A Certificates (other than the Class A-1
Certificates and Class A-10 Certificates) will be below that otherwise produced
by the related Pass-Through Rate because the distribution of the Class A
Distribution Amount in respect of any given month will not be made until on or
about the 15th day of the following month.
Yield Sensitivity of the Class A-IO Certificates
Because amounts distributable to the Owners of each Class of the Class
A-IO Certificates consist entirely of interest, the yield to maturity of each
Class of the Class A-IO Certificates will be extremely sensitive to the
repurchase, prepayment and default experience of the Home Equity Loans, and
prospective investors should fully consider the associated risks, including the
risk that such investors may not fully recover their initial investment. In
particular, investors in the Class A-IO Certificates should be aware that Owners
of the Class R Certificates (or in certain circumstances the Certificate
Insurer) may cause a termination of the Trust when the aggregate outstanding
Loan Balances of the Home Equity Loans has declined to less than 10% of the
aggregate Loan Balance of the Home Equity Loans as of the Closing Date.
The following tables set forth percentages for the sensitivity of each
Class of the Class A-IO Certificates to prepayments based on the modeling
assumptions set out above.
Pre-Tax Yield to Maturity (1) -- Sensitivity of the Class A-11IO
Certificates to Prepayments
<TABLE>
<CAPTION>
Percentage of the Prepayment Assumption
---------------------------------------
Scenario I Scenario II Scenario III Scenario IV Scenario V Scenario VI
<S> <C> <C> <C> <C> <C> <C>
No Optional Termination
At a Price of 3.21260%(2) 33.697% 22.804% 11.405% 6.637% -0.897% -14.646%
At a Price of 3.27510%(2) 32.956% 22.077% 10.689% 5.924% -1.614% -15.383%
At a Price of 3.33760%(2) 32.243% 21.376% 10.000% 5.237% -2.305% -16.094%
At a Price of 3.40010%(2) 31.556% 20.702% 9.336% 4.575% -2.971% -16.780%
Optional Termination
At a Price of 3.21260%(2) 33.697% 22.763% 10.732% 5.056% -3.697% -20.609%
At a Price of 3.27510%(2) 32.956% 22.033% 9.984% 4.279% -4.505% -21.482%
At a Price of 3.33760%(2) 32.243% 21.329% 9.262% 3.530% -5.286% -22.326%
At a Price of 3.40010%(2) 31.556% 20.652% 8.566% 2.806% -6.042% -23.144%
- --------------------
(1) Represented on a corporate bond equivalent basis.
(2) As a percent of the Notional Principal Amount as of the Cut-Off Date.
Accrued interest will be added to such price after calculating the yields
set forth in the table.
</TABLE>
Pre-Tax Yield to Maturity (1) -- Sensitivity of the Class A-12IO
Certificates to Prepayments
<TABLE>
<CAPTION>
Percentage of the Prepayment Assumption
---------------------------------------
Scenario I Scenario II Scenario III Scenario IV Scenario V Scenario VI
<S> <C> <C> <C> <C> <C> <C>
No Optional Termination
At a Price of 3.49039%(2) 30.233% 20.828% 11.061% 4.641% 0.618% -10.906%
At a Price of 3.55289%(2) 29.654% 20.269% 10.521% 4.107% 0.085% -11.443%
At a Price of 3.61539%(2) 29.095% 19.729% 10.000% 3.592% -0.429% -11.962%
At a Price of 3.67789%(2) 28.555% 19.208% 9.497% 3.094% -0.926% -12.464%
Optional Termination
At a Price of 3.49039%(2) 30.232% 20.443% 9.563% 1.830% -4.329% -21.140%
At a Price of 3.55289%(2) 29.652% 19.862% 8.964% 1.209% -4.986% -21.855%
At a Price of 3.61539%(2) 29.093% 19.299% 8.384% 0.606% -5.623% -22.550%
At a Price of 3.67789%(2) 28.553% 18.755% 7.821% 0.022% -6.242% -23.226%
- --------------------
(1) Represented on a corporate bond equivalent basis.
(2) As a percent of the Notional Principal Amount as of the Cut-Off Date.
Accrued interest will be added to such price after calculating the yields
set forth in the table.
</TABLE>
S-44
<PAGE>
On the basis of 138% Prepayment Assumption with respect to the Fixed
Rate Group and 21% CPR with respect to the Adjustable Rate Group, a purchase
price of 3.21260%, optional termination of the Trust and the Modeling
Assumptions, the pre-tax yield to maturity of the Class A-11IO Certificates
would be approximately 0%. If the actual prepayment rate were to exceed
approximately 138% Prepayment Assumption, based on such assumptions, an investor
in the Class A-11IO Certificates would not fully recover the initial purchase
price thereof.
On the basis of 135% Prepayment Assumption with respect to the Fixed
Rate Group and 21% CPR with respect to the Adjustable Rate Group, a purchase
price of 3.27510%, optional termination of the Trust and the Modeling
Assumptions, the pre-tax yield to maturity of the Class A-11IO Certificates
would be approximately 0%. If the actual prepayment rate were to exceed
approximately 135% Prepayment Assumption, based on such assumptions, an investor
in the Class A-11IO Certificates would not fully recover the initial purchase
price thereof.
On the basis of 132% Prepayment Assumption with respect to the Fixed
Rate Group and 21% CPR with respect to the Adjustable Rate Group, a purchase
price of 3.33760%, optional termination of the Trust and the Modeling
Assumptions, the pre-tax yield to maturity of the Class A-11IO Certificates
would be approximately 0%. If the actual prepayment rate were to exceed
approximately 132% Prepayment Assumption, based on such assumptions, an investor
in the Class A-11IO Certificates would not fully recover the initial purchase
price thereof.
On the basis of 130% Prepayment Assumption with respect to the Fixed
Rate Group and 21% CPR with respect to the Adjustable Rate Group, a purchase
price of 3.40010%, optional termination of the Trust and the Modeling
Assumptions, the pre-tax yield to maturity of the Class A-11IO Certificates
would be approximately 0%. If the actual prepayment rate were to exceed
approximately 130% Prepayment Assumption, based on such assumptions, an investor
in the Class A-11IO Certificates would not fully recover the initial purchase
price thereof.
On the basis of 120% Prepayment Assumption with respect to the Fixed
Rate Group and 22% CPR with respect to the Adjustable Rate Group, a purchase
price of 3.49039%, optional termination of the Trust and the Modeling
Assumptions, the pre-tax yield to maturity of the Class A-12IO Certificates
would be approximately 0%. If the actual prepayment rate were to exceed
approximately 22% CPR, based on such assumptions, an investor in the Class
A-12IO Certificates would not fully recover the initial purchase price thereof.
On the basis of 120% Prepayment Assumption with respect to the Fixed
Rate Group and 21% CPR with respect to the Adjustable Rate Group, a purchase
price of 3.55289%, optional termination of the Trust and the Modeling
Assumptions, the pre-tax yield to maturity of the Class A-12IO Certificates
would be approximately 0%. If the actual prepayment rate were to exceed
approximately 21% CPR, based on such assumptions, an investor in the Class
A-12IO Certificates would not fully recover the initial purchase price thereof.
On the basis of 120% Prepayment Assumption with respect to the Fixed
Rate Group and 21% CPR with respect to the Adjustable Rate Group, a purchase
price of 3.61539%, optional termination of the Trust and the Modeling
Assumptions, the pre-tax yield to maturity of the Class A-12IO Certificates
would be approximately 0%. If the actual prepayment rate were to exceed
approximately 21% CPR, based on such assumptions, an investor in the Class
A-12IO Certificates would not fully recover the initial purchase price thereof.
On the basis of 120% Prepayment Assumption with respect to the Fixed
Rate Group and 21% CPR with respect to the Adjustable Rate Group, a purchase
price of 3.67789%, optional termination of the Trust and the Modeling
Assumptions, the pre-tax yield to maturity of the Class A-12IO Certificates
would be approximately 0%. If the actual prepayment rate were to exceed
approximately 21% CPR, based on such assumptions, an investor in the Class
A-12IO Certificates would not fully recover the initial purchase price thereof.
The yields set forth in the preceding table were calculated by
determining the monthly discount rates which, when applied to the assumed stream
of cash flow to be paid on each Class of the Class A-IO Certificates would cause
the discounted present value of such assumed cash flows to equal the assumed
purchase price of each Class of the Class A-IO Certificates plus accrued
interest and by converting such monthly rates to corporate bond equivalent
rates. Such calculations do not take into account variations that may occur in
the interest rates at which investors may be able to reinvest funds received by
them as distributions on the Class A-IO Certificates.
The Home Equity Loans will not necessarily have the characteristics
assumed above, and there can be no assurance that (i) the Home Equity Loans will
prepay at any of the rates shown in the table or at any other particular
rate or will prepay proportionately, (ii) the pre-tax yield on each Class of the
Class A-IO Certificates will
S-45
<PAGE>
correspond to any of the pre-tax yields shown above or (iii) the purchase price
of each Class of the Class A-IO Certificates will be equal to any of the
purchase prices assumed.
FORMATION OF THE TRUST AND TRUST PROPERTY
ContiMortgage Home Equity Trust 1996-4 (the "Trust") will be created
and established pursuant to the Pooling and Servicing Agreement. The Depositor
will convey without recourse the Home Equity Loans to the Trust and the Trust
will issue the Class A Certificates and the Subordinate Certificates.
The property of the Trust will include (a) the Home Equity Loans (other
than payments received on the Home Equity Loans on or prior to the Cut-Off Date)
together with the related Home Equity Loan documents and the Seller's interest
in any Property which secures a Home Equity Loan and all payments thereon and
proceeds of the conversion, voluntary or involuntary, of the foregoing, (b) such
amounts as may be held by the Trustee in the Certificate Account, the Upper-Tier
Distribution Account (as defined in the Pooling and Servicing Agreement), and
any other accounts held by the Trustee for the Trust together with investment
earnings on such amounts and such amounts as may be held in the name of the
Trustee in the Principal and Interest Account, if any, exclusive of investment
earnings thereon (except as otherwise provided) whether in the form of cash,
instruments, securities or other properties, (c) the Certificate Insurance
Policies and (d) proceeds of all the foregoing (including, but not by way of
limitation, all proceeds of any hazard insurance and title insurance policies
relating to the Home Equity Loans, cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, chattel paper, checks, deposit accounts, rights to
payment of any and every kind, and other forms of obligations and receivables
which at any time constitute all or part of or are included in the proceeds of
any of the foregoing) to pay the Certificates as specified in the Pooling and
Servicing Agreement (collectively, the "Trust Estate").
The Pooling and Servicing Agreement also establishes a trust, the
"Supplemental Interest Trust" which includes, among certain other assets, an
account (the "Supplemental Interest Account"), which is assigned to the Trustee
on behalf of the Owners of the Class A-1 Certificates. The Supplemental Interest
Account will hold certain amounts received under the Cap Agreement held by the
Trustee on behalf of the Owners of the Class A-1 Certificates and other amounts
relating to the funding of the Supplemental Interest Amount until the Class A-1
Certificate Principal Balance has been reduced to zero. The Supplemental
Interest Amount will be used to fund the excess of the Class A-1 Pass-Through
Rate over the Class A-1 Internal Pass-Through Rate to ensure that the Owners of
the Class A-1 Certificates receive interest in an amount equal to the Class A-1
Pass-Through Rate. The Supplemental Interest Account does not constitute part of
either the Upper-Tier REMIC or the Lower-Tier REMIC and any payments from the
Supplemental Interest Account are to be accounted for as non-REMIC
distributions.
The Class A Certificates will not represent an interest in or an
obligation of, nor will the Home Equity Loans be guaranteed by, the Depositor,
the Sellers, the Servicer or any of their affiliates.
Prior to its formation the Trust will have had no assets or
obligations. Upon formation, the Trust will not engage in any business activity
other than acquiring, holding and collecting payments on the Home Equity Loans,
issuing the Certificates and distributing payments thereon. The Trust will not
acquire any receivables or assets other than the Home Equity Loans and the
rights appurtenant thereto and will not have any need for additional capital
resources. To the extent that borrowers make scheduled payments under the Home
Equity Loans, the Trust will have sufficient liquidity to make distributions on
the Certificates. As the Trust does not have any operating history and will not
engage in any business activity other than issuing the Certificates and making
distributions thereon, there has not been included any historical or pro forma
ratio of earnings to fixed charges with respect to the Trust.
ADDITIONAL INFORMATION
The description in this Prospectus Supplement of the Home Equity Loans
and the Properties is based upon the pool as constituted at the close of
business on the Cut-Off Date. Prior to the issuance of the Class A Certificates,
Home Equity Loans may be removed from the pool as a result of incomplete
documentation or non-compliance with representations and warranties set forth in
the Pooling and Servicing Agreement, if the Depositor deems such removal
necessary or appropriate. A limited number of other Home Equity Loans may be
included in the pool prior to the issuance of the Certificates.
A current report on Form 8-K will be available to purchasers of the
Class A Certificates and will be filed and incorporated by reference to the
Registration Statement together with the Pooling and Servicing Agreement with
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the Securities and Exchange Commission within fifteen days after the initial
issuance of the Class A Certificates. In the event Home Equity Loans are removed
from or added to the pool as set forth in the preceding paragraph, such removal
or addition will be noted in a current report on Form 8-K.
DESCRIPTION OF THE CLASS A CERTIFICATES
General
Each Certificate will represent certain undivided, fractional ownership
interests in the Trust Estate created and held pursuant to the Pooling and
Servicing Agreement, subject to the limits and the priority of distribution
described therein.
As described in "The Home Equity Loan Pool" herein, the Home Equity
Loan Pool is divided into two Groups, the Fixed Rate Group, which contains only
fixed rate first and second lien Home Equity Loans, and the Adjustable Rate
Group, which contains only first lien adjustable rate Home Equity Loans. For
each Home Equity Loan Group, the related Class of Class A Certificates will
evidence the right to receive on each Payment Date the Class A Distribution
Amount for such Class of Class A Certificates, in each case until the related
Class A Certificate Principal Balance (or related Notional Principal Amount) has
been reduced to zero.
Payment Dates
On each Payment Date, the Owners of each Class of the Class A
Certificates will be entitled to receive, from amounts then on deposit in the
certificate account established and maintained by the Trustee in accordance with
the Pooling and Servicing Agreement (the "Certificate Account") and until the
Certificate Principal Balance (or Notional Principal Amount) of such Class of
Class A Certificates is reduced to zero, the aggregate Class A Distribution
Amount as of such Payment Date, allocated among the Classes of the Class A
Certificates as described below. Distributions will be made in immediately
available funds to Owners of Class A Certificates by wire transfer or otherwise,
to the account of such Owner at a domestic bank or other entity having
appropriate facilities therefor, if such Owner has so notified the Trustee, or
by check mailed to the address of the person entitled thereto as it appears on
the register (the "Register") maintained by the Trustee as registrar (the
"Registrar"). Beneficial Owners may experience some delay in the receipt of
their payments due to the operations of DTC. See "Risk Factors-Book Entry
Registration" in the Prospectus and "Description of the Class A
Certificates--Book Entry Registration of the Class A Certificates" herein and
"Description of the Certificates--Book Entry Registration" in the Prospectus.
The Pooling and Servicing Agreement will provide that an Owner, upon
receiving the final distribution on such Owner's Certificate, will be required
to send such Certificate to the Trustee. The Pooling and Servicing Agreement
additionally will provide that, in any event, any Certificate as to which the
final distribution thereon has been made shall be deemed canceled for all
purposes under or pursuant to the Pooling and Servicing Agreement and the
related Certificate Insurance Policy.
Each Owner of record of the related Class of the Class A Certificates
will be entitled to receive such Owner's Percentage Interest in the amounts due
such Class on such Payment Date. The "Percentage Interest" of a Class A
Certificate as of any date of determination will be equal to the percentage
obtained by dividing the principal balance (or notional principal balance) of
such Certificate as of the Cut-Off Date by the Certificate Principal Balance (or
Notional Principal Amount) for the related Class of the Class A Certificates as
of the Cut-Off Date.
Distributions
Upon receipt, the Trustee will be required to deposit into the
Certificate Account (i) the total of the principal and interest collections on
the Home Equity Loans, including any Net Liquidation Proceeds, remitted by the
Servicer, together with any Substitution Amount and any Loan Purchase Price
amount, (ii) any Insured Payment, and (iii) the proceeds of any liquidation of
the Trust Estate. In addition, the Trustee will, upon receipt, be required to
deposit into the Supplemental Interest Account (x) any amounts received from the
Cap Agreement (which amounts will remain in the Supplemental Interest Account
unless distributed as provided below until the Class A-1 Certificate Principal
Balance has been reduced to zero) and (y) certain other amounts available to the
Trustee.
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The Pooling and Servicing Agreement establishes a pass-through rate on
each Class of the Class A Certificates (each, a "Pass-Through Rate") as set
forth in the Summary of Terms hereof under "Certificates Offered." The Class A-1
Pass-Through Rate adjusts monthly and will on each Payment Date be equal to
LIBOR plus 0.04%. The Class A-10 Pass-Through Rate will on each Payment Date be
equal to the lesser of (i) with respect to any Payment Date which occurs on or
prior to the Clean-Up Call Date, the rate equal to LIBOR plus 0.24% per annum
and for any Payment Date thereafter, LIBOR plus 0.48% per annum, and (ii) Class
A-10 Available Funds Cap. The Class A-11IO Pass-Through Rate is equal to the
lesser of (i) 1.10% per annum and (ii) the Class A-11IO Available Funds Cap.
On each Payment Date, the Trustee is required to make the following
disbursements and transfers from moneys then on deposit in the Certificate
Account as specified below in the following order of priority of each such
transfer and disbursement:
(i) first, on each Payment Date, the Trustee shall allocate an
amount equal to the sum of (x) the Total Monthly Excess Spread
with respect to each Home Equity Loan Group and Payment Date
plus (y) any Subordination Reduction Amount with respect to
such Home Equity Loan Group and Payment Date (such sum (net of
the Trustee Fees with respect to such Home Equity Loan Group
then payable under clause (iii)(D) below and the amounts
payable to the Certificate Insurer with respect to such Home
Equity Loan Group (the "Premium Amount") as described in
clause (iii)(B) below) being the "Total Monthly Excess
Cashflow" with respect to such Home Equity Loan Group and
Payment Date) in the following order of priority:
(A) first, such Total Monthly Excess Cashflow shall be
allocated to the payment of the Class A Distribution
Amount pursuant to clauses (iii)(A) and (C) below on
such Payment Date with respect to the related Home
Equity Loan Group in an amount equal to the amount,
if any, by which (x) the Class A Distribution Amount
with respect to the related Home Equity Loan Group
(determined for this purpose only by reference to
clause (b) of the definition of Principal
Distribution Amount and without any Subordination
Increase Amount) for such Payment Date exceeds (y)
the Available Funds with respect to such Home Equity
Loan Group for such Payment Date (the amount of such
difference with respect to a Home Equity Loan Group
being an "Available Funds Shortfall" for such Home
Equity Loan Group);
(B) second, any portion of the Total Monthly Excess
Cashflow with respect to such Home Equity Loan Group
remaining after the application described in clause
(A) above shall be allocated against any Available
Funds Shortfall with respect to the other Home Equity
Loan Group;
(C) third, any portion of the Total Monthly Excess
Cashflow with respect to such Home Equity Loan Group
remaining after the allocations described in clauses
(A) and (B) above shall be paid to the Certificate
Insurer in respect of amounts owed on account of any
Reimbursement Amount owed to the Certificate Insurer
with respect to the related Home Equity Loan Group;
and
(D) fourth, any portion of the Total Monthly Excess
Cashflow with respect to such Home Equity Loan Group
remaining after the allocations described in clauses
(A), (B) and (C) above shall be paid to the
Certificate Insurer in respect of any Reimbursement
Amount (as defined in the Pooling and Servicing
Agreement) with respect to the other Home Equity Loan
Group.
(ii) second, on each Payment Date, the Trustee shall apply the
amount, if any, of the Total Monthly Excess Cashflow with
respect to such Home Equity Loan Group remaining after the
allocations described in clause (i) above (the "Net Monthly
Excess Cashflow" with respect to such Home Equity Loan Group
for such Payment Date) in the following order or priority:
(A) first, such Net Monthly Excess Cashflow shall be used
to reduce to zero, through the allocation of a
Subordination Increase Amount to the payment of the
Class A Distribution Amount pursuant to clause (iii)
below, any Subordination Deficiency Amount (as
defined
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in the Pooling and Servicing Agreement) with respect
to such Home Equity Loan Group as of such Payment
Date;
(B) second, any Net Monthly Excess Cashflow remaining
after the application described in clause (A) above
shall be used to reduce to zero, through the
allocation of a Subordination Increase Amount, the
Subordination Deficiency Amount, if any, with respect
to the other Home Equity Loan Group; and
(C) third, any Net Monthly Excess Cashflow remaining
after the application described in clauses (A) and
(B) above shall be paid to the Servicer to the extent
of any unreimbursed Delinquency Advances and
unreimbursed Servicing Advances.
(iii) third, following the making by the Trustee of all allocations,
transfers and disbursements described above from amounts then
on deposit in the Certificate Account with respect to the
related Home Equity Loan Group, the Trustee shall distribute:
(A) To the Owners of the Class A Certificates of the
related Group (including for this purpose the related
Class of Class A-IO Certificates), the related Class
A Current Interest, on a pro rata basis without any
priority among such Class A Certificates;
(B) To the Certificate Insurer, on each Payment Date for
the related Group, the Trustee shall disburse the pro
rated Premium Amount determined by the relative
Certificate Principal Balance of the related Classes
of Class A Certificates for such Payment Date;
(C) To the Owners of the related Class of Class A
Certificates, the Principal Distribution Amount
applicable to the Fixed Rate Group shall be
distributed as follows: (a) to the Owners of the
Class A-9 Certificates an amount equal to the Class
A-9 Lockout Distribution Amount and (b) the remainder
as follows: first, to the Owners of the Class A-1
Certificates, until the Class A-1 Certificate
Principal Balance is reduced to zero; second, to the
Owners of the Class A-2 Certificates, until the Class
A-2 Certificate Principal Balance is reduced to zero;
third, to the Owners of the Class A-3 Certificates,
until the Class A-3 Certificate Principal Balance is
reduced to zero; fourth, to the Owners of the Class
A-4 Certificates, until the Class A-4 Certificate
Principal Balance is reduced to zero; fifth, to the
Owners of the Class A-5 Certificates, until the Class
A-5 Certificate Principal Balance is reduced to zero;
sixth, to the Owners of the Class A-6 Certificates,
until the Class A-6 Certificate Principal Balance is
reduced to zero; seventh, to the Owners of the Class
A-7 Certificates, until the Class A-7 Certificate
Principal Balance is reduced to zero; eighth to the
Owners of the Class A-8 Certificates, until the Class
A-8 Certificate Principal Balance is reduced to zero;
and, ninth, to the Owners of the Class A-9
Certificates, until the Class A-9 Certificate
Principal Balance is reduced to zero. The Principal
Distribution Amount applicable to the Adjustable Rate
Group shall be distributed to the Owners of the Class
A-10 Certificates, until the Class A-10 Certificate
Principal Balance is reduced to zero;
(D) To the Trustee, the Trustee Fees with respect to such
Home Equity Loan Group then due; and
(E) To the Owners of the Subordinate Certificates, all
remaining distributable amounts as specified in the
Pooling and Servicing Agreement.
"Available Funds" as to any Home Equity Loan Group and Payment Date is
the amount on deposit in the Certificate Account with respect to such Group on
such Payment Date (net of Total Monthly Excess Cashflow and disregarding the
amounts of any Insured Payments with respect to such Home Equity Loan Group to
be made on such Payment Date).
"Total Available Funds" as to any Home Equity Loan Group and Payment
Date is (x) the amount on deposit in the Certificate Account with respect to
such Group (net of Total Monthly Excess Cashflow) on such Payment Date plus (y)
any amounts of Total Monthly Excess Cashflow with respect to either Home Equity
Loan
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Group to be applied on such Payment Date to such Home Equity Loan Group
(disregarding the amount of any Insured Payment with respect to either Home
Equity Loan Group to be made on such Payment Date).
The Trustee or Paying Agent shall (i) receive as attorney-in-fact of
each Owner of Class A Certificates any Insured Payment from the Certificate
Insurer and (ii) disburse the same to each Owner of Class A Certificates. The
Pooling and Servicing Agreement will provide that to the extent the Certificate
Insurer makes Insured Payments, either directly or indirectly (as by paying
through the Trustee or Paying Agent), to the Owners of such Class A
Certificates, if any, the Certificate Insurer will be subrogated to the rights
of such Owners of Class A Certificates with respect to such Insured Payments,
and shall receive reimbursement for such Insured Payments as provided in the
Pooling and Servicing Agreement, but only from the sources and in the manner
provided in the Pooling and Servicing Agreement for the payment of the Class A
Distribution Amount to Owners of Class A Certificates, if any; such subrogation
and reimbursement will have no effect on the Certificate Insurer's obligations
under the related Certificate Insurance Policy.
The Pooling and Servicing Agreement provides that the term "Available
Funds" does not include Insured Payments and does not include any amounts that
cannot be distributed to the Owners of Class A Certificates, if any, by the
Trustee as a result of proceedings under the United States Bankruptcy Code.
Each Owner of a Class A Certificate will be required promptly to notify
the Trustee in writing upon the receipt of a court order relating to a
Preference Amount and will be required to enclose a copy of such order with such
notice to the Trustee.
Calculation of LIBOR
On each LIBOR Determination Date (as defined below), the Trustee will
determine LIBOR for the next Accrual Period for the Class A-1 Certificates and
the Class A-10 Certificates.
"LIBOR" means, as of any LIBOR Determination Date, the rate for
deposits in United States dollars for a period equal to the relevant Accrual
Period (commencing on the first day of such Accrual Period) which appears in the
Telerate Page 3750 as of 11:00 a.m., London time, on such date. If such rate
does not appear on Telerate Page 3750, the rate for that day will be determined
on the basis of the rates at which deposits in United States dollars are offered
by the Reference Banks at approximately 11:00 a.m., London time, on that day to
prime banks in the London interbank market for a period equal to the relevant
Accrual Period (commencing on the first day of such Accrual Period). The Trustee
will request the principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two such quotations are provided,
the rate for that day will be the arithmetic mean of the quotations. If fewer
than two quotations are provided as requested, the rate for that day will be the
arithmetic mean of the rates quoted by major banks in New York City, selected by
the Servicer, at approximately 11:00 a.m., New York City time, on that day for
loans in United States dollars to leading European banks for a period equal to
the relevant Accrual Period (commencing on the first day of such Accrual
Period).
"LIBOR Determination Date" means, with respect to any Accrual Period,
the second London business day preceding the commencement of such Accrual
Period. For purposes of determining LIBOR, a "London business day" is any day on
which dealings in deposits of United States dollars are transacted in the London
interbank market.
"Telerate Page 3750" means the display page currently so designated on
the Dow Jones Telerate Service (or such other page as may replace that page on
that service for the purpose of displaying comparable rates or prices) and
"Reference Banks" means leading banks selected by the Trustee and engaged in
transactions in Eurodollar deposits in the international Eurocurrency market.
Book Entry Registration of the Class A Certificates
The Class A Certificates will be book-entry Certificates (the
"Book-Entry Certificates"). Persons acquiring beneficial ownership interests in
such Book-Entry Certificates ("Beneficial Owners") may elect to hold their
BookEntry Certificates directly through DTC in the United States, or CEDEL or
Euroclear (in Europe) if they are participants of such systems ("Participants")
or indirectly through organizations which are Participants. The BookEntry
Certificates will be issued in one or more certificates per class of Class A
Certificates which in the aggregate equal the principal balance of such Class A
Certificates and will initially be registered in the name of Cede, the
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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 will act as depositary for CEDEL and Chase
will act as depositary for Euroclear (in such capacities, individually the
"Relevant Depositary" and collectively the "European Depositaries"). Investors
may hold such beneficial interests in the Book-Entry Certificates in minimum
denominations representing principal amounts of $1000 and in integral multiples
in excess thereof. Except as described below, no Beneficial Owner will be
entitled to receive a physical certificate representing such Certificate (a
"Definitive Certificate"). Unless and until definitive Certificates are issued,
it is anticipated that the only "Owner" of such Book-Entry Certificates will be
Cede, as nominee of DTC. Beneficial Owners will not be Owners as that term is
used in the Pooling and Servicing Agreement. Beneficial Owners are only
permitted to exercise their rights indirectly through Participants and DTC.
The Beneficial Owner's ownership of a Book-Entry Certificate 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 Certificate 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 be 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).
Beneficial Owners will receive all distributions of principal of, and
interest on, the Book-Entry Certificates from the Trustee through DTC and DTC
Participants. While such Certificates 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 such Certificates and is required to receive and transmit
distributions of principal of, and interest on, such Certificates. Participants
and indirect participants with whom Beneficial Owners have accounts with respect
to Book-Entry Certificates are similarly required to make book-entry transfers
and receive and transmit such distributions on behalf of their respective
Beneficial Owners. Accordingly, although Beneficial Owners will not possess
certificates, the Rules provide a mechanism by which Beneficial Owners will
receive distributions and will be able to transfer their interest.
Beneficial Owners will not receive or be entitled to receive
certificates representing their respective interests in the Class A
Certificates, except under the limited circumstances described below. Unless and
until Definitive Certificates are issued, Beneficial Owners who are not
Participants may transfer ownership of Class A Certificates only through
Participants and indirect participants by instructing such Participants and
indirect participants to transfer such Class A Certificates, by book-entry
transfer, through DTC for the account of the purchasers of such Class A
Certificates, which account is maintained with their respective Participants.
Under the Rules and in accordance with DTC's normal procedures, transfers of
ownership of such Class A Certificates 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 Beneficial 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 settlements in DTC. For information with respect to tax
documentation procedures relating to the Certificates, see "Certain Federal
Income Tax Consequences -- Taxation of Certain Foreign Investors" and "-- Backup
Withholding" in the Prospectus and "Global Clearance, Settlement and Tax
Documentation Procedures--Certain U.S. Federal Income Tax Documentation
Requirements" in Annex I hereto.
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
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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 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 ("DTC 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 BookEntry 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 participant 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 participants of
Euroclear ("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 now 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.
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Distributions on the Book-Entry Certificates will be made on each
Payment 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 payment to the Beneficial Owners of the
Book-Entry Certificates 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 Beneficial Owners of the Book-Entry Certificates
that it represents.
Under a book-entry format, Beneficial Owners of the Book-Entry
Certificates may experience some delay in their receipt of payments, since such
payments will be forwarded by the Trustee to Cede. Distributions with respect to
Certificates 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 a Beneficial Owner to
pledge Book-Entry Certificates to persons or entities that do not participate in
the Depository system, or otherwise take actions in respect of such Book-Entry
Certificates, may be limited due to the lack of physical certificates for such
Book-Entry Certificates. In addition, issuance of the Book-Entry Certificates in
book-entry form may reduce the liquidity of such Certificates in the secondary
market since certain potential investors may be unwilling to purchase
Certificates for which they cannot obtain physical certificates.
Monthly and annual reports on the Trust provided by the Servicer to
Cede, as nominee of DTC, may be made available to Beneficial 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 Certificates of such Beneficial Owners are credited.
DTC has advised the Trustee that, unless and until Definitive
Certificates are issued, DTC will take any action permitted to be taken by the
holders of the Book-Entry Certificates under the Pooling and Servicing Agreement
only at the direction of one or more Financial Intermediaries to whose DTC
accounts the Book-Entry Certificates are credited, to the extent that such
actions are taken on behalf of Financial Intermediaries whose holdings include
such Book-Entry Certificates. CEDEL or the Euroclear Operator, as the case may
be, will take any action permitted to be taken by an Owner under the Pooling and
Servicing 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 Class A Certificates which conflict with actions taken with
respect to other Class A Certificates.
Definitive Certificates will be issued to Beneficial Owners of the
Book-Entry Certificates, or their nominees, rather than to DTC, only if (a) DTC
or the Depositor advises the Trustee in writing that DTC is no longer willing,
qualified or able to discharge properly its responsibilities as a nominee and
depository with respect to the Book-Entry Certificates and the Depositor or the
Trustee is unable to locate a qualified successor, (b) the Depositor, at its
sole option, elects to terminate a book-entry system through DTC or (c) DTC, at
the direction of the Beneficial Owners representing a majority of the
outstanding Percentage Interests of the Class A Certificates, advises the
Trustee in writing that the continuation of a book-entry system through DTC (or
a successor thereto) is no longer in the best interests of Beneficial Owners.
Upon the occurrence of any of the events described in the immediately
preceding paragraph, the Trustee will be required to notify all Beneficial
Owners of the occurrence of such event and the availability through DTC of
Definitive Certificates. Upon surrender by DTC of the global certificate or
certificates representing the BookEntry Certificates and instructions for
re-registration, the Trustee will issue Definitive Certificates, and thereafter
the Trustee will recognize the holders of such Definitive Certificates as Owners
under the Pooling and Servicing Agreement.
Although DTC, CEDEL and Euroclear have agreed to the foregoing
procedures in order to facilitate transfers of Certificates 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.
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Assignment of Rights
An Owner may pledge, encumber, hypothecate or assign all or any part of
its right to receive distributions under any Certificate, but such pledge,
encumbrance, hypothecation or assignment shall not constitute a transfer of an
ownership interest sufficient to render the transferee an Owner of the Trust
without compliance with the provisions of the Pooling and Servicing Agreement
described above. Notwithstanding the foregoing, the Pooling and Servicing
Agreement provides that the Certificate Insurer may, in connection with a
subrogation of the Certificate Insurer to the rights of the Owners of the Class
A Certificates to an amount equal to Insured Payments for which the Certificate
Insurer has not received reimbursement, be considered to be an "Owner" to the
extent (but only to the extent) of such rights.
THE CERTIFICATE INSURER
The following information has been supplied by the Certificate Insurer
for inclusion in this Prospectus Supplement. The information set forth in this
section has been provided by the Certificate Insurer. No representation is made
by the Underwriters, the Sellers, the Servicer, the Depositor or any of their
affiliates as to the accuracy or completeness of such information.
The Certificate Insurer, in consideration of the payment of the premium
and subject to the terms of the Certificate Insurance Policies, thereby
unconditionally and irrevocably guarantees to any Owner that an amount equal to
each full and complete Insured Payment will be received by the Trustee or its
successor, as trustee for the Owners, 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 related Certificate Insurance 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 such Certificate Insurance Policy and no accelerated
Insured Payments shall be made regardless of any acceleration of the Class A
Certificates, unless such acceleration is at the sole option of the Certificate
Insurer.
Notwithstanding the foregoing paragraph, the Certificate Insurance
Policies do not cover shortfalls, if any, attributable to the liability of the
Trust, any 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 Class A Certificates against the
debtor which made such preference payment or otherwise with respect to such
preference payment 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 payment, 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 Owner and not to any Owner directly unless such
Owner has returned principal or interest paid on the Class A 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
Certificate Insurance Policy no later than 12:00 noon, New York City time, on
the later of the Payment Date on which the related Insured Payment is due or the
second Business Day following receipt in New York, New York, on a Business Day
by State Street Bank and Trust Company, N.A., 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 a claim under a Certificate Insurance
Policy, it shall be deemed not to have been received
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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 a Certificate Insurance Policy, unless
otherwise stated therein, will be disbursed by the Fiscal Agent to the Trustee
on behalf of 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 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 related Certificate
Insurance Policy.
As used in the related Certificate Insurance Policy, the following
terms shall have the following meanings:
"Agreement" means the Pooling and Servicing Agreement dated as
of December 1, 1996 among ContiSecurities Asset Funding Corp., as
Depositor, ContiMortgage Corporation, as Servicer and a Seller,
ContiWest Corporation, as a Seller and Manufacturers and Traders Trust
Company, as Trustee, without regard to any amendment or supplement
thereto unless such amendment or supplement 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 in 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.
"Insured Payment" means with respect to any Home Equity Loan
Group and any Payment Date, without duplication, (A) the excess, if
any, of (i) the sum of the related Current Interest and the then
existing Subordination Deficit for the related Home Equity Loan Group,
if any, over (ii) Total Available Funds (net of the Premium Amount for
such Home Equity Loan Group) after taking into account (x) the portion
of any Principal Distribution Amount to be actually distributed on such
Payment Date without regard to any Insured Payment to be made with
respect to such Payment Date and (y) the application of the
crosscollateralization provisions of the Trust plus (B) an amount equal
to the Preference Amount with respect to such Home Equity Loan Group.
"Notice" means the telephonic or telegraphic notice, promptly
confirmed in writing by telecopy substantially in the form of Exhibit A
attached to the Certificate Insurance 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 Payment Date.
"Owner" means each Owner (as defined in the Agreement) who, on
the applicable Payment Date, is entitled under the terms of the
applicable Class A Certificate to payment thereunder.
"Preference Amount" means any amount previously distributed to
an Owner on a Class A Certificate 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 each Certificate Insurance Policy and not
otherwise defined therein shall have the respective meanings set forth in the
Agreement as of the date of execution of such Certificate Insurance Policy,
without giving effect to any subsequent amendment to or modification of the
Agreement unless such amendment or modification has been approved in writing by
the Certificate Insurer.
Any notice under a Certificate Insurance Policy or service of process
on the Fiscal Agent of the Certificate Insurer may be made at the address listed
below for the Fiscal Agent of the Certificate Insurer or such other address as
the Certificate Insurer shall specify in writing to the Trustee.
The notice address of the Fiscal Agent is 15th Floor, 61 Broadway, New
York, New York, 10006, Attention: Municipal Registrar and Paying Agent, or such
other address as the Fiscal Agent shall specify to the Trustee in writing.
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Each Certificate Insurance 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 each Certificate Insurance Policy is not
covered by the Property/Casualty Insurance Security Fund specified in Article 76
of the New York Insurance Law.
The Certificate Insurance Policies are not cancelable for any reason.
The premium on a Certificate Insurance Policy is not refundable for any reason
including payment, or provision being made for payment, prior to the maturity of
the Offered Certificates.
The Certificate Insurer, formerly known as Municipal Bond Investors
Assurance Corporation, is the principal operating subsidiary of MBIA, Inc., a
New York Stock Exchange listed company. MBIA Inc. is not obligated to pay the
debts of or claims against the Certificate Insurer. The Certificate Insurer is
domiciled in the State of New York and licensed to do business in and is subject
to regulation under the laws of all 50 states, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands,
the Virgin Islands of the United States and the Territory of Guam. The
Certificate Insurer has two European branches, one in the Republic of France and
the other in the Kingdom of Spain. New York has laws prescribing minimum capital
requirements, limiting classes and concentrations of investments and requiring
the approval of policy rates and forms. State laws also regulate the amount of
both the aggregate and individual risks that may be insured, the payment of
dividends by the Certificate Insurer, changes in control and transactions among
affiliates. Additionally, the Certificate Insurer is required to maintain
contingency reserves on its liabilities in certain amounts and for certain
periods of time.
The consolidated financial statements of the Certificate Insurer, a
wholly owned subsidiary of MBIA Inc., and its subsidiaries as of December 31,
1995 and December 31, 1994 and for the three years ended December 31, 1995,
prepared in accordance with generally accepted accounting principles, included
in the Annual Report on Form 10-K of MBIA Inc. for the year ended December 31,
1995 and the consolidated financial statements of the Insurer and its
subsidiaries for the nine months ended September 30, 1996 and for the periods
ending September 30, 1996 and September 30, 1995 included in the Quarterly
Report on Form 10-Q of MBIA Inc. for the period ending September 30, 1996, are
hereby incorporated by reference into this Prospectus Supplement and shall be
deemed to be a part hereof. Any statement contained in a document incorporated
by reference herein shall be modified or superseded for purposes of this
Prospectus Supplement to the extent that a statement contained herein or in any
other subsequently filed document which also is incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus Supplement.
All financial statements of the Certificate Insurer and its
subsidiaries included in documents filed by MBIA Inc. pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the date of this Prospectus Supplement and prior to the
termination of the offering of the Certificates shall be deemed to be
incorporated by reference into this Prospectus Supplement and to be a part
hereof from the respective dates of filing such documents.
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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"):
SAP
---
December 31, September 30,
1995 1996
---- ----
(Audited) (Unaudited)
(in millions)
Admitted Assets $3,814 $4,348
Liabilities 2,540 2,911
Capital and Surplus 1,274 1,437
GAAP
----
December 31, September 30,
1995 1996
---- ----
(Audited) (Unaudited)
(in millions)
Assets $4,463 $4,861
Liabilities 1,937 2,161
Shareholder's Equity 2,526 2,700
--------------------
Copies of the financial statements of the Certificate Insurer
incorporated by reference herein and copies of the Certificate Insurer's 1995
year-end audited financial statements prepared in accordance with statutory
accounting practices are available, without charge, from the Certificate
Insurer. The address of the Certificate Insurer is 113 King Street, Armonk, New
York 10504. The telephone number of the Certificate Insurer is (914) 273-4545.
The Certificate Insurer does not accept any responsibility for the
accuracy or completeness of this Prospectus Supplement or any information or
disclosure contained herein, or omitted herefrom, other than with respect to the
accuracy of the information regarding the Certificate Insurance Policies and the
Certificate Insurer under the heading "THE CERTIFICATE INSURER." Additionally,
the Certificate Insurer makes no representations regarding the Certificates or
the advisability of investing in the Certificates.
Moody's rates the claims paying ability of the Certificate Insurer
"Aaa".
Standard & Poor's 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
Class A 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 Class
A Certificates. The Certificate Insurer does not guaranty the market price of
the Class A Certificates nor does it guaranty that the ratings on the Class A
Certificates will not be reversed or withdrawn.
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CREDIT ENHANCEMENT
Certificate Insurance Policies
See "The Certificate Insurer" herein for a description of the
Certificate Insurance Policies.
Overcollateralization Provisions
Overcollateralization Resulting from Cash Flow Structure. The Pooling
and Servicing Agreement requires that, on each Payment Date, Net Monthly Excess
Cashflow with respect to a Home Equity Loan Group be applied on such Payment
Date as an accelerated payment of principal on the related Classes of Class A
Certificates then entitled to receive distributions of principal but only to the
limited extent hereafter described. Net Monthly Excess Cashflow equals the
excess of (i) the excess, if any of (x) the interest which is collected on the
Home Equity Loans in such Home Equity Loan Group during a Remittance Period (net
of the Servicing Fee, the Trustee Fee, the Premium Amount with respect to such
Home Equity Loan Group) plus any Delinquency Advances and Compensating Interest
paid by the Servicer with respect to such Remittance Period over (y) the sum of
the interest which accrues on the related Classes of Class A Certificates during
the related Accrual Period (such difference, the "Total Monthly Excess Spread"
with respect to such Home Equity Loan Group), over (ii) the portion of the Total
Monthly Excess Cashflow that is used to cover shortfalls in Available Funds on
such Payment Date in the related Home Equity Loan Group.
This has the effect of accelerating the amortization of the related
Classes of Class A Certificates then entitled to receive distributions of
principal relative to the amortization of the Home Equity Loans in the related
Home Equity Loan Group. To the extent that any Net Monthly Excess Cashflow is
not so used (and is not required to satisfy requirements with respect to the
other Home Equity Loan Group), the Pooling and Servicing Agreement provides that
it will be used to reimburse the Servicer with respect to any amounts owing to
it, or paid to the Owners of the Subordinate Certificates.
Pursuant to the Pooling and Servicing Agreement, each Home Equity Loan
Group's Net Monthly Excess Cashflow will be applied as an accelerated payment of
principal on the Classes of Class A Certificates then entitled to receive
distributions of principal until the Subordinated Amount has increased to the
level required. "Subordinated Amount" means, with respect to each Home Equity
Loan Group and Payment Date, the excess, if any, of (x) the aggregate principal
balances of the Home Equity Loans in such Home Equity Loan Group as of the close
of business on the last day of the preceding Remittance Period over (y) the
related Class A Certificate Principal Balance as of such Payment Date after
taking into account the payment of the Class A Distribution Amount (except for
any Subordination Deficit or Subordination Increase Amount with respect to such
Group on such Payment Date). With respect to each Home Equity Loan Group, any
amount of Net Monthly Excess Cashflow actually applied as an accelerated payment
of principal is a "Subordination Increase Amount." The required level of the
Subordinated Amount for each Home Equity Loan Group with respect to a Payment
Date is the "Specified Subordinated Amount." The Pooling and Servicing Agreement
generally provides that the Specified Subordinated Amount may, over time,
decrease, or increase, subject to certain floors, caps and triggers.
In the event that the required level of the Specified Subordinated
Amount with respect to a Home Equity Loan Group is permitted to decrease or
"step down" on a Payment Date in the future, the Pooling and Servicing Agreement
provides that a portion of the principal which would otherwise be distributed to
the Owners of the related Class A Certificates on such Payment Date may be
distributed to the Owners of the Subordinate Certificates on such Payment Date.
This has the effect of decelerating the amortization of Class A Certificates
relative to the amortization of the Home Equity Loans and of reducing the
related Subordinated Amount. With respect to any Home Equity Loan Group and
Payment Date, the excess, if any, of (x) the Subordinated Amount on such Payment
Date after taking into account all distributions to be made on such Payment Date
(except for any distributions of Subordination Reduction Amounts as described in
this paragraph) over (y) the Specified Subordinated Amount is the "Excess
Subordinated Amount" for such Home Equity Loan Group and Payment Date. If, on
any Payment Date, the Excess Subordinated Amount is, or, after taking into
account all other distributions to be made on such Payment Date, would be,
greater than zero (i.e., the Subordinated Amount is or would be greater than the
related Specified Subordinated Amount), then any amounts relating to principal
which would otherwise be distributed to the Owners of the related Class A
Certificates then entitled to receive distributions of principal on such Payment
Date may instead be distributed to the Owners of the Subordinate Certificates in
an amount equal to the lesser of
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(x) the Excess Subordinated Amount and (y) the amount available for distribution
on account of principal with respect to the Class A Certificates then entitled
to receive distributions of principal on such Payment Date; such amount being
the "Subordination Reduction Amount" with respect to the related Home Equity
Loan Group for such Payment Date. As a result of the cash flow structure of the
Trust, Subordination Reduction Amounts may result even prior to the occurrence
of any decrease or "step down" in the Specified Subordinated Amount. That is
because the Owners of the Class A Certificates (other than the Class A-IO
Certificates) will, except for the provisions relating to the Subordination
Amount, be entitled to receive 100% of collected principal with respect to the
related Home Equity Loan Group even though the Class A Certificate Principal
Balance, following the accelerated amortization resulting from the application
of the Net Monthly Excess Cashflow, will be less than 100% of the related Home
Equity Loan Group's aggregate Loan Balance. Accordingly, in the absence of the
provisions relating to Subordination Reduction Amounts, the Subordinated Amount
would increase above the Specified Subordinated Amount requirements even without
the further application of any Net Monthly Excess Cashflow.
The Pooling and Servicing Agreement provides generally that, on any
Payment Date, all amounts collected on account of principal (other than any such
amount applied to the payment of a Subordination Reduction Amount) with respect
to a Home Equity Loan Group during the prior Remittance Period will be
distributed to the Owners of the related Class A Certificates then entitled to
receive distributions of principal on such Payment Date. If any Home Equity Loan
became a Liquidated Loan during such prior Remittance Period, the Net
Liquidation Proceeds related thereto and allocated to principal may be less than
the principal balance of the related Home Equity Loan; the amount of any such
insufficiency is a "Realized Loss." In addition, the Pooling and Servicing
Agreement provides that the principal balance of any Home Equity Loan which
becomes a Liquidated Loan shall thenceforth equal zero. The Pooling and
Servicing Agreement does not contain any provisions which require that the
amount of any Realized Loss be distributed to the Owners of the Class A
Certificates on the Payment Date which immediately follows the event of loss;
i.e., the Pooling and Servicing Agreement does not require the current recovery
of losses. However, the occurrence of a Realized Loss will reduce the
Subordinated Amount with respect to the related Home Equity Loan Group, which,
to the extent that such reduction causes the Subordinated Amount to be less than
the Specified Subordinated Amount applicable to the related Payment Date, will
require the payment of a Subordination Increase Amount on such Payment Date (or,
if insufficient funds are available on such Payment Date, on subsequent Payment
Dates, until the Subordinated Amount equals the related Specified Subordinated
Amount). The effect of the foregoing is to allocate losses to the Owners of the
Subordinate Certificates by reducing, or eliminating entirely, payments of
Monthly Excess Spread and of Subordination Reduction Amounts which such Owners
would otherwise receive.
Overcollateralization and the Certificate Insurance Policies. The
Pooling and Servicing Agreement defines a "Subordination Deficit" with respect
to a Home Equity Loan Group and Payment Date to be the amount, if any, by which
(x) the aggregate of the related Class A Certificate Principal Balances, after
taking into account all distributions to be made on such Payment Date (except
for the amount of any Subordination Deficit), exceeds (y) the aggregate
principal balances of the Home Equity Loans in the related Home Equity Loan
Group as of the close of business on the last day of the related Remittance
Period. The Pooling and Servicing Agreement requires the Trustee to make a claim
for an Insured Payment under the related Certificate Insurance Policy not later
than the third Business Day prior to any Payment Date as to which the Trustee
has determined that a Subordination Deficit will occur for the purpose of
applying the proceeds of such Insured Payment as a payment of principal to the
Owners of the Class A Certificates (other than the Class A-IO Certificates)
entitled to such Insured Payment on such Payment Date. Each Certificate
Insurance Policy is similar to the overcollateralization provisions described
above insofar as each Certificate Insurance Policy guarantees ultimate, rather
than current, payment of the amounts of any Realized Losses (to the extent of a
Subordination Deficit) to the Owners of the Class A Certificates (other than the
Class A-IO Certificates). Investors in the Class A Certificates (other than the
Class A-IO Certificates) should realize that, under extreme loss or delinquency
scenarios applicable to the Home Equity Loans, they may temporarily receive no
distributions of principal when they would otherwise be entitled thereto under
the principal allocation provisions described herein. Nevertheless, the exposure
to risk of loss of principal of the Owners of the Class A Certificates (other
than the Class A-IO Certificates) depends in part on the ability of the
Certificate Insurer to satisfy its obligations under the relevant Certificate
Insurance Policy. In that respect and to the extent that the Certificate Insurer
satisfies such obligations, the Owners of the Class A Certificates (other than
the Class A-IO Certificates) are insulated from shortfalls in Available Funds
(to the extent such shortfall results in a Subordination Deficit) that may
arise.
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Crosscollateralization Provisions
In addition to the use of Total Monthly Excess Spread and Net Monthly
Excess Cashflow with respect to a Home Equity Loan Group to cover related
Subordination Increase Amounts, Available Funds Shortfalls and Subordination
Deficits, such Total Monthly Excess Spread and Net Monthly Excess Cashflow will
be available to cover such requirements for the other Home Equity Loan Group as
described under the caption "Description of the Class A Certificates --
Distributions" herein.
THE POOLING AND SERVICING AGREEMENT
In addition to the provisions of the Pooling and Servicing Agreement
summarized elsewhere in the Prospectus and this Prospectus Supplement, there is
set forth below a summary of certain other provisions of the Pooling and
Servicing Agreement.
Covenant of the Sellers to Take Certain Actions with Respect to the Home Equity
Loans in Certain Situations
Pursuant to the Pooling and Servicing Agreement, upon the discovery by
the Depositor, either Seller, the Servicer, the Certificate Insurer, any
Sub-Servicer, any Owner or the Trustee that any representations and warranties
with respect to the Home Equity Loans were untrue in any material respect as of
the Closing Date with the result that the interests of the Owners or of the
Certificate Insurer are materially and adversely affected, the party discovering
such breach is required to give prompt written notice to the other parties.
Upon the earliest to occur of either Seller's discovery, its receipt of
notice of breach from any of the other parties or such time as a situation
resulting from an existing statement which is untrue materially and adversely
affects the interests of the Owners or the Certificate Insurer, such Seller will
be required promptly to cure such breach in all material respects or, on the
second Monthly Remittance Date next succeeding such discovery, receipt of notice
or such time, such Seller shall (i) substitute in lieu of each Home Equity Loan
which has given rise to the requirement for action by the Seller a Qualified
Replacement Mortgage (as such term is defined in the Pooling and Servicing
Agreement) and deliver the Substitution Amount to the Trustee on behalf of the
Trust as part of the Monthly Remittance remitted by the Servicer on such Monthly
Remittance Date or (ii) purchase such Home Equity Loan from the Trust at a
purchase price equal to the Loan Purchase Price (as defined below) thereof.
Notwithstanding any provision of the Pooling and Servicing Agreement to the
contrary, with respect to any Home Equity Loan which is not in default or as to
which no default is imminent, no such repurchase or substitution will be made
unless such Seller obtains for the Trustee and the Certificate Insurer an
opinion of counsel experienced in federal income tax matters and acceptable to
the Certificate Insurer to the effect that such a repurchase or substitution
would not constitute a Prohibited Transaction for the Trust or otherwise subject
the Trust to tax and would not jeopardize the status of the either the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC (a "REMIC Opinion")
addressed to the Trustee and the Certificate Insurer and acceptable to the
Trustee and the Certificate Insurer. Any Home Equity Loan as to which repurchase
or substitution was delayed pursuant to the Pooling and Servicing Agreement
shall be repurchased or substituted for (subject to compliance with the
provisions of the Pooling and Servicing Agreement) upon the earlier of (a) the
occurrence of a default or imminent default with respect to such Home Equity
Loan and (b) receipt by the Trustee and the Certificate Insurer of a REMIC
Opinion. In connection with any breach of a representation, warranty or covenant
or defect in documentation giving rise to such repurchase or substitution
obligation, each of the Sellers has agreed that it shall, at its expense,
furnish the Trustee and the Certificate Insurer with a REMIC Opinion as a result
of any such repurchase or substitution. The obligation of the Sellers so to
substitute or purchase any Home Equity Loan as to which such a statement set
forth below is untrue in any material respect and has not been remedied
constitutes the sole remedy respecting a discovery of any such statement which
is untrue in any material respect available to the Owners, the Trustee and the
Certificate Insurer.
"Loan Purchase Price" means the outstanding principal balance of the
related Home Equity Loan on the Cut-Off Date (assuming that all scheduled
principal payments due prior to the Cut-Off Date have been made), less any
principal amounts previously distributed to the Owners relating to such Home
Equity Loan (such amount, the "Loan Balance" of such Home Equity Loan) as of the
date of purchase (assuming that the Monthly Remittance remitted by the Servicer
on such Monthly Remittance Date has already been remitted), plus one month's
interest at the Coupon Rate together with the aggregate amount of all
unreimbursed Delinquency Advances and Servicing
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Advances theretofore made with respect to such Home Equity Loan, all Delinquency
Advances and Servicing Advances which the Servicer has theretofore failed to
remit with respect to such Home Equity Loan and all reimbursed Delinquency
Advances to the extent that reimbursement is not made from the Mortgagor or from
Liquidation Proceeds from the respective Home Equity Loan.
Assignment of Home Equity Loans
Pursuant to the Pooling and Servicing Agreement, each Seller on the
Closing Date will transfer, assign, set over and otherwise convey without
recourse to the Depositor and the Depositor will transfer, assign, set over and
otherwise convey without recourse to the Trustee in trust all of its respective
right, title and interest in and to each Home Equity Loan and all its respective
right, title and interest in and to principal and interest due on each such Home
Equity Loan after the Cut-Off Date; provided, however, that each Seller will
reserve and retain all of its right, title and interest in and to principal
(including Prepayments) and interest due on each Home Equity Loan on or prior to
the Cut-Off Date. Purely as a protective measure and not to be construed as
contrary to the parties' intent that the transfer on the Closing Date is a sale,
each Seller has also been deemed to have granted to the Depositor and the
Depositor has also been deemed to have granted to the Trustee a security
interest in the Trust Estate in the event that the transfer of the Trust Estate
is deemed to be a loan and not a sale.
In connection with the transfer and assignment of the Home Equity Loans
on the Closing Date, each Seller will be required to:
(i) deliver without recourse to the Trustee (A) the original
Notes or certified copies thereof, endorsed in blank or to the order of
the Trustee, (B) the original title insurance policy or a copy
certified by the issuer of the title insurance policy, or the
attorney's opinion of title, (C) originals or certified copies of all
intervening assignments, showing a complete chain of title from
origination to the Trustee, if any, including warehousing assignments,
with evidence of recording thereon, (D) originals of all assumption and
modification agreements, if any and (E) either: (1) the original
Mortgage, with evidence of recording thereon (if such original Mortgage
has been returned to such Seller from the applicable recording office)
or (2) a copy of the Mortgage certified by the public recording office
in those instances where the original recorded Mortgage has been lost;
(ii) cause, within 60 days following the Closing Date,
assignments of the Mortgages to "Manufacturers and Traders Trust
Company, as Trustee of ContiMortgage Home Equity Loan Trust 1996-4
under the Pooling and Servicing Agreement dated as of December 1, 1996"
to be submitted for recording in the appropriate jurisdictions;
provided, however, that a Seller shall not be required to prepare any
assignment of Mortgage for a Mortgage with respect to which the
original recording information is lacking or to record an assignment of
a Mortgage if such Seller furnishes to the Trustee and the Certificate
Insurer, on or before the Closing Date, at its expense an opinion of
counsel with respect to the relevant jurisdiction that such recording
is not required to perfect the Trustee's interests in the related
Mortgages Loans (in form satisfactory to the Certificate Insurer and
the Rating Agencies); and
(iii) deliver the title insurance policy, the original
Mortgages and such recorded assignments, together with originals or
duly certified copies of any and all prior assignments, to the Trustee
within 15 days of receipt thereof by the related Seller (but in any
event, with respect to any Mortgage as to which original recording
information has been made available to such Seller within one year
after the Closing Date).
The Trustee will agree, for the benefit of the Owners, to review each
File within 45 days after the Closing Date (or the date of receipt of any
documents delivered to the Trustee after such date) to ascertain that all
required documents (or certified copies of documents) have been executed and
received.
If the Trustee during such 45-day period finds any document
constituting a part of a File which is not properly executed, has not been
received, is unrelated to the Home Equity Loans or that any Home Equity Loan
does not conform in a material respect to the description thereof as set forth
in the Schedule of Home Equity Loans, the Trustee will be required to promptly
notify the Depositor, the appropriate Seller and the Certificate Insurer. Each
Seller will agree in the Pooling and Servicing Agreement to use reasonable
efforts to remedy a material defect in a document constituting part of a File of
which it is so notified by the Trustee. If, however, within 60 days after the
Trustee's notice to it respecting such defect the Seller shall not have remedied
the defect and the defect materially and adversely affects the interest in the
related Home Equity Loan of the Owners or of the Certificate
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Insurer, such Seller will be required on the next succeeding Monthly Remittance
Date to (or will cause an affiliate of the Seller to) (i) substitute in lieu of
such Home Equity Loan another Home Equity Loan of like kind (a "Qualified
Replacement Mortgage," as such term is defined in the Pooling and Servicing
Agreement) and deliver any "Substitution Amount" (the excess, if any, of the
Loan Balance of a Home Equity Loan being replaced over the outstanding principal
balance of a replacement Home Equity Loan plus accrued and unpaid interest) to
the Trustee on behalf of the Trust as part of the Monthly Remittance remitted by
the Servicer on such Monthly Remittance Date or (ii) purchase such Home Equity
Loan at a purchase price equal to the Loan Purchase Price thereof, which
purchase price shall be delivered to the Trust along with the Monthly Remittance
remitted by the Servicer on such Monthly Remittance Date.
In addition to the foregoing, the Trustee has agreed to make a review
during the 18th month after the Closing Date indicating the current status of
the exceptions previously noted by the Trustee (the "Final Certification").
After delivery of the Final Certification, the Trustee and the Servicer shall
provide to Certificate Insurer no less frequently than monthly updated
certifications indicating the then current status of exceptions, until all such
exceptions have been eliminated.
Servicing and Sub-Servicing
The Servicer is required to service the Home Equity Loans in accordance
with the Pooling and Servicing Agreement and the servicing standards set forth
in FNMA's Servicing Guide (the "FNMA Guide"); provided, however, that to the
extent such standards, such obligations or the FNMA Guide is amended by FNMA
after the date of the Pooling and Servicing Agreement and the effect of such
amendment would be to impose upon the Servicer any material additional costs or
other burdens relating to such servicing obligations, the Servicer may, at its
option, determine not to comply with such amendment.
The Servicer is entitled to the Servicing Fee to the extent received.
In addition, the Servicer will be entitled to retain additional servicing
compensation in the form of prepayment charges, release fees, bad check charges,
assumption fees, late payment charges, or any other servicing-related fees, Net
Liquidation Proceeds not required to be deposited in the Principal and Interest
Account pursuant to the Pooling and Servicing Agreement, and similar items.
The Servicer is required to create, or cause to be created, in the name
of the Trustee at one or more depository institutions a principal and interest
account maintained as a trust account in the trust department of such
institution (the "Principal and Interest Account"). All funds in the Principal
and Interest Account are required to be held (i) uninvested or (ii) invested in
Eligible Investments (as defined in the Pooling and Servicing Agreement). Any
investment of funds in the Principal and Interest Account must mature or be
withdrawable at par on or prior to the immediately succeeding Monthly Remittance
Date. Any investment earnings on funds held in the Principal and Interest
Account are for the account of, and any losses therein are also for the account
of and must be promptly replenished by, the Servicer.
The Servicer is required to deposit to the Principal and Interest
Account, within one business day following receipt, all principal collections on
the Home Equity Loans received, and interest collections on the Home Equity
Loans accrued after the Cut-Off Date, including any Prepayments, the proceeds of
any liquidation of a Home Equity Loan net of expenses and unreimbursed
Delinquency Advances ("Net Liquidation Proceeds"), any income from REO
Properties and Delinquency Advances, but net of (i) the Servicing Fee with
respect to each Home Equity Loan and other servicing compensation, (ii)
principal collected and interest accrued on any Home Equity Loan prior to the
Cut-Off Date, (iii) Net Liquidation Proceeds to the extent that such Net
Liquidation Proceeds exceed the sum of (I) the Loan Balance of the related Home
Equity Loan, plus (II) accrued and unpaid interest on such Home Equity Loan (net
of the Servicing Fee) to the date of such liquidation, (iv) reimbursements for
Delinquency Advances, and (v) reimbursement for amounts deposited in the
Principal and Interest Account representing payments of principal and/or
interest on a Note by a Mortgagor which are subsequently returned by a
depository institution as unpaid (all such net amounts being referred to herein
as the "Daily Collections").
The Servicer may make withdrawals for its own account from the amounts
on deposit in the Principal and Interest Account with respect to each Home
Equity Loan Group, in the following order and only for the following purposes:
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(i) to withdraw interest paid with respect to any Home Equity
Loans that had accrued for periods on or prior to the Cut-Off Date;
(ii) to withdraw investment earnings on amounts on deposit in
the Principal and Interest Account;
(iii) to reimburse itself for unrecovered Delinquency Advances
and Servicing Advances;
(iv) to withdraw amounts that have been deposited to the
Principal and Interest Account in error; and
(v) to clear and terminate the Principal and Interest Account
following the termination of the Trust.
The Servicer will remit to the Trustee for deposit in the Certificate
Account the Daily Collections allocable to a Remittance Period not later than
the related Monthly Remittance Date, and Loan Purchase Prices and Substitution
Amounts two Business Days following the related purchase or substitution, as the
case may be.
If the amount on deposit in the Certificate Account as of any Monthly
Remittance Date is less than the sum of (I) the Interest Remittance Amount (as
defined in the Pooling and Servicing Agreement) and (II) the Principal
Remittance Amount (as defined in the Pooling and Servicing Agreement) on such
Monthly Remittance Date, the Servicer is required to remit to the Trustee for
deposit to the Certificate Account a sufficient amount of its own funds to make
the total amount remitted to the Trustee equal to such sum. Such amounts of the
Servicer's own funds so deposited are "Delinquency Advances", including but not
limited to any amount advanced due to the invocation by a Mortgagor of the
relief provisions provided by the Soldiers' and Sailors' Civil Relief Act of
1940. The Servicer may reimburse itself, for any Delinquency Advances paid from
the Servicer's own funds, from collections on the Home Equity Loans with respect
to the related Home Equity Loan Group or from Net Monthly Excess Cashflow with
respect to the related Home Equity Loan Group as specified in the Pooling and
Servicing Agreement.
Notwithstanding the foregoing, if the Servicer determines that the
aggregate unreimbursed Delinquency Advances exceed the aggregate remaining
scheduled payments due from the Mortgagor on the Home Equity Loans, the Servicer
shall not be required to make any future Delinquency Advances and shall be
entitled to reimbursement for such aggregate unreimbursed Delinquency Advances
as provided in the immediately prior sentence. The Servicer shall give written
notice of such determination to the Trustee and the Certificate Insurer; the
Trustee shall promptly furnish a copy of such notice to the Owners of the
Subordinate Certificates; provided, further, that the Servicer shall be entitled
to recover any unreimbursed Delinquency Advances from the Liquidation Proceeds
for the related Home Equity Loans.
The Servicer will be required to pay all "out of pocket" costs and
expenses incurred in the performance of its servicing obligations, including,
but not limited to, (i) expenditures in connection with a foreclosed Home Equity
Loan prior to the liquidation thereof, including, without limitation,
expenditures for real estate property taxes, hazard insurance premiums, property
restoration or preservation ("Preservation Expenses"), (ii) the cost of any
enforcement or judicial proceedings, including foreclosures and (iii) the cost
of the management and liquidation of Property acquired in satisfaction of the
related Mortgage. Such costs will constitute "Servicing Advances." The Servicer
may reimburse itself for a Servicing Advance (x) to the extent permitted by the
Home Equity Loans or, if not theretofore recovered from the Mortgagor on whose
behalf such Servicing Advance was made, from Liquidation Proceeds realized upon
the liquidation of the related Home Equity Loan or (y) from Net Monthly Excess
Cashflow as specified in the Pooling and Servicing Agreement. Except as provided
above, in no case may the Servicer recover Servicing Advances from the principal
and interest payments on any other Home Equity Loan.
A full month's interest at the related Coupon Rate less the Servicing
Fee will be due to the Trust on the outstanding Loan Balance of each Home Equity
Loan as of the beginning of each Remittance Period. If a Prepayment of a Home
Equity Loan occurs during any calendar month, any difference between the
interest collected from the Mortgagor in connection with such prepayment and the
full month's interest at the Coupon Rate less the Servicing Fee ("Compensating
Interest") plus any Date-of-Payment interest shortfalls (but not in excess of
the aggregate Servicing Fee for the related Accrual Period), will be required to
be deposited to the Principal and Interest Account on the Monthly Remittance
Date by the Servicer and shall be included in the Monthly Remittance to be made
available to the Trustee on the next succeeding Monthly Remittance Date.
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The Servicer, and in the absence of the exercise thereof by the
Servicer, the Certificate Insurer, will have the right and the option, but not
the obligation, to purchase for its own account any Home Equity Loan which
becomes delinquent, in whole or in part, as to four consecutive monthly
installments or any Home Equity Loan as to which enforcement proceedings have
been brought by the Servicer. The purchase price for any such Home Equity Loan
is equal to the Loan Purchase Price thereof, which purchase price shall be
delivered to the Trustee.
The Servicer is required to cause to be liquidated any Home Equity Loan
relating to a Property as to which ownership has been effected in the name of
the Servicer on behalf of the Trust and which has not been liquidated within 23
months of such effecting of ownership at such price as the Servicer deems
necessary to comply with this requirement, or within such period of time as may,
in the opinion of counsel nationally recognized in federal income tax matters,
be permitted under the Code.
If so required by the terms of any Home Equity Loan, the Servicer will
be required to cause hazard insurance to be maintained with respect to the
related Property and to advance sums on account of the premiums therefor if not
paid by the Mortgagor if permitted by the terms of such Home Equity Loan.
The Servicer will have the right under the Pooling and Servicing
Agreement to accept applications of Mortgagors for consent to (i) partial
releases of Mortgages, (ii) alterations and (iii) removal, demolition or
division of Properties. No application for approval may be considered by the
Servicer unless: (i) the provisions of the related Note and Mortgage have been
complied with; (ii) the loan-to-value ratio and debt-to-income ratio after any
release does not exceed the maximum loan-to-value ratio and debt-to-income ratio
established in accordance with the underwriting standards set forth under the
caption "The Sellers and the Servicer--Credit and Underwriting Guidelines"
herein to be applicable to such Home Equity Loan; and (iii) the lien priority of
the related Mortgage is not affected.
The Servicer will be permitted under the Pooling and Servicing
Agreement to enter into Sub-Servicing Agreements for any servicing and
administration of Home Equity Loans with any institution which (i) is a FHLMC or
FNMA approved Seller-Servicer for second mortgage loans and has equity of at
least $5,000,000 or (ii) is an affiliate of the Servicer.
Notwithstanding any Sub-Servicing Agreement, the Servicer will not be
relieved of its obligations under the Pooling and Servicing Agreement and the
Servicer will be obligated to the same extent and under the same terms and
conditions as if it alone were servicing and administering the Home Equity
Loans. The Servicer shall be entitled to enter into any agreement with a
Sub-Servicer for indemnification of the Servicer by such Sub-Servicer and
nothing contained in such Sub-Servicing Agreement shall be deemed to limit or
modify the Pooling and Servicing Agreement.
The Servicer (except Manufacturers and Traders Trust Company if it is
required to succeed the Servicer under the Pooling and Servicing Agreement)
agrees to indemnify and hold the Trustee, the Certificate Insurer, and each
Owner harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs, fees
and expenses that the Trustee, the Certificate Insurer, and any Owner may
sustain in any way related to the failure of the Servicer to perform its duties
and service the Home Equity Loans in compliance with the terms of the Pooling
and Servicing Agreement. The Servicer shall immediately notify the Trustee, the
Certificate Insurer, and each Owner if a claim is made by a third party with
respect to the Pooling and Servicing Agreement, and the Servicer shall assume
(with the consent of the Trustee) the defense of any such claim and pay all
expenses in connection therewith, including reasonable counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against the Servicer, the Trustee, the Certificate Insurer and/or Owner in
respect of such claim. The Trustee may, if necessary, reimburse the Servicer
from amounts otherwise distributable on the Subordinate Certificates for all
amounts advanced by it pursuant to the preceding sentence except when the claim
relates directly to the failure of the Servicer to service and administer the
Home Equity Loans in compliance with the Pooling and Servicing Agreement.
The Servicer will be required to deliver to the Trustee, the
Certificate Insurer, and the Rating Agencies: (1) on or before March 31 of each
year, commencing in 1997, an officers' certificate stating, as to each signer
thereof, that (i) a review of the activities of the Servicer during such
preceding calendar year and of performance under the Pooling and Servicing
Agreement has been made under such officers' supervision, and (ii) to the best
of such officers' knowledge, based on such review, the Servicer has fulfilled
all its obligations under the Pooling and Servicing Agreement for such year, or,
if there has been a default in the fulfillment of all such obligation,
specifying
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each such default known to such officers and the nature and status thereof
including the steps being taken by the Servicer to remedy such default; and (2)
on or before June 30 of any year commencing in 1997,a letter or letters of a
firm of independent, nationally recognized certified public accountants
reasonably acceptable to the Certificate Insurer dated and as of the date of the
Servicer's fiscal audit stating that such firm has examined the Servicer's
overall servicing operations in accordance with the requirements of the Uniform
Single Attestation Program for Mortgage Bankers, and stating such firm's
conclusions relating thereto.
Removal and Resignation of Servicer
The Certificate Insurer or the Owners, with the consent of the
Certificate Insurer, will have the right pursuant to the Pooling and Servicing
Agreement, to remove the Servicer upon the occurrence of: (a) certain acts of
bankruptcy or insolvency on the part of the Servicer; (b) certain failures on
the part of the Servicer to perform its obligations under the Pooling and
Servicing Agreement; or (c) the failure to cure material breaches of the
Servicer's representations in the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement also provides that the Certificate
Insurer may remove the Servicer upon the occurrence of certain additional
events.
The Servicer is not permitted to resign from the obligations and duties
imposed on it under the Pooling and Servicing Agreement except upon
determination that its duties thereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it, the other activities of the Servicer so
causing such conflict being of a type and nature carried on by the Servicer on
the date of the Pooling and Servicing Agreement. Any such determination
permitting the resignation of the Servicer is required to be evidenced by an
opinion of counsel to such effect which shall be delivered to the Trustee and
the Certificate Insurer.
Upon removal or resignation of the Servicer, the Trustee (x) may
solicit bids for a successor servicer and (y) pending the appointment of a
successor Servicer as a result of soliciting such bids, shall serve as Servicer.
The Trustee, if it is unable to obtain a qualifying bid and is prevented by law
from acting as servicer, will be required to appoint, or petition a court of
competent jurisdiction to appoint, any housing and home finance institution,
bank or mortgage servicing institution designated as an approved seller-servicer
by the Federal Home Loan Mortgage Corporation ("FHLMC") or the Federal National
Mortgage Association ("FNMA") having equity of not less than $5,000,000, and
acceptable to the Certificate Insurer and the Owners of the Class R Certificates
(provided that if the Certificate Insurer and such Owners cannot agree as to the
acceptability of such successor Servicer, the decision of the Certificate
Insurer shall control) as the successor to the Servicer in the assumption of all
or any part of the responsibilities, duties or liabilities of the Servicer.
No removal or resignation of the Servicer will become effective until
the Trustee or a successor servicer shall have assumed the Servicer's
responsibilities and obligations in accordance with the Pooling and Servicing
Agreement.
The Trustee
Manufacturers and Traders Trust Company, a New York banking
corporation, having its principal corporate trust office at One M&T Plaza,
Buffalo, New York, 14240 will be named as Trustee under the Pooling and
Servicing Agreement.
Reporting Requirements
On each Payment Date the Trustee is required to report in writing to
each Owner and the Certificate Insurer:
(i) the amount of the distribution with respect to the related
Class of the Class A Certificates and the Subordinate Certificates
(based on a Certificate in the original principal amount of $1,000);
(ii) the amount of such distribution allocable to principal on
the Home Equity Loans in each Group, separately identifying the
aggregate amount of any Prepayments or other recoveries of principal
included therein, and any Subordination Increase Amount with respect to
each such Group;
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(iii) the amount of such distribution allocable to interest on the
related Home Equity Loans in each Group (based on a Certificate in the
original principal amount of $1,000);
(iv) if the distribution (net of any Insured Payment) to the
Owners of any Class of the Class A Certificates on such Payment Date
was less than the related Class A Distribution Amount on such Payment
Date, the Carry-Forward Amount and the allocation thereof to the
related Classes of the Class A Certificates resulting therefrom;
(v) the amount of any Insured Payment included in the amounts
distributed to the Owners of each Class of the Class A Certificates on
such Payment Date;
(vi) the principal amount (or Notional Principal Amount) of each
Class of the Class A Certificates (based on a Certificate in the
original principal (or notional principal) amount of $1,000) which will
be outstanding after giving effect to any payment of principal on such
Payment Date;
(vii) the aggregate Loan Balance of all Home Equity Loans and the
aggregate Loan Balance of the Home Equity Loans in each Group after
giving effect to any payment of principal on such Payment Date;
(viii) the Subordinated Amount and Subordination Deficit for each
Group, if any, remaining after giving effect to all distributions and
transfers on such Payment Date;
(ix) based upon information furnished by the Seller such
information as may be required by Section 6049(d)(7)(C) of the Code and
the regulations promulgated thereunder to assist the Owners in
computing their market discount;
(x) the total of any Substitution Amounts or Loan Purchase Price
amounts included in such distribution with respect to each Group;
(xi) the weighted average Coupon Rate of the Home Equity Loans
with respect to each Group;
(xii) the amount on deposit in the Supplemental Interest Account
and any amounts distributed from such account on such Payment Date;
(xiii) such other information as the Certificate Insurer may
reasonably request with respect to delinquent Home Equity Loans; and
(xiv) the largest Home Equity Loan balance outstanding.
Certain obligations of the Trustee to provide information to the Owners
are conditioned upon such information being received from the Servicer.
In addition, on each Payment Date the Trustee will be required to
distribute to each Owner and the Certificate Insurer, together with the
information described above, the following information prepared by the Servicer
and furnished to the Trustee for such purpose and with respect to each Home
Equity Loan Group;
(a) the number and aggregate principal balances of Home Equity
Loans (i) 30-59 days delinquent, (ii) 60-89 days delinquent and (ii) 90
or more days delinquent, as of the close of business on the last
business day of the calendar month next preceding the Payment Date and
the Class A Certificate Principal Balance as of such Payment Date and
the number and aggregate Loan Balances of all Home Equity Loans and
related data;
(b) the status and the number and dollar amounts of all Home
Equity Loans in foreclosure proceedings as of the close of business on
the last business day of the calendar month next preceding such Payment
Date;
(c) the number of Mortgagors and the Loan Balances of the
related Mortgages involved in bankruptcy proceedings as of the close of
business on the last business day of the calendar month next preceding
such Payment Date;
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(d) the existence and status of any Properties as to which
title has been taken in the name of, or on behalf of the Trustee, as of
the close of business of the last business day of the month next
preceding the Payment Date;
(e) the book value of any real estate acquired through
foreclosure or grant of a deed in lieu of foreclosure as of the close
of business on the last business day of the calendar month next
preceding the Payment Date; and
(f) the amount of cumulative Realized Losses.
Removal of Trustee for Cause
The Trustee may be removed upon the occurrence of any one of the
following events (whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body) on the part of the Trustee: (1) failure to
make distributions of available amounts; (2) certain breaches of covenants and
representations by the Trustee; (3) certain acts of bankruptcy or insolvency on
the part of the Trustee; and (4) failure to meet the standards of Trustee
eligibility as set forth in the Pooling and Servicing Agreement.
If any such event occurs and is continuing, then and in every such case
(i) the Certificate Insurer or (ii) with the prior written consent of the
Certificate Insurer (which is required not to be unreasonably withheld) (x) the
Sellers or (y) the Owners of a majority of the Percentage Interests represented
by the Class A Certificates or, if there are no Class A Certificates then
Outstanding, by a majority of the Percentage Interests represented by the Class
R Certificates, may appoint a successor trustee.
Governing Law
The Pooling and Servicing Agreement and each Certificate will be
construed in accordance with and governed by the laws of the State of New York
applicable to agreements made and to be performed therein.
Amendments
The Trustee, the Depositor, the Sellers and the Servicer with the
consent of the Certificate Insurer may, at any time and from time to time and
without notice to or the consent of the Owners, amend the Pooling and Servicing
Agreement, and the Trustee and the Certificate Insurer will be required to
consent to such amendment, for the purposes of (i) if accompanied by an
approving opinion of counsel experienced in federal income tax matters, removing
the restriction against the transfer of a Class R Certificate to a Disqualified
Organization (as such term is defined in the Code), (ii) complying with the
requirements of the Code including any amendments necessary to maintain REMIC
status, (iii) curing any ambiguity, (iv) correcting or supplementing any
provisions therein which are inconsistent with any other provisions therein or
(v) for any other purpose, provided that in the case of clause (v), (A) the
appropriate Seller delivers an opinion of counsel acceptable to the Trustee that
such amendment will not adversely effect in any material respect the interest of
the Owners and (B) such amendment will not result in a withdrawal or reduction
of the rating of the Class A Certificates without regard to the related
Certificate Insurance Policy. Notwithstanding anything to the contrary, no such
amendment shall (a) change in any manner the amount of, or delay the timing of,
payments which are required to be distributed to any Owner without the consent
of the Owner of such Certificate, (b) change the percentages of Percentage
Interest which are required to consent to any such amendments, without the
consent of the Owners of all Certificates of the Class or Classes affected then
outstanding or (c) which affects in any manner the terms or provisions of the
Certificate Insurance Policies.
The Trustee will be required to furnish written notification of the
substance of any such amendment to each Owner in the manner set forth in the
Pooling and Servicing Agreement.
Termination of the Trust
The Pooling and Servicing Agreement provides that the Trust will
terminate upon the payment to the Owners of all Certificates from amounts other
than those available under the Certificate Insurance Policies of all amounts
required to be paid to such Owners upon the last to occur of (a) the final
payment or other liquidation (or any advance made with respect thereto) of the
last Home Equity Loan, (b) the disposition of all property acquired
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in respect of any Home Equity Loan remaining in the Trust Estate and (c) at any
time when a Qualified Liquidation of the Trust Estate is effected as described
below. To effect a termination pursuant to clause (c) above, the Owners of all
Certificates then outstanding will be required (i) unanimously to direct the
Trustee on behalf of the Lower-Tier REMIC to adopt a plan of complete
liquidation, as contemplated by Section 860F(a)(4) of the Code and (ii) to
furnish to the Trustee an opinion of counsel experienced in federal income tax
matters acceptable to the Certificate Insurer and the Trustee to the effect that
such liquidation constitutes a Qualified Liquidation.
Optional Termination
By Owners of Class R Certificates. At their option, the Owners of a
majority of the Percentage Interest represented by the Class R Certificates then
outstanding or in certain limited circumstances the Certificate Insurer may, on
any Payment Date when the aggregate outstanding Loan Balances of the Home Equity
Loans is less than 10% of the original aggregate Loan Balance as of the Closing
Date (the "Clean-Up Call Date"), purchase from the Trust all (but not fewer than
all) remaining Home Equity Loans, in whole only, and other property acquired by
foreclosure, deed in lieu of foreclosure, or otherwise then constituting the
Trust Estate (i) on terms agreed upon between the Certificate Insurer and such
Owners of the Class R Certificates, or (ii) in the absence of such agreement at
a price equal to 100% of the aggregate Loan Balance of the related Home Equity
Loans as of the day of purchase minus amounts remitted from the Principal and
Interest Account to the Certificate Account representing collections of
principal on the Home Equity Loans during the current Remittance Period, plus
one month's interest on such amount computed at the Adjusted Pass-Through Rate
(as defined in the Pooling and Servicing Agreement), plus all accrued and unpaid
Servicing Fees plus the aggregate amount of any unreimbursed Delinquency
Advances and Servicing Advances and Delinquency Advances which the Servicer has
theretofore failed to remit.
Termination Upon Loss of REMIC Status. Following a final determination
by the Internal Revenue Service or by a court of competent jurisdiction, in
either case from which no appeal is taken within the permitted time for such
appeal, or if any appeal is taken, following a final determination of such
appeal from which no further appeal can be taken, to the effect that either the
Upper-Tier REMIC or Lower-Tier the REMIC does not and will no longer qualify as
a "REMIC" pursuant to Section 860D of the Code (the "Final Determination"), at
any time on or after the date which is 30 calendar days following such Final
Determination the Certificate Insurer or the Owners of a majority in Percentage
Interests represented by the Class A Certificates then Outstanding with the
consent of the Certificate Insurer may direct the Trustee on behalf of the Trust
to adopt a plan of complete liquidation, as contemplated by Section 860F(a)(4)
of the Code.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following discussion of certain of the material anticipated federal
income tax consequences of the purchase, ownership and disposition of the Class
A Certificates is to be considered only in connection with "Certain Federal
Income Tax Consequences" in the Prospectus. The discussion herein and in the
Prospectus is based upon laws, regulations, rulings and decisions now in effect,
all of which are subject to change. The discussion below and in the Prospectus
does not purport to deal with all federal tax consequences applicable to all
categories of investors, some of which may be subject to special rules.
Investors should consult their own tax advisors in determining the federal,
state, local and any other tax consequences to them of the purchase, ownership
and disposition of the Class A Certificates.
REMIC Elections
The Trust Estate created by the Pooling and Servicing Agreement will
consist of two segregated asset pools with respect to which elections will be
made to treat each as a separate REMIC for federal income tax purposes. The
Lower-Tier REMIC will issue several uncertificated subclasses of non-voting
interests and certain Subordinate Certificates (the "Lower-Tier REMIC Regular
Interests"), which will be designated as the regular interests in the Lower-Tier
REMIC, and the Class R Certificate, which will be designated as the residual
interest in the Lower-Tier REMIC. The assets of the Lower-Tier REMIC will
consist of the Home Equity Loans and all other property in the Trust Estate
except for the property in the Trust Estate allocated to the Upper-Tier REMIC.
The Upper-Tier REMIC will issue the Class A Certificates which will be
designated as the regular interests in the Upper-Tier REMIC, and an
uncertificated "Upper-Tier REMIC Residual Interest," which will be designated as
the residual interest in the Upper-Tier REMIC. The assets of the Upper-Tier
REMIC will consist of the Lower-Tier REMIC Regular Interests (other than certain
Subordinate Certificates). See "Formation of the Trust and Trust Property"
herein.
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The Fixed Rate Group Certificates are expected to be sold at a slight
discount. See "Certain Federal Income Tax Consequences -- Taxation of Regular
Certificates -- Original Issue Discount" in the Prospectus.
Qualification as a REMIC requires ongoing compliance with certain
conditions. Arter & Hadden, special tax counsel, is of the opinion that, for
federal income tax purposes, assuming (i) the REMIC elections are made and (ii)
compliance with the Pooling and Servicing Agreement, each REMIC will be treated
as a REMIC, the Class A Certificates (other than the Class A-1 Certificates)
will be treated as "regular interests" in the Upper-Tier REMIC, the Upper-Tier
REMIC Residual Interest will be treated as the sole "residual interest" in the
Upper-Tier REMIC and the Class R Certificates will be the sole "residual
interest" in the Lower-Tier REMIC. The Class A-1 Certificates will be comprised
of (x) a "regular interest" in the Upper-Tier REMIC and (y) the right to receive
the Supplemental Interest Amount. Except as indicated below and in the
Prospectus, for federal income tax purposes, regular interests in a REMIC are
treated as debt instruments issued by the REMIC on the date on which those
interests are created, and not as ownership interests in the REMIC or its
assets. Owners of the Class A Certificates that otherwise report income under a
cash method of accounting will be required to report income with respect to such
Class A Certificates under an accrual method.
The prepayment assumption for the Fixed Rate Group Certificates and the
Class A-11IO Certificates for calculating original issue discount is 120% of the
Prepayment Assumption. The prepayment assumption for the Class A-10 Certificates
and Class A-12IO Certificates for calculating original issue discount is 21%
CPR. See "Prepayment and Yield Considerations -- Projected Prepayment and Yield
for Class A Certificates" herein.
As a result of the qualification of the Lower-Tier REMIC and the
Upper-Tier REMIC as REMICs, the Trust will not be subject to federal income tax
except with respect to (i) income from prohibited transactions, (ii) "net income
from foreclosure property" and (iii) certain contributions to the Trust after
the Closing Date (see "Certain Federal Income Tax Consequences" in the
Prospectus). The total income of the Trust (exclusive of any income that is
taxed at the REMIC level) will be taxable to the Beneficial Owners of the
Certificates.
Under the laws of New York State and New York City, an entity that is
treated for federal income tax purposes as a REMIC generally is exempt from
entity level taxes imposed by those jurisdictions. This exemption does not
apply, however, to the income on the Class A Certificates.
The Class A-1 Certificates
The Owners of the Class A-1 Certificates will be treated for tax
purposes as owning two separate investments: (i) a regular interest in the
Upper-Tier REMIC without the right to receive the Supplemental Interest Amount
and (ii) the right to receive the Supplemental Interest Amount. The Owners of
Class A-1 Certificates must allocate the purchase price of such Certificates
between these two investments based on their relative fair market value. The
purchase price allocated to the first investment will be the issue price of the
regular interest portion of the Class A-1 Certificates for calculating accruals
of original issue discount (if any). See "Certain Federal Income Tax
Consequences-Premium and Discount" in the Prospectus.
Because of the right to receive the Supplemental Interest Amount, an
Owner of a Class A-1 Certificate will be treated for federal income tax purposes
as having entered into a notional principal contract on the date it purchases
its Certificate. Treasury Regulations under Section 446 of the Code relating to
notional principal contracts (the "Notional Principal Contract Regulations")
provide that taxpayers must recognize periodic payments with respect to a
notional principal contract under the accrual method of accounting. Any
Supplemental Interest Amount will be periodic payments. Income with respect to
periodic payments under a notional principal contract for a taxable year should
constitute ordinary income. The purchase price of the Class A-1 Certificates
allocated to the right to receive the Supplemental Interest Amount will be
treated as a nonperiodic payment under the Notional Principal Contract
Regulations. Such a nonperiodic payment may be amortized and deducted from an
Owner of a Class A-1 Certificate's income using several methods, including the
level payment method described in the Notional Principal Contract Regulations.
The right of an Owner of the Class A-1 Certificate to receive the
Supplemental Interest Amount will not constitute: (i) a "real estate asset"
within the meaning of Section 858(c)(5)(A) of the Internal Revenue Code (the
"Code") if held by a real estate investment trust; (ii) a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code or a "permitted investment"
within the meaning of Section 860G(a)(5) of the Code if held by a REMIC; or
(iii) an asset described in Section 7701(a)(19)(C)(xi) of the Code if held by a
thrift. Moreover,
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other special rules may apply to certain investors, including dealers in
securities and dealers in notional principal contracts.
Taxation of Foreign Investors
In general, foreign investors will not be subject to U.S. withholding
on income from the Supplemental Interest Amounts [See "Certain Federal Income
Tax Consequences-Taxation of Certain Foreign Investors" in the Prospectus].
Prospective investors in the Class A-1 Certificates should consult with their
tax advisors concerning the tax treatment of the Class A-1 Certificates.
ERISA CONSIDERATIONS
The Employee Retirement Income Security Act of 1974, as amended
("ERISA") and the Code impose certain restrictions on employee benefit plans
subject to ERISA and other plans or arrangements subject to Section 4975 of the
Code ("Plans") and on persons who are parties in interest or disqualified
persons ("parties in interest") with respect to such Plans. Certain employee
benefit plans, such as governmental plans and church plans (if no election has
been made under section 410(d) of the Code), are not subject to the restrictions
of ERISA, and assets of such plans may be invested in the Certificates without
regard to the ERISA considerations described below, subject to other applicable
federal and state law. However, any such governmental or church plan which is
qualified under section 401(a) of the Code and exempt from taxation under
section 501(a) of the Code is subject to the prohibited transaction rules set
forth in section 503 of the Code.
Investments by Plans are subject to ERISA's general fiduciary
requirements, including the requirement of investment prudence and
diversification and the requirement that a Plan's investments be made in
accordance with the documents governing the Plan.
Section 406 of ERISA prohibits parties in interest with respect to a
Plan from engaging in certain transactions ("prohibited transactions") involving
a Plan and its assets unless a statutory or administrative exemption applies to
the transaction. Section 4975 of the Code imposes certain excise taxes (or, in
some cases, a civil penalty may be assessed pursuant to section 502(i) of ERISA)
on parties in interest which engage in non-exempt prohibited transactions.
The United States Department of Labor ("DOL") has issued a final
regulation (29 C.F.R. Section 2510.3- 101) containing rules for determining what
constitutes the assets of a Plan. This regulation provides that, as a general
rule, the underlying assets and properties of corporations, partnerships, trusts
and certain other entities in which a Plan makes an "equity investment" will be
deemed for purposes of ERISA to be assets of the Plan unless certain exceptions
apply.
Under the terms of the regulation, the Trust may be deemed to hold plan
assets by reason of a Plan's investment in a Certificate; such plan assets would
include an undivided interest in the Home Equity Loans and any other assets held
by the Trust. In such an event, persons providing services with respect to the
assets of the Trust, may be parties in interest, subject to the fiduciary
responsibility provisions of Title I of ERISA, including the prohibited
transaction provisions of Section 406 of ERISA (and of Section 4975 of the
Code), with respect to transactions involving such assets unless such
transactions are subject to a statutory or administrative exemption.
The DOL has granted administrative exemptions to each of the
Underwriters (collectively, the "Exemptions"), which exempt from the application
of certain of the prohibited transaction rules of ERISA transactions relating to
(i) the initial purchase, the holding and the subsequent resale by Plans of
certificates representing interests in certain asset-backed pass-through trusts
with respect to which any Underwriter or any of its affiliates is the sole
underwriter or the manager or co-manager of the underwriting syndicate; and (ii)
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 Exemptions are satisfied.
The general conditions which must be satisfied for the Exemption to
apply to the Class A Certificates are the following:
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(i) the acquisition of the Class A Certificates by a Plan is on terms
(including the price for the Class A Certificates) that are at least as
favorable to the Plan as they would be in an arm's length transaction with an
unrelated party;
(ii) the rights and interests evidenced by the Class A Certificates
acquired by the Plan are not subordinated to the rights and interests evidenced
by other certificates of the Trust;
(iii) the Class A Certificates acquired by the Plan have received a
rating at the time of such acquisition that is in one of the three highest
generic rating categories from any of Standard & Poor's, Moody's, Fitch
Investors Service, L.P. or Duff & Phelps Credit Rating Co.;
(iv) the Trustee is not an affiliate of the Underwriters, the
Depositor, the Sellers, the Servicer, any sub-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");
(v) the sum of all payments made to, and retained by, the Underwriters
in connection with the distribution of the Class A Certificates represents not
more than reasonable compensation for underwriting the Class A Certificates; the
sum of all payments made to and retained by the Depositor 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; and the sum of all payments made to and
retained by the Servicer represents not more than reasonable compensation for
the Servicer's services under the Pooling and Servicing Agreement and
reimbursement of the Servicer's reasonable expenses in connection therewith; and
(vi) the Plan investing in the Class A Certificates is an "accredited
investor" as defined in Rule 501(a)(1) of Regulation D of the Securities and
Exchange Commission under the Securities Act of 1933, as amended.
Section I.A of the Exemptions would provide an exemption from the
restrictions of sections 406(a) and 407(a) of ERISA as well as the excise taxes
imposed by sections 4975(a) and (b) of the Code by reason of sections
4975(c)(1)(A) through (D) of the Code with respect to a Plan's investment in the
Class A Certificates upon their initial offering or in the secondary market
therefor and the Plan's continued holding of such Certificates if the
above-described general conditions of the Exemptions are satisfied.
Section I.B of the Exemptions would provide an exemption from the
restrictions of sections 406(b)(1) and 406(b)(2) of ERISA as well as the excise
taxes imposed by sections 4975(a) and (b) of the Code by reason of section
4975(c)(1)(E) of the Code with respect to a Plan's investment in the Class A
Certificates upon their initial offering or in the secondary market therefor and
the Plan's continued holding of such Certificates if, in addition to the
above-described general conditions of the Exemptions, the following conditions
are satisfied: (i) such Plan is not sponsored by a member of the Restricted
Group; (ii) at least 50% of each Class of Class A Certificates is acquired by
persons independent of the Restricted Group and at least 50% of the aggregate
interest in the Trust is acquired by persons independent of the Restricted
Group; (iii) the total investment of such Plan in each Class of Class A
Certificates does not exceed 25% of all such Class of Class A Certificates
outstanding at the time of the acquisition; and (iv) immediately after such
investment, no more than 25% of the assets of such Plan are invested in
certificates representing an interest in a trust containing assets sold or
serviced by the same entity.
Section I.C of the Exemptions would provide an exemption from the
restrictions of sections 406(a), 406(b) and 407(a) of ERISA as well as the
excise taxes imposed by sections 4975(a) and (b) of the Code by reason of
section 4975(c) of the Code with respect to the servicing, management and
operation of the Trust if, in addition to the above-described general conditions
of the Exemptions, the following conditions are satisfied: (i) such transactions
are carried out in accordance with the terms of the Pooling and Servicing
Agreement, and (ii) the Pooling and Servicing Agreement is made available to
investors prior to their investment in the Trust.
Section I.D of the Exemptions would provide an exemption from the
restrictions of sections 406(a) and 407(a) of ERISA as well as the excise taxes
imposed by sections 4975(a) and (b) of the Code by reason of sections
4975(c)(1)(A) through (D) of the Code with respect to transactions to which
those restrictions or taxes would otherwise apply merely because a person is
deemed to be a party in interest or a disqualified person (including a
fiduciary) with respect to a Plan by virtue of providing services to the Plan
(or by virtue of having a relationship
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to such service provider described in section 3(14)(F), (G), (H) or (I) of ERISA
or section 4975(e)(2)(F), (G), (H), or (I) of the Code), solely because of the
Plan's ownership of the Class A Certificates.
Any person purchasing a Class A-1 Certificate (including the related
right to receive the Supplemental Interest Amount) will have acquired, for
purposes of ERISA and for federal income tax purposes, such Class A-1
Certificate without the right to receive the Supplemental Interest Amount,
together with the right to receive the Supplemental Interest Amount. The
Exemptions do not apply to the acquisition of the right to receive the
Supplemental Interest Amount. Accordingly, the acquisition, holding or resale of
the right to receive the Supplemental Interest Amount by a Plan could result in
a prohibited transaction unless another administrative exemption to ERISA's
prohibited transaction rules is applicable. One or more alternative exemptions
may be available with respect to certain prohibited transaction rules of ERISA
that might apply in connection with the initial purchase, holding and resale of
the Supplemental Interest Amount, including, but not limited to: (i) PTCE 91-38,
regarding investments by bank collective investment funds; (i) PTCE 90-1,
regarding investments by insurance company pooled separate accounts; (iii) PTCE
84-14, regarding transactions negotiated by qualified professional asset
managers; or (iv) PTCE 75-11, Part II, regarding principal transactions by
broker-dealers (the "Principal Transactions Exemption"). It is believed that the
conditions of the Principal Transactions Exemption will be met with respect to
the acquisition of a right to the Supplemental Interest Amount by a Plan, so
long as none of the Underwriters is a fiduciary with respect to the Plan (and is
not a party in interest with respect to the Plan by reason of being a
participating employer or affiliate thereof).
Before purchasing Class A-1 Certificates based on an administrative
exemption (or exemptions), a fiduciary of a Plan should determine whether the
conditions of such exemption (or exemptions) would be met and whether the scope
of the relief provided by such exemption (or exemptions) would cover all acts
that might be construed as prohibited transactions.
Before purchasing a Class A Certificate, a fiduciary of a Plan should
make its own determination as to the availability of the exemptive relief
provided in the Exemptions, and whether the conditions of the Exemptions will be
applicable to such Class A Certificate. Any fiduciary of a Plan considering
whether to purchase a Class A Certificate should consult with its own legal
advisors concerning the impact of ERISA and the Code and the potential
consequences to its specific circumstances, prior to making an investment in the
Certificates. Prospective Plan investors in the Class A-1 Certificates should
also consult with their legal advisors concerning the impact of ERISA and the
Code on the acquisition and holding of the right to receive the Supplemental
Interest Amount, the applicability of an administrative exemption (other than
the Exemptions) with respect to such purchase and holding and the potential
consequences in their specific circumstances prior to making an investment in
the Class A-1 Certificates. Moreover, each Plan fiduciary should determine
whether under the general fiduciary standards of investment procedure and
diversification an investment in the Certificate is appropriate for the Plan,
taking into account the overall investment of the Plan and the composition of
the Plan's investment portfolio.
In addition to the matters described above, purchasers of a Class A
Certificate that are insurance companies should consult with their counsel with
respect to the recent United States Supreme Court case interpreting the
fiduciary responsibility rules of ERISA, John Hancock Mutual Life Insurance Co.
v. Harris Trust and Savings Bank 114 S.Ct. 517 (1993). In John Hancock, the
Supreme Court ruled that assets held in an insurance company's general account
may be deemed to be "plan assets" for ERISA purposes under certain
circumstances. Prospective purchasers using insurance company general account
assets should determine whether the decision affects their ability to make
purchases of the Class A Certificates.
RATINGS
It is a condition of the issuance of the Class A Certificates that the
Class A Certificates (other than the Class A-IO Certificates) receive ratings of
"AAA" by Standard & Poor's, "Aaa" by Moody's and "AAA" by Fitch. It is a
condition of issuance of the Class A-IO Certificates that they be rated "AAAr"
by Standard & Poor's, "Aaa" by Moody's and "AAA" by Fitch. The ratings assigned
to the Class A Certificates will be based primarily on the claims-paying ability
of the Certificate Insurer. Explanations of the significance of such ratings may
be obtained from Moody's, 99 Church Street, New York, New York 10007, Standard &
Poor's, 25 Broadway, New York, New York 10004 and Fitch, One State Street Plaza,
33rd Floor, New York, New York 10004. Such ratings will be the views only of
such rating agencies. There is no assurance that such ratings will continue for
any period of time or that such ratings will not be revised or withdrawn. Any
such revision or withdrawal of such ratings may
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have an adverse effect on the market price of the Class A Certificates. A
security rating is not a recommendation to buy, sell or hold securities.
Ratings which are assigned to securities such as the Class A-IO
Certificates generally evaluate the ability of the seller (i.e., the Trust) and
any guarantor (i.e., the Certificate Insurer) to make payments, as required by
such securities. The amounts distributable on the Class A-IO Certificates
consist only of interest. In general, the ratings address credit risk and not
prepayment risk. If all of the Home Equity Loans were to prepay in the initial
month, with the result that investors in the Class A-IO Certificates receive
only a single month's interest and thus suffer a nearly complete loss of their
investment, all amounts "due" to such Owners will nevertheless have been paid,
and such result is consistent with the "AAAr/Aaa/AAA" ratings received on the
Class A-IO Certificates.
The "r" symbol is appended to the rating by Standard & Poor's of the
Class A-IO Certificates because they are interest-only Certificates that
Standard & Poor's believes may experience high volatility or high variability in
expected returns due to non-credit risks created by the terms of such
Certificates. The absence of an "r" symbol in the rating of the other Classes of
Class A Certificates should not be taken as an indication that such Certificates
will experience no volatility or variability in total return.
LEGAL INVESTMENT CONSIDERATIONS
Although the Fixed Rate Group Certificates and the Class A-11IO
Certificates are expected to be rated "AAA" or "AAAr" by Standard & Poor's,
"Aaa" by Moody's and "AAA" by Fitch, such Certificates will not constitute
"mortgage related securities" for purposes of SMMEA because the Home Equity
Loans in the Fixed Rate Group include second liens. 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 Fixed
Rate Group Certificates.
The Adjustable Rate Group Certificates and the Class A-12IO
Certificates will constitute "mortgage related securities" for purposes of SMMEA
for so long as they are rated in one of the two highest rating categories by one
or more nationally recognized statistical rating organizations. As such, the
Adjustable Rate Group Certificates and the Class A-12IO Certificates will be
legal investments for certain entities to the extent provided in SMMEA, subject
to state laws overriding SMMEA. In addition, institutions whose investment
activities are subject to review by federal or state regulatory authorities may
be or may become subject to restrictions, which may be retroactively imposed by
such regulatory authorities, on the investment by such institutions in certain
forms of mortgage related securities. Furthermore, certain states have enacted
legislation overriding the legal investment provisions of SMMEA. In addition,
institutions whose activities are subject to review by federal or state
regulatory authorities may be or may become subject to restrictions, which may
be retroactively imposed by such regulatory authorities, on the investment by
such institutions in certain forms of mortgage related securities.
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting
Agreement relating to the Certificates (the "Underwriting Agreement"), the
Depositor has agreed to cause the Trust to sell to each of the Underwriters
named below (the "Underwriters"), and each of the Underwriters has severally
agreed to purchase, the principal amount or Percentage Interest of the Class A
Certificates set forth opposite its name below:
Class A-1 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $16,110,000
CS First Boston Corporation 16,108,000
Greenwich Capital Markets, Inc. 16,108,000
Lehman Brothers 16,108,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 16,108,000
Morgan Stanley & Co. 16,108,000
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Class A-2 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $16,435,000
CS First Boston Corporation 16,433,000
ContiFinancial Services Corporation 15,000,000
Greenwich Capital Markets, Inc. 16,433,000
Lehman Brothers 16,433,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 16,433,000
Morgan Stanley & Co. 16,433,000
Class A-3 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $22,685,000
CS First Boston Corporation 22,683,000
Greenwich Capital Markets, Inc. 22,683,000
Lehman Brothers 22,683,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 22,683,000
Morgan Stanley & Co. 22,683,000
Class A-4 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $11,135,000
CS First Boston Corporation 11,133,000
Greenwich Capital Markets, Inc. 11,133,000
Lehman Brothers 11,133,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 11,133,000
Morgan Stanley & Co. 11,133,000
Class A-5 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $11,500,000
CS First Boston Corporation 11,500,000
Greenwich Capital Markets, Inc. 11,500,000
Lehman Brothers 11,500,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 11,500,000
Morgan Stanley & Co. 11,500,000
Class A-6 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $6,795,000
CS First Boston Corporation 6,791,000
Greenwich Capital Markets, Inc. 6,791,000
Lehman Brothers 6,791,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 6,791,000
Morgan Stanley & Co. 6,791,000
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Class A-7 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $9,620,000
CS First Boston Corporation 9,616,000
Greenwich Capital Markets, Inc. 9,616,000
Lehman Brothers 9,616,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 9,616,000
Morgan Stanley & Co. 9,616,000
Class A-8 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $7,400,000
CS First Boston Corporation 7,400,000
Greenwich Capital Markets, Inc. 7,400,000
Lehman Brothers 7,400,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 7,400,000
Morgan Stanley & Co. 7,400,000
Class A-9 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $8,335,000
CS First Boston Corporation 8,333,000
Greenwich Capital Markets, Inc. 8,333,000
Lehman Brothers 8,333,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 8,333,000
Morgan Stanley & Co. 8,333,000
Class A-10 Certificates
Underwriters Principal Amount
------------ ----------------
Bear, Stearns & Co. Inc. $37,500,000
CS First Boston Corporation 37,500,000
Greenwich Capital Markets, Inc. 37,500,000
Lehman Brothers 37,500,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 37,500,000
Morgan Stanley & Co. 37,500,000
Class A-11IO Certificates
Underwriters Percentage Interest
------------ -------------------
Greenwich Capital Markets, Inc. 100%
Class A-12IO Certificates
Underwriters Percentage Interest
------------ -------------------
Greenwich Capital Markets, Inc. 100%
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In the Underwriting Agreement, the Underwriters have agreed, subject to
the terms and conditions set forth therein, to purchase all of the Certificates
offered hereby, if any are purchased. The Depositor has been advised by the
Underwriters that they propose initially to offer the Class A Certificates
(other than the Class A-IO Certificates) to the public at the respective
offering prices set forth on the cover page hereof and to certain dealers at
such price less a concession not in excess of the respective amounts set forth
in the table below (expressed as a percentage of the relative Certificate
Principal Balance). The Underwriters may allow and such dealers may reallow a
discount not in excess of the respective amounts set forth in the table below to
certain other dealers.
Selling Reallowance
Class Concession Discount
- ----- ---------- --------
A-1............................ 0.075% 0.050%
A-2............................ 0.090% 0.050%
A-3............................ 0.120% 0.075%
A-4............................ 0.150% 0.100%
A-5............................ 0.180% 0.125%
A-6............................ 0.210% 0.150%
A-7............................ 0.225% 0.150%
A-8............................ 0.240% 0.150%
A-9............................ 0.260% 0.150%
A-10........................... 0.150% 0.100%
The Depositor has agreed to indemnify the Underwriters against certain
liabilities, including civil liabilities under the Securities Act, or contribute
to payments which the Underwriters may be required to make in respect thereof.
The Depositor is an affiliate of ContiFinancial Services Corporation.
REPORT OF EXPERTS
The consolidated financial statements of the Certificate Insurer, MBIA
Insurance Corporation, as of December 31, 1995, and 1994 and for the three years
ended December 31, 1995 incorporated by reference into this Prospectus
Supplement, have been audited by Coopers & Lybrand L.L.P., independent
accountants, as set forth in their report thereon incorporated by reference
herein in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
CERTAIN LEGAL MATTERS
Certain legal matters relating to the validity of the issuance of the
Certificates will be passed upon for the Sellers by Arter & Hadden, Washington,
D.C. and by Alan L. Langus, Esquire, Chief Counsel for the Depositor. Certain
legal matters relating to insolvency issues and certain federal income tax
matters concerning the Certificates will be passed upon for the Depositor by
Arter & Hadden. Certain legal matters relating to the validity of the issuance
of the Certificates will be passed upon for the Underwriters by Dewey
Ballantine, New York, New York. Certain legal matters relating to the
Certificate Insurer and the Certificate Insurance Policies will be passed upon
for the Certificate Insurer by Kutak Rock, Omaha, Nebraska.
S-76
<PAGE>
ANNEX I
GLOBAL CLEARANCE, SETTLEMENT AND TAX DOCUMENTATION PROCEDURES
Except in certain limited circumstances, the globally offered
ContiMortgage Home Equity Loan Trust 1996-4 Home Equity Loan Pass-Through
Certificates, Class A (the "Global Securities") will be available only in
book-entry form. Investors in the Global Securities may hold such Global
Securities through any of 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 through CEDEL and Euroclear
will be conducted in the ordinary way in accordance with the normal rules and
operating procedures of CEDEL and Euroclear and in accordance with conventional
eurobond practice (i.e., seven calendar day settlement).
Secondary market trading between investors through DTC will be
conducted according to DTC's rules and procedures applicable to U.S. corporate
debt obligations.
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
Relevant Depositary which in turn will hold such positions in their accounts as
DTC Participants.
Investors electing to hold their Global Securities through DTC will
follow DTC settlement practices. 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 Participants. When
Global Securities are to be transferred from the account of a DTC Participant to
the account 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 Relevant Depositary, as the case
I-1
<PAGE>
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 Relevant Depositary to 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 on credit exposure to CEDEL or Euroclear until the
Global Securities are credited to their account 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 to 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 the 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 crediting 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 credit
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 to
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 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 automatically fail on
the sale side unless affirmative action is taken. At least three techniques
should be readily available to eliminate this potential problem:
I-2
<PAGE>
(a) borrowing through CEDEL or Euroclear for one day (until the
purchase side of the 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 (as defined below), 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 (as defined below) 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.
Exemption for Non-U.S. Persons with effectively connected income (Form
4224). A Non-U.S. Person (as defined below), 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 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 Certificate Owners or their 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 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
security (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, partnership or other entity organized in or under
the laws of the United States or any political subdivision thereof or (iii) an
estate or trust that is subject to U.S. federal income tax regardless of the
source of its income. The term "Non-U.S. Person" means any person who is not a
U.S. Person. This summary does not deal with all aspects of U.S. Federal income
tax withholding that may 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.
I-3
<PAGE>
APPENDIX A
INDEX TO LOCATION OF PRINCIPAL DEFINED TERMS
2/28 Loans S-4
3/27 Loans S-4
Accrual Period S-5
Actuarial Loans S-37
Adjustable Rate Group Certificates S-1
Appraised Values S-24
Available Funds S-49
Available Funds Shortfall S-48
Balloon Loans S-18
Beneficial Owners S-13
Book-Entry Certificates S-50
Business Day S-5
Carry Forward Amount S-6
Cede S-13
CEDEL S-13
CEDEL Participants S-52
Certificate Account S-47
Certificate Insurance Policy S-10
Certificate Insurer S-10
Certificate Principal Balance S-2
Certificates S-2
Chase S-13
Citibank S-13
Class S-1
Class A Certificate Principal Balance S-2
Class A Certificates S-2
Class A Distribution Amount S-5
Class A-1 Certificates S-1
Class A-1 Internal Pass-Through Rate S-6
Class A-2 Certificates S-1
Class A-3 Certificates S-1
Class A-4 Certificates S-1
Class A-5 Certificates S-1
Class A-6 Certificates S-1
Class A-7 Certificates S-1
Class A-8 Certificates S-1
Class A-9 Certificates S-1
Class A-9 Lockout Distribution Amount S-8
Class A-9 Lockout Percentage S-9
Class A-9 Lockout Pro Rata Distribution Amount S-9
Class A-10 Available Funds Cap S-1
Class A-10 Certificates S-1
Class A-11IO Available Funds Cap S-1
Class A-11IO Certificates S-1
Class A-12IO Certificates S-1
Class A-IO Certificates S-1
Class R Certificates S-2
Clean-Up Call Date S-12
Closing Date S-2
Code S-14
Combined Loan-to-Value Ratios S-27
Commission 4
Compensating Interest S-63
Cooperative S-52
Coupon Rates S-3
Current Interest S-6
Cut-Off Date S-2
Daily Collections S-62
Date-of-Payment Loans S-36
Definitive Certificate S-51
Delinquency Advances S-63
Depositor S-2
DOL S-70
DTC S-13
DTC Participants S-52
ERISA S-70
Euroclear S-13
Euroclear Operator S-52
Euroclear Participants S-52
European Depositaries S-13
Excess Subordinated Amount S-58
FHLMC S-65
Final Certification S-62
Final Scheduled Payment Dates S-38
Financial Intermediary S-51
Fiscal Agent S-54
Fitch S-13
Fixed Rate Group Certificates S-1
FNMA S-65
FNMA Guide S-62
GAAP S-57
Group 3
Home Equity Loan Group 3
Home Equity Loans S-2
Initial Certificate Principal Balance S-38
Insured Payments S-11
LIBOR S-1
LIBOR Determination Date S-50
Liquidated Home Equity Loan S-9
Loan Balance S-60
Loan Purchase Price S-60
Loan-to-Value Ratios S-26
Lower-Tier REMIC S-14
Lower-Tier REMIC Regular Interests S-68
Monthly Remittance Date S-9
Moody's S-13
Mortgages S-2
Mortgagor S-36
Net Liquidation Proceeds S-62
Net Monthly Excess Cashflow S-48
Notes S-2
Notional Principal Amount S-1
Notional Principal Contract Regulations S-69
Originator S-2
Owners S-3
Participants S-50
Pass-Through Rate S-48
Payment Date S-5
Percentage Interest S-47
Plans S-70
Pooling and Servicing Agreement S-2
Preference Amount S-9
Premium Amount S-48
Prepayment Assumption S-38
Prepayments S-16
Preservation Expenses S-63
Principal and Interest Account S-62
Principal Distribution Amount S-7
Properties S-2
Qualified Replacement Mortgage S-62
Rating Agencies S-13
Realized Loss S-59
Record Date S-5
Reference Banks S-50
Register S-47
Registrar S-47
Relevant Depositary S-51
REMIC S-14
REMIC Opinion S-60
Remittance Period S-9
Riegle Act S-18
Rules S-51
SAP S-57
Sellers S-2
Servicer S-2
Servicing Advance S-63
Servicing Fee S-10
Six-Month LIBOR S-17
Six-Month LIBOR Loans S-4
SMMEA S-15
Specified Subordinated Amount S-58
Standard & Poor's S-13
Sub-Servicers S-19
Subordinate Certificates S-2
Subordinated Amount S-58
Subordination Deficit S-9
Subordination Increase Amount S-58
Subordination Reduction Amount S-59
Sub-Servicing Agreements S-19
Substitution Amount S-62
Supplemental Interest S-46
Supplemental Interest Account S-46
Supplemental Interest Amount S-6
Supplemental Interest Trust S-46
Telerate Page 3750 S-50
Terms and Conditions S-52
Total Available Funds S-49
Total Monthly Excess Cashflow S-48
Total Monthly Excess Spread S-58
Trust S-46
Trust Estate S-46
Trustee S-2
Upper-Tier REMIC S-14
Upper-Tier REMIC Residual Interest S-68
Weighted average life S-38
<PAGE>
PROSPECTUS
Asset Backed Certificates
(Issuable in Series)
ContiSecurities Asset Funding Corp.
(Depositor)
This Prospectus relates to Asset Backed Certificates to be issued from time
to time in one or more series (and one or more classes within a series), certain
classes of which may be offered on terms determined at the time of sale and
described in this Prospectus and the related Prospectus Supplement. Each series
of Certificates will be issued by a separate trust (each, a "Trust") and will
evidence either a beneficial ownership interest in, or the debt obligation of,
such Trust. The assets of a Trust will include one or more of the following: (i)
single family residential mortgage loans, including mortgage loans secured by
junior liens on the related mortgaged properties and Title I loans and other
types of home improvement retail installment contracts, (ii) conditional sales
contracts and installment sales or loan agreements or participation interests
therein secured by manufactured housing, (iii) mortgage-backed securities, (iv)
other mortgage-related assets and securities and (v) reinvestment income,
reserve funds, cash accounts, insurance policies, guaranties, letters of credit
or other assets as described in the related Prospectus Supplement.
One or more classes of Certificates of a series may be (i) entitled to
receive distributions allocable to principal, principal prepayments, interest or
any combination thereof prior to one or more other classes of Certificates of
such series or after the occurrence of certain events or (ii) subordinated in
the right to receive such distributions to one or more senior classes of
Certificates of such series, in each case as specified in the related Prospectus
Supplement. Interest on each class of Certificates entitled to distributions
allocable to interest may accrue at a fixed rate or at a rate that is subject to
change from time to time as specified in the related Prospectus Supplement. The
Depositor or its affiliates may retain or hold for sale from time to time one or
more classes of a series of Certificates.
Distributions on the Certificates will be made at the intervals and on the
dates specified in the related Prospectus Supplement from the assets of the
related Trust and any other assets pledged for the benefit of the Certificates.
An affiliate of the Depositor may make or obtain for the benefit of the
Certificates limited representations and warranties with respect to mortgage
assets assigned to the related Trust. Neither the Depositor nor any affiliates
will have any other obligation with respect to the Certificates.
The yield on Certificates will be affected by the rate of payment of
principal (including prepayments) of mortgage assets in the related Trust. Each
series of Certificates will be subject to early termination under the
circumstances described herein and in the related Prospectus Supplement.
If specified in a Prospectus Supplement, an election may be made to treat
the Trust for the related series or specified portions thereof as a "real estate
mortgage investment conduit" ("REMIC") for federal income tax purposes. See
"Certain Federal Income Tax Consequences" herein and in the related Prospectus
Supplement.
It is a condition to the issuance of the Certificates that the Certificates
be rated in not less than the fourth highest rating category by a nationally
recognized rating organization.
See "Risk Factors" beginning on page 6 herein and in the related Prospectus
Supplement for a discussion of significant matters affecting investments in the
Certificates.
See "ERISA Considerations" herein and in the related Prospectus Supplement
for a discussion of restrictions on the acquisition of Certificates by "plan
fiduciaries."
An investor should carefully review the information in the related
Prospectus Supplement concerning the risks associated with the different types
and classes of Certificates.
THE ASSETS OF A TRUST ARE THE SOLE SOURCE OF PAYMENTS ON THE RELATED
CERTIFICATES. THE CERTIFICATES DO NOT REPRESENT AN INTEREST IN OR OBLIGATION OF
THE DEPOSITOR, ANY SERVICER, ANY MASTER SERVICER, ANY ORIGINATOR, ANY TRUSTEE OR
ANY OF THEIR AFFILIATES, EXCEPT AS SET FORTH HEREIN AND IN THE RELATED
PROSPECTUS SUPPLEMENT. NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE
ASSETS WILL BE GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY OR BY THE DEPOSITOR, ANY SERVICER, ANY MASTER SERVICER, ANY
ORIGINATOR, ANY TRUSTEE OR ANY OF THEIR AFFILIATES, EXCEPT AS SET FORTH IN THE
RELATED PROSPECTUS SUPPLEMENT.
================================================================================
THESE CERTIFICATES 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 ANY RELATED PROSPECTUS SUPPLEMENT.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
================================================================================
Offers of the Certificates may be made through one or more different
methods, including offerings through underwriters, as more fully described
herein and in the related Prospectus Supplement. See "Plan of Distribution"
herein and in the related Prospectus Supplement.
Prior to their issuance there will have been no market for the Certificates
nor can there by any assurance that one will develop or if it does develop, that
it will provide the Owners of the Certificates with liquidity or will continue
for the life of the Certificates.
Retain this Prospectus for future reference. This Prospectus may not be
used to consummate sales of Certificates unless accompanied by a Prospectus
Supplement.
================================================================================
The date of this Prospectus is April 17, 1996.
<PAGE>
TABLE OF CONTENTS
Page
SUMMARY OF PROSPECTUS .................................................. 1
RISK FACTORS ........................................................... 6
DESCRIPTION OF THE CERTIFICATES ........................................ 9
General ............................................................. 9
Classes of Certificates ............................................. 10
Distributions of Principal and Interest ............................. 11
Book Entry Registration ............................................. 13
List of Owners of Certificates ...................................... 13
THE TRUSTS ............................................................. 13
Mortgage Loans ...................................................... 14
Contracts ........................................................... 15
Mortgage-Backed Securities .......................................... 16
Other Mortgage Securities ........................................... 17
CREDIT ENHANCEMENT ..................................................... 17
SERVICING OF MORTGAGE LOANS AND
CONTRACTS ........................................................... 22
Payments on Mortgage Loans .......................................... 22
Advances ............................................................ 23
Collection and Other Servicing Procedures ........................... 23
Primary Mortgage Insurance .......................................... 25
Standard Hazard Insurance ........................................... 25
Title Insurance Policies ............................................ 26
Claims Under Primary Mortgage Insurance Policies
and Standard Hazard Insurance Policies; Other
Realization Upon Defaulted Loan .................................. 26
Servicing Compensation and Payment of Expenses ...................... 27
Master Servicer ..................................................... 27
ADMINISTRATION ......................................................... 28
Assignment of Mortgage Assets ....................................... 28
Evidence as to Compliance ........................................... 30
The Trustee ......................................................... 30
Administration of the Certificate Account ........................... 31
Reports ............................................................. 32
Forward Commitments; Pre-Funding .................................... 32
Servicer Events of Default .......................................... 32
Rights Upon Servicer Event of Default ............................... 33
Amendment ........................................................... 33
Termination ......................................................... 33
USE OF PROCEEDS ........................................................ 34
THE DEPOSITOR .......................................................... 34
CERTAIN LEGAL ASPECTS OF THE MORTGAGE
ASSETS .............................................................. 34
General ............................................................. 34
Foreclosure ......................................................... 35
Soldiers' and Sailors' Civil Relief Act ............................. 40
The Contracts ....................................................... 40
The Title I Program ................................................. 43
LEGAL INVESTMENT MATTERS ............................................... 47
ERISA CONSIDERATIONS ................................................... 48
CERTAIN FEDERAL INCOME TAX CONSEQUENCES ................................ 50
Federal Income Tax Consequences For REMIC
Certificates ..................................................... 50
Taxation of Regular Certificates .................................... 51
Taxation of Residual Certificates ................................... 57
Treatment of Certain Items of REMIC Income and
Expense .......................................................... 59
Tax-Related Restrictions on Transfer of Residual
Certificates ..................................................... 61
Sale or Exchange of a Residual Certificate .......................... 63
Taxes That May Be Imposed on the REMIC Pool ......................... 63
Liquidation of the REMIC Pool ....................................... 64
Administrative Matters .............................................. 64
Limitations on Deduction of Certain Expenses ........................ 64
Taxation of Certain Foreign Investors ............................... 65
Backup Withholding .................................................. 66
Reporting Requirements .............................................. 66
Federal Income Tax Consequences for Certificates as
to Which No REMIC Election Is Made ............................... 67
Premium and Discount ................................................ 68
Stripped Certificates ............................................... 70
Reporting Requirements and Backup Withholding ....................... 72
Taxation of Certain Foreign Investors ............................... 72
Taxation of Securities Classified as Partnership
Interests ........................................................ 73
PLAN OF DISTRIBUTION ................................................... 73
LEGAL MATTERS .......................................................... 73
FINANCIAL INFORMATION .................................................. 73
INDEX TO LOCATION OF PRINCIPAL DEFINED
TERMS................................................................ A-1
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
All documents filed with respect to each respective Trust pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
subsequent to the date of this Prospectus and prior to the termination of the
offering of the securities of such Trust offered hereby shall be deemed to be
incorporated by reference into this Prospectus when delivered with respect to
such Trust. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
Any person receiving a copy of this Prospectus may obtain, without charge,
upon written or oral request, a copy of any of the documents incorporated by
reference herein, except for the exhibits to such documents (other than the
documents expressly incorporated therein by reference). Requests should be
directed to ContiSecurities Asset Funding Corp., 277 Park Avenue, 38th Floor,
New York, New York 10172 (telephone number (212) 207-2840).
<PAGE>
- --------------------------------------------------------------------------------
SUMMARY OF PROSPECTUS
The following summary is qualified in its entirety by reference to the
detailed information appearing elsewhere in this Prospectus and by reference to
the Prospectus Supplement relating to a particular series of Certificates and to
the related Agreement which will be prepared in connection with each series of
Certificates. Unless otherwise specified, capitalized terms used and not defined
in this Summary of Prospectus have the meanings given to them in this Prospectus
and in the related Prospectus Supplement.
Securities................. Asset Backed Certificates, issuable in series, in
fully registered form or book entry only form, in
authorized denominations, as described in the
Prospectus Supplement (the "Certificates"). Each
Certificate will represent a beneficial ownership
interest in a trust (a "Trust") created from time
to time pursuant to a pooling and servicing
agreement or trust agreement (each, an "Agreement")
or the debt obligation of a Trust issued under an
indenture.
The Depositor.............. ContiSecurities Asset Funding Corp. (the
"Depositor") is a Delaware corporation. The
Depositor's principal executive offices are located
at 277 Park Avenue, 38th Floor, New York, New York,
10172; telephone number (212) 207-2840. See "The
Depositor" herein. The Depositor or its affiliates
may retain or hold for sale from time to time one
or more classes of a series of Certificates.
The Servicer............... The entity or entities named as the Servicer in the
Prospectus Supplement (the "Servicer"), will act as
servicer, with respect to the Mortgage Loans and
Contracts included in the related Trust. The
Servicer may be an affiliate of the Depositor and
may be the seller of Mortgage Assets to the
Depositor (each, a "Seller").
The Master Servicer........ A "Master Servicer" may be specified in the related
Prospectus Supplement for the related series of
Certificates.
The Trustee................ The trustee (the "Trustee") for each series of
Certificates will be specified in the related
Prospectus Supplement.
Trust Assets............... The assets of a Trust will be mortgage-related
assets (the "Mortgage Assets") consisting of one or
more of the following types of assets:
A. The Mortgage Loans .... "Mortgage Loans" may include: (i) conventional
(i.e., not insured or guaranteed by any
governmental agency) Mortgage Loans secured by
one-to-four family residential properties; (ii)
Mortgage Loans secured by security interests in
shares issued by private, non-profit, cooperative
housing corporations ("Cooperatives") and in the
related proprietary leases or occupancy agreements
granting exclusive rights to occupy specific
dwelling units in such Cooperatives' buildings;
and, (iii) Mortgage Loans secured by junior liens
on the related mortgaged properties, including
Title I Loans and other types of home improvement
retail installment contracts. See "The Trusts --
Mortgage Loans" herein.
B. Contracts.............. Contracts may include conditional sales contracts
and installment sales or loan agreements or
participation interests therein secured by new or
used Manufactured Homes (as defined herein).
Contracts may be conventional
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(i.e., not insured or guaranteed by any government
agency) or insured by the Federal Housing
Administration ("FHA"), including Title I
Contracts, or partially guaranteed by the Veterans
Administration ("VA"), as specified in the related
Prospectus Supplement. See "The Trusts --
Contracts" herein.
C. Mortgage-
Backed Securities .... "Mortgage-Backed Securities" (or "MBS") may include
(i) private (that is, not guaranteed or insured by
the United States or any agency or instrumentality
thereof) mortgage participations, mortgage
pass-through certificates or other mortgage-backed
securities or (ii) certificates insured or
guaranteed by Federal Home Loan Mortgage
Corporation ("FHLMC") or Federal National Mortgage
Association ("FNMA") or Government National
Mortgage Association ("GNMA"). See "The Trusts --
Mortgage-Backed Securities" herein.
D. Other Mortgage
Securities ........... Other Mortgage Securities may include other
securities that directly or indirectly represent an
ownership interest in, or are secured by and
payable from, mortgage loans on real property or
mortgage-backed securities, such as residual
interests in issuances of collateralized mortgage
obligations or mortgage pass-through certificates.
See "The Trusts - Other Mortgage Securities"
herein.
Trust assets may also include reinvestment income,
reserve funds, cash accounts, insurance policies,
guaranties, letters of credit or other assets as
described in the related Prospectus Supplement.
The related Prospectus Supplement for a series of
Certificates will describe the Mortgage Assets to
be included in the Trust for such series.
The Certificates........... The Certificates of any series may be issued in one
or more classes, as specified in the Prospectus
Supplement. One or more classes of Certificates of
each series (i) may be entitled to receive
distributions allocable only to principal, only to
interest or to any combination thereof; (ii) may be
entitled to receive distributions only of
prepayments of principal throughout the lives of
the Certificates or during specified periods; (iii)
may be subordinated in the right to receive
distributions of scheduled payments of principal,
prepayments of principal, interest or any
combination thereof to one or more other classes of
Certificates of such series throughout the lives of
the Certificates or during specified periods; (iv)
may be entitled to receive such distributions only
after the occurrence of events specified in the
Prospectus Supplement; (v) may be entitled to
receive distributions in accordance with a schedule
or formula or on the basis of collections from
designated portions of the assets in the related
Trust; (vi) as to Certificates entitled to
distributions allocable to interest, may be
entitled to receive interest at a fixed rate or a
rate that is subject to change from time to time;
(vii) may accrue interest, with such accrued
interest added to the principal or notional amount
of the Certificates, and no payments being made
thereon until certain other classes of the series
have been paid in full; and (viii) as to
Certificates entitled to distributions allocable to
interest, may be entitled to distributions
allocable to interest only after the occurrence of
events specified in the Prospectus Supplement
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and may accrue interest until such events occur, in
each case as specified in the related Prospectus
Supplement. The timing and amounts of such
distributions may vary among classes, over time, or
otherwise as specified in the related Prospectus
Supplement.
Distributions on
the Certificates......... The related Prospectus Supplement will specify (i)
whether distributions on the Certificates entitled
thereto will be made monthly, quarterly,
semi-annually or at other intervals and dates out
of the payments received in respect of the Mortgage
Assets included in the related Trust and other
assets, if any, pledged for the benefit of the
related Owners of Certificates; (ii) the amount
allocable to payments of principal and interest on
any Distribution Date; and (iii) whether all
distributions will be made pro rata to Owners of
Certificates of the class entitled thereto.
The aggregate original principal balance of the
Certificates will equal the aggregate distributions
allocable to principal that such Certificates will
be entitled to receive; the Certificates will have
an aggregate original principal balance equal to or
less than the aggregate unpaid principal balance of
the related Mortgage Assets (plus amounts held in a
Pre-Funding Account, if any) as of the first day of
the month of creation of the Trust; and the
Certificates will bear interest in the aggregate at
a rate (the "Pass-Through Rate") equal to the
interest rate borne by the related Mortgage Assets
net of servicing fees and any other specified
amounts.
Pre-Funding Account........ A Trust may enter into an agreement (each, a
"Pre-Funding Agreement") with the Depositor whereby
the Depositor will agree to transfer additional
Mortgage Assets to such Trust following the date on
which such Trust is established and the related
Certificates are issued. Any Pre-Funding Agreement
will require that any Mortgage Loans so transferred
conform to the requirements specified in such
Pre-Funding Agreement. If a Pre-Funding Agreement
is to be utilized, the related Trustee will be
required to deposit in a segregated account (each,
a "Pre-Funding Account") all or a portion of the
proceeds received by the Trustee in connection with
the sale of one or more classes of Certificates of
the related series; subsequently, the additional
Mortgage Assets will be transferred to the related
Trust in exchange for money released to the
Depositor from the related Pre-Funding Account.
Each Pre-Funding Agreement will set a specified
period during which any such transfers must occur.
If all moneys originally deposited to such
Pre-Funding Account are not used by the end of such
specified period, then any remaining moneys will be
applied as a mandatory prepayment of a class or
classes of Certificates as specified in the related
Prospectus Supplement. The specified period for the
acquisition by a Trust of additional Mortgage Loans
will generally not exceed three months from the
date such Trust is established.
Optional Termination....... The Servicer, the Seller, the Depositor, or, if
specified in the related Prospectus Supplement, the
Owners of a related class of Certificates or a
credit enhancer may at their respective options
effect early retirement of a series of Certificates
through the purchase of the Mortgage Assets in the
related Trust. See "Administration - Termination"
herein.
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Mandatory Termination...... The Trustee, the Servicer or certain other entities
specified in the related Prospectus Supplement may
be required to effect early retirement of a series
of Certificates by soliciting competitive bids for
the purchase of the assets of the related Trust or
otherwise. See "Administration - Termination"
herein.
Advances................... The Servicer of the Mortgage Loans and Contracts
will be obligated (but only to the extent set forth
in the related Prospectus Supplement) to advance
delinquent installments of principal and/or
interest (less applicable servicing fees) on the
Mortgage Loans and Contracts in a Trust. Any such
obligation to make advances may be limited to
amounts due to the Owners of Certificates of the
related series, to amounts deemed to be recoverable
from late payments or liquidation proceeds, to
specified periods or to any combination thereof, in
each case as specified in the related Prospectus
Supplement. Any such advance will be recoverable as
specified in the related Prospectus Supplement. See
"Servicing of Mortgage Loans and Contracts" herein.
Credit Enhancement......... If specified in the related Prospectus Supplement,
a series of Certificates, or certain classes within
such series, may have the benefit of one or more
types of credit enhancement ("Credit Enhancement")
including but not limited to subordination, cross
support, mortgage pool insurance, special hazard
insurance, a bankruptcy bond, reserve funds, other
insurance, guaranties and similar instruments and
arrangements. The protection against losses
afforded by any such Credit Enhancement will be
limited. See "Credit Enhancement" herein.
Book Entry Registration ... Certificates of one or more classes of a series may
be issued in book entry form ("Book Entry
Certificates") in the name of a clearing agency (a
"Clearing Agency") registered with the Securities
and Exchange Commission, or its nominee. Transfers
and pledges of Book Entry Certificates may be made
only through entries on the books of the Clearing
Agency in the name of brokers, dealers, banks and
other organizations eligible to maintain accounts
with the Clearing Agency ("Clearing Agency
Participants") or their nominees. Transfers and
pledges by purchasers and other beneficial owners
of Book Entry Certificates ("Beneficial Owners")
other than Clearing Agency Participants may be
effected only through Clearing Agency Participants.
All references to the Owners of Certificates shall
mean Beneficial Owners to the extent Beneficial
Owners may exercise their rights through a Clearing
Agency. Except as otherwise specified in this
Prospectus or a related Prospectus Supplement, the
term "Owners" shall be deemed to include Beneficial
Owners. See "Risk Factors - Book Entry
Registration" and "Description of the Certificates
- Book Entry Registration" herein.
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Certain Federal Income Tax
Consequences........... Federal income tax consequences will depend on,
among other factors, whether one or more elections
are made to treat a Trust or specified portions
thereof as a "real estate mortgage investment
conduit" ("REMIC") under the Internal Revenue Code
of 1986, as amended (the "Code"), or, if no REMIC
election is made, whether the Certificates are
considered to be Standard Certificates, Stripped
Certificates or Partnership Interests. The related
Prospectus Supplement for each series of
Certificates will specify whether a REMIC election
will be made. See "Certain Federal Income Tax
Consequences" herein and in the related Prospectus
Supplement.
ERISA Considerations....... 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 Certificates
could give rise to a transaction prohibited or
otherwise impermissible under ERISA or the Code.
Certain classes of Certificates may not be
transferred unless the Trustee and the Depositor
are furnished with a letter of representation or an
opinion of counsel to the effect that such transfer
will not result in a violation of the prohibited
transaction provisions of ERISA and the Code and
will not subject the Trustee, the Depositor or the
Servicer to additional obligations. See
"Description of the Certificates - General" herein
and "ERISA Considerations" herein and in the
related Prospectus Supplement.
Legal Investment Matters .. Certificates that constitute "mortgage related
securities" under the Secondary Mortgage Market
Enhancement Act of 1984 ("SMMEA") will be so
described in the related Prospectus Supplement.
Certificates that are not so qualified may not be
legal investments for certain types of
institutional investors, subject, in any case, to
any other regulations which may govern investments
by such institutional investors. See "Legal
Investment Matters" herein and in the related
Prospectus Supplement.
Use of Proceeds............ Substantially all the net proceeds from the sale of
a series of Certificates will be applied to the
simultaneous purchase of the Mortgage Assets
included in the related Trust (or to reimburse the
amounts previously used to effect such purchase),
the costs of carrying the Mortgage Assets until
sale of the Certificates and to pay other expenses.
See "Use of Proceeds" herein.
Rating..................... Each class of Certificates offered by a Prospectus
Supplement will be rated in one of the four highest
rating categories of a nationally recognized
statistical rating agency; provided, however, that
one or more classes of Subordinated Certificates
and Residual Certificates, which will not be so
offered, need not be so rated.
Risk Factors............... Investment in the Certificates will be subject to
one or more risk factors, including declines in the
value of Mortgaged Properties, prepayment of
Mortgage Loans, higher risks of defaults on
particular types of Mortgage Loans, limitations on
security for the Mortgage Loans, limitations on
credit enhancement and various other factors. See
"Risk Factors" herein and in the related Prospectus
Supplement.
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RISK FACTORS
Prospective investors should consider, among other things, the following
risk factors in connection with the purchase of the Certificates:
General. If the residential real estate market in general or a regional or
local area where Mortgage Assets for a Trust are concentrated should experience
an overall decline in property values, or a significant downturn in economic
conditions, rates of delinquencies, foreclosures and losses could be higher than
those now generally experienced in the mortgage lending industry. See "The
Trusts - Mortgage Loans" herein.
Limited Obligations. The Certificates will not represent an interest in or
obligation of the Depositor. The Certificates of each series will not be insured
or guaranteed by any government agency or instrumentality, the Depositor, any
Servicer or the Seller.
Prepayment Considerations. The prepayment experience on Mortgage Loans or
Contracts constituting or underlying the Mortgage Assets will affect the average
life of each class of Certificates relating to a Trust. Prepayments may be
influenced by a variety of economic, geographic, social and other factors,
including changes in interest rate levels. In general, if mortgage interest
rates fall, the rate of prepayment would be expected to increase. Conversely, if
mortgage interest rates rise, the rate of prepayment would be expected to
decrease. Other factors affecting prepayment of mortgage loans include changes
in housing needs, job transfers, unemployment and servicing decisions. See
"Prepayment and Yield Considerations" in the related Prospectus Supplement.
Risk of Higher Default Rates for Mortgage Loans with Balloon Payments. A
portion of the aggregate principal balance of the Mortgage Loans at any time may
be "balloon loans" that provide for the payment of the unamortized principal
balance of such Mortgage Loan in a single payment at maturity ("Balloon Loans").
Such Balloon Loans provide for equal monthly payments, consisting of principal
and interest, generally based on a 30-year amortization schedule, and a single
payment of the remaining balance of the Balloon Loan generally 5, 7, 10, or 15
years after origination. Amortization of a Balloon Loan based on a scheduled
period that is longer than the term of the loan results in a remaining principal
balance at maturity that is substantially larger than the regular scheduled
payments. The Depositor does not have any information regarding the default
history or prepayment history of payments on Balloon Loans. Because borrowers of
Balloon Loans are required to make substantial single payments upon maturity, it
is possible that the default risk associated with the Balloon Loans is greater
than that associated with fully-amortizing Mortgage Loans.
Security Interests and Other Aspects of the Contracts. Contracts may be
secured by a security interest in a Manufactured Home. Perfection of security
interests in the Manufactured Homes and enforcement of rights to realize upon
the value of the Manufactured Homes as collateral for the Contracts are subject
to a number of Federal and state laws, including the Uniform Commercial Code as
adopted in each state and each state's certificate of title statutes. The steps
necessary to perfect the security interest in a Manufactured Home will vary from
state to state. Because of the expense and administrative inconvenience
involved, no party will be required to amend any certificates of title to change
the lienholder specified therein to the Trustee and no party will be required to
deliver any certificate of title to the Trustee or note thereon the Trustee's
interest. Consequently, in some states, in the absence of such an amendment, the
assignment to the Trustee of the security interest in the Manufactured Home may
not be effective or such security interest may not be perfected and, in the
absence of such notation or delivery to the Trustee, the assignment of the
security interest in the Manufactured Home may not be effective against
creditors of the previous owner of the related Contract or a trustee in
bankruptcy of such previous owner. In addition, numerous Federal and state
consumer protection laws impose requirements on lending under conditional sales
contracts and installment loan agreements such as the Contracts, and the failure
by the lender or seller of goods to comply with such requirements could give
rise to liabilities of assignees for amounts due under such agreements and
claims by such assignees may be subject to set-off as a result of such lender's
or seller's noncompliance. These laws would apply to the Trustee as assignee of
the Contracts. Each Seller of Contracts will warrant that each Contract sold by
it complies with all requirements of law and will make certain warranties
relating to the validity, subsistence, perfection and priority of the security
interest in each Manufactured Home securing a Contract. A breach of any such
warranty that materially adversely affects any Contract would create an
obligation of the Seller
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to repurchase such Contract unless such breach is cured. If any related Credit
Enhancement is exhausted and recovery of amounts due on the Contracts is
dependent on repossession and resale of Manufactured Homes securing Contracts
that are in default, certain other factors may limit the ability of the Trust to
realize upon the Manufactured Homes or may limit the amount realized to less
than the amount due. See "Certain Legal Aspects of the Mortgage Assets - The
Contracts" herein.
Limited Liquidity. There will be no market for the Certificates 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
liquidity of investment or will continue for the life of the Certificates of
such series. The market value of the Certificates will fluctuate with changes in
prevailing rates of interest. Consequently, the sale of Certificates in any
market that may develop may be at a discount from the Certificates' par value or
purchase price. Owners of Certificates generally have no right to request
redemption of Certificates, and the Certificates are subject to redemption only
under the limited circumstances described in the related Prospectus Supplement.
In addition, the Certificates will not be listed on any securities exchange.
Limited Assets. Owners of Certificates of each series must rely upon
distributions on the related Mortgage Assets, together with the other specific
assets pledged for the benefit of such series (which assets may be subject to
release from such pledge prior to payment in full of the Certificates), for the
payment of principal of, and interest on, that series of Certificates. If the
assets comprising the Trust are insufficient to make payments on such
Certificates, no other assets of the Depositor will be available for payment of
the deficiency. Because payments of principal will be applied to classes of
outstanding Certificates of a series in the priority specified in the related
Prospectus Supplement, a deficiency may have a disproportionately greater effect
on the Certificates of classes having lower priority in payment. In addition,
due to the priority of payments and the allocation of losses, defaults
experienced on the assets comprising a Trust may have a disproportionate effect
on a specified class or classes within such series.
Limitations, Reduction and Substitution of Credit Enhancement. Credit
Enhancement may be provided in one or more of the forms described in the related
Prospectus Supplement, including, but not limited to, prioritization as to
payments of one or more classes of such series, a Mortgage Pool Insurance
Policy, a Special Hazard Insurance Policy, a bankruptcy bond, one or more
Reserve Funds, other insurance, guaranties and similar instruments and
agreements, or any combination thereof. Regardless of the Credit Enhancement
provided, the amount of coverage may be limited in amount and in most cases will
be subject to periodic reduction in accordance with a schedule or formula.
Furthermore, such Credit Enhancement may provide only very limited coverage as
to certain types of losses and may provide no coverage as to certain other types
of losses. The Trustee may be permitted to reduce, terminate or substitute all
or a portion of the Credit Enhancement for any series of Certificates, if the
applicable rating agencies indicate that the then-current rating thereof will
not be adversely affected.
Original Issue Discount. All the Compound Interest Certificates and
Stripped Certificates that are entitled only to interest distributions will be,
and certain of the other Certificates may be, issued with original issue
discount for federal income tax purposes. An Owner of a Certificate issued with
original issue discount will be required to include original issue discount in
ordinary gross income for federal income tax purposes as it accrues, in advance
of receipt of the cash attributable to such income. Accrued but unpaid interest
on such Certificates generally will be treated as original issue discount for
this purpose. See "Certain Federal Income Tax Consequences - Federal Income Tax
Consequences for REMIC Certificates," "- Taxation of Regular Certificates -
Variable Rate Regular Certificates," "Certain Federal Income Tax Consequences -
Federal Income Tax Consequences for Certificates as to Which No REMIC Election
Is Made - Standard Certificates," and "Certain Federal Income Tax Consequences
- - Premium and Discount" and "- Stripped Certificates" herein.
Book Entry Registration. Because transfers and pledges of Book Entry
Certificates may be effected only through book entries at a Clearing Agency
through Clearing Agency Participants, the liquidity of the secondary market for
Book Entry Certificates may be reduced to the extent that some investors are
unwilling to hold Certificates in book entry form in the name of Clearing Agency
Participants and the ability to pledge Book Entry Certificates may be limited
due to lack of a physical certificate. Beneficial Owners of Book Entry
Certificates may, in certain cases, experience delay in the receipt of payments
of principal and interest because such payments will
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be forwarded by the Trustee to the Clearing Agency who will then forward payment
to the Clearing Agency Participants who will thereafter forward payment to
Beneficial Owners. In the event of the insolvency of the Clearing Agency or of a
Clearing Agency Participant in whose name Certificates are recorded, the ability
of Beneficial Owners to obtain timely payment and (if the limits of applicable
insurance coverage by the Securities Investor Protection Corporation are
exceeded, or if such coverage is otherwise unavailable) ultimate payment of
principal and interest on Book Entry Certificates may be impaired.
Certain Matters Relating to Insolvency. The Sellers of the Mortgage Assets
to the Depositor and the Depositor intend that the transfers of such Mortgage
Assets to the Depositor, and in turn to the applicable Trust, constitute sales
rather than pledges to secure indebtedness for insolvency purposes. If, however,
a seller of Mortgage Assets were to become a debtor under the federal bankruptcy
code, it is possible that a creditor, trustee-in-bankruptcy or receiver of such
seller may argue that the sale thereof by such Seller is a pledge rather than a
sale. This position, if argued or accepted by a court, could result in a delay
in or reduction of distributions on the related Certificates.
Junior Lien Mortgage Loans. Because Mortgage Loans secured by junior (i.e.,
second, third, etc.) liens are subordinate to the rights of the beneficiaries
under the related senior deeds of trust or senior mortgages, a decline in the
residential real estate market would adversely affect the position of the
related Trust as a junior beneficiary or junior mortgagee before having such an
effect on the position of the related senior beneficiaries or senior mortgagees.
A rise in interest rates over a period of time, the general condition of a
Mortgaged Property and other factors may also have the effect of reducing the
value of the Mortgaged Property from the value at the time the junior lien
Mortgage Loan was originated and, as a result, may reduce the likelihood that,
in the event of a default by the borrower, liquidation or other proceeds will be
sufficient to satisfy the junior lien Mortgage Loan after satisfaction of any
senior liens and the payment of any liquidation expenses.
Liquidation expenses with respect to defaulted Mortgage Loans do not vary
directly with the outstanding principal balance of the Mortgage Loans at the
time of default. Therefore, assuming that a Servicer took the same steps in
realizing upon defaulted Mortgage Loans having small remaining principal
balances as in the case of defaulted Mortgage Loans having larger principal
balances, the amount realized after expenses of liquidation would be smaller as
a percentage of the outstanding principal balance of the smaller Mortgage Loans.
To the extent the average outstanding principal balances of the Mortgage Loans
in a Trust are relatively small, realizations net of liquidation expenses may
also be relatively small as a percentage of the principal amount of the Mortgage
Loans.
Limitations on Interest Payments and Foreclosures. Generally, under the
terms of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (the
"Relief Act"), or similar state legislation, a Mortgagor who enters military
service after the origination of the related Mortgage Loan (including a
Mortgagor who is a member of the National Guard or is in reserve status at the
time of the origination of the Mortgage Loan and is later called to active duty)
may not be charged interest (including fees and charges) above an annual rate of
6% during the period of such Mortgagor's active duty status, unless a court
orders otherwise upon application of the lender. It is possible that such action
could have an effect, for an indeterminate period of time, on the ability of the
related Servicer to collect full amounts of interest on certain of the Mortgage
Loans. In addition, the Relief Act imposes limitations that would impair the
ability of the related Servicer to foreclose on an affected Mortgage Loan during
the Mortgagor's period of active duty status. Thus, in the event that such a
Mortgage Loan goes into default, there may be delays and losses occasioned by
the inability to realize upon the Mortgaged Property in a timely fashion.
Security Ratings. The rating of Certificates credit enhanced through
external credit enhancement such as a letter of credit, financial guaranty
insurance policy or mortgage pool insurance will depend primarily on the
creditworthiness of the issuer of such external credit enhancement device (a
"Credit Enhancer"). Any reduction in the rating assigned to the claims-paying
ability of the related Credit Enhancer below the rating initially given to the
related Certificates would likely result in a reduction in the rating of the
Certificates. See "Ratings" in the Prospectus Supplement.
Other Legal Considerations. Applicable federal and state laws generally
regulate interest rates and other charges, require certain disclosures, prohibit
unfair and deceptive practices, regulate debt collection, and require
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licensing of the originators of the mortgage loans and contracts. Depending on
the provisions of the applicable law and the specified facts and circumstances
involved, violations of those laws, policies and principles may limit the
ability to collect all or part of the principal of or interest on the Mortgage
Loans and Contracts and may entitle the borrower to a refund of amounts
previously paid. See "Certain Legal Aspects of the Mortgage Assets" herein.
DESCRIPTION OF THE CERTIFICATES
Each Trust will be created pursuant to an Agreement entered into among the
Depositor, the Trustee, the Master Servicer, if any, and the Servicer. The
provisions of each Agreement will vary depending upon the nature of the
Certificates to be issued thereunder and the nature of the related Trust.
Certificates which represent beneficial interests in the Trust will be issued
pursuant to the Agreement; Certificates which represent debt obligations of the
Trust will be issued pursuant to an indenture between the Trust and an indenture
trustee (the "Indenture Trustee"). The following summaries and the summaries set
forth under "Administration" describe certain provisions relating to each series
of Certificates. The Prospectus Supplement for a series of Certificates will
describe the specific provisions relating to such series. The Depositor will
provide Owners of Certificates, without charge, on written request a copy of the
Agreement for the related series. Requests should be addressed to
ContiSecurities Asset Funding Corp., 277 Park Avenue, 38th Floor, New York, New
York 10172. The Agreement relating to a series of Certificates will be filed
with the Securities and Exchange Commission within 15 days after the date of
issuance of such series of Certificates (the "Delivery Date").
The Certificates of a series will be entitled to payment only from the
assets of the Trust and any other assets pledged for the benefit of the
Certificates and will not be entitled to payments in respect of the assets
included in any other trust fund established by the Depositor. The Certificates
will not represent obligations of the Depositor, the Trustee, the Master
Servicer, if any, any Servicer or any affiliate thereof and will not be
guaranteed by any governmental agency. See "The Trusts" herein.
The Mortgage Assets relating to a series of Certificates, other than Title
I Loans and GNMA MBS, will not be insured or guaranteed by any governmental
entity and, to the extent that delinquent payments on or losses in respect of
defaulted Mortgage Assets, are not advanced or paid from any applicable Credit
Enhancement, such delinquencies may result in delays in the distribution of
payments on, or losses allocated to one or more classes of Certificates of such
series.
General
The Certificates of each series will be issued either in book entry form or
in fully registered form. The minimum original denomination of each class of
Certificates will be specified in the related Prospectus Supplement. The
original "Certificate Principal Balance" of each Certificate will equal the
aggregate distributions or payments allocable to principal to which such
Certificate is entitled and distributions allocable to interest on each
Certificate that is not entitled to distributions allocable to principal will be
calculated based on the "Notional Principal Balance" of such Certificate. The
Notional Principal Balance of a Certificate will not evidence an interest in or
entitlement to distributions allocable to principal but will be used solely for
convenience in expressing the calculation of interest and for certain other
purposes.
Except as described below under "Book Entry Registration" with respect to
Book Entry Certificates, the Certificates of each series will be transferable
and exchangeable on a "Certificate Register" to be maintained at the corporate
trust office (or the Indenture Trustee in the case of Certificates which
represent debt obligations of a Trust) or such other office or agency maintained
for such purposes by the Trustee (or the Indenture Trustee in the case of
Certificates which represent debt obligations of a Trust). The Trustee (or the
Indenture Trustee) will be appointed initially as the "Certificate Registrar"
and no service charge will be made for any registration of transfer or exchange
of Certificates, but payment of a sum sufficient to cover any tax or other
governmental charge may be required.
Under current law the purchase and holding of certain classes of
Certificates may result in "prohibited transactions" within the meaning of ERISA
and the Code. See "ERISA Considerations" herein and in the related
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Prospectus Supplement. Transfer of Certificates of such a class will not be
registered unless the transferee (i) executes a representation letter stating
that it is not, and is not purchasing on behalf of, any such plan, account or
arrangement or (ii) provides an opinion of counsel satisfactory to the Trustee
and the Depositor that the purchase of Certificates of such a class by or on
behalf of such plan, account or arrangement is permissible under applicable law
and will not subject the Trustee, the Servicer or the Depositor to any
obligation or liability in addition to those undertaken in the Agreement.
As to each series, one or more elections may be made to treat the related
Trust or designated portions thereof as a REMIC for federal income tax purposes.
The related Prospectus Supplement will specify whether a REMIC election is to be
made. Alternatively, the Agreement for a series may provide that a REMIC
election may be made at the discretion of the Depositor or the Servicer and may
only be made if certain conditions are satisfied. See "Certain Federal Income
Tax Considerations" herein. As to any such series, the terms and provisions
applicable to the making of a REMIC election, as well as any material federal
income tax consequences to Owners of Certificates not otherwise described
herein, will be set forth in the related Prospectus Supplement. If such an
election is made with respect to a series, one of the classes will be designated
as evidencing the "residual interests" in the related REMIC, as defined in the
Code. All other classes of Certificates in such a series will constitute
"regular interests" in the related REMIC, as defined in the Code. As to each
series with respect to which a REMIC election is to be made, the Servicer, the
Trustee, an Owner of Residual Certificates or another person as specified in the
related Prospectus Supplement will be obligated to take all actions required in
order to comply with applicable laws and regulations and will be obligated to
pay any prohibited transaction taxes. The person so specified will be entitled
to reimbursement for any such payment.
Classes of Certificates
Each series of Certificates will be issued in one or more classes which
will evidence the beneficial ownership in, or the debt obligations payable from,
the assets of the Trust that are allocable to (i) principal of such class of
Certificates and (ii) interest on such Certificates. If specified in the
Prospectus Supplement, one or more classes of a series of Certificates may
evidence beneficial ownership interests in, or the debt obligations payable
from, separate groups of assets included in the related Trust.
The Certificates will have an aggregate original Certificate Principal
Balance equal to the aggregate unpaid principal balance of the Mortgage Assets
(plus, amounts held in a Pre-Funding Account, if any) as of the time and day
prior to creation of the Trust specified in the related Prospectus Supplement
(the "Cut-Off Date") after deducting payments of principal due before the
Cut-Off Date and will bear interest at rates which, on a weighted basis, will be
equal to the Pass-Through Rate. The Pass-Through Rate will equal the weighted
average rate of interest borne by the related Mortgage Assets, net of the
aggregate servicing fees, amounts allocated to the residual interests and any
other amounts as are specified in the Prospectus Supplement. The original
Certificate Principal Balance (or Notional Principal Balance) of the
Certificates of a series and the interest rate on the classes of such
Certificates will be determined in the manner specified in the Prospectus
Supplement.
Each class of Certificates that is entitled to distributions allocable to
interest will bear interest at a fixed rate or a rate that is subject to change
from time to time (a) in accordance with a schedule, (b) by reference to an
index, or (c) otherwise (each, a "Certificate Interest Rate"). One or more
classes of Certificates may provide for interest that accrues but is not
currently payable ("Compound Interest Certificates"). With respect to any class
of Compound Interest Certificates, any interest that has accrued but is not paid
on a given Distribution Date will be added to the aggregate Certificate
Principal Balance of such class of Certificates on that Distribution Date.
A series of Certificates may include one or more classes entitled only to
distributions or payments (i) allocable to interest, (ii) allocable to principal
(and allocable as between scheduled payments of principal and Principal
Prepayments, as defined below), or (iii) allocable to both principal (and
allocable as between scheduled payments of principal and Principal Prepayments)
and interest. A series of Certificates may consist of one or more classes as to
which distributions or payments will be allocated (i) on the basis of
collections from designated portions of the assets of the Trust, (ii) in
accordance with a schedule or formula, (iii) in relation to the occurrence of
events, or (iv) otherwise. The timing and amounts of such distributions or
payments may vary among classes, over time or otherwise.
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A series of Certificates may include one or more Classes of Scheduled
Amortization Certificates and Companion Certificates. "Scheduled Amortization
Certificates" are Certificates with respect to which payments of principal are
to be made in specified amounts on specified Distribution Dates, to the extent
of funds available on such Distribution Date. "Companion Certificates" are
Certificates which receive payments of all or a portion of any funds available
on a given Distribution Date which are in excess of amounts required to be
applied to payments on Scheduled Amortization Certificates on such Distribution
Date. Because of the manner of application of payments of principal to Companion
Certificates, the weighted average lives of Companion Certificates of a series
may be expected to be more sensitive to the actual rate of prepayments on the
Mortgage Assets in the related Trust than will the Scheduled Amortization
Certificates of such series.
One or more series of Certificates may constitute series of "Special
Allocation Certificates", which may include Senior Certificates, Subordinated
Certificates, Priority Certificates and Non-Priority Certificates. As specified
in the related Prospectus Supplement for a series of Special Allocation
Certificates, the timing and/or priority of payments of principal and/or
interest may favor one or more classes of Certificates over one or more other
classes of Certificates. Such timing and/or priority may be modified or
reordered upon the occurrence of one or more specified events. Losses on Trust
assets for such series may be disproportionately borne by one or more classes of
such series, and the proceeds and distributions from such assets may be applied
to the payment in full of one or more classes within such series before the
balance, if any, of such proceeds are applied to one or more other classes
within such series. For example, Special Allocation Certificates in a series may
be comprised of one or more classes of Senior Certificates having a priority in
right to distributions of principal and interest over one or more classes of
Subordinated Certificates, as a form of Credit Enhancement. See "Credit
Enhancement - Subordination" herein. Typically, the Subordinated Certificates
will carry a rating by the rating agencies lower than that of the Senior
Certificates. In addition, one or more classes of Certificates ("Priority
Certificates") may be entitled to a priority of distributions of principal or
interest from assets in the Trust over another class of Certificates
("Non-Priority Certificates"), but only after the exhaustion of other Credit
Enhancement applicable to such series. The Priority Certificates and
Non-Priority Certificates nonetheless may be within the same rating category.
Distributions of Principal and Interest
General. Distributions of principal and interest will be made to the extent
of funds available therefor, on the dates specified in the Prospectus Supplement
(each, a "Distribution Date") to the persons in whose names the Certificates are
registered (the "Owners") at the close of business on the dates specified in the
Prospectus Supplement (each, a "Record Date"). With respect to Certificates
other than Book Entry Certificates, distributions will be made by check or money
order mailed to the person entitled thereto at the address appearing in the
Certificate Register or, if specified in the Prospectus Supplement, in the case
of Certificates that are of a certain minimum denomination as specified in the
Prospectus Supplement, upon written request by the Owner of a Certificate, by
wire transfer or by such other means as are agreed upon with the person entitled
thereto; provided, however, that the final distribution in retirement of the
Certificates (other than Book Entry Certificates) will be made only upon
presentation and surrender of the Certificates at the office or agency of the
Trustee specified in the notice of such final distribution. With respect to Book
Entry Certificates, such payments will be made as described below under "Book
Entry Registration".
Distributions will be made out of, and only to the extent of, funds in a
separate account established and maintained for the benefit of the Certificates
of the related series (the "Certificate Account" with respect to such series),
including any funds transferred from any related Reserve Fund. Amounts may be
invested in the Eligible Investments specified herein and in the Prospectus
Supplement, and all income or other gain from such investments will be deposited
in the related Certificate Account and may be available to make payments on the
Certificates of the applicable series on the next succeeding Distribution Date
or pay after amounts owed by the Trust.
Distributions of Interest. Interest will accrue on the aggregate
Certificate Principal Balance (or, in the case of Certificates entitled only to
distributions allocable to interest, the aggregate Notional Principal Balance
(as defined below)) of each class of Certificates entitled to interest from the
date, at the applicable Certificate Interest Rate and for the periods (each, an
"Interest Accrual Period") specified in the Prospectus Supplement. The aggregate
Certificate Principal Balance of any class of Certificates entitled to
distributions of principal will be the aggregate
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original Certificate Principal Balance of such class of Certificates, reduced by
all distributions allocable to principal, and, in the case of Compound Interest
Certificates, increased by all interest accrued but not then distributable on
such Compound Interest Certificates. With respect to a class of Certificates
entitled only to distributions allocable to interest, such interest will accrue
on a notional principal balance (the "Notional Principal Balance") of such
class, computed solely for purposes of determining the amount of interest
accrued and payable on such class of Certificates.
To the extent funds are available therefor, interest accrued during each
Interest Accrual Period on each class of Certificates entitled to interest
(other than a class of Compound Interest Certificates) will be distributable on
the Distribution Dates specified in the Prospectus Supplement until the
aggregate Certificate Principal Balance of the Certificates of such class has
been distributed in full or, in the case of Certificates entitled only to
distributions allocable to interest, until the aggregate Notional Principal
Balance of such Certificates is reduced to zero or for the period of time
designated in the Prospectus Supplement. Distributions of interest on each class
of Compound Interest Certificates will commence only after the occurrence of the
events specified in the Prospectus Supplement and, prior to such time, the
aggregate Certificate Principal Balance (or Notional Principal Balance) of such
class of Compound Interest Certificates, will increase on each Distribution Date
by the amount of interest that accrued on such class of Compound Interest
Certificates during the preceding Interest Accrual Period but that was not
required to be distributed to such class on such Distribution Date. Any such
class of Compound Interest Certificates will thereafter accrue interest on its
outstanding Certificate Principal Balance (or Notional Principal Balance) as so
adjusted.
Distributions of Principal. The Prospectus Supplement will specify the
method by which the amount of principal to be distributed on the Certificates on
each Distribution Date will be calculated and the manner in which such amount
will be allocated among the classes of Certificates entitled to distributions of
principal.
One or more classes of Certificates may be entitled to receive all or a
disproportionate percentage of the payments of principal which are received on
the related Mortgage Assets in advance of their scheduled due dates and are not
accompanied by amounts representing scheduled interest due after the month of
such payments ("Principal Prepayments"). Any such allocation may have the effect
of accelerating the amortization of such Certificates relative to the interests
evidenced by the other Certificates.
Unscheduled Distributions. The Certificates of a series may be subject to
receipt of distributions before the next scheduled Distribution Date under the
circumstances and in the manner described below and in the related Prospectus
Supplement. If applicable, such unscheduled distributions will be made on the
Certificates of a series on the date and in the amount specified in the related
Prospectus Supplement if, due to substantial payments of principal (including
Principal Prepayments) on the related Mortgage Assets, low rates then available
for reinvestment of such payments or both, it is determined, based on specified
assumptions, that the amount anticipated to be on deposit in the Certificate
Account for such series on the next related Distribution Date, together with, if
applicable, any amounts available to be withdrawn from any related Reserve Fund
or from any other Credit Enhancement provided for such series, may be
insufficient to make required distributions on the Certificates on such
Distribution Date. The amount of any such unscheduled distribution that is
allocable to principal will not exceed the amount that would otherwise have been
required to be distributed as principal on the Certificates on the next
Distribution Date and will include interest at the applicable Certificate
Interest Rate (if any) on the amount of the unscheduled distribution allocable
to principal for the period and to the date specified in the Prospectus
Supplement.
All distributions allocable to principal in any unscheduled distribution
will be made in the same priority and manner as distributions of principal on
the Certificates would have been made on the next Distribution Date except as
otherwise stated in the related Prospectus Supplement, and, with respect to
Certificates of the same class, unscheduled distributions of principal will be
made on a pro rata basis. Notice of any unscheduled distribution will be given
by the Trustee prior to the date of such distribution.
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Book Entry Registration
Certificates may be issued as Book Entry Certificates and held in the name
of a Clearing Agency registered with the Securities and Exchange Commission or
its nominee. Transfers and pledges of Book Entry Certificates may be made only
through entries on the books of the Clearing Agency in the name of Clearing
Agency Participants or their nominees. Clearing Agency Participants may also be
Beneficial Owners of Book Entry Certificates.
Purchasers and other Beneficial Owners may not hold Book Entry Certificates
directly but may hold, transfer or pledge their ownership interest in the
Certificates only through Clearing Agency Participants. Furthermore, Beneficial
Owners will receive all payments of principal and interest with respect to the
Certificates and, if applicable, may request redemption of Certificates, only
through the Clearing Agency and the Clearing Agency Participants. Beneficial
Owners will not be registered Owners of Certificates or be entitled to receive
definitive certificates representing their ownership interest in the
Certificates except under the limited circumstances, if any, described in the
related Prospectus Supplement. See "Risk Factors - Book Entry Registration"
herein.
If Certificates of a series are issued as Book Entry Certificates, the
Clearing Agency will be required to make book entry transfers among Clearing
Agency Participants, to receive and transmit payments of principal and interest
with respect to the Certificates of such series, and to receive and transmit
requests for redemption with respect to such Certificates. Clearing Agency
Participants with whom Beneficial Owners have accounts with respect to such Book
Entry Certificates will be similarly required to make book entry transfers and
receive and transmit payments and redemption requests on behalf of their
respective Beneficial Owners. Accordingly, although Beneficial Owners will not
be registered Owners of Certificates and will not possess physical certificates,
a method will be provided whereby Beneficial Owners may receive payments,
transfer their interests, and submit redemption requests.
List of Owners of Certificates
Upon written request of a specified number or percentage interests of
Owners of Certificates of record of a series of Certificates for purposes of
communicating with other Owners of Certificates with respect to their rights as
Owners of Certificates, the Trustee (or Indenture Trustee in the case of
Certificates representing debt obligations of a Trust) will afford such Owners
access during business hours to the most recent list of Owners of Certificates
of that series held by the Trustee. With respect to Book Entry Certificates, the
only named Owner on the Certificate Register will be the Clearing Agency.
The Agreement will not provide for the holding of any annual or other
meetings of Owners of Certificates.
THE TRUSTS
The Trust for a series of Certificates will consist of: (i) the Mortgage
Assets (subject, if specified in the Prospectus Supplement, to certain
exclusions) received on and after the related Cut-Off Date; (ii) all payments
(subject, if specified in the Prospectus Supplement, to certain exclusions) in
respect of such Mortgage Assets, which may be adjusted, to the extent specified
in the related Prospectus Supplement, in the case of interest payments on
Mortgage Assets, to the Pass-Through Rate; (iii) if specified in the Prospectus
Supplement, reinvestment income on such payments; (iv) with respect to a Trust
that includes Mortgage Loans, or Contracts, all property acquired by foreclosure
or deed in lieu of foreclosure with respect to any such Mortgage Loan or
Contract; (v) certain rights of the Trustee, the Depositor and the Servicer
under any policies required to be maintained in respect of the related Mortgage
Assets; and (vi) if so specified in the Prospectus Supplement, one or more forms
of Credit Enhancement.
The Certificates of each series will be entitled to payment only from the
assets of the related Trust and any other assets pledged therefor and will not
be entitled to payments in respect of the assets of any other trust established
by the Depositor.
Mortgage Assets may be acquired by the Depositor from affiliated or
unaffiliated originators. The following is a brief description of the Mortgage
Assets expected to be included in the Trusts. If specific information
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respecting the Mortgage Assets is not known at the time the related series of
Certificates initially are offered, more general information of the nature
described below will be provided in the related Prospectus Supplement, and
specific information will be set forth in a report on Form 8-K to be filed with
the Securities and Exchange Commission within fifteen days after the initial
issuance of such Certificates. A copy of the Agreement (and of the indenture in
the case of Certificates which represent debt obligations of a Trust) with
respect to each series of Certificates will be attached to the Form 8-K and will
be available for inspection at the corporate trust office of the Trustee
specified in the related Prospectus Supplement. A schedule of the Mortgage
Assets relating to each series of Certificates, will be attached to the related
Agreement delivered to the Trustee upon delivery of such Certificates.
Mortgage Loans
The Mortgage Loans will be evidenced by promissory notes (the "Mortgage
Notes") secured by mortgages or deeds of trust (the "Mortgages") creating liens
on residential properties (the "Mortgaged Properties"). Such Mortgage Loans will
be within the broad classification of single family mortgage loans, defined
generally as loans on residences containing one to four dwelling units. If
specified in the Prospectus Supplement, the Mortgage Loans may include
cooperative apartment loans ("Cooperative Loans") secured by security interests
in shares issued by Cooperatives and in the related proprietary leases or
occupancy agreements granting exclusive rights to occupy specific dwelling units
in such Cooperatives' buildings, or the Mortgage Loans may be secured by junior
liens on the related mortgaged properties, including Title I Loans and other
types of home improvement retail installment contracts. The Mortgaged Properties
securing the Mortgage Loans may include investment properties and vacation and
second homes. Each Mortgage Loan will be selected by the Depositor for inclusion
in the Trust from among those acquired by the Depositor or originated or
acquired by one or more affiliated or unaffiliated originators, including newly
originated loans.
The Mortgage Loans will be "conventional" mortgage loans, that is they will
not be insured or guaranteed by any governmental agency, the principal and
interest on the Mortgage Loans included in the Trust for a series of
Certificates will be payable either on the first day of each month or on
different scheduled days throughout each month, and the interest will be
calculated either on a simple-interest or accrual method as described in the
related Prospectus Supplement. When a full principal amount is paid on a
Mortgage Loan during a month, the mortgagor is generally charged interest only
on the days of the month actually elapsed up to the date of such prepayment, at
a daily interest rate that is applied to the principal amount of the Mortgage
Loan so prepaid.
The payment terms of the Mortgage Loans to be included in a Trust for a
series will be described in the related Prospectus Supplement and may include
any of the following features or combinations thereof or other features
described in the related Prospectus Supplement:
(a) Interest may be payable at a fixed rate, a rate adjustable from
time to time in relation to an index, a rate that is fixed for a period of
time or under certain circumstances and followed by an adjustable rate, a
rate that otherwise varies from time to time, or a rate that is convertible
from an adjustable rate to a fixed rate. Changes to an adjustable rate may
be subject to periodic limitations, maximum rates, minimum rates or a
combination of such limitations. Accrued interest may be deferred and added
to the principal of a Mortgage Loan for such periods and under such
circumstances as may be specified in the related Prospectus Supplement.
Mortgage Loans may provide for the payment of interest at a rate lower than
the specified mortgage rate for a period of time or for the life of the
Mortgage Loan with the amount of any difference contributed from funds
supplied by the seller of the Mortgaged Property or another source.
(b) Principal may be payable on a level debt service basis to fully
amortize the Mortgage Loan over its term, may be calculated on the basis of
an amortization schedule that is longer than the original term to maturity
or on an interest rate that is different from the interest rate on the
Mortgage Loan or may not be amortized during all or a portion of the
original term. Payment of all or a substantial portion of the principal may
be due on maturity. Principal may include interest that has been deferred
and added to the principal balance of the Mortgage Loan.
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(c) Monthly payments of principal and interest may be fixed for the
life of the Mortgage Loan, may increase over a specified period of time or
may change from period to period. Mortgage Loans may include limits on
periodic increases or decreases in the amount of monthly payments and may
include maximum or minimum amounts of monthly payments.
(d) Prepayments of principal may be subject to a prepayment fee, which
may be fixed for the life of the Mortgage Loan or may decline over time,
and may be prohibited for the life of the Mortgage Loan or for certain
periods ("lockout periods"). Certain Mortgage Loans may permit prepayments
after expiration of the applicable lockout period and may require the
payment of a prepayment fee in connection with any such subsequent
prepayment. Other Mortgage Loans may permit prepayments without payment of
a fee unless the prepayment occurs during specified time periods. The
Mortgage Loans may include "due-on-sale" clauses which permit the mortgagee
to demand payment of the entire Mortgage Loan in connection with the sale
or certain transfers of the related mortgaged property. Other Mortgage
Loans may be assumable by persons meeting the then applicable underwriting
standards of the Servicer, or as may be required by any applicable
government program.
With respect to a series for which the related Trust includes Mortgage
Loans, the related Prospectus Supplement may specify, among other things,
information regarding the interest rates (the "Mortgage Rates"), the average
Principal Balance and the aggregate Principal Balance, the years of origination
and original principal balances and the original loan-to-value ratios. The
"Principal Balance" of any Mortgage Loan will be the unpaid principal balance of
such Mortgage Loan as of the Cut-Off Date, after deducting any principal
payments due before the Cut-Off Date, reduced by all principal payments,
including principal payments advanced pursuant to the related Agreement,
previously distributed with respect to such Mortgage Loan and reported as
allocable to principal.
The "Loan-to-Value Ratio" of any Mortgage Loan will be determined by
dividing the amount of the Mortgage Loan by the Original Value (defined below)
of the related Mortgaged Property. The "principal amount" of the Mortgage Loan,
for purposes of computation of the Loan-to-Value Ratio of any Mortgage Loan,
will include any part of an origination fee that has been financed. In some
instances, it may also include amounts which the seller or some other party to
the transaction has paid to the mortgagee, such as minor reductions in the
purchase price made at the closing. The "Original Value" of a Mortgage Loan is
(a) in the case of any purchase money Mortgage Loan, the lesser of (i) the value
of the mortgaged property, based on an appraisal thereof and (ii) the selling
price, and (b) otherwise the value of the mortgaged property, based on an
appraisal thereof.
There can be no assurance that the Original Value will reflect actual real
estate values during the term of a Mortgage Loan. If the residential real estate
market should experience an overall decline in property values such that the
outstanding principal balances of the Mortgage Loans become equal to or greater
than the values of the Mortgaged Properties, the actual rates of delinquencies,
foreclosures and losses could be significantly higher than those now generally
experienced in the mortgage lending industry. In addition, adverse economic
conditions (which may or may not affect real estate values) may affect the
timely and ultimate payment by mortgagors of scheduled payments of principal and
interest on the Mortgage Loans and, accordingly, the actual rates of
delinquencies, foreclosures and losses with respect to the Mortgage Loans.
Contracts
Each pool of Contracts included in the Trust with respect to a series of
Certificates (the "Contract Pool") will consist of manufactured housing
conditional sales contracts and installment loan agreements or participation
interests therein (collectively, "Contracts"). The Contracts may be conventional
manufactured housing contracts or contracts insured by the FHA, including Title
I Contracts, or partially guaranteed by the VA. Each Contract is secured by a
Manufactured Home. The Prospectus Supplement will specify whether the Contracts
will be fully amortizing or have a balloon payment and whether they will bear
interest at a fixed or variable rate.
The Manufactured Homes securing the Contracts consist of manufactured homes
within the meaning of 42 United States Code, Section 5402(6), which defines a
"Manufactured Home" as "a structure, transportable in one or more sections,
which in the traveling mode, is eight body feet or more in width or forty body
feet or more in length, or, when erected on site, is three hundred twenty or
more square feet, and which is built on a permanent
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chassis and designed to be used as a dwelling with or without permanent
foundation when connected to the required utilities, and includes the plumbing,
heating, air-conditioning, and electrical systems contained therein; except that
such term shall include any structure which meets all the requirements of this
paragraph except the size requirements and with respect to which the
manufacturer voluntarily files a certification required by the Secretary of
Housing and Urban Development and complies with the standards established under
[this] chapter." Moreover, if an election is made to treat the Trust as a REMIC
as described in "Certain Federal Income Tax Consequences - Federal Income Tax
Consequences for REMIC Certificates" herein, Manufactured Homes will have a
minimum of 400 square feet of living space and a minimum width in excess of 102
inches.
For purposes of calculating the loan-to- value ratio of a Contract relating
to a new Manufactured Home, the "Collateral Value" is no greater than the sum of
a fixed percentage of the list price of the unit actually billed by the
manufacturer to the dealer (exclusive of freight to the dealer site) including
"accessories" identified in the invoice (the "Manufacturer's Invoice Price"),
plus the actual cost of any accessories purchased from the dealer, a delivery
and set-up allowance, depending on the size of the unit and the cost of state
and local taxes, filing fees and up to three years prepaid hazard insurance
premiums. The Collateral Value of a used Manufactured Home is the least of the
sales price, the appraised value, and the National Automobile Dealer's
Association book value plus prepaid taxes and hazard insurance premiums. The
appraised value of a Manufactured Home is based upon the age and condition of
the manufactured housing unit and the quality and condition of the mobile home
park in which it is situated, if applicable.
The related Prospectus Supplement may specify for the Contracts contained
in the related Contract Pool, among other things, the date of origination of the
Contracts; the annual percentage rates on the Contracts; the loan-to-value
ratios; the minimum and maximum outstanding principal balance as of the Cut-Off
Date and the average outstanding principal balance; the outstanding principal
balances of the Contracts included in the Contract Pool; the original maturities
of the Contracts; and the last maturity date of any Contract.
Mortgage-Backed Securities
"Mortgage-Backed Securities" (or "MBS") may include (i) private (that is,
not guaranteed or insured by the United States or any agency or instrumentality
thereof) mortgage participations, mortgage pass-through certificates or other
mortgage-backed securities or (ii) certificates insured or guaranteed by FHLMC
or FNMA or GNMA.
Any MBS will have been issued pursuant to a participation and servicing
agreement, a pooling and servicing agreement, an indenture or similar agreement
(an "MBS Agreement"). A seller (the "MBS Issuer") and/or servicer (the "MBS
Servicer") of the underlying mortgage loans will have entered into the MBS
Agreement with a trustee or a custodian under the MBS Agreement (the "MBS
Trustee"), if any, or with the original purchaser or purchasers of the MBS.
The MBS may have been issued in one or more classes with characteristics
similar to the classes of Certificates described herein. Distributions in
respect of the MBS will be made by the MBS Servicer or the MBS Trustee on the
dates specified in the related Prospectus Supplement. The MBS Issuer or the MBS
Servicer or another person specified in the related Prospectus Supplement may
have the right or obligation to repurchase or substitute assets underlying the
MBS after a certain date or under other circumstances specified in the related
Prospectus Supplement.
Reserve funds, subordination, cross-support or other credit enhancement
similar to that described for the Certificates under "Credit Enhancement" may
have been provided with respect to the MBS. The type, characteristics and amount
of such credit enhancement, if any, will be a function of the characteristics of
the underlying mortgage loans and other factors and generally will have been
established on the basis of the requirements of any rating agency that may have
assigned a rating to the MBS, or by the initial purchasers of the MBS.
The Prospectus Supplement for a series of Certificates that evidence
interests in MBS will specify, to the extent available, (i) the aggregate
approximate initial and outstanding principal amount and type of the MBS to be
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included in the Trust, (ii) the original and remaining term to stated maturity
of the MBS, if applicable, (iii) the pass-through or bond rate of the MBS or the
formula for determining such rates, (iv) the payment characteristics of the MBS,
(v) the MBS Issuer, MBS Servicer and MBS Trustee, as applicable, (vi) a
description of the credit support, if any, (vii) the circumstances under which
the stated underlying mortgage loans, or the MBS themselves may be purchased
prior to their maturity, (viii) the terms on which mortgage loans may be
substituted for those originally underlying the MBS, (ix) the servicing fees
payable under the MBS Agreement, (x) to the extent available to the Depositor,
information in respect of the underlying mortgage loans, and (xi) the
characteristics of any cash flow agreements that relate to the MBS.
Other Mortgage Securities
Other Mortgage Securities include other securities that directly or
indirectly represent an ownership interest in, or are secured by and payable
from, mortgage loans on real property or mortgage-backed securities, including
residual interests in issuances of collateralized mortgage obligations or
mortgage pass-through certificates. Any Other Mortgage Securities that are
privately placed securities will not be included in a Trust until such time as
such privately placed securities would be freely transferrable pursuant to Rule
144A of the Securities Act of 1933, as amended. Further (i) such privately
placed securities will have been acquired in the secondary market and not
pursuant to an initial offering thereof and (ii) the underlying issuer of such
securities will not be affiliated with the Depositor and will not have an
interest in the Trust. The Prospectus Supplement for a series of Certificates
will describe any Other Mortgage Securities to be included in the Trust for such
series.
CREDIT ENHANCEMENT
General. Various forms of Credit Enhancement may be provided with respect
to one or more classes of a series of Certificates or with respect to the assets
in the related Trust. Credit Enhancement may be in the form of the subordination
of one or more classes of the Certificates of such series, the establishment of
one or more Reserve Funds, the use of a cross-support feature, use of a Mortgage
Pool Insurance Policy, Special Hazard Insurance Policy, bankruptcy bond, or
another form of Credit Enhancement described in the related Prospectus
Supplement, or any combination of the foregoing. Credit Enhancement may not
provide protection against all risks of loss and may not guarantee repayment of
the entire principal balance of the Certificates and interest thereon. If losses
occur which exceed the amount covered by Credit Enhancement or which are not
covered by the Credit Enhancement, Owners of Certificates will bear their
allocable share of deficiencies.
Financial Guaranty Insurance Policies. If so specified in the related
Prospectus Supplement, a financial guaranty insurance policy or surety bond
("Financial Guaranty Insurance Policy") may be obtained and maintained for each
class or series of Certificates. The issuer of any Financial Guaranty Insurance
Policy (a "Financial Guaranty Insurer") will be described in the related
Prospectus Supplement. Such description will include financial information on
the Financial Guaranty Insurer. In addition, the audited financial statements of
a Financial Guaranty Insurer and an auditors consent to use such financial
statements will be filed with the Securities and Exchange Commission on Form 8-K
or will be incorporated by reference to financial statements already on file
with the Securities and Exchange Commission.
Unless otherwise specified in the related Prospectus Supplement, a
Financial Guaranty Insurance Policy will unconditionally and irrevocably
guarantee to Certificateholders that an amount equal to each full and completed
insured payment will be received by an agent of the Trustee (an "Insurance
Paying Agent") on behalf of Certificateholders, for distribution by the Trustee
to each Certificateholder. The "insured payment" will be defined in the related
Prospectus Supplement, and will generally equal the full amount of the
distributions of principal and interest to which Certificateholders are entitled
under the related Agreement plus any other amounts specified therein or in the
related Prospectus Supplement (the "Insured Payment").
Financial Guaranty Insurance Policies may apply only to certain specified
classes, or may apply at the Mortgage Asset level and only to specified Mortgage
Assets.
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The specific terms of any Financial Guaranty Insurance Policy will be as
set forth in the related Prospectus Supplement. Financial Guaranty Insurance
Policies may have limitations including (but not limited to) limitations on the
insurer's obligation to guarantee the obligations of the Seller or Depositor to
repurchase or substitute for any Mortgage Loans, Financial Guaranty Insurance
Policies will not guarantee any specified rate of prepayments and/or to provide
funds to redeem Certificates on any specified date.
Subject to the terms of the related Agreement, the Financial Guaranty
Insurer may be subrogated to the rights of Certificateholder to receive payments
under the Certificates to the extent of any payment by such Financial Guaranty
Insurer under the related Financial Guaranty Insurance Policy.
Subordination. Distributions in respect of scheduled principal, interest or
any combination thereof otherwise payable to one or more classes of Certificates
of a series (the "Subordinated Certificates") may be paid to one or more other
classes of such series (the "Senior Certificates") under the circumstances and
to the extent provided in the Prospectus Supplement. If specified in the
Prospectus Supplement, delays in receipt of scheduled payments on the Mortgage
Assets and losses on defaulted Mortgage Assets will be borne first by the
various classes of Subordinated Certificates and thereafter by the various
classes of Senior Certificates, in each case under the circumstances and subject
to the limitations specified in the Prospectus Supplement. The aggregate
distributions in respect of delinquent payments on the Mortgage Assets over the
lives of the Certificates or at any time, the aggregate losses in respect of
defaulted Mortgage Assets which must be borne by the Subordinated Certificates
by virtue of subordination and the amount of the distributions otherwise
distributable to the Subordinated Certificates that will be distributable to
Owners of Senior Certificates on any Distribution Date may be limited as
specified in the Prospectus Supplement. If aggregate distributions in respect of
delinquent payments on the Mortgage Assets or aggregate losses in respect of
such Mortgage Assets were to exceed the total amounts payable and available for
distribution to Owners of Subordinated Certificates or, if applicable, were to
exceed the specified maximum amount, Owners of Senior Certificates could
experience losses on the Certificates.
In addition to or in lieu of the foregoing, all or any portion of
distributions otherwise payable to Subordinated Certificates on any Distribution
Date may instead be deposited into one or more Reserve Funds (as defined below)
established by the Trustee. If so specified in the Prospectus Supplement, such
deposits may be made on each Distribution Date, on each Distribution Date for
specified periods, or on each Distribution Date until the balance in the Reserve
Fund has reached a specified amount and, following payments from the Reserve
Fund to Owners of Senior Certificates or otherwise, thereafter to the extent
necessary to restore the balance in the Reserve Fund to required levels, in each
case as specified in the Prospectus Supplement. If so specified in the
Prospectus Supplement, amounts on deposit in the Reserve Fund may be released to
the Depositor or the Owners of any class of Certificates at the times and under
the circumstances specified in the Prospectus Supplement.
If specified in the Prospectus Supplement, various classes of Subordinate
Certificates and Subordinated Certificates may themselves be subordinate in
their right to receive certain distributions to other classes of Senior and
Subordinated Certificates, respectively, through a cross-support mechanism or
otherwise.
As between classes of Senior Certificates and as between classes of
Subordinated Certificates, distributions may be allocated among such classes (i)
in the order of their scheduled final distribution dates, (ii) in accordance
with a schedule or formula, (iii) in relation to the occurrence of events, or
(iv) otherwise, in each case as specified in the Prospectus Supplement. As
between classes of Subordinated Certificates, payments with respect to Senior
Certificates on account of delinquencies or losses and payments to any Reserve
Fund will be allocated as specified in the Prospectus Supplement.
Overcollateralization. If specified in the Prospectus Supplement,
subordination provisions of a Trust may be used to accelerate to a limited
extent the amortization of one or more classes of Certificates relative to the
amortization of the related Mortgage Loans. The accelerated amortization is
achieved by the application of certain excess interest to the payment of
principal of one or more classes of Certificates. This acceleration feature
creates, with respect to the Mortgage Loans or groups thereof,
overcollateralization which results from the excess of the aggregate principal
balance of the related Mortgage Loans, or a group thereof, over the principal
balance of the related class of Certificates. Such acceleration may continue for
the life of the related Certificates, or may be
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limited. In the case of limited acceleration, once the required level of
overcollateralization is reached, and subject to certain provisions specified in
the related Prospectus Supplement, such limited acceleration feature may cease,
unless necessary to maintain the required level of overcollateralization.
Cross-Support. If specified in the related Prospectus Supplement, the
beneficial ownership of separate groups of assets included in the Trust for a
series may be evidenced by separate classes of related series of Certificates.
In such case, Credit Enhancement may be provided by a cross-support feature
which may require that distributions be made with respect to Certificates
evidencing beneficial ownership of one or more asset groups prior to
distributions to Subordinated Certificates evidencing a beneficial ownership
interest in other asset groups within the same Trust. The Prospectus Supplement
for a series which includes a cross-support feature will describe the manner and
conditions for applying such cross-support feature.
If specified in the Prospectus Supplement, the coverage provided by one or
more forms of Credit Enhancement may apply concurrently to two or more separate
Trusts for a separate series of Certificates. If applicable, the Prospectus
Supplement will identify the Trusts to which such credit support relates and the
manner of determining the amount of the coverage provided thereby and of the
application of such coverage to the identified Trusts.
Pool Insurance. If specified in the related Prospectus Supplement, one or
more mortgage pool insurance policies (each, a "Mortgage Pool Insurance Policy")
will be obtained.
Any such Mortgage Pool Insurance Policy will, subject to the limitations
described below and in the Prospectus Supplement, cover loss by reason of
default in payments on such Mortgage Loans up to the amounts specified in the
Prospectus Supplement or report on Form 8-K and for the periods specified in the
Prospectus Supplement. The Trustee under the related Agreement will agree to use
its best reasonable efforts to cause to be maintained in effect any such
Mortgage Pool Insurance Policy and to supervise the filing of claims thereunder
to the issuer of such Mortgage Pool Insurance Policy (the "Pool Insurer") for
the period of time specified in the related Prospectus Supplement. A Mortgage
Pool Insurance Policy, however, is not a blanket policy against loss, because
claims thereunder may only be made respecting particular defaulted Mortgage
Loans and only upon satisfaction of certain conditions precedent set forth in
such policy as described in the related Prospectus Supplement. The Mortgage Pool
Insurance Policies, if any, will not cover loss due to a failure to pay or
denial of a claim under a primary mortgage insurance policy, irrespective of the
reason therefor. The related Prospectus Supplement will describe the terms of
any applicable Mortgage Pool Insurance Policy and will set forth certain
information with respect to the related Pool Insurer.
In general, a Mortgage Pool Insurance Policy may not insure against loss
sustained by reason of a default arising from, among other things, (i) fraud or
negligence in the origination or servicing of a Mortgage Loan, including
misrepresentation by the Mortgagor or persons involved in the origination
thereof or (ii) failure to construct a Mortgaged Property in accordance with
plans and specifications. If so specified in the related Prospectus Supplement,
a failure of coverage attributable to one of the foregoing events might result
in a breach of a representation of the Seller and in such event might give rise
to an obligation on the part of the Seller to purchase the defaulted Mortgage
Loan if the breach materially and adversely affects the interests of the Owners
of the Certificates and cannot be cured by the Seller.
The original amount of coverage under any Mortgage Pool Insurance Policy
will be reduced over the life of such Certificates by the aggregate dollar
amount of claims paid less the aggregate of the net amounts realized by the Pool
Insurer upon disposition of all foreclosed properties. The amount of claims paid
will generally include certain expenses incurred with respect to the applicable
Mortgage Loans as well as accrued interest on delinquent Mortgage Loans to the
date of payment of the claim. See "Certain Legal Aspects of the Mortgage Assets
- - Foreclosure" herein. Accordingly, if aggregate net claims paid under any
Mortgage Pool Insurance Policy reach the original policy limit, coverage under
that Mortgage Pool Insurance Policy will be exhausted and any further losses
will be borne by one or more classes of Certificates unless otherwise covered by
another form of Credit Enhancement, as specified in the Prospectus Supplement.
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Since any Mortgage Pool Insurance Policy may require that the Mortgaged
Property subject to a defaulted Mortgage Loan be restored to its original
condition prior to claiming against the Pool Insurer, such policy may not
provide coverage against hazard losses. As set forth under "Servicing of
Mortgage Loans and Contracts - Standard Hazard Insurance", the hazard policies
concerning the Mortgage Loans typically exclude from coverage physical damage
resulting from a number of causes and even when the damage is covered, may
afford recoveries which are significantly less than the full replacement cost of
such losses. Even if special hazard insurance is applicable as specified in the
Prospectus Supplement, no coverage in respect of special hazard losses will
cover all risks, and the amount of any such coverage will be limited. See
"Special Hazard Insurance" below. As a result, certain hazard risks will not be
insured against and will therefore be borne by Owners of the Certificates,
unless otherwise covered by another form of Credit Enhancement, as specified in
the Prospectus Supplement.
The terms of any Mortgage Pool Insurance Policy relating to a Contract Pool
will be described in the related Prospectus Supplement.
Special Hazard Insurance. If specified in the related Prospectus
Supplement, one or more special hazard insurance policies (each, a "Special
Hazard Insurance Policy") will be obtained.
Any such Special Hazard Insurance Policy will, subject to limitations
described below and in the Prospectus Supplement, cover (i) loss by reason of
damage to Mortgaged Properties caused by certain hazards (including earthquakes
and, to a limited extent, tidal waves and related water damage) not covered by
the standard form of hazard insurance policy for the respective states in which
the Mortgaged Properties are located or under flood insurance policies, if any,
covering the Mortgaged Properties, and (ii) loss caused by reason of the
application of the coinsurance clause contained in hazard insurance policies.
See "Servicing of Mortgage Loans and Contracts - Standard Hazard Insurance."
Any Special Hazard Insurance Policy may not cover losses occasioned by war,
civil insurrection, certain governmental actions, errors in design, faulty
workmanship or materials (except under certain circumstances), nuclear reaction,
flood (if the Mortgaged Property is located in a federally designated flood
area), chemical contamination and certain other risks. Aggregate claims under
each Special Hazard Insurance Policy will be limited as described in the related
Prospectus Supplement. Any Special Hazard Insurance Policy may also provide that
no claim may be paid unless hazard and, if applicable, flood insurance on the
Mortgaged Property has been kept in force and other protection and preservation
expenses have been paid.
Subject to the foregoing limitations, any Special Hazard Insurance Policy
generally will provide that, where there has been damage to property securing a
foreclosed Mortgage Loan (title to which has been acquired by the insured) and
to the extent such damage is not covered by the hazard insurance policy or flood
insurance policy, if any, maintained with respect to such Mortgage Loan, the
issuer of the Special Hazard Insurance Policy (the "Special Hazard Insurer")
will pay the lesser of (i) the cost of repair or replacement of such property or
(ii) upon transfer of the property to the special hazard insurer, the unpaid
principal balance of such Mortgage Loan at the time of acquisition of such
property by foreclosure or deed in lieu of foreclosure, plus accrued interest to
the date of claim settlement and certain expenses incurred with respect to such
property. If the unpaid principal balance plus accrued interest and certain
expenses is paid by the Special Hazard Insurer, the amount of further coverage
under the related Special Hazard Insurance Policy will be reduced by such amount
less any net proceeds from the sale of the property. Any amount paid as the cost
of repair or replacement of the property will also reduce coverage by such
amount. Restoration of the property with the proceeds described under (i) above
will satisfy the condition under any applicable Mortgage Pool Insurance Policy
that the property be restored before a claim under such Mortgage Pool Insurance
Policy may be validly presented with respect to the defaulted Mortgage Loan
secured by such property. The payment described under (ii) above will render
unnecessary presentation of a claim in respect of such Mortgage Loan under any
related Mortgage Pool Insurance Policy. Therefore, so long as a Mortgage Pool
Insurance Policy remains in effect, the payment by the Special Hazard Insurer
under a Special Hazard Insurance Policy of the cost of repair or replacement or
the unpaid principal balance of the Mortgage Loan plus accrued interest and
certain expenses will not affect the total insurance proceeds but will affect
the relative amounts of coverage remaining under any related Special Hazard
Insurance Policy and any related Mortgage Pool Insurance Policy.
The terms of any Special Hazard Insurance Policy relating to a Contract
Pool will be described in the related Prospectus Supplement.
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Bankruptcy Bond. In the event of a bankruptcy of a borrower, the bankruptcy
court may establish the value of the property securing the related Mortgage Loan
at an amount less than the then outstanding principal balance of such Mortgage
Loan. The amount of the secured debt could be reduced to such value and the
holder of such Mortgage Loan thus would become an unsecured creditor to the
extent the outstanding principal balance of such Mortgage Loan exceeds the value
so assigned to the property by the bankruptcy court. In addition, certain other
modifications of the terms of a Mortgage Loan can result from a bankruptcy
proceeding, including the reduction in monthly payments required to be made by
the borrower. See "Certain Legal Aspects of the Mortgage Assets" herein. If so
provided in the related Prospectus Supplement, the Depositor will obtain a
bankruptcy bond or similar insurance contract (the "bankruptcy bond") for
proceedings with respect to borrowers under the Bankruptcy Code. The bankruptcy
bond will cover certain losses resulting from a reduction by a bankruptcy court
of scheduled payments of principal of and interest on a Mortgage Loan or a
reduction by such court of the principal amount of a Mortgage Loan and will
cover certain unpaid interest on the amount of such a principal reduction from
the date of the filing of a bankruptcy petition.
The bankruptcy bond will provide coverage in the aggregate amount specified
in the related Prospectus Supplement. Such amount will be reduced by payments
made under such bankruptcy bond in respect of the related Mortgage Loans and
will not be restored.
If specified in the related Prospectus Supplement, other forms of Credit
Enhancement may be provided to cover such bankruptcy-related losses. Any
bankruptcy bond or other form of Credit Enhancement provided to cover
bankruptcy-related losses will be described in the related Prospectus
Supplement.
Reserve Funds. If specified in the Prospectus Supplement, cash, U.S.
Treasury securities, instruments evidencing ownership of principal or interest
payments thereon, letters of credit, surety bonds, demand notes, certificates of
deposit or a combination thereof in the aggregate amount specified in the
Prospectus Supplement will be deposited by the Depositor on the Delivery Date in
one or more accounts (each, a "Reserve Fund") established and maintained with
the Trustee. Such cash and the principal and interest payments on such other
investments will be used to enhance the likelihood of timely payment of
principal of, and interest on, or, if so specified in the Prospectus Supplement,
to provide additional protection against losses in respect of, the assets in the
related Trust, to pay the expenses of the Trust or for such other purposes
specified in the Prospectus Supplement. Whether or not the Depositor has any
obligation to make such a deposit, certain amounts to which the Owners of
Subordinated Certificates, if any, would otherwise be entitled may instead be
deposited into the Reserve Fund from time to time and in the amounts as
specified in the Prospectus Supplement. Any cash in any Reserve Fund and the
proceeds of any other instrument upon maturity will be invested in Eligible
Investments. If a letter of credit is deposited with the Trustee, such letter of
credit will be irrevocable. Any instrument deposited therein will name the
Trustee as a beneficiary and will be issued by an entity acceptable to each
rating agency that rates the Certificates. Additional information with respect
to such instruments deposited in the Reserve Funds may be set forth in the
Prospectus Supplement.
Any amounts so deposited and payments on instruments so deposited will be
available for withdrawal from the Reserve Fund for distribution with respect to
the Certificates for the purposes, in the manner and at the times specified in
the Prospectus Supplement.
Other Insurance, Guaranties and Similar Instruments or Agreements. If
specified in the Prospectus Supplement, the related Trust may also include
insurance, guaranties, surety bonds, letters of credit, guaranteed investment
contracts or similar arrangements for the purpose of (i) maintaining timely
payments or providing additional protection against losses on the assets
included in such Trust, (ii) paying administrative expenses, (iii) establishing
a minimum reinvestment rate on the payments made in respect of such assets or
principal payment rate on such assets, (iv) guaranteeing timely payment of
principal and interest under the Certificates, or for such other purpose as is
specified in such Prospectus Supplement. Such arrangements may include
agreements under which Owners of Certificates are entitled to receive amounts
deposited in various accounts held by the Trustee upon the terms specified in
the Prospectus Supplement. Such arrangements may be in lieu of any obligation of
the Servicers or the Seller to advance delinquent installments in respect of the
Mortgage Loans. See "Servicing of Mortgage Loans and Contracts - Advances"
herein.
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SERVICING OF MORTGAGE LOANS AND CONTRACTS
With respect to each series of Certificates, the related Mortgage Loans and
Contracts will be serviced by a sole servicer or by a master servicer with
various sub-servicers pursuant to, or as provided for in, the Agreement. The
Prospectus Supplement for each series will specify the servicer and the master
servicer, if any, for such series.
The related Prospectus Supplement will specify whether the Servicer is a
FNMA- or FHLMC-approved servicer of conventional mortgage loans. In addition,
the Depositor will require adequate servicing experience, where appropriate, and
financial stability, generally including a net worth requirement (to be
specified in the Agreement) as well as satisfaction of certain other criteria.
Each Servicer will be required to perform the customary functions of a
mortgage loan servicer, including collection of payments from borrowers (the
"Mortgagors") and remittance of such collections to the Trustee, maintenance of
applicable standard hazard insurance or primary mortgage insurance policies,
attempting to cure delinquencies, supervising foreclosures, management of
Mortgaged Properties under certain circumstances, and maintaining accounting
records relating to the Mortgage Loans and Contracts, as applicable, and, if
specified in the related Prospectus Supplement, maintenance of escrow or
impoundment accounts of Mortgagors for payment of taxes, insurance, and other
items required to be paid by the Mortgagor pursuant to the Mortgage Loan or
Contract. Each Servicer will also be obligated to make advances in respect of
delinquent installments on Mortgage Loans and Contracts, as applicable, as
described more fully under " - Payments on Mortgage Loans" and " - Advances"
below and in respect of certain taxes and insurance premiums not paid on a
timely basis by Mortgagors.
Each Servicer will be entitled to a monthly servicing fee as specified in
the related Prospectus Supplement. Each Servicer will also generally be entitled
to collect and retain, as part of its servicing compensation, late payment
charges and assumption underwriting fees. Each Servicer will be reimbursed from
proceeds of one or more of the insurance policies described herein ("Insurance
Proceeds") or from proceeds received in connection with the liquidation of
defaulted Mortgage Loans ("Liquidation Proceeds") for certain expenditures
pursuant to the Agreement. See " - Advances" and " - Servicing Compensation
and Payment of Expenses" below.
Each Servicer will be required to service each Mortgage Loan and Contract,
as applicable, pursuant to the terms of the Agreement for the entire term of
such Mortgage Loan and Contract, as applicable, unless such Agreement is earlier
terminated. Upon termination, a replacement for the Servicer will be appointed.
Payments on Mortgage Loans
Each Servicer will establish and maintain a separate account (each, a
"Custodial Account"). Subject to the following paragraph, each Custodial Account
must be an account the deposits in which are fully insured by either the Federal
Deposit Insurance Corporation ("FDIC") or the National Credit Union
Administration ("NCUA") or are, to the extent such deposits are in excess of the
coverage provided by such insurance, continuously secured by certain obligations
issued or guaranteed by the United States of America. If at any time the amount
on deposit in such Custodial Account shall exceed the amount so insured or
secured, the applicable Servicer must remit to the Trustee the amount on deposit
in such Custodial Account which exceeds the amount so insured or secured, less
any amount such Servicer may retain for its own account pursuant to its
Servicing Agreement.
Notwithstanding the foregoing, the deposits in a Servicer's Custodial
Account will not be required to be fully insured or secured as described above,
and such Servicer will not be required to remit amounts on deposit therein in
excess of the amount so insured or secured, so long as such Servicer meets
certain requirements established by the rating agencies requested to rate the
Certificates.
Each Servicer is required to deposit into its Custodial Account on a daily
basis all amounts in respect of each Mortgage Loan received by such Servicer,
with interest adjusted to a rate (the "Remittance Rate") equal to the related
Mortgage Rate less the Servicer's servicing fee rate. On the day of each month
specified in the related Prospectus Supplement (the "Remittance Date"), each
Servicer of the Mortgage Loans will remit to the Trustee all
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funds held in its Custodial Account with respect to each Mortgage Loan;
provided, however, that Principal Prepayments may be remitted on the Remittance
Date in the month following the month of such prepayment. Each Servicer will be
required pursuant to the terms of the Agreement and as specified in the related
Prospectus Supplement, to remit with each Principal Prepayment interest thereon
at the Remittance Rate through the last day of the month in which such Principal
Prepayment is made. Each Servicer may also be required to advance its own funds
as described below.
Advances
With respect to a delinquent Mortgage Loan or Contract, the related
Servicer may be obligated (but only to the extent set forth in the related
Prospectus Supplement) to advance its own funds or funds from its Custodial
Account equal to the aggregate amount of payments of principal and interest
(adjusted to the applicable Remittance Rate) which were due on a due date and
which are delinquent as of the close of business on the business day preceding
the Remittance Date ("Monthly Advance"). Generally, such advances will be
required to be made by the Servicer unless the Servicer determines that such
advances ultimately would not be recoverable under any applicable insurance
policy, from the proceeds of liquidation of the related Mortgaged Properties, or
from any other source (any amount not so reimbursable being referred to herein
as a "Nonrecoverable Advance"). Such advance obligation generally will continue
through the month following the month of final liquidation of such Mortgage Loan
or Contract. Any Servicer funds thus advanced will be reimbursable to such
Servicer out of recoveries on the Mortgage Loans or Contracts with respect to
which such amounts were advanced. Each Servicer will also be obligated to make
advances with respect to certain taxes and insurance premiums not paid by
Mortgagors on a timely basis. Funds so advanced are reimbursable to the
Servicers out of recoveries on the related Mortgage Loans or Contracts. Each
Servicer's right of reimbursement for any advance will be prior to the rights of
the Trust to receive any related Insurance Proceeds or Liquidation Proceeds.
Failure by a Servicer to make a required Monthly Advance will be grounds for
termination under the related Agreement.
Collection and Other Servicing Procedures
Each Servicer will service the Mortgage Loans and Contracts pursuant to
guidelines established in the related Agreement.
Mortgage Loans. The Servicer will be responsible for making reasonable
efforts to collect all payments called for under the Mortgage Loans. The
Servicer will be obligated to follow such normal practices and procedures as it
deems necessary or advisable to realize upon a defaulted Mortgage Loan. In this
regard, the Servicer may (directly or through a local assignee) sell the
property at a foreclosure or trustee's sale, negotiate with the Mortgagor for a
deed in lieu of foreclosure or, in the event a deficiency judgment is available
against the Mortgagor or other person (see "Certain Legal Aspects of the
Mortgage Assets - Foreclosure - Anti-Deficiency Legislation and Other
Limitations on Lenders" for a description of the limited availability of
deficiency judgments), foreclose against such property and proceed for the
deficiency against the appropriate person. The amount of the ultimate net
recovery (including the proceeds of any Mortgage Pool Insurance Policy or other
applicable Credit Enhancement), after reimbursement to the Servicer of its
expenses incurred in connection with the liquidation of any such defaulted
Mortgage Loan and prior unreimbursed advances of principal and interest with
respect thereto will be deposited in the Certificate Account when realized and
will be distributed to Owners of Certificates on the next Distribution Date
following the month of receipt.
With respect to Cooperative Loans, any prospective purchaser will generally
have to obtain the approval of the board of directors of the relevant
Cooperative before purchasing the shares and acquiring rights under the related
proprietary lease or occupancy agreement. See "Certain Legal Aspects of the
Mortgage Assets" herein. This approval is usually based on the purchaser's
income and net worth and numerous other factors. Although the Cooperative's
approval is unlikely to be unreasonably withheld or delayed, the necessity of
acquiring such approval could limit the number of potential purchasers for those
shares and otherwise limit the Trust's ability to sell and realize the value of
those shares.
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In general, a "tenant-stockholder" (as defined in Code Section 216(b) (2))
of a corporation that qualifies as a "cooperative housing corporation" within
the meaning of Code Section 216(b)(1) is allowed a deduction for amounts paid or
accrued within his taxable year to the corporation representing his
proportionate share of certain interest expenses and certain real estate taxes
allowable as a deduction under Code Section 216(a) to the corporation under Code
Sections 163 and 164. In order for a corporation to qualify under Code Section
216(b)(1) for its taxable year in which such items are allowable as a deduction
to the corporation, such Section requires, among other things, that at least 80%
of the gross income of the corporation be derived from its tenant-stockholders.
By virtue of this requirement, the status of a corporation for purposes of Code
Section 216(b)(1) must be determined on a year-to-year basis. Consequently,
there can be no assurance that Cooperatives relating to the Cooperative Loans
will qualify under such Section for any particular year. In the event that such
a Cooperative fails to qualify for one or more years, the value of the
collateral securing any related Cooperative Loans could be significantly
impaired because no deduction would be allowable to its tenant-stockholders
under Code Section 216(a) with respect to those years. In view of the
significance of the tax benefits accorded tenant-stockholders of a corporation
that qualifies as a cooperative housing corporation, however, the likelihood
that such a failure would be permitted to continue over a period of years
appears remote.
The Servicer will expend its own funds to restore property securing a
Mortgage Loan which has sustained uninsured damage only if it determines that
such restoration will increase the proceeds to the Trust of liquidation of the
Mortgage Loan after the reimbursement to the Servicer of its expenses.
If a Mortgaged Property has been or is about to be conveyed by the
Mortgagor, the Servicer will be obligated (to the extent it has knowledge of
such conveyance) to accelerate the maturity of the Mortgage Loan, unless it
reasonably believes it is unable to enforce that Mortgage Loan's "due-on-sale"
clause under the applicable law. If it reasonably believes it may be restricted
by law, for any reason, from enforcing such a "due-on-sale" clause, the Servicer
may enter into an assumption and modification 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 Mortgage Note, provided such person satisfies the
criteria required to maintain the coverage provided by applicable insurance
policies (unless otherwise restricted by applicable law). Any fee collected by
the Servicer for entering into an assumption agreement will be retained by the
Servicer as additional servicing compensation. For a description of
circumstances in which the Servicer may be unable to enforce "due-on-sale"
clauses, see "Certain Legal Aspects of the Mortgage Assets - Foreclosure --
Enforceability of Certain Provisions" herein. In connection with any such
assumption, the Mortgage Rate borne by the related Mortgage Note may not be
decreased.
If specified in the related Prospectus Supplement, the Servicer will
maintain with one or more depository institutions one or more accounts into
which it will deposit all payments of taxes, insurance premiums, assessments or
comparable items received for the account of the Mortgagors. Withdrawals from
such account or accounts may be made only to effect payment of taxes, insurance
premiums, assessments or comparable items, to reimburse the Servicer out of
related collections for any cost incurred in paying taxes, insurance premiums
and assessments or otherwise preserving or protecting the value of the
Mortgages, to refund to mortgagors any amounts determined to be overages and to
pay interest to Mortgagors on balances in such account or accounts to the extent
required by law.
So long as it acts as servicer of the Mortgage Loans, the Servicer will be
required to maintain certain insurance covering errors and omissions in the
performance of its obligations as servicer and certain fidelity bond coverage
ensuring against losses through wrongdoing of its officers, employees and
agents.
Contracts. Pursuant to the Agreement, the Servicer will service and
administer the Contracts assigned to the Trustee as more fully set forth below.
The Servicer, either directly or through sub-servicers subject to general
supervision by the Servicer, will perform diligently all services and duties
required to be performed under the Agreement, in the same manner as performed by
prudent lending institutions of manufactured housing installment sales contracts
of the same type as the Contracts in those jurisdictions where the related
Manufactured Homes are located. The duties to be performed by the Servicer will
include collection and remittance of principal and interest payments, collection
of insurance claims and, if necessary, repossession.
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Each Agreement will provide that when any Manufactured Home securing a
Contract is about to be conveyed by the borrower, the Servicer (to the extent it
has knowledge of such prospective conveyance and prior to the time of the
consummation of such conveyance) may exercise its rights to accelerate the
maturity of such Contract under the applicable "due-on-sale" clause, if any,
unless the Servicer reasonably believes it is unable to enforce such
"due-on-sale" clause under applicable law. In such case the Servicer is
authorized to take or enter into an assumption agreement from or with the person
to whom such Manufactured Home has been or is about to be conveyed, pursuant to
which such person becomes liable under the Contract, provided such person
satisfies the criteria required to maintain the coverage provided by applicable
insurance policies (unless otherwise restricted by applicable law). Where
authorized by the Contract, the annual percentage rate may be increased, upon
assumption, to the then-prevailing market rate but will not be decreased.
Under each Agreement the Servicer will repossess or otherwise comparably
convert the ownership of properties securing such of the related Contracts 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
repossession or other conversion, the Servicer will follow such practices and
procedures as it deems necessary or advisable and as shall be normal and usual
in its general servicing activities. The Servicer, however, will not be required
to expend its own funds in connection with any repossession or towards the
restoration of any property unless it determines (i) that such restoration or
repossession will increase the proceeds of liquidation of the related Contract
to the Trust after reimbursement to itself for such expenses and (ii) that such
expenses will be recoverable to it either through Liquidation Proceeds or
through Insurance Proceeds.
Primary Mortgage Insurance
Mortgage Loans that the Depositor acquires will generally not have primary
mortgage insurance. If obtained, the primary mortgage insurance policies will
not insure against certain losses which may be sustained in the event of a
personal bankruptcy of the mortgagor under a Mortgage Loan.
Standard Hazard Insurance
Mortgage Loans. The Servicer will be required to cause to be maintained for
each Mortgage Loan a standard hazard insurance policy. The coverage of such
policy is required to be in an amount not less than the maximum insurable value
of the improvements securing such Mortgage Loan from time to time or the
principal balance owing on such Mortgage Loan from time to time, whichever is
less. In all events, such coverage shall be in an amount sufficient to ensure
avoidance of the applicability of the co-insurance provisions under the terms
and conditions of the applicable policy. The ability of each Servicer to assure
that hazard insurance proceeds are appropriately applied may be dependent on its
being named as an additional insured under any standard hazard insurance policy
and under any flood insurance policy referred to below, or upon the extent to
which information in this regard is furnished to such Servicer by Mortgagors.
Each Agreement may provide that the related Servicer may satisfy its obligation
to cause hazard insurance policies to be maintained by maintaining a blanket
policy insuring against hazard losses on the Mortgage Loans serviced by such
Servicer.
In general, the standard form of fire and extended coverage policy covers
physical damage to or destruction of the improvements on the property by fire,
lightning, explosion, smoke, wind-storm and hail, riot, strike and civil
commotion, subject to the conditions and exclusions particularized in each
policy. Although the policies relating to the Mortgage Loans will be
underwritten by different insurers and, therefore, will not contain identical
terms and conditions, the basic terms thereof are dictated by state law. Such
policies typically do not cover any physical damage resulting from the
following: war, revolution, governmental actions, floods and other water-related
causes, earth movement (including earthquakes, landslides and mud flow), 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. If the
property securing a Mortgage Loan is located in a federally designated flood
area, flood insurance will be required to be maintained in such amounts as would
be required by FNMA in connection with its mortgage loan purchase program. The
Depositor may also purchase special hazard insurance against certain of the
uninsured risks described above. See "Credit Enhancement - Special Hazard
Insurance".
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Since the amount of hazard insurance the Servicer is required to cause to
be maintained on the improvements securing the Mortgage Loans declines as the
principal balances owing thereon decrease, if the residential properties
securing the Mortgage Loans appreciate in value over time, the effect of
coinsurance in the event of partial loss may be that hazard insurance proceeds
will be insufficient to restore fully the damaged property.
The Depositor will not require that a standard hazard or flood insurance
policy be maintained on the cooperative dwelling relating to any Cooperative
Loan. Generally, the Cooperative itself is responsible for maintenance of hazard
insurance for the property owned by the Cooperative and the tenant-stockholders
of that Cooperative do not maintain individual hazard insurance policies. To the
extent, however, that a Cooperative and the related borrower on a Cooperative
Loan do not maintain such insurance or do not maintain adequate coverage or any
insurance proceeds are not applied to the restoration of damaged property, any
damage to such borrower's cooperative dwelling or such Cooperative's building
could significantly reduce the value of the collateral securing such Cooperative
Loan to the extent not covered by other credit support.
Contracts. The Servicer will generally be required to cause to be
maintained with respect to each Contract one or more hazard insurance policies
which provide, at a minimum, the same coverage as a standard form fire and
extended coverage insurance policy that is customary for manufactured housing,
issued by a company authorized to issue such policies in the state in which the
Manufactured Home is located and in an amount which is not less than the maximum
insurable value of such Manufactured Home or the principal balance due from the
borrower on the related Contract, whichever is less. When a Manufactured Home's
location was, at the time of origination of the related Contract, within a
federally designated special flood hazard area, the Servicer also shall cause
such flood insurance to be maintained, which coverage shall be at least equal to
the minimum amount specified in the preceding sentence or such lesser amount as
may be available under the federal flood insurance program.
The Servicer may maintain, in lieu of causing individual hazard insurance
policies to be maintained with respect to each Manufactured Home, and shall
maintain, to the extent that the related Contract does not require the borrower
to maintain a hazard insurance policy with respect to the related Manufactured
Home, one or more blanket insurance policies covering losses on the borrowers'
interests in the Contracts resulting from the absence or insufficiency of
individual hazard insurance policies.
The Servicer, to the extent practicable, will cause the borrowers to pay
all taxes and similar governmental charges when and as due. To the extent that
nonpayment of any taxes or charges would result in the creation of a lien upon
any Manufactured Home having a priority equal or senior to the lien of the
related Contract, the Servicer will pay any such delinquent tax or charge.
If the Servicer repossesses a Manufactured Home on behalf of the Trustee,
the Servicer will either (i) maintain at its expense hazard insurance with
respect to such Manufactured Home or (ii) indemnify the Trustee against any
damage to such Manufactured Home prior to resale or other disposition.
Title Insurance Policies
The Agreements will generally require that a title insurance policy be in
effect on each of the Mortgaged Properties and that such title insurance policy
contain no coverage exceptions, except customary exceptions generally accepted
in the mortgage banking industry.
Claims Under Primary Mortgage Insurance Policies and Standard Hazard Insurance
Policies; Other Realization Upon Defaulted Loan
Each Servicer will present claims to any primary insurer under any related
primary mortgage insurance policy and to the hazard insurer under any related
standard hazard insurance policy. All collections under any related primary
mortgage insurance policy or any related standard hazard insurance policy (less
any proceeds to be applied to the restoration or repair of the related Mortgaged
Property or to the reimbursement of Advances by the Servicer) will be remitted
to the Trustee.
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If any Mortgaged Property securing a defaulted Mortgage Loan is damaged and
proceeds, if any, from the related standard hazard insurance policy are
insufficient to restore the damaged property to a condition sufficient to permit
recovery under any applicable Mortgage Pool Insurance Policy or any related
primary mortgage insurance policy, each Servicer may be required to expend its
own finds to restore the damaged property to the extent specified in the related
Prospectus Supplement, but only to the extent it determines such expenditures
are recoverable from Insurance Proceeds or Liquidation Proceeds.
If recovery under any applicable Mortgage Pool Insurance Policy or any
related primary mortgage insurance policy is not available, the Servicer will
nevertheless be obligated to attempt to realize upon the defaulted Mortgage
Loan. Foreclosure proceedings will be conducted by the Servicer in accordance
with the Agreement. If the proceeds of any liquidation of the Mortgaged Property
securing the defaulted Mortgage Loan are less than the Principal Balance of the
defaulted Mortgage Loan plus interest accrued thereon, a loss will be realized
on such Mortgage Loan, to the extent the applicable Credit Enhancement is not
sufficient, in the amount of such difference plus the aggregate of expenses
which are incurred by the Servicer in connection with such proceedings and are
reimbursable under the Agreement. In such case there will be a reduction in the
value of the Mortgage Loans and Trust may be unable to recover the full amount
of principal and interest due thereon.
In addition, where a Mortgaged Property securing a defaulted Mortgage Loan
can be resold for an amount exceeding the principal balance of the related
Mortgage Loan together with accrued interest and expenses, it may be expected
that, where retention of any such amount is legally permissible, the Pool
Insurer will exercise its right under the related Mortgage Pool Insurance
Policy, if any, to purchase such Mortgaged Property and realize for itself any
excess proceeds. Any amounts remaining in the Certificate Account after such
foreclosure or liquidation and attributable to such Mortgage Loan will be
distributed to Owners of the Certificates.
Servicing Compensation and Payment of Expenses
As compensation for its servicing duties, each Servicer will be entitled to
a monthly servicing fee in the amount specified in the related Prospectus
Supplement. In addition to the primary compensation, a Servicer may be permitted
to retain all assumption underwriting fees and late payment charges, to the
extent collected from Mortgagors.
As set forth above, each Servicer will be entitled to reimbursement for
certain expenses incurred by it in connection with the liquidation of defaulted
Mortgage Loans and Contracts and in connection with advancing delinquent
payments. No loss will be suffered on the Certificates by reason of such
expenses to the extent claims for such expenses are paid directly under any
applicable Mortgage Pool Insurance Policy, a primary mortgage insurance policy,
the special hazard insurance policy or from other forms of Credit Enhancement.
In the event, however, that the defaulted Mortgage Loans are not covered by a
Mortgage Pool Insurance Policy, primary mortgage insurance policies, the Special
Hazard Insurance Policy or another form of Credit Enhancement, or claims are
either not made or paid under such policies or Credit Enhancement, or if
coverage thereunder has ceased, such a loss will occur to the extent that the
proceeds from the liquidation of a defaulted Mortgage Loan or Contract, after
reimbursement of the Servicer's expenses, are less than the Principal Balance of
such defaulted Mortgage Loan or Contract.
Master Servicer
A Master Servicer may be specified in the related Prospectus Supplement for
the related series of Certificates. Customary servicing functions with respect
to Mortgage Loans constituting the Mortgage Pool will be provided by the
Servicer directly or through one or more Sub-Servicers subject to supervision by
the Master Servicer. If the Master Servicer is not directly servicing the
Mortgage Loans, then the Master Servicer will (i) administer and supervise the
performance by the Servicer of its servicing responsibilities under the
Agreement with the Master Servicer, (ii) maintain a current data base with the
payment histories of each Mortgagor, (iii) review monthly servicing reports and
data relating to the Mortgage Pool for discrepancies and errors, and (iv) act as
back-up Servicer during the term of the transaction unless the Servicer is
terminated or resigns in such case the Master Servicer shall assume the
obligations of the Servicer.
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The Master Servicer will be a party to the Agreement for any series for
which Mortgage Loans comprise the assets of a Trust. The Master Servicer will be
required to satisfy the standard established for the qualification of the Master
Servicer in the related Agreement. The Master Servicer will be compensated for
the performance of its services and duties under each Agreement as specified in
the related Prospectus Supplement.
ADMINISTRATION
The following summary describes certain provisions which will be common to
each Agreement. The summary does not purport to be complete and is subject to
the provisions of a particular Agreement.
Assignment of Mortgage Assets
Assignment of the Mortgage Loans. At the time of issuance of the
Certificates, the Depositor will assign the Mortgage Loans to the Trustee,
together with all principal and interest adjusted to the Remittance Rate,
subject to exclusions specified in the Prospectus Supplement, due on or with
respect to such Mortgage Loans on or after the Cut-Off Date. The Trustee will,
concurrently with such assignment, execute, countersign and deliver the
Certificates to the Depositor in exchange for the Mortgage Loans. Each Mortgage
Loan will be identified in a schedule appearing as an exhibit to the Agreement.
Such schedule may include information as to the Principal Balance of each
Mortgage Loan as of the Cut-Off Date, as well as information respecting the
Mortgage Rate, the scheduled monthly payment of principal and interest as of the
Cut-Off Date and the maturity date of each Mortgage Note.
In addition, as to each Mortgage Loan, the Depositor will deliver to the
Trustee the Mortgage Note and Mortgage, any assumption and modification
agreement, an assignment of the Mortgage in recordable form (but not necessarily
recorded), evidence of title insurance, if obtained, and, if applicable, the
certificate of private mortgage insurance. In instances where recorded documents
cannot be delivered due to delays in connection with recording, the Depositor
may deliver copies thereof and deliver the original recorded documents promptly
upon receipt.
With respect to any Mortgage Loans which are Cooperative Loans, the
Depositor will cause to be delivered to the Trustee, the related original
Cooperative note endorsed to the order of the Trustee, the original security
agreement, the proprietary lease or occupancy agreement, the recognition
agreement, an executed financing agreement and the relevant stock certificate
and related blank stock powers. The Depositor will file in the appropriate
office an assignment and a financing statement evidencing the Trustee's security
interest in each Cooperative Loan.
Each Seller generally will represent and warrant to the Depositor with
respect to the Mortgage Loans sold by it, among other things, that (i) the
information set forth in the schedule of Mortgage Loans attached thereto is
correct in all material respects: (ii) a lender's title insurance policy or
binder for each Mortgage Loan subject to the Agreement was issued on the date of
origination thereof and each such policy or binder assurance is valid and
remains in full force and effect or a legal opinion concerning title or title
search was obtained or conducted in connection with the origination of the
Mortgage Loans; (iii) at the date of initial issuance of the Certificates, the
Seller has good title to the Mortgage Loans and the Mortgage Loans are free of
offsets, defenses or counterclaims; (iv) at the date of initial issuance of the
Certificates, each Mortgage is a valid first lien on the property securing the
Mortgage Note (subject only to (a) the lien of current real property taxes and
assessments, (b) covenants, conditions, and restrictions, rights of way,
easements and other matters of public record as of the date of the recording of
such Mortgage, such exceptions appearing of record being acceptable to mortgage
lending institutions generally in the area wherein the property subject to the
Mortgage is located or specifically reflected in the appraisal obtained by the
Depositor and (c) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security intended to
be provided by such Mortgage) and such property is free of material damage and
is in good repair or, with respect to a junior lien Mortgage Loan, that such
Mortgage is a valid junior lien Mortgage, as the case may be and specifying the
percentage of the Mortgage Loan Pool comprised of junior lien Mortgage Loans;
(v) at the date of initial issuance of the Certificates, no Mortgage Loan is 31
or more days delinquent (with such exceptions as may be specified in the related
Prospectus Supplement) and there are no delinquent tax or assessment liens
against the property covered by the related Mortgage; (vi) at the date of
initial
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issuance of the Certificates, the portion of each Mortgage Loan, if any, which
in the circumstances set forth below under "Servicing of Mortgage Loans and
Contracts - Primary Mortgage Insurance" should be insured with a private
mortgage insurer is so insured; and (vii) each Mortgage Loan at the time it was
made complied in all material respects with applicable state and federal laws,
including, with out limitation, usury, equal credit opportunity and disclosure
laws. The Depositor's rights against the Seller in the event of a breach of its
representations will be assigned to the Trustee for the benefit of the
Certificates of such series.
Assignment of Contracts. The Depositor will cause the Contracts to be
assigned to the Trustee, together with principal and interest due on or with
respect to the Contracts on and after the Cut-Off Date. Each Contract will be
identified in a loan schedule ("Contract Loan Schedule") appearing as an exhibit
to the related Agreement. Such Contract Loan Schedule may specify, with respect
to each Contract, among other things: the original principal balance and the
outstanding Principal Balance as of the Cut-Off Date; the interest rate; the
current scheduled payment of principal and interest; and the maturity date.
In addition, with respect to each Contract, the Depositor will deliver or
cause to be delivered to the Trustee, the original Contract and copies of
documents and instruments related to each Contract and the security interest in
the Manufactured Home securing each Contract. To give notice of the right, title
and interest of the Trust to the Contracts, the Depositor will cause a UCC-1
financing statement to be filed identifying the Trustee as the secured party and
identifying all Contracts as collateral. The Contracts will not be stamped or
otherwise marked to reflect their assignment from the Depositor to the Trustee.
Therefore, if a subsequent purchaser were able to take physical possession of
the Contracts without notice of such assignment, the interest of the Trust in
the Contracts could be defeated. See "Certain Legal Aspects of the Mortgage
Assets" herein.
The Depositor or the related Seller, as the case may be, may provide
limited representations and warranties to the Trustee concerning the Contracts.
Such representations and warranties may include: (i) that the information
contained in the Contract Loan Schedule provides an accurate listing of the
Contracts and that the information respecting such Contracts set forth in such
Contract Loan Schedule is true and correct in all material respects at the date
or dates respecting which such information is furnished; (ii) that, immediately
prior to the conveyance of the Contracts, the Depositor had good title to and
was sole owner of, each such Contract; and (iii) that there has been no other
sale by it of such Contract and that the Contract is not subject to any lien,
charge, security interest or other encumbrance.
Assignment of Mortgage-Backed Securities and Other Mortgage Securities.
With respect to each series, the Depositor will cause any Mortgage-Backed
Securities and Other Mortgage Securities included in the related Trust to be
registered in the name of the Trustee (directly or through a participant in a
depository). The Trustee (or its custodian) will have possession of any
certificated Mortgage-Backed Securities and Other Mortgage Securities. The
Trustee will not be in possession of or be assignee of record of any underlying
assets for a Mortgage-Backed Security or Other Mortgage Security. Each
Mortgage-Backed Security and Other Mortgage Security will be identified in a
schedule appearing as an exhibit to the related Agreement which may specify
certain information with respect to such security, including, as applicable, the
original principal amount, outstanding principal balance as of the Cut-Off Date,
annual pass-through rate or interest rate and maturity date and certain other
pertinent information for each such security. The Depositor will represent and
warrant to the Trustee, among other things, the information contained in such
schedule is true and correct and that immediately prior to the transfer of the
related securities to the Trustee, the Depositor had good title to, and was the
sole owner of, each such security.
Repurchase or Substitution of Mortgage Loans and Contracts. The Trustee
will review the documents delivered to it with respect to the Mortgage Loans and
Contracts included in the related Trust. If any document is not delivered or is
found to be defective in any material respect and the Depositor or the related
Seller, if so required cannot deliver such document or cure such defect within
the period specified in the related Prospectus Supplement after notice thereof
(which the Trustee will undertake to give within the period specified in the
related Prospectus Supplement), and if any other party obligated to deliver such
document or cure such defect has not done so and has not substituted or
repurchased the affected Mortgage Loan or Contract then the Depositor will cause
the Seller, not later than the first date designated for the deposit of payments
into the Certificate Account (a "Deposit Date") which is more than a specified
number of days after such period, (a) if so provided in the Prospectus
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Supplement to remove the affected Mortgage Loan or Contract from the Trust and
substitute one or more other Mortgage Loans or Contracts therefor or (b)
repurchase the Mortgage Loan or Contract from the Trustee for a price equal to
100% of its Principal Balance plus one month's interest thereon at the
applicable Remittance Rate. This repurchase and, if applicable, substitution
obligation will generally constitute the sole remedy available to the Trustee
for a material defect in a document relating to a Mortgage Loan or Contract.
The Depositor is required to cause the Seller to do either of the following
(a) cure any breach of any representation or warranty that materially and
adversely affects the interests of the Owners of the Certificates in a Mortgage
Loan (each, a "Defective Mortgage Loan") or Contract within a specified number
of days of its discovery by the Depositor or its receipt of notice thereof from
the Trustee, (b) repurchase such Defective Mortgage Loan or Contract not later
than the first Deposit Date which is more than a specified number of days after
such period for a price equal to 100% of its Principal Balance plus one month's
interest thereon at the applicable Remittance Rate, or (c) if so specified in
the Prospectus Supplement, remove the affected Mortgage Loan or Contract from
the Trust and substitute one or more other mortgage loans or contracts therefor.
This repurchase and, if applicable, substitution obligation will generally
constitute the sole remedies available to the Trustee for any such breach.
If the related Prospectus Supplement so provides, the Depositor or a
designated affiliate may be obligated to repurchase or substitute Mortgage Loans
or Contracts as described above, whether or not the Depositor obtains such an
agreement from the Seller which sold such Mortgage Loans or Contracts.
In the case of Certificates representing debt obligations of a Trust all
assets of the Trust will be pledged to the Indenture Trustee.
If a REMIC election is to be made with respect to all or a portion of a
Trust, there may be federal income tax limitations on the right to substitute
Mortgage Loans or Contracts.
Evidence as to Compliance
The Agreement will provide that on or before a specified date in each year,
beginning the first such date that is at least a specified number of months on
and after the Cut-Off Date, a firm of independent public accountants will
furnish a statement to the Trustee to the effect that, based on an examination
of certain specified documents and records relating to the servicing of the
Depositor's mortgage loan portfolio conducted substantially in compliance with
the audit program for mortgages serviced for FNMA or FHLMC, the United States
Department of Housing and Urban Development Mortgage Audit Standards or the
Uniform Single Audit Program for Mortgage Bankers or in accordance with other
standards specified in the Agreement (the "Applicable Accounting Standards"),
such firm is of the opinion that such servicing has been conducted in compliance
with the Applicable Accounting Standards except for (a) such exceptions as such
firm shall believe to be immaterial and (b) such other exceptions as shall be
set forth in such statement.
The Trustee
Any commercial bank or trust company serving as Trustee may have normal
banking relationships with the Depositor. In addition, the Depositor and the
Trustee acting jointly will have the power and the responsibility for appointing
co-trustees or separate trustees of all or any part of the Trust relating to a
particular series of Certificates. In the event of such appointment, all rights,
powers, duties and obligations conferred or imposed upon the Trustee by the
Agreement shall be conferred or imposed upon the Trustee and 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 shall exercise and perform such rights,
powers, duties and obligations solely at the direction of the Trustee.
The Trustee will make no representations as to the validity or sufficiency
of the Agreement, the Certificates or of any Mortgage Asset or related document,
and will not be accountable for the use or application by the Depositor of any
funds paid to the Depositor in respect of the Certificates or the related
assets, or amounts deposited in the Certificate Account or deposited into the
Distribution Account. If no Event of Default has occurred, the Trustee will be
required to perform only those duties specifically required of it under the
Agreement. However,
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upon receipt of the various certificates, reports or other instruments required
to be furnished to it, the Trustee will be required to examine them to determine
whether they conform to the requirements of the Agreement.
The Trustee may resign at any time, and the Depositor may remove the
Trustee if the Trustee ceases to be eligible to continue as such under the
Agreement, if the Trustee becomes insolvent or in such other instances, if any,
as are set forth in the Agreement. Following any resignation or removal of the
Trustee, the Depositor will be obligated to appoint a successor Trustee. 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.
Administration of the Certificate Account
The Agreement will require that the Certificate Account be either (i)
maintained with a depository institution the debt obligations of which (or, in
the case of a depository institution which is a part of a holding company
structure, the debt obligations of the holding company of which) have a rating
acceptable to each rating agency that was requested to rate the Certificates, or
(ii) an account or accounts the deposits in which are fully insured by either
the Bank Insurance Fund (the "BIF") of the FDIC or the Savings Association
Insurance Fund (as successor to the Federal Savings and Loan Insurance
Corporation) ("SAIF") of the FDIC. The collateral eligible to secure amounts in
the Certificate Account is limited to United States government securities and
other investments acceptable to the rating agencies rating such series of
Certificates, and may include one or more Certificates of a series ("Eligible
Investments"). If so specified in the related Prospectus Supplement, a
Certificate Account may be maintained as an interest bearing account, or the
funds held therein may be invested pending each succeeding Payment Date in
Eligible Investments. If so specified in the related Prospectus Supplement, the
Servicer or its designee will be entitled to receive any such interest or other
income earned on funds in the Certificate Account as additional compensation.
The Servicer will deposit in the Certificate Account from amounts previously
deposited by it into the Servicer's Custodial Account on the related Remittance
Date the following payments and collections received or made by it on and after
the Cut-Off Date (including scheduled payments of principal and interest due on
and after the Cut-Off Date but received before the Cut-Off Date):
(i) all Mortgagor payments on account of principal, including
Principal Prepayments and, if specified in the related Prospectus
Supplement, prepayment penalties:
(ii) all Mortgagor payments on account of interest, adjusted to the
Remittance Rate;
(iii) all Liquidation Proceeds net of certain amounts reimbursed to
the Servicer or other person entitled thereto, as described above;
(iv) all Insurance Proceeds, other than proceeds to be applied to the
restoration or repair of the related property or released to the Mortgagor
and net of certain amounts reimbursed to the Servicer or other person
entitled thereto, as described above;
(v) all condemnation awards or settlements which are not released to
the Mortgagor in accordance with normal servicing procedures;
(vi) any Advances made as described under "Servicing of Mortgage Loans
and Contracts - Advances" herein and certain other amounts required under
the Agreement to be deposited in the Certificate Account;
(vii) all proceeds of any Mortgage Loan or Contract or property
acquired in respect thereof repurchased by the Depositor, the Seller or
otherwise as described above or under "Termination" below;
(viii) all amounts, if any, required to be deposited in the
Certificate Account from any Credit Enhancement for the related series; and
(ix) all other amounts required to be deposited in the Certificate
Account pursuant to the related Agreement.
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Reports
Concurrently with each distribution on the Certificates, there will be
mailed to Owners a statement generally setting forth, to the extent applicable
to any series, among other things:
(i) the aggregate amount of such distribution allocable to principal,
separately identifying the amount allocable to each class;
(ii) the amount of such distribution allocable to interest, separately
identifying the amount allocable to each class;
(iii) the aggregate Certificate Principal Balance of each class of the
Certificates after giving effect to distributions on such Distribution
Date;
(iv) the aggregate Certificate Principal Balance of any class of
Compound Interest Certificates after giving effect to any increase in such
Principal Balance that results from the accrual of interest that is not yet
distributable thereon;
(v) if applicable, the amount otherwise distributable to any class of
Certificates that was distributed to other classes of Certificates;
(vi) if any class of Certificates has priority in the right to receive
Principal Prepayments, the amount of Principal Prepayments in respect of
the related Mortgage Assets;
(vii) the aggregate Principal Balance and number of Mortgage Loans and
Contracts which were delinquent as to a total of two installments of
principal and interest; and
(viii) the aggregate Principal Balances of Mortgage Loans and
Contracts which (a) were delinquent 30-59 days, 60-89 days, and 90 days or
more, and (b) were in foreclosure.
Customary information deemed necessary for Owners to prepare their tax
returns will be furnished annually.
Forward Commitments; Pre-Funding
The Trustee of a Trust may enter into a Pre-Funding Agreement for the
transfer of additional Mortgage Loans to such Trust following the date on which
such Trust is established and the related Certificates are issued. The Trustee
of a Trust may enter into Pre-Funding Agreements to permit the acquisition of
additional Mortgage Loans that could not be delivered by the Depositor or have
not formally completed the origination process, in each case prior to the
Delivery Date. Any Pre-Funding Agreement will require that any Mortgage Loans so
transferred to a Trust conform to the requirements specified in such Pre-Funding
Agreement. If a Pre-Funding Agreement is to be utilized, the related Trustee
will be required to deposit in the Purchase Account all or a portion of the
proceeds received by the Trustee in connection with the sale of one or more
classes of Certificates of the related series; the additional Mortgage Loans
will be transferred to the related Trust in exchange for money released from the
related Pre-Funding Account. Each Pre-Funding Agreement will set a specified
period during which any such transfers must occur. The Pre-Funding Agreement or
the related Agreement will require that, if all moneys originally deposited to
such Pre-Funding Account are not so used by the end of such specified period,
then any remaining moneys will be applied as a mandatory prepayment of the
related class or classes of Certificates as specified in the related Prospectus
Supplement. The specified period for the acquisition by a Trust of additional
Mortgage Loans is not expected to exceed three months from the date such Trust
is established.
Servicer Events of Default
"Events of Default" under the Agreement will consist of (i) any failure by
the Servicer to duly observe or perform in any material respect any other of its
covenants or agreements in the Agreement materially affecting the
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rights of Owners which continues unremedied for a specified number of days after
the giving of written notice of such failure to the Depositor by the Trustee or
to the Servicer and the Trustee by the Owners of Certificates evidencing
interests aggregating not less than 25% of the affected class of Certificates;
and (ii) certain events of insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings and certain actions by the
Servicer indicating its insolvency, reorganization or inability to pay its
obligations.
Rights Upon Servicer Event of Default
As long as an Event of Default under the Agreement remains unremedied by
the Servicer, the Trustee, or Owners of Certificates may terminate all the
rights and obligations of the Servicer under the Agreement, whereupon the
Trustee or Master Servicer, if any, or a new Servicer appointed pursuant to the
Agreement, will succeed to all the responsibilities, duties and liabilities of
the Servicer under the Agreement and will be entitled to similar compensation
arrangements. Following such termination, the Depositor shall appoint any
established mortgage loan servicer satisfying the qualification standards
established in the Agreement to act as successor to the Servicer under the
Agreement. If no such successor shall have been appointed within a specified
number of days following such termination, then either the Depositor or the
Trustee may petition a court of competent jurisdiction for the appointment of a
successor Servicer. Pending the appointment of a successor Servicer, the Trustee
or the Master Servicer, if any, shall act as Servicer.
The Owners of Certificates will not have any right under the Agreement to
institute any proceeding with respect to the Agreement, unless they previously
have given to the Trustee written notice of default and unless the Owners of the
percentage of the Certificates specified in the Prospectus Supplement have made
written request to 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 a specified number of days has neglected or refused to institute any
such proceedings. However, the Trustee is under no obligation to exercise any of
the trusts or powers vested in it by the Agreement or to make any investigation
of matters arising thereunder or to institute, conduct or defend any litigation
thereunder or in relation thereto at the request, order or direction of any of
the Owners, unless such Owners have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
Amendment
An Agreement generally may be amended by the Depositor, the Servicer and
the Trustee, without the consent of the Owners of the Certificates, to cure any
ambiguity, to correct or supplement any provision therein which may be defective
or inconsistent with any other provision therein, to take any action necessary
to maintain REMIC status of any Trust as to which a REMIC election has been
made, to add any other provisions with respect to matters or questions arising
under the Agreement which are not materially inconsistent with the provisions of
the Agreement or for any other purpose, provided that with respect to amendments
for any other purpose (A) the Depositor shall deliver an opinion of counsel
satisfactory to the Trustee, that such amendment will not adversely affect in
any material respect the interests of any Owners of Certificates of that series
and (B) such amendment will not result in a withdrawal or reduction of the
rating of any rated Certificate. Notwithstanding the foregoing, no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
collections of payments received on the related Mortgage Assets or distributions
which are required to be made on any Certificate without the consent of the
Owner of such Certificate, (ii) adversely affect in any material respect the
interests of the Owners of any class of Certificates in any manner other than as
described in (i), without the consent of the Owners of Certificates of such
class evidencing not less than a majority of the interests of such class or
(iii) reduce the aforesaid percentage of Certificates of any class required to
consent to any such amendment, without the consent of the Owners of all
Certificates of such class then outstanding. Any other amendment provisions
inconsistent with the foregoing shall be specified in the related Prospectus
Supplement.
Termination
The obligations of the Depositor, the Servicer, and the Trustee created by
the Agreement will terminate upon the payment as required by the Agreement of
all amounts held by the Servicer or in the Certificate Account and required to
be paid to them pursuant to the Agreement after the later of (i) the maturity or
other liquidation of
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the last Mortgage Asset subject thereto or the disposition of all property
acquired upon foreclosure of any such Mortgage Loan or Contract or (ii) the
repurchase by the Depositor from the Trust of all the outstanding Certificates
or all remaining assets in the Trust. The Agreement will establish the
repurchase price for the assets in the Trust and the allocation of such purchase
price among the classes of Certificates. The exercise of such right will effect
early retirement of the Certificates of that series, but the Depositor's right
so to repurchase will be subject to the conditions described in the related
Prospectus Supplement. If a REMIC election is to be made with respect to all or
a portion of a Trust, there may be additional conditions to the termination of
such Trust which will be described in the related Prospectus Supplement. In no
event, however, will the trust created by the Agreement continue beyond the
expiration of 21 years from the death of the survivor of certain persons named
in the Agreement. The Trustee will give written notice of termination of the
Agreement to each Owner, and the final distribution will be made only upon
surrender and cancellation of the Certificates at an office or agency of the
Trustee specified in such notice of termination.
USE OF PROCEEDS
Substantially all the net proceeds to be received from the sale of each
series of Certificates will be applied to the simultaneous purchase of the
Mortgage Assets related to such series (or to reimburse the amounts previously
used to effect such a purchase), the costs of carrying such Mortgage Assets
until sale of the Certificates and to pay other expenses.
THE DEPOSITOR
The Depositor will have no ongoing servicing obligations or
responsibilities with respect to any Mortgage Pool or Contract Pool. The
Depositor does not have, nor is it expected in the future to have, any
significant net worth.
The Depositor anticipates that it will acquire Mortgage Assets in the open
market or in privately negotiated transactions, which may be through or from an
affiliate.
Neither the Depositor nor any of its affiliates will insure or guarantee
the Certificates of any series.
CERTAIN LEGAL ASPECTS OF THE MORTGAGE ASSETS
The following discussion contains summaries of certain legal aspects of
mortgage loans and manufactured housing contracts which are general in nature.
Because such legal aspects are governed primarily by applicable state law (which
laws may differ substantially), the summaries do not purport to be complete nor
to reflect the laws of any particular state, nor to encompass the laws of all
states in which the security for the Mortgage Loans and Contracts is situated.
The summaries are qualified by reference to the applicable federal and state
laws governing the Mortgage Loans and Contracts.
General
Mortgages. The Mortgage Loans will be secured either by deeds of trust or
mortgages. A mortgage creates a lien upon the real property encumbered by the
mortgage. It is not prior to liens for real estate taxes and assessments.
Priority between mortgages depends on their terms and generally on the order of
filing with a state or county office. There are two parties to a mortgage: the
mortgagor, who is the borrower and homeowner 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. Although a
deed of trust is similar to a mortgage, a deed of trust formally has three
parties, the borrower-homeowner called the trustor (similar to a mortgager), a
lender (similar to a mortgagee) called the beneficiary, and a third-party
grantee called the trustee. Under a deed of trust, the borrower grants the
property, irrevocably until the debt is paid, in trust and generally with a
power of sale, to the trustee to secure payment of the obligation. The trustee's
authority under a deed of
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trust and the mortgagee's authority under a mortgage are governed by law, the
express provisions of the deed of trust or mortgage and, in some cases, the
directions of the beneficiary.
Cooperatives. Certain of the Mortgage Loans may be Cooperative Loans. The
private, non-profit, cooperative apartment corporation owns all the real
property that comprises the project, including the land, separate dwelling units
and all common areas. The cooperative is directly responsible for project
management and, in most cases, payment of real estate taxes and hazard and
liability insurance. If there is a blanket mortgage on the cooperative apartment
building and or underlying land, as is generally the case, the cooperative, as
project mortgagor, is also responsible for meeting these mortgage obligations. A
blanket mortgage is ordinarily incurred by the cooperative in connection with
the construction or purchase of the cooperative's apartment building. The
interest of the occupant under proprietary leases or occupancy agreements to
which that cooperative is a party are generally subordinate to the interest of
the holder of the blanket mortgage in that building. If the cooperative is
unable to meet the payment obligations arising under its blanket mortgage, the
mortgagee holding the blanket mortgage could foreclose on that mortgage and
terminate all subordinate proprietary leases and occupancy agreements. In
addition, the blanket mortgage on a cooperative may provide financing in the
form of a mortgage that does not fully amortize with a significant portion of
principal being due in one lump sum at final maturity. The inability of the
cooperative to refinance this mortgage and its consequent inability to make such
final payment could lead to foreclosure by the mortgagee providing the
financing. A foreclosure in either event by the holder of the blanket mortgage
could eliminate or significantly diminish the value of any collateral held by
the lender who financed the purchase by an individual tenant-stockholder of
cooperative shares or in the case of a Trust including Cooperative Loans, the
collateral securing the Cooperative Loans.
The cooperative is owned by tenant-stockholders who, through ownership of
stock shares or membership certificates in the corporation, receive proprietary
leases or occupancy agreements which confer exclusive rights to occupy specific
units. Generally, a tenant-stockholder of a cooperative must make a monthly
payment to the cooperative representing such tenant-stockholder's pro rata share
of the cooperative's payments for its blanket mortgage, real property taxes,
maintenance expenses and other capital or ordinary expenses. An ownership
interest in a cooperative and accompanying occupancy rights is financed through
a cooperative share loan evidenced by a promissory note and secured by a
security interest in the occupancy agreement or proprietary lease and in the
related cooperative shares. The lender takes possession of the share certificate
and a counterpart of the proprietary lease or occupancy agreement and a
financing statement covering the proprietary lease or occupancy agreement and
the cooperative shares is filed in the appropriate state and local offices to
perfect the lenders interest in its collateral. Subject to the limitations
discussed below, upon default of the tenant-stockholder, the lender may sue for
judgment on the promissory note, dispose of the collateral at a public or
private sale or otherwise proceed against the collateral or tenant-stockholder
as an individual as provided in the security agreement covering the assignment
of the proprietary lease or occupancy agreement and the pledge of cooperative
shares.
Foreclosure
Mortgages. Foreclosure of a deed of trust is generally accomplished by a
non-judicial trustee's sale under a specific provision in the deed of trust that
authorizes the trustee to sell the property to a third party upon any default by
the borrower under the terms of the note or deed of trust. In some states, the
trustee must record a notice of default and send a copy to the borrower-trustor
or and any person who has recorded a request for a copy of a notice of default
and notice of sale. In addition, the trustee must provide notice in some states
to any other individual having an interest in the real property, including any
junior lienholders. The borrower, or any other person having a junior
encumbrance on the real estate, may, during a reinstatement period, cure the
default by paying the entire amount in arrears plus the costs and expenses
incurred in enforcing the obligation. Generally, state law controls the amount
of foreclosure expenses and costs, including attorney's fees' which may be
recovered by a lender. If the deed of trust is not reinstated, a notice of sale
must be posted in a public place and, in most states, published for a specific
period of time in one or more newspapers. In addition, some state laws require
that a copy of the notice of sale be posted on the property and sent to all
parties having an interest in the real property.
Foreclosure of a mortgage is generally accomplished by judicial action. The
action is initiated by the service of legal pleadings upon all parties having an
interest in the real property. Delays in completion of the
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foreclosure may occasionally result from difficulties in locating necessary
parties defendant. Judicial foreclosure proceedings are often not protested by
any of the parties defendant. However, when the mortgagee's right to foreclose
is contested, the legal proceedings necessary to resolve the issue can be time
consuming. After the completion of judicial foreclosure, the court generally
issues a judgment of foreclosure and appoints a referee or other court officer
to conduct the sale of the property.
In 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 a potential buyer at the sale would have in
determining the exact status of title and because the physical condition of the
property may have deteriorated during foreclosure proceedings, it is uncommon
for a third party to purchase the property at the foreclosure sale. Rather it is
common for the lender to purchase the property from the trustee or referee for
an amount equal to the principal amount of the mortgage or deed of trust,
accrued and unpaid interest and expenses of foreclosure. Thereafter, the lender
will assume the burdens of ownership, including paying real estate taxes,
obtaining casualty insurance 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 insurance proceeds.
When the junior mortgagee or beneficiary under a junior deed of trust cures
the default and state law allows it to reinstate or redeem by paying the full
amount of the senior mortgage or deed of trust, then in those states the amount
paid so to cure or redeem generally becomes a part of the indebtedness secured
by the junior mortgage or deed of trust. See "Junior Liens; Rights of Senior
Mortgagors or Beneficiaries" below.
A sale conducted in accordance with the terms of the power of sale
contained in a mortgage or deed of trust is generally presumed to be conducted
regularly and fairly, and a conveyance of the real property by the trustee
confers, in most states, legal title to the real property to the purchaser, free
of all junior mortgages or deeds of trust and free of all other liens and claims
subordinate to the mortgage or deed of trust under which the sale is made (with
the exception of certain governmental liens). The purchaser's title is, however,
subject to all senior liens, encumbrances and mortgages and may be subject to
mechanic's and materialman's liens in some states. Thus, if the mortgage or deed
of trust being foreclosed is a junior mortgage or deed of trust, the sheriff or
trustee will convey title to the purchaser of the real property, subject to any
existing first mortgage or deed of trust and any other prior liens and claims.
The foreclosure of a junior mortgage or deed of trust, generally, will have an
effect on the first mortgage or deed of trust, if the senior mortgage or deed of
trust grants to the senior mortgagee or beneficiary the right to accelerate its
indebtedness under a "due-on-sale" clause or "due on further encumbrance" clause
contained in the senior mortgage or deed of trust. See "Anti-Deficiency
Legislation and Other Limitations on Lenders" below.
The proceeds received by the sheriff or trustee from the sale are applied
pursuant to the terms of the deed of trust, which may require application first
to the costs, fees and expenses of sale and then in satisfaction of the
indebtedness secured by the mortgage or deed of trust under which the sale was
conducted. In some states, any surplus money remaining may be available to
satisfy claims of the holders of junior mortgages or deeds of trust and other
junior liens and claims in order of their priority, whether or not the mortgagor
or trustee is in default, while in some states, any surplus money remaining may
be payable directly to the mortgagor or trustor. Any balance remaining is
generally payable to the mortgagor or trustor. Following the sale, in some
states the mortgagee or beneficiary following a foreclosure of a mortgage or
deed of trust may not obtain a deficiency judgment against the mortgagor or
trustor. A junior lienholder whose rights in the property are terminated by the
foreclosure by a senior lienholder will not share in the proceeds from the
subsequent disposition of the property.
Cooperative Loans. The cooperative shares owned by the tenant-stockholder
and pledged to the lender are, in almost all cases, subject to restrictions on
transfer as set forth in the cooperative's Certificate of Incorporation and
Bylaws, as well as the proprietary lease or occupancy agreement, and may be
canceled by the cooperative for failure by the tenant-stockholder to pay rent or
other obligations or charges owned by such tenant-stockholder, including
mechanics' liens against the cooperative apartment building incurred by such
tenant-stockholder. The
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proprietary lease or occupancy agreement generally permits the cooperative to
terminate such lease or agreement in the event an obligor fails to make payments
or defaults in the performance of covenants required thereunder. Typically, the
lender and the cooperative enter into a recognition agreement which establishes
the rights and obligations of both parties in the event of a default by the
tenant-stockholder on its obligations under the proprietary lease or occupancy
agreement. A default by the tenant-stockholder under the proprietary lease or
occupancy agreement will usually constitute a default under the security
agreement between the lender and the tenant-stockholder.
The recognition agreement generally provides that, in the event that the
tenant-stockholder has defaulted under the proprietary lease or occupancy
agreement, the cooperative will take no action to terminate such lease or
agreement until the lender has been provided with an opportunity to cure the
default. The recognition agreement typically provides that if the proprietary
lease or occupancy agreement is terminated, the cooperative will recognize the
lender's lien against proceeds from a sale of the cooperative apartment,
subject, however, to the cooperative's right to sums due under such proprietary
lease or occupancy agreement. The total amount owed to the cooperative by the
tenant-stockholder, which the lender generally cannot restrict and does not
monitor, could reduce the value of the collateral below the outstanding
principal balance of the cooperative loan and accrued and unpaid interest
thereon.
Recognition agreements also provide that in the event of a foreclosure on a
cooperative loan, the lender must obtain the approval or consent of the
cooperative as required by the proprietary lease before transferring the
cooperative shares or assigning the proprietary lease. Generally, the lender is
not limited in any rights it may have to dispossess the tenant-stockholders.
In some states, foreclosure on the cooperative shares is accomplished by a
sale in accordance with the provisions of Article 9 of the Uniform Commercial
Code (the "UCC") and the security agreement relating to those shares. Article 9
of the UCC requires that a sale be conducted in a "commercially reasonable"
manner. Whether a foreclosure sale has been conducted in a "commercially
reasonable" manner will depend on the facts in each case. In determining
commercial reasonableness, a court will look to the notice given the debtor and
the method, manner, time, place and terms of the foreclosure. Generally, a sale
conducted according to the usual practice of banks selling similar collateral
will be considered reasonably conducted. Article 9 of the UCC provides that the
proceeds of the sale will be applied first to pay the costs and expenses of the
sale and then to satisfy the indebtedness secured by the lender's security
interest. The recognition agreement, however, generally provides that the
lender's right to reimbursement is subject to the right of the cooperative
corporation to receive sums due under the proprietary lease or occupancy
agreement. If there are proceeds remaining, the lender must account to the
tenant-stockholder for the surplus. Conversely, if a portion of the indebtedness
remains unpaid, the tenant-stockholder is generally responsible for the
deficiency. See "Anti-Deficiency Legislation and Other Limitations on Lenders"
below.
Junior Liens; Rights of Senior Mortgagees or Beneficiaries. Certain of the
Mortgage Loans, including Title I Loans, may be secured by mortgages or deeds of
trust providing for junior (i.e., second, third, etc.) liens on the related
Mortgaged Properties which are junior to the other mortgages or deeds of trust
held by other lenders or institutional investors. The rights of the beneficiary
under a junior deed of trust or as mortgagee under a junior mortgage are
subordinate to those of the mortgagee or beneficiary under the senior mortgage
or deed of trust, including the prior rights of the senior mortgagee or
beneficiary to receive hazard insurance and condemnation proceeds and to cause
the property securing the Mortgage Loans to be sold upon default of the
mortgagor or trustor. As discussed more fully below, a junior mortgagee or
beneficiary in some states 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 most
states, absent a provision in the senior mortgage or deed of trust, no notice of
default is required to be given to a junior mortgagee or beneficiary.
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The forms of the mortgage or deed of trust used by most institutional
lenders generally confer on the mortgagee or beneficiary the right both to
receive all proceeds collected under any hazard insurance policy and all awards
made in connection with any condemnation proceedings, and to apply such proceeds
and awards to any indebtedness secured by the mortgage or deed of trust, in such
order as the mortgagee or 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 bankruptcy is taken by condemnation, the mortgagee or
beneficiary under the underlying first mortgage or deed of trust may 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 first mortgage or deed of trust. In
those situations, proceeds in excess of the amount of first mortgage
indebtedness generally may be applied to the indebtedness of a junior mortgage
or trust deed.
Other provisions typically found in the form of the mortgagee or deed of
trust generally used by most institutional lenders obligate the mortgagor or
trustor 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 or beneficiary under the
mortgage or deed of trust. Upon a failure of the mortgagor or trustor to perform
any of these obligations, the mortgagee or beneficiary typically is given the
right under the mortgage or deed of trust to perform the obligation itself at
its election, with the mortgagor or trustor agreeing to reimburse the mortgagee
or beneficiary for any sums expended by the mortgagee or beneficiary on behalf
of the trustor. All sums so expended by the mortgagee or beneficiary generally
become part of the indebtedness secured by the mortgage or deed of trust
Right of Redemption. In some states, after sale pursuant to a deed of trust
or foreclosure of a mortgage, the borrower and foreclosed junior lienors are
given a statutory period in which to redeem the property following foreclosure.
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 rights of
redemption would defeat the title of any purchaser from the lender subsequent to
foreclosure or sale under a deed of trust. Consequently, the practical effect of
the redemption right is to force the lender to retain the property and pay the
expenses of ownership until the redemption period has run.
Anti-Deficiency Legislation and Other Limitations on Lenders. Certain
states have imposed statutory prohibitions that 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 would be 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. 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.
Finally, other statutory provisions limit any deficiency judgment against the
former borrower following a judicial 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 judicial sale.
In addition to laws limiting or prohibiting deficiency judgments, numerous
other statutory provisions, including the federal bankruptcy laws and state laws
affording relief to debtors, may interfere with or affect the ability of the
secured mortgage lender to realize upon collateral and/or enforce a deficiency
judgment. For example, with respect to federal bankruptcy law, a court with
federal bankruptcy jurisdiction may permit a debtor through his or her Chapter
11 or Chapter 13 rehabilitative plan to cure a monetary default in respect of a
mortgage loan on a debtor's residence by paying arrearages within a reasonable
time period and reinstating the original mortgage loan payment schedule even
though the lender accelerated the mortgage loan and final judgment of
foreclosure had been entered in state court (provided no sale of the residence
had yet occurred) prior to the filing of the debtor's petition.
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Some courts with federal bankruptcy jurisdiction have approved plans, based on
the particular fact of the reorganization case, that effected the curing of a
mortgage loan default by paying arrearages over a number of years.
Courts with federal bankruptcy jurisdiction have also indicated that the
terms of a mortgage loan secured by property of the debtor may be modified.
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.
The Code provides priority to certain tax liens over the lien of the
mortgage. In addition, substantive requirements are imposed upon mortgage
lenders in connection with the origination and the servicing of mortgage loans
by numerous federal and some state consumer protection laws. These 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. These federal laws impose specific statutory liabilities upon
lenders who originate mortgage loans and who fail to comply with the provisions
of the law. In some cases, this liability may affect assignees of the mortgage
loans.
Generally, Article 9 of the UCC governs foreclosure on cooperative shares
and the related proprietary lease or occupancy agreement. Some courts have
interpreted section 9-504 of the UCC to prohibit a deficiency award unless the
creditor establishes that the sale of the collateral (which, in the case of a
Cooperative Loan, would be the shares of the cooperative and the related
proprietary lease or occupancy agreement) was conducted in a commercially
reasonable manner.
Enforceability of Certain Provisions. Certain of the Mortgage Loans will
contain due-on-sale clauses. These clauses permit the lender to accelerate the
maturity of a loan if the borrower sells, transfers, or conveys the property.
The enforceability of these clauses was the subject of legislation or litigation
in many states, and in some cases the enforceability of these clauses was
limited or denied. However, the Garn-St. Germain Depository Institutions Act of
1982 (the "Garn-St. Germain Act") preempts state constitutional, statutory and
case law prohibiting the enforcement of due-on-sale clauses and permits lenders
to enforce these clauses in accordance with their terms, subject to certain
limited exceptions. 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.
The Garn-St. Germain Act also sets forth nine specific instances in which a
mortgage lender covered by the Garn-St. Germain Act (including federal savings
and loan associations and federal savings banks) may not exercise a due-on-sale
clause, notwithstanding the fact that a transfer of the property may have
occurred. These include intra-family transfers, certain transfers by operation
of law, leases of fewer than three years and the creation of a junior
encumbrance. Regulations promulgated under the Garn-St. Germain Act by the
Federal Home Loan Bank Board as succeeded by the Office of Thrift Supervision
(the "OTS"), also prohibit the imposition of a prepayment penalty upon the
acceleration of a loan pursuant to a due-on-sale clause. Any inability of the
Depositor to enforce due-on-sale clauses may affect the average life of the
Mortgage Loans and the number of Mortgage Loans that may be outstanding until
maturity.
Upon foreclosure, courts have imposed general equitable principles. These
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 requirements that the lender undertake
affirmative and expensive actions to determine the causes for 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 the lender to
foreclose if the default under the mortgage instrument is not monetary, such as
the borrower falling to adequately maintain
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the property or the borrower executing a second mortgage or deed of trust
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 deeds of trust or
mortgages receive notices in addition to the statutory-prescribed minimum. For
the most part, these cases have upheld the notice provisions as being reasonable
or have found that the sale by a trustee under a deed of trust, or under a
mortgage having a power of sale, does not involve sufficient state action to
afford constitutional protections to the borrower.
The standard forms of note, mortgage and deed of trust generally 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 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. Under the Agreement, late charges (to the extent permitted by law and
not waived by the Servicer) will be retained by the Servicer as additional
servicing compensation.
Adjustable Rate Loans. The laws of certain states may provide that mortgage
notes relating to adjustable rate loans are not negotiable instruments under the
UCC. In such event, the Trustee will not be deemed to be a "holder in due
course," within the meaning of the UCC and may take such a mortgage note subject
to certain restrictions on its ability to foreclose and to certain contractual
defenses available to a mortgagor.
Environmental Legislation. Certain states impose a statutory lien for
associated costs on property that is the subject of a cleanup action by the
state on account of hazardous wastes or hazardous substances released or
disposed of on the property. Such a lien will generally 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 mortgage. In
addition, under federal environmental legislation and under state law in a
number of states, a secured party which takes a deed in lieu of foreclosure or
acquires a mortgaged property at a foreclosure sale or assumes active control
over the operation or management of a property so as to be deemed an "owner" or
"operator" of the property may be liable for the costs of cleaning up a
contaminated site. Although such costs could be substantial, it is unclear
whether they would be imposed on a secured lender (such as a Trust) to
homeowners. In the event that title to a Mortgaged Property securing a Mortgage
Loan in a Trust was acquired by the Trust and cleanup costs were incurred in
respect of the Mortgaged Property, the Trust might realize a loss if such costs
were required to be paid by the Trust.
Soldiers' and Sailors' Civil Relief Act
Generally, under the terms of the Relief Act, a borrower who enters
military service after the origination of a Mortgage Loan or Contract by such
borrower (including a borrower who is a member of the National Guard or is in
reserve status at the time of the origination of the Mortgage Loan and is later
called to active duty) may not be charged interest above an annual rate of 6%
during the period of such borrower's active duty status, unless a court orders
otherwise upon application of the lender. It is possible that such interest rate
limitation or similar limitations under state law could have an effect, for an
indeterminate period of time, on the ability of the Servicer to collect full
amounts of interest on certain of the Mortgage Loans. In addition, the Relief
Act imposes limitations which would impair the ability of the Servicer to
foreclose on an affected Mortgage Loan during the borrower's period of active
duty status. Thus, in the event that such a Mortgage Loan goes into default
there may be delays and losses occasioned by the inability to realize upon the
Mortgaged Property in a timely fashion.
Any shortfalls in interest collections resulting from application of the
Relief Act could adversely affect Certificates.
The Contracts
General. As a result of the Depositor's assignment of the Contracts to the
Trustee, the Owners of Certificates will succeed collectively to all the rights
(including the right to receive payment on the Contracts) and will assume
certain obligations of the Depositor. Each Contract evidences both (a) the
obligation of the obligor to
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repay the loan evidenced thereby, and (b) the grant of a security interest in
the Manufactured Home to secure repayment of such lois. Certain aspects of both
features of the Contracts are described more fully below.
The Contracts generally are "chattel paper" as defined in the UCC in effect
in the states which the Manufactured Homes initially were registered. Pursuant
to the UCC, the sale of chattel paper is treated in a manner similar to
perfection of a security interest in chattel paper. Under the Agreement, the
Depositor will transfer physical possession of the Contracts to the Trustee or
its custodians. In addition, the Depositor will make an appropriate filing of a
UCC-1 financing statement in the appropriate states to give notice of the
Trustee's ownership of the Contracts. The Contracts will not be stamped or
marked otherwise to reflect their assignment from the Depositor to the Trustee.
Therefore, if a subsequent purchaser were able to take physical possession of
the Contracts without notice of such assignment the Trustee's interest in
Contracts could be defeated.
Security Interests in the Manufactured Homes. The Manufactured Homes
securing the Contracts may be located in all 50 states. Security interests in
manufactured homes may be perfected either by notation of the secured party's
lien on the certificate of title or by delivery of the required documents and
payment of a fee to the state motor vehicle authority, depending on state law.
In some nontitle states, perfection pursuant to the provisions of the UCC is
required. The Depositor may effect such notation or delivery of the required
documents and fees, and obtain possession of the certificate of title, as
appropriate under the laws of the state in which any manufactured home securing
a manufactured housing conditional sales contract is registered. In the event
the Depositor fails, due to clerical errors, to effect such notation or
delivery, or files the security interest under the wrong law (for example, under
a motor vehicle title statute rather than under the UCC, in a few states), the
Trustee may not have a first priority security interest in the Manufactured Home
securing a Contract. As manufactured homes have become larger and often have
been attached to their sites without any apparent intention to move them, courts
in many states have held that manufactured homes, under certain circumstances,
may become subject to real estate title and recording laws. As a result, a
security interest in a manufactured home could be rendered subordinate to the
interests of other parties claiming an interest in the home under applicable
state real estate law. In order to perfect a security interest in a manufactured
home under real estate law, the holder of the security interest must file either
a "fixture filing" under the provisions of the UCC or a real estate mortgage
under the real estate laws of the state where the home is located. These filings
must be made in the real state records office of the county where the home is
located. So long as the borrower does not violate this agreement, a security
interest in the Manufactured Home will be governed by the certificate of title
laws or the UCC, and the notation of the security interest on the certificate of
title or the filing of a UCC financing statement will be effective to maintain
the priority of the security interest in the Manufactured Home. If, however, a
Manufactured Home is permanently attached to this site, other parties could
obtain an interest in the Manufactured Home which is prior to the security
interest transferred to the Trustee. With respect to a series of Certificates
and as described in the related Prospectus Supplement, the Depositor may be
required to perfect a security interest in the Manufactured Home under
applicable real estate laws. If such real estate filings are not required and if
any of the foregoing events were to occur, the only recourse would be to pursue
the Trust's rights to require repurchase for breach of warranties.
The Depositor will assign its security interest in the Manufactured Homes
to the Trustee. Neither the Depositor nor the Trustee will amend the
certificates of title to identify the Trust as the new secured party.
Accordingly, the Depositor will continue to be named as the secured party on the
certificates of title relating to the Manufactured Homes. In most states, such
assignment is an effective conveyance of such security interest without
amendment of any lien noted on the related certificate of title and the new
secured party succeeds to the Depositor's rights as the secured party. However,
in some states there exists a risk that, in the absence of an amendment to the
certificate of title, such assignment of the security interest might not be held
effective against creditors of the Depositor.
In the absence of fraud, forgery or permanent affixation of the
Manufactured Home to its site by the Manufactured Home owner, or administrative
error by state recording officials, the notation of the lien of the Depositor on
the certificate of title or delivery of the required documents and fees will be
sufficient to protect the Trust against the rights of subsequent purchasers of a
Manufactured Home or subsequent lenders who take a security interest in the
Manufactured Home. If there are any Manufactured Homes as to which the security
interest is not perfected, such security interest would be subordinate to, among
others, subsequent purchasers for value of
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Manufactured Homes and holders of perfected security interests. There also
exists a risk in not identifying the Trust as the new secured party on the
certificate of title that, through fraud or negligence, the security interest of
the Trust could be released.
Enforcement of Security Interests in Manufactured Homes. The Servicer on
behalf of the Trustee, to the extent required by the related Agreement, may take
action to enforce the Trustee's security interest with respect to Contracts in
default by repossession and resale of the Manufactured Homes securing such
Contracts in default. So long as the Manufactured Home has not become subject to
the real estate law, a creditor can repossess a Manufactured Home securing a
Contract by voluntary surrender, by "self-help" repossession that is "peaceful"
(i.e., without breach of the peace) or in the absence of voluntary surrender and
the ability to repossess without breach of the peace, by judicial process. The
holder of a Contract must give the debtor a number of days' notice, which varies
from 10 to 30 days depending on the state, prior to commencement of any
repossession. The UCC and consumer protection laws in most states place
restrictions on repossession sales, including requiring prior notice to the
debtor and commercial reasonableness in effecting such a sale. The law in most
states also requires that the debtor be given notice of any sale prior to resale
of the unit so that the debtor may redeem at or before such resale. In the event
of such repossession and resale of a Manufactured Home, the Trustee would be
entitled to be paid out of the sale proceeds before such proceeds could be
applied to the payment of the claims of unsecured creditors or the holders of
subsequently perfected security interests or, thereafter, to the debtor.
If the owner of a Manufactured Home moves it to a state other than the
state in which such Manufactured Home initially is registered, under the laws of
most states the perfected security interest in the Manufactured Home would
continue for four months after such relocation and thereafter only if and after
the owner registers the Manufactured Home in such state. If the owner were to
relocate a Manufactured Home to another state and not re-register the
Manufactured Home in such state, and if steps are not taken to re-perfect the
Trustee's security interest in such state, the security interest in the
Manufactured Home would cease to be perfected. A majority of states generally
requires surrender of a certificate of title to re-register a Manufactured Home;
accordingly, the Trustee must surrender possession if it holds the certificate
of title to such Manufactured Home or,in the case of Manufactured Homes
registered in states which provide for notation of lien, the Trustee would
receive notice of surrender if the security interest in the Manufactured Home is
noted on the certificate of title Accordingly, the Trustee would have the
opportunity to re-perfect its security interest in the Manufactured Home in the
state of relocation. In states which do not require a certificate of title for
registration of a manufactured home, re-registration could defeat perfection. In
the ordinary course of servicing the manufactured housing conditional sales
contracts, the Servicer will be required to take steps to effect such
re-perfection upon receipt of notice of re-registration or information from the
obligor as to relocation. Similarly, when an obligor under a manufactured
housing conditional sales contract sells a manufactured home, the Trustee must
surrender possession of the certificate of title or will receive notice as a
result of its lien noted thereon and accordingly will have an opportunity to
require satisfaction of the related manufactured housing conditional sales
contract before release of the lien. Under each Agreement the Servicer is
obligated to take such steps, at the Servicer's expense, as are necessary to
maintain perfection of security interests in the Manufactured Homes.
Under the laws of most states, liens for repairs performed on a
Manufactured Home take priority even over a perfected security interest. The
Depositor will represent in the Agreement that it has no knowledge of any such
liens with respect to any Manufactured Home securing payment on any Contract.
However, such liens could arise at any time during the term of a Contract. No
notice will be given to the Trustee in the event such a lien arises.
Under the laws applicable in most states, a creditor is entitled to obtain
a deficiency judgment from a debtor for any deficiency on repossession and
resale of the manufactured home securing such debtor's loan. However, some
states impose prohibitions or limitations on deficiency judgments.
Certain other statutory provisions, including federal and state bankruptcy
and insolvency laws and general equitable principles, may limit or delay the
ability of a lender to repossess and resell collateral or enforce a deficiency
judgment
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Consumer Protection Laws. The so-called "Holder-in-Due-Course" rule of the
Federal Trade Commission is intended to defeat the ability of the transferor of
a consumer credit contract which is the seller of goods which gave rise to the
transaction (and certain related lenders and assignees) to transfer such
contract free of notice of claims by the debtor thereunder. The effect of this
rule is to subject the assignee of such a contract to all claims and defenses
which the debtor could assert against the seller of goods. Liability under this
rule is limited to amounts paid under a Contract; however, the obligor also may
be able to assert the rule to set off remaining amounts due as a defense against
a claim brought by the Trust against such obligor. Numerous other federal and
state consumer protection laws impose requirements applicable to the origination
of and lending pursuant to the Contracts, including the Truth-in-Lending Act,
the Federal Trade Commission Act, the Fair Credit Billing Act, the Fair Credit
Reporting Act, the Equal Credit Opportunity Act, the Fair Debt Collection
Practices Act and the Uniform Consumer Credit Code. In the case of some of these
laws, the failure to comply with their provisions may affect the enforceability
of the related Contract
Transfers of Manufactured Homes; Enforceability of "Due-on-Sale" Clauses.
The Contracts, in general, prohibit the sale or transfer of the related
Manufactured Homes without the consent of the Depositor and permit the
acceleration of the maturity of the Contracts by the Depositor upon any such
sale or transfer for which consent has not been granted. In certain cases, the
transfer may be made by a delinquent obligor in order to avoid a repossession
proceeding with respect to a Manufactured Home.
In the case of a transfer of a Manufactured Home after which the Servicer
desires to accelerate the maturity of the related Contract, the Servicer's
ability to do so will depend on the enforceability under state law of the
"due-on-sale" clause. The Garn-St. Germain Act preempts, subject to certain
exceptions and conditions, state laws prohibiting enforcement of "due-on-sale"
clauses applicable to the Manufactured Homes. Consequently, in some states the
Servicer may be prohibited from enforcing a "due-on-sale" clause in respect of
certain Manufactured Homes.
The Title I Program
Certain of the Mortgage Loans or Contracts contained in a Trust may be
loans insured under the FHA Title I credit insurance program created pursuant to
Sections 1 and 2(a) of the National Housing Act of 1934 (the "Title I Program").
Under the Title I Program, the FHA is authorized and empowered to insure
qualified lending institutions against losses on eligible loans. The Title I
Program operates as a coinsurance program in which the FHA insures up to 90% of
certain losses incurred on an individual insured loan, including the unpaid
principal balance of the loan, but only to the extent of the insurance coverage
available in the lender's FHA insurance coverage reserve account. The owner of
the loan bears the uninsured loss on each loan.
The types of loans, which are eligible for insurance by the FHA under the
Title I Program, include property improvement loans ("Property Improvement
Loans" or "Title I Loans") and manufactured home loans ("Manufactured Home
Loans" or "Title I Contracts"). A Property Improvement Loan or Title I Loan
means a loan made to finance actions or items that substantially protect or
improve the basic livability or utility of a property and includes: (1) single
family, multifamily and nonresidential property improvement loans; (2)
manufactured home improvement loans, where the home is classified as personalty;
(3) historic preservation loans; and (4) fire safety equipment loans in existing
health care facilities. A Manufactured Home Loan or Title I Contract means a
loan for the purchase or refinancing of a manufactured home and/or the lot on
which to place such home and includes: (1) manufactured home purchase loans; (2)
manufactured home lot loans; and (3) combination loans.
In addition to these types of loans, there are two basic methods of lending
or originating loans which include a "direct loan" or a "dealer loan". With
respect to a direct loan, the borrower makes application directly to a lender
without any assistance from a dealer, which application may be filled out by the
borrower or by a person acting at the direction of the borrower who does not
have a financial interest in the loan transaction, and the lender may disburse
the loan proceeds solely to the borrower or jointly to the borrower and other
parties to the transaction. With respect to a dealer loan, the dealer, who has a
direct or indirect financial interest in the loan transaction, assists the
borrower in preparing the loan application or otherwise assists the borrower in
obtaining the loan from the lender and the lender may disburse proceeds solely
to the dealer or the borrower or jointly to the borrower and the dealer
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or other parties. With respect to a dealer Title I Loan, a dealer may include a
seller, a contractor or supplier of goods or services' and with respect to a
dealer Title I Contract, a dealer is a person engaged in the business of
manufactured home retail sales.
Loans insured under the Title I Program are required to have fixed interest
rates and, generally, provide for equal installment payments due weekly,
biweekly, semi-monthly, or monthly, except that a loan may be payable quarterly
or semi-annually in order to correspond with the borrower's irregular flow of
income The first or last payments (or both) may vary in amount but may not
exceed 150% of the regular installment payment, and the first payment may be due
no later than two months from the date of the loan. The note must contain a
provision permitting full or partial prepayment of the loan. The interest rate
may be established by the lender and must be fixed for the term of the loan and
recited in the note. Interest on an insured loan must accrue from the date of
the loan and be calculated according to the actuarial method. The lender must
assure that the note and all other documents evidencing the loan are in
compliance with applicable Federal, state and local laws.
Each insured lender is required to use prudent lending standards in
underwriting individual loans and to satisfy the applicable loan underwriting
requirements under the Title I Program prior to its approval of the loan and
disbursement of loan proceeds. Generally, the lender must exercise prudence and
diligence to determine whether the borrower and any co-maker are solvent and
acceptable credit risks, with a reasonable ability to make payments on the loan
obligation. The lender's credit application and review must determine whether
the borrower's income will be adequate to meet the periodic payments required by
the loan, as well as the borrower's other housing and recurring expenses, which
determination must be made in accordance with the expense-to-income ratios
published by the Secretary of the United States Department of Housing and Urban
Development ("HUD").
Under the Title I Program, the FHA does not review or approve for
qualification for insurance the individual loans insured thereunder at the time
of approval by the lending institution. If, after a loan has been made and
reported for insurance under the Title I Program, the lender discovers any
material misstatement of fact or that the loan proceeds have been misused by the
borrower, dealer or any other party, it shall promptly report this to the FHA.
In such case, provided that the validity of any lien on the property has not
been impaired, the insurance of the loan under the Title I Program will not be
affected unless such material misstatement of fact or misuse of loan proceeds
was caused by (or was knowingly sanctioned by) the lender or its employees.
Requirements for Title I Loans. The maximum principal amounts for Title I
Loans must not exceed the actual cost of the project plus any applicable fees
and charges allowed under the Title I Program; provided that such maximum amount
does not exceed the following loan amounts: (i) $25,000 for a single family
property improvement loan and nonresidential property improvement loans; (ii)
the lesser of $60,000 or an average of $12,000 per dwelling unit for multifamily
property improvement loans; and (iii) $17,500 for a manufactured home
improvement loan. Generally, the term of a Title I Loan may not be less than six
months nor greater than 20 years and 32 days, except that the maximum term of a
single family property improvement loan on a manufactured home is limited to 15
years and 32 days and the maximum term of a manufactured home improvement loan
is limited to 12 years and 32 days. A borrower may obtain multiple Title I Loans
with respect to multiple properties, and a borrower may obtain more than one
Title I Loan with respect to a single property, ia each case as long as the
total outstanding balance of all Title I Loans on the same property does not
exceed the maximum loan amount for the type of Title I Loan thereon having the
highest permissible loan amount.
Borrower eligibility for a Title I Loan requires that the borrower have at
least a one-half interest in either fee simple title to the real property, a
lease thereof for a term expiring at least six months after the final maturity
of the Title I Loan or a recorded land installment contract for the purchase of
the real property, and that the borrower have equity in the property being
improved at least equal to the amount of the Title I Loan if such loan amount
exceeds $15,000. Any Title I Loan in excess of $5,000 must be secured by a
recorded lien on the improved property which is evidenced by a mortgage or deed
of trust executed by the borrower and all other owners in fee simple.
The proceeds from a Title I Loan may be used only to finance property
improvements which substantially protect or improve the basic livability or
utility of the property as disclosed in the loan application. The Secretary
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of HUD has published a list of items and activities which cannot be financed
with proceeds from any Title I Loan and from time to time the Secretary of HUD
may amend such list of items and activities. With respect to any dealer Title I
Loan, before the lender may disburse funds, the lender must have in its
possession a completion certificate on a HUD-approved form, signed by the
borrower and the dealer. With respect to any direct Title I Loan the lender is
required to obtain, promptly upon completion of the improvements but not later
than 6 months after disbursement of the loan proceeds with one 6 month extension
if necessary, a completion certificate, signed by the borrower. The lender is
required to conduct an on-site inspection on any Title I Loan where the
principal obligation is $7,500 or more, and or any direct Title I Loan where the
borrower fails to submit a completion certificate.
Requirements for Title I Contracts. The maximum principal amount for any
Title I Contract must not exceed the sum of certain itemized amounts, which
include a specified percentage of the purchase price of the manufactured home
depending on whether it is a new or existing home; provided that such maximum
amount does not exceed the following loan amounts: (i) $40,500 for a new or
existing manufactured home purchase loan; (ii) $13,500 for a manufactured home
lot purchase; and (iii) $54,000 for a combination loan (i.e., a loan to purchase
a new or existing manufactured home and the lot for such home). Generally, the
term of a Title I Contract may not be less than six months nor greater than 20
years and 32 days, except that the maximum term of a manufactured home lot loan
is limited to 15 years and 32 days and the maximum term of a multimodule
manufactured home and lot in combination is limited to 25 years and 32 days.
Borrower eligibility for a Title I Contract requires that the borrower
become the owner of the property to be financed with such loan and occupy the
manufactured home as the borrower's principal residence, except for a
manufactured home lot loan which allows six months to occupy the home as the
borrower's principal residence. If a manufactured home is classified as realty,
then ownership of the home must be in fee simple, and also, the ownership of the
manufactured home lot must be in fee simple, except for a lot which consists of
a share in a cooperative association that owns the manufactured home park. The
borrower's minimum cash down payment requirement to obtain financing through a
Title I Contract is as follows: (i) at least 5% of the first $5,000 and 10% of
the balance of the purchase price of a new manufactured home and at least 10% of
the purchase price of an existing manufactured home for a manufactured home
purchase loan, or in lieu of a full or partial cash down payment, the trade-in
of the borrower's equity in an existing manufactured home; (ii) at least 10% of
the purchase price and development costs of a lot for a manufactured home lot
loan; and (iii) at least 5% of the first $5,000 and 10% of the balance of the
purchase price of the manufactured home and lot for a combination loan.
Any manufactured home financed by a Title I Contract must be certified by
the manufacturer to have been constructed in compliance with the National
Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C.
5401-5426), so as to conform to all applicable Federal construction and safety
standards, and with respect to the purchase of a new manufactured home, the
manufacture must furnish the borrower with a one year written warranty on a HUD
approved form which obligates the manufacturer to correct any nonconformity with
all applicable Federal construction and safety standards or any defects in
materials or workmanship for the one year period after the date of delivery. The
proceeds from a Title I Contract may be used as follows: the purchase or
refinancing of a manufactured home, a suitably developed lot for a manufactured
home already owned by the borrower, or a manufactured home and suitably
developed lot for the home in combination; or the refinancing of an existing
manufactured home already owned by the borrower in connection with the purchase
of a manufactured home lot or an existing lot already owned by the borrower in
connection with the purchase of a manufactured home. In addition, the proceeds
for a Title I Contract which is a manufactured home purchase loan or a
combination loan may be used for the purchase, construction or installation of a
garage, carport, patio or other comparable appurtenance to the home. The
proceeds from a Title I Contract cannot be used for the purchase of furniture or
the financing of any items and activities which are set forth on the list
published by the Secretary of HUD as amended from time to time.
Any Title I Contract must be secured by a recorded lien on the manufactured
home, its furnishings, equipment, accessories and appurtenance, which lien must
be a first lien, superior to any other lien on the property. With respect to any
Title I Contract involving a manufactured home purchase loan or combination loan
and the sale of the manufactured home by a dealer, the lender or its agent
(other than the dealer) must conduct a site-of-placement inspection within 60
days after the date of the loan to verify that the terms and conditions of the
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purchase contract have been met, the manufactured home and any options and
appurtenances included in the purchase price or financed with the loan have been
delivered and installed, and the placement certificate executed by the borrower
and the dealer is in order.
FHA Insurance Coverage. Under the Title I Program the FHA establishes an
insurance coverage reserve account for each lender which has been granted a
Title I insurance contract. The amount of insurance coverage in this account is
10% of the amount disbursed, advanced or expended by the lender in originating
or purchasing eligible loans registered with the FHA for Title I insurance, with
certain adjustments. The balance in the insurance coverage reserve account is
the maximum amount of insurance claims the FHA is required to pay. Loans to be
insured under the Title I Program will be registered for insurance by the FHA
and the insurance coverage attributable to such loans will be included in the
insurance coverage reserve account for the originating or purchasing lender
following the receipt and acknowledgment by the FHA of a loan report on the
prescribed form pursuant to the Title I regulations. The FHA charges a fee of
0.50% per annum of the net proceeds (the original balance) of any eligible loan
so reported and acknowledged for insurance by the originating lender. The FHA
bills the lender for the insurance premium on each insured loan annually, on
approximately the anniversary date of the loan's origination. If an insured loan
is prepaid during the year, the FHA will not refund or abate the insurance
premium.
Under the Title I Program the FHA will reduce the insurance coverage
available in the lender's FHA insurance coverage reserve account with respect to
loans insured under the lender's contract of insurance by (i) the amount of the
FHA insurance claims approved for payment relating to such insured loans, (ii)
the amount of the Annual Reductions attributable to such insured loans and (iii)
the amount of insurance coverage attributable to insured loans sold by the
lender, and such insurance coverage may be reduced for any FHA insurance claims
rejected by the FHA. After a lender has held its Title I contract of insurance
for five years, the lender's FHA insurance coverage reserve account is subject
to an annual reduction (the "Annual Reduction") on each October in an amount
equal to 10% of the insurance coverage reserves available on such date with
respect to such contract of insurance; provided that such Annual Reduction shall
not reduce the insurance coverage to an amount less than $50,000. The balance of
the lender's FHA insurance coverage reserve account will be further adjusted as
required under Title I or by the FHA, and the insurance coverage therein may be
earmarked with respect to each or any eligible loans insured thereunder, if a
determination is made by the Secretary of HUD that it is in its interest to do
so. Originations and acquisitions of new eligible loans will continue to
increase a lender's insurance coverage reserve account balance by 10% of the
amount disbursed, advanced or expended in originating or acquiring such eligible
loans registered with the FHA for insurance under the Title I Program. The
Secretary of HUD may transfer insurance coverage between insurance coverage
reserve accounts with earmarking with respect to a particular insured loan or
group of insured loans when a determination is made that it is in the
Secretary's interest to do so.
The lender may transfer (except as collateral in a bona fide loan
transaction) insured loans and loans reported for insurance only to another
qualified lender under a valid Title I contract of insurance. Unless an insured
loan is transferred with recourse or with a guarantee or repurchase agreement,
the FHA, upon receipt of written notification of the transfer of such loan in
accordance with the Title I regulations, will transfer from the transferor's
insurance coverage reserve account to the transferee's insurance coverage
reserve account an amount, if available, equal to 10% of the actual purchase
price or the net unpaid principal balance of such loan (whichever is less).
However, under the Title I Program not more than $5,000 in insurance coverage
shall be transferred to or from a lender's insurance coverage reserve account
during any October 1 to September 30 period without the prior approval of the
Secretary of HUD.
Claims Procedures Under Title I. Under the Title I Program the lender may
accelerate an insured loan following a default on such loan only after the
lender or its agent has contacted the borrower in a face-to-face meeting or by
telephone to discuss the reasons for the default and to seek its cure. If the
borrower does not cure the default or agree to a modification agreement or
repayment plan, the lender will notify the borrower in writing that, unless
within 30 days the default is cured or the borrower enters into a modification
agreement or repayment plan, the loan will be accelerated and that, if the
default persists, the lender will report the default to an appropriate credit
agency. The lender may rescind the acceleration of maturity after full payment
is due and reinstate the loan only if the borrower brings the loan current,
executes a modification agreement or agrees to an acceptable repayment plan.
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Following acceleration of maturity upon a secured Title I Loan, the lender
may either (a) proceed against the Mortgaged Property under any security
instrument or (b) make a claim under the lender's contract of insurance. If the
lender chooses to proceed against the Mortgaged Property under a security
instrument (or if it accepts a voluntary conveyance or surrender of the
Mortgaged Property), the lender may file an insurance claim only with the prior
approval of the Secretary of HUD. After acceleration of maturity on a defaulted
Title I Contract, the lender must proceed against the loan security by
foreclosure or repossession, as appropriate, and acquire good, marketable title
to the property securing the loan. The lender must take all actions necessary
under applicable law to preserve its rights, if any, to obtain a deficiency
judgement against the borrower. Before filing a claim for insurance with the
FHA, the lender must sell for the best price obtainable any property which the
lender acquired by the foreclosure or repossession of such property securing a
defaulted Title I Contract.
When a lender files an insurance claim with the FHA under the Title I
Program, the FHA reviews the claim, the complete loan file and documentation of
the lender's efforts to obtain recourse against any dealer who has agreed
thereto, certification of compliance with applicable state and local laws in
carrying out any foreclosure or repossession, and evidence that the lender has
properly filed proofs of claims, where the borrower is bankrupt or deceased.
Generally, a claim for reimbursement for loss on any eligible loan must be filed
with the FHA no later than (i) for any Title I Loan, 9 months after the date of
default of such loan, or (ii) for any Title I Contract, 3 months after the date
of sale of the property securing such loan, but not to exceed 18 months after
the date of default. Concurrently with filing the insurance claim, the lender
shall assign to the United States of America the lender's entire interest in the
loan note (or a judgment in lieu of the note), in any security held and in any
claim filed in any legal proceedings. If, at the time the note is assigned the
Secretary has reason to believe that the note is not valid or enforceable
against the borrower, the FHA may deny the claim and reassign the note to the
lender. If either such defect is discovered after the FHA has paid a claim, the
FHA may require the lender to repurchase the paid claim and to accept a
reassignment of the loan note. If the lender subsequently obtains a valid and
enforceable judgment against the borrower, the lender may resubmit a new
insurance claim with an assignment of the judgment. The FHA may contest any
insurance claim and make a demand for repurchase of the loan at any time up to
two years from the date the claim was certified for payment and may do so
thereafter in the event of fraud or misrepresentation on the part of the lender.
Under the Title I Program the amount of an FHA insurance claim payment,
when made, is equal to the Claimable Amount, up to the amount of insurance
coverage in the lender's insurance coverage reserve account. The "Claimable
Amount" is equal to 90% of the sum of: (a) the unpaid loan obligation (net
unpaid principal and the uncollected interest earned to the date of default)
with adjustments thereto if the lender has proceeded against property securing
such loan; (b) the interest on the unpaid amount of the loan obligation from the
date of default to the date of the claim's initial submission for payment plus
15 calendar days (but not to exceed 9 months from the date of default),
calculated at the rate of 7% per annum; (c) the uncollected court costs; (d) the
attorneys fees not to exceed $500; (e) the expenses for recording the assignment
of the security to the United States; and (f) if the loan is a Title I Contract,
certain costs incurred in connection with the foreclosure or repossession of the
manufactured home and/or lot.
LEGAL INVESTMENT MATTERS
The Certificates may constitute "mortgage related securities" for purposes
of SMMEA, so long as they are rated in one of the two highest rating categories
by the Rating Agency or Agencies identified in the related Prospectus Supplement
and, as such, would be legal investments for persons, trusts, corporations,
partnerships, associations, business trusts and business entities (including but
not limited to state-chartered savings banks, commercial banks, saving and loan
associations and insurance companies, as well as trustees and state government
employee retirement systems) created pursuant to or existing under the laws of
the United States or any State (including the District of Columbia and Puerto
Rico) whose authorized investments are subject to State regulation to the same
extent that, under applicable law, obligations issued by or guaranteed as to
principal and interest by the United States or any agency or instrumentality
thereof constitute legal investments for such entities. Under SMMEA, in all
States which enacted legislation prior to October 4, 1991 specifically limiting
the legal investment authority of any of such entities with respect to "mortgage
related securities," the Certificates will constitute legal
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investments for entities subject to such legislation only to the extent provided
in such legislation SMMEA provides, however, that in no event will the enactment
of any such legislation affect the validity of any contractual commitment to
purchase, bold or invest in any securities or require the sale or over
disposition of any securities, so long as such contractual commitment was made
or such securities were acquired prior to the enactment of such legislation.
Alaska, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois,
Kansas, Louisiana, Maryland, Michigan, Missouri, Nebraska, New Hampshire, New
York, North Carolina, Ohio, South Dakota, Utah, Virginia and West Virginia each
enacted legislation overriding the exemption afforded by SMMEA prior to the
October 4, 1991 deadline.
Institutions whose investment activities are subject to legal investment
laws or regulations or review by certain regulatory authorities may be subject
to restrictions on investment in certain classes of the Certificates. Any
financial institution which is subject to the jurisdiction of the Comptroller of
the Currency, the Board of Governors of the Federal Reserve System, the FDIC,
the OTS, the NCUA or other federal or state agencies with similar authority
should review any applicable rules, guidelines and regulations prior to
purchasing the certificates. The Federal Financial Institutions Examination
Council, for example, has issued a Supervisory Policy Statement on Securities
Activities effective February 10, 1992 (the "Policy Statement"). The Policy
Statement has been adopted by the Comptroller of the Currency, the Federal
Reserve Board, the FDIC and the OTS with respect to the depository institutions
that they regulate. The Policy Statement prohibits depository institutions from
investing in certain "high-risk mortgage securities" except under limited
circumstances, and sets forth certain investment practices deemed to be
unsuitable for regulated institutions. The NCUA issued final regulations
effective December 2, 1991 that restrict and in some instances prohibit the
investment by federal credit unions in certain types of mortgage related
securities.
The foregoing does not take into consideration the applicability of
statutes, rules, regulations, orders, guidelines or agreements generally
governing investments made by a particular investor, including, but not limited
to "prudent investor" provisions, percentage-of-assets limits and provisions
which may restrict or prohibit investment in securities which are not "interest
bearing" or "income paying," or in securities which are issued in book-entry
form.
Investors should consult their own legal advisors in determining whether
and to what extent the Certificates constitute legal investments for such
investors.
ERISA CONSIDERATIONS
ERISA imposes requirements on employee benefit plans (and on certain other
retirement plans and arrangements, including individual retirement accounts and
annuities, Keogh plans and collective investment funds and separate accounts in
which such plans, accounts or arrangements are invested) (collectively, "Plans")
subject to ERISA and on persons who are fiduciaries with respect to such Plans.
Among other things, ERISA requires that the assets of Plans be held in trust and
that the trustee, or other duly authorized fiduciary, have exclusive authority
and discretion to manage and control the assets of such Plans. ERISA also
imposes certain duties on persons who are fiduciaries of Plans. Under ERISA, any
person who exercises any authority or control respecting the management or
disposition of the assets of a Plan is considered to be a fiduciary of such Plan
(subject to certain exceptions not here relevant). In addition to the imposition
of general fiduciary standards of investment prudence and diversification, ERISA
prohibits a broad range of transactions involving Plan assets and persons
("Parties in Interest") having certain specified relationships to a Plan and
imposes additional prohibitions where Parties in Interest are fiduciaries with
respect to such Plan.
The United States Department of Labor (the "DOL") has issued regulations
concerning the definition of what constitutes the assets of a Plan. (DOL Reg
Section 2510.3-101). Under this regulation, the underlying assets and properties
of corporations, partnerships and certain other entities in which a Plan makes
an "equity" investment could be deemed for purposes of ERISA to be assets of the
investing Plan in certain circumstances. In such case, the fiduciary making such
an investment for the Plan could be deemed to have delegated his or her asset
management responsibility, and the underlying assets and properties could be
subject to ERISA reporting and
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disclosure. Certain exceptions to the regulation may apply in the case of a
Plan's investment in the Certificates, but the Depositor cannot predict in
advance whether such exceptions apply due to the factual nature of the
conditions to be met. Accordingly, because the Mortgage Loans may be deemed Plan
assets of each Plan that purchases Certificates, an investment in the
Certificates by a Plan might give rise to a prohibited transaction under ERISA
Sections 406 and 407 and be subject to an excise tax under Code Section 4975
unless a statutory or administrative exemption applies.
DOL Prohibited Transaction Exemption 83-1 ("PTE 83-1") exempts from ERISA's
prohibited transaction rules certain transactions relating to the operation of
residential mortgage investment trusts and the purchase, sale and holding of
"mortgage pool pass-through certificates" in the initial issuance of such
certificates. PTE 83-1 permits, subject to certain conditions, transactions
which might otherwise be prohibited between Plans and Parties in Interest with
respect to those Plans involving the origination, maintenance and termination of
mortgage pools consisting of mortgage loans secured by first or second mortgages
or deeds of trust on single-family residential property, and the acquisition and
holding of certain mortgage pool pass-through certificates representing an
interest in such mortgage pools by PTE.
PTE 83-1 sets forth three general conditions which must be satisfied for
any transaction to be eligible for exemption: (i) the maintenance of a system of
insurance or other protection for the pooled mortgage loans and property
securing such loans, and for indemnifying Owners against reductions in
pass-through payments due to property damage or defaults in loan payments in an
amount not less than the greater of one percent of the aggregate principal
balance of all covered pooled mortgage loans or the principal balance of the
largest covered pooled mortgage loan, (ii) the existence of a pool trustee who
is not an affiliate of the sponsor, and (iii) a limitation on the amount of the
payments retained by the pool sponsor, together with other funds inuring to its
benefit, to not more than adequate consideration for selling the mortgage loans
plus reasonable compensation for services provided by the pool sponsor.
Although the Trustee for any series of Certificates will be unaffiliated
with the Depositor, there can be no assurance that the system of insurance or
subordination will meet the general or specific conditions referred to above. In
addition, the nature of a Trust's assets or the characteristics of one or more
classes of the related series of Certificates may not be included within the
scope of PTE 83-1 or any other class exemption under ERISA. The Prospectus
Supplement will provide additional information with respect to the application
of ERISA and the Code to the related Certificates.
Several underwriters of mortgage-backed securities have applied for and
obtained ERISA prohibited transactions exemptions which are in some respects
broader than PTE 83-1. Such exemptions can only apply to mortgage-backed
securities which, among other conditions, are sold in an offering with respect
to which such underwriter serves as the sole or a managing underwriter, or as a
selling or placement agent. Several other underwriters have applied for similar
exemptions. If such an exemption might be applicable to a series of
Certificates, the related Prospectus Supplement will refer to such possibility.
Each Plan fiduciary who is responsible for making the investment decisions
whether to purchase or commit to purchase and to hold Certificates must make its
own determination as to whether the general and the specific conditions of PTE
83-1 have been satisfied or as to the availability of any other prohibited
transaction exemptions Each Plan fiduciary should also determine whether, under
the general fiduciary standards of investment prudence and diversification, an
investment in the Certificates is appropriate for the Plan, taking into account
the overall investment policy of the Plan and the composition of the Plan's
investment portfolio.
Any Plan proposing to invest in Certificates should consult with its
counsel to confirm that such investment will not result in a prohibited trans
action and will satisfy the other requirements of ERISA and the Code.
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CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is based upon the opinion of Arter & Hadden, special counsel
to the Depositor with respect to the material federal income tax consequences of
the purchase, ownership and disposition of Certificates. The discussion below
does not purport to address all federal income tax consequences that may be
applicable to particular categories of investors, some of which may be subject
to special rules. The authorities on which this discussion is based are subject
to change or differing interpretations, and any such change or interpretation
could apply retroactively. This discussion reflects the applicable provisions of
the Code including recent amendments under the Omnibus Budget Reconciliation Act
of 1993 ("OBRA"), as well as final regulations concerning REMICs (the "REMIC
Regulations") promulgated on December 23, 1992, and final regulations under
Sections 1271 through 1273 and 1275 of the Code concerning debt instruments
promulgated on January 27, 1994 (the "OID Regulations"). The Depositor intends
to rely on the OID Regulations for all Certificates offered pursuant to this
Prospectus; however, investors should be aware that the OID Regulations do not
adequately address certain issues relevant to prepayable securities, such as the
Certificates. Investors should consult their own tax advisors in determining the
federal, state, local and any other tax consequences to them of the purchase,
ownership and disposition of Certificates, particularly with respect to federal
income tax changes effected by OBRA and the REMIC Regulations. The Prospectus
Supplement for each series of Certificates will discuss any special tax
consideration applicable to any class of Certificates of such series, and the
discussion below is qualified by any such discussion in the related Prospectus
Supplement.
For purposes of this opinion, where the applicable Prospectus Supplement
provides for a fixed retained yield with respect to the Mortgage Assets
underlying a series of Certificates, references to the Mortgage Assets will be
deemed to refer to that portion of the Mortgage Assets held by the Trust which
does not include the fixed retained yield.
Federal Income Tax Consequences For REMIC Certificates
General. With respect to a particular series of Certificates, an election
may be made to treat the Trust or one or more trusts or segregated pools of
assets therein as one or more REMICs within the meaning of Code Section 860D. A
Trust or a portion or portions thereof as to which one or more REMIC elections
will be made will be referred to as a "REMIC Pool." For purposes of this
discussion, Certificates of a series as to which one or more REMIC elections are
made are referred to as "REMIC Certificates" and will consist of one or more
classes of "Regular Certificates" and one class of "Residual Certificates" in
the case of each REMIC Pool. Qualification as a REMIC requires ongoing
compliance with certain conditions. With respect to each series of REMIC
Certificates, Arter & Hadden, special counsel to the Depositor, has advised the
Depositor that in their opinion, assuming (i) the making of an appropriate
election, (ii) compliance with the Agreement and (iii) compliance with any
changes in the law, including any amendments to the Code or applicable Treasury
regulations thereunder, each REMIC Pool will qualify as a REMIC and that if a
Trust qualifies as a REMIC, the tax consequences to the Owners will be as
described below. In such case, the Regular Certificates will be considered to be
"regular interests" in the REMIC Pool and generally will be treated for federal
income tax purposes as if they were newly originated debt instruments, and the
Residual Certificates will be considered to be "residual interests" in the REMIC
Pool. The Prospectus Supplement for each series of Certificates will indicate
whether one or more REMIC elections with respect to the related Trust will be
made, in which event references to "REMIC" or "REMIC Pool" herein shall be
deemed to refer to each such REMIC Pool.
Status of REMIC Certificates. REMIC Certificates held by a mutual savings
bank or a domestic building and loan association (a "Thrift Institution") will
constitute "qualifying real property loans" within the meaning of Code Section
593(d)(1) in the same proportion that the assets of the REMIC Pool would be so
treated. REMIC Certificates held by a domestic building and loan association
will constitute "a regular or residual interest in a REMIC" within the meaning
of Code Section 7701(a) (19)(C) (xi) in the same proportion that the assets of
the REMIC Pool would be treated as "loans secured by an interest in real
property" within the meaning of Code Section 7701(a)(19)(C)(v) or as other
assets described in Code Section 7701(a)(19)(C). REMIC Certificates held by a
real estate investment trust (a "REIT") will constitute "real estate assets"
within the meaning of Code Section
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856(c)(5)(A), and interest on the REMIC Certificates will be considered
"interest on obligations secured by mortgages on real property or on interests
in real property" within the meaning of Code Section 856(c)(3)(B) in the same
proportion that, for both purposes, the assets of the REMIC Pool would be so
treated. If at all times 95% or more of the assets of the REMIC Pool constitute
qualifying assets for Thrift Institutions and REITs, the REMIC Certificates will
be treated entirely as qualifying assets for such entities. Moreover, the REMIC
Regulations provide that, for purposes of Code Sections 593(d)(1) and
856(c)(5)(A), payments of principal and interest on the Mortgage Assets that are
reinvested pending distribution to holders of REMIC Certificates, constitute
qualifying assets for such entities. Where two REMIC Pools are part of a tiered
structure they will be treated as one REMIC for purposes of the tests described
above respecting asset ownership of more or less than 95%. Notwithstanding the
foregoing, however, REMIC income received by a REIT owning a residual interest
in a REMIC Pool could be treated in part as non-qualifying REIT income if the
REMIC Pool holds Mortgage Assets with respect to which income is contingent on
mortgagor profits or property appreciation. In addition, if the assets of the
REMIC include buy-down Mortgage Assets, it is possible that the percentage of
such assets constituting "qualifying real property loans" or "loans secured by
an interest in real property" for purposes of Code Sections 593(d)(1) and
7701(a)(19)(C)(v), respectively, may be required to be reduced by the amount of
the related buy-down funds. REMIC Certificates held by a regulated investment
company will not constitute "government securities" within the meaning of Code
Section 851(b)(4)(A)(i). REMIC Certificates held by certain financial
institutions will constitute an "evidence of indebtedness" within the meaning of
Code Section 582(c)(i). REMIC Certificates representing interests in obligations
secured by manufactured housing treated as single family residences under Code
Section 25(e)(10) will be considered interests in "qualified mortgages" as
defined in Code Section 860E(a)(3).
Qualification as a REMIC. In order for the REMIC Pool to qualify as a
REMIC, there must be ongoing compliance on the part of the REMIC Pool with the
requirements set forth in the Code. The REMIC Pool must fulfill an asset test,
which requires that no more than a de minimis amount of the assets of the REMIC
Pool, as of the close of the third calendar month beginning after the Delivery
Date (which for purposes of this discussion is the date of issuance of the REMIC
Certificates) and at all times thereafter, may consist of assets other than
"qualified mortgages" and "permitted investments." The REMIC Regulations provide
a "safe harbor" pursuant to which the de minimis requirement will be met if at
all times the aggregate adjusted basis of any nonqualified assets (i.e., assets
other than qualified mortgages and permitted investments) is less than 1% of the
aggregate adjusted basis of all the REMIC Pool's assets.
If a REMIC Pool fails to comply with one or more of the requirements of the
Code for REMIC status during any taxable year, the REMIC Pool will not be
treated as a REMIC for such year and thereafter. In this event, the
classification of the REMIC Pool for federal income tax purposes is uncertain.
The REMIC Pool might be entitled to treatment as a grantor trust under the rules
described in "Federal Income Tax Consequences for Certificates as to Which No
REMIC Election Is Made." In that case, no entity-level tax would be imposed on
the REMIC Pool. Alternatively, the Regular Certificates may continue to be
treated as debt instruments for federal income tax purposes; but the REMIC Pool
could be treated as a taxable mortgage pool (a "TMP"). If the REMIC Pool is
treated as a TMP, any residual income of the REMIC Pool (income from the
Mortgage Assets less interest and original issue discount expense allocable to
the Regular Certificates and any administrative expenses of the REMIC Pool)
would be subject to corporate income tax at the REMIC Pool level. On the other
hand, an entity with multiple classes of ownership interests may be treated as a
separate association taxable as a corporation under Treasury regulations, and
the Regular Certificates may be treated as equity interests therein. The Code,
however, authorizes the Treasury Department to issue regulations that address
situations where failure to meet one or more of the requirements for REMIC
status occurs inadvertently and in good faith, and disqualification of the REMIC
Pool would occur absent regulatory relief. Investors should be aware, however,
that the Conference Committee Report to the Tax Reform Act of 1986 (the "1986
Act") indicates that the relief may be accompanied by sanctions, such as the
imposition of a corporate tax on all or a portion of the REMIC Pool's income for
the period of time in which the requirements for REMIC status are not satisfied.
Taxation of Regular Certificates
General. Payments received by holders of Regular Certificates generally
should be accorded the same tax treatment under the Code as payments received on
ordinary taxable corporate debt instruments. In general, interest,
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original issue discount and market discount on a Regular Certificate will be
treated as ordinary income to a holder of the Regular Certificate (the "Regular
Certificateholder") as they accrue, and principal payments on a Regular
Certificate will be treated as a return of capital to the extent of the Regular
Certificateholder's basis in the Regular Certificate allocable thereto. Regular
Certificateholders must use the accrual method of accounting with regard to
Regular Certificates, regardless of the method of accounting otherwise used by
such Regular Certificateholders.
Original Issue Discount. Regular Certificates may be issued with "original
issue discount" within the meaning of Code Section 1273(a). Holders of any class
of Regular Certificates having original issue discount generally must include
original issue discount in ordinary income for federal income tax purposes as it
accrues, in accordance with a constant interest method that takes into account
the compounding of interest, in advance of receipt of the cash attributable to
such income. The Depositor anticipates that the amount of original issue
discount required to be included in a Regular Certificateholder's income in any
taxable year will be computed as described below.
Each Regular Certificate (except to the extent described below with respect
to a Regular Certificate on which distributions of principal are made in a
single installment or upon an earlier distribution by lot of a specified
principal amount upon the request of a Regular Certificateholder or by random
lot (a "Retail Class Certificate")) will be treated as a single installment
obligation for purposes of determining the original issue discount includible in
a Regular Certificateholder's income. The total amount of original issue
discount on a Regular Certificate is the excess of the "stated redemption price
at maturity" of the Regular Certificate over its "issue price." The issue price
of a Regular Certificate is the first price at which a substantial amount of
Regular Certificates of that class are first sold to the public. The Depositor
will determine original issue discount by including the amount paid by an
initial Regular Certificateholder for accrued interest that relates to a period
prior to the issue date of the Regular Certificate in the issue price of a
Regular Certificate and will include in the stated redemption price at maturity
any interest paid on the first Distribution Date to the extent such interest is
attributable to a period in excess of the number of days between the issue date
and such first Distribution Date. The stated redemption price at maturity of a
Regular Certificate always includes the original principal amount of the Regular
Certificate, but generally will not include distributions of stated interest if
such interest distributions constitute "qualified stated interest." Qualified
stated interest generally means stated interest that is unconditionally payable
in cash or in property (other than debt instruments of the issuer) at least
annually at (i) a single fixed rate, (ii) one or more qualified floating rates
(as described below), (iii) a fixed rate followed by one or more qualified
floating rates, (iv) a single objective rate (as described below) or (v) a fixed
rate and an objective rate that is a qualified inverse floating rate. The OID
Regulations state that interest payments are unconditionally payable only if a
late payment or nonpayment is expected to be penalized or reasonable remedies
exist to compel payment. Certain debt securities may provide for default
remedies in the event of late payment or nonpayment of interest. The interest on
such debt securities will be unconditionally payable and constitute qualified
stated interest, not OID. However, absent clarification of the OID Regulations,
where debt securities do not provide for default remedies, the interest payments
will be included in the debt security's stated redemption price at maturity and
taxed as OID. Any stated interest in excess of the qualified stated interest is
included in the stated redemption price at maturity. If the amount of original
issue discount is "de minimis" as described below, the amount of original issue
discount is treated as zero, and all stated interest is treated as qualified
stated interest. Distributions of interest on Regular Certificates with respect
to which deferred interest will accrue may not constitute qualified stated
interest, in which case the stated redemption price at maturity of such Regular
Certificates includes all distributions of interest as well as principal
thereon. Moreover, if the interval between the issue date and the first
Distribution Date on a Regular Certificate is longer than the interval between
subsequent Distribution Dates (and interest paid on the first Distribution Date
is less than would have been earned if the stated interest rate were applied to
outstanding principal during each day in such interval), the stated interest
distributions on such Regular Certificate technically do not constitute
qualified stated interest. In such case a special rule, applying solely for the
purpose of determining whether original issue discount is de minimis, provides
that the interest shortfall for the long first period (i.e., the interest that
would have been earned if interest had been paid on the first Distribution Date
for each day the Regular Certificate was outstanding) is treated as made at a
fixed rate if the value of the rate on which the payment is based is adjusted in
a reasonable manner to take into account the length of the interval. Regular
Certificateholders should consult their own tax advisors to determine the issue
price and stated redemption price at maturity of a Regular Certificate.
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Under a de minimis rule, original issue discount on a Regular Certificate
will be considered to be zero if such original issue discount is less than 0.25%
of the stated redemption price at maturity of the Regular Certificate multiplied
by the weighted average maturity of the Regular Certificate. For this purpose,
the weighted maturity of the Regular Certificate 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 Regular Certificate and the denominator of
which is the stated redemption price at maturity of the Regular Certificate.
Although currently unclear, it appears that the schedule of such distributions
should be determined in accordance with the assumed rate of prepayment of the
Mortgage Assets and the anticipated reinvestment rate, if any, relating to the
Regular Certificates (the "Prepayment Assumption"). The Prepayment Assumption
with respect to a series of Regular Certificates will be set forth in the
related Prospectus Supplement. The holder of a debt instrument includes any de
minimis original issue discount in income pro rata as stated principal payments
are received.
Of the total amount of original issue discount on a Regular Certificate,
the Regular Certificateholder generally must include in gross income for any
taxable year the sum of the "daily portions," as defined below, of the original
issue discount on the Regular Certificate accrued during an accrual period for
each day on which he holds the Regular Certificate, including the date of
purchase but excluding the date of disposition. Although not free from doubt,
the Depositor intends to treat the monthly period ending on the day before each
Distribution Date as the accrual period, rather than the monthly period
corresponding to the prior calendar month. With respect to each Regular
Certificate, a calculation will be made of the original issue discount that
accrues during each successive full accrual period (or shorter period from the
date of original issue) that ends on the day before the related Distribution
Date on the Regular Certificate. For a Regular Certificate, original issue
discount is to be calculated initially based on a schedule of maturity dates
that takes into account the level of prepayments and an anticipated reinvestment
rate that are most likely to occur, which is expected to be based on the
Prepayment Assumption. The original issue discount accruing in a full accrual
period would be the excess, if any, of (i) the sum of (a) the present value of
all of the remaining distributions to be made on the Regular Certificate as of
the end of that accrual period that are included in the Regular Certificate's
stated redemption price at maturity and (b) the distributions made on the
Regular Certificate during the accrual period that are included in the Regular
Certificate's stated redemption price at maturity over (ii) the adjusted issue
price of the Regular Certificate at the beginning of the accrual period. The
present value of the remaining distributions referred to in the preceding
sentence is calculated based on (i) the yield to maturity of the Regular
Certificate at the issue date, (ii) events (including actual prepayments) that
have occurred prior to the end of the accrual period and (iii) the Prepayment
Assumption. For these purposes, the adjusted issue price of a Regular
Certificate at the beginning of any accrual period equals the issue price of the
Regular Certificate, increased by the aggregate amount of original issue
discount with respect to the Regular Certificate that accrued in all prior
accrual periods and reduced by the amount of distributions included in the
Regular Certificate's stated redemption price at maturity that were made on the
Regular Certificate in such prior period. The original issue discount accruing
during any accrual period (as determined in this paragraph) will then be divided
by the number of days in the period to determine the daily portion of original
issue discount for each day in the period.
Under the method described above, the daily portions of original issue
discount required to be included in income by a Regular Certificateholder
generally will increase to take into account prepayments on the Regular
Certificates as a result of prepayments on the Mortgage Assets or that exceed
the Prepayment Assumption, and generally will decrease (but not below zero for
any period) if the prepayments are slower than the Prepayment Assumption. In the
event of a change in circumstances that does not result in a substantially
contemporaneous pro rata prepayment, the yield and maturity of the Regular
Certificates are redetermined by treating the Regular Certificates as reissued
on the date of the change for an amount equal to the adjusted issue price of the
Regular Certificates. To the extent specified in the applicable Prospectus
Supplement, an increase in prepayments on the Mortgage Assets with respect to a
series of Regular Certificates can result in both a change in the priority of
principal payments with respect to certain classes of Regular Certificates and
either an increase or decrease in the daily portions of original issue discount
with respect to such Regular Certificates.
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A purchaser of a Regular Certificate at a price greater than the issue
price also will be required to include in gross income the daily portions of the
original issue discount on the Regular Certificate. With respect to such a
purchaser, the daily portion for any day is reduced by the amount that would be
the daily portion for such day (computed in accordance with the rules set forth
above) multiplied by a fraction, the numerator of which is the amount, if any,
by which the price paid by such purchaser for the Regular Certificate exceeds
the sum of the issue price and the aggregate amount of original issue discount
that would have been includible in the gross income of an original holder of the
Regular Certificate who purchased the Regular Certificate at its issue price,
less any prior distributions included in the stated redemption price at
maturity, and the denominator of which is the sum of the daily portions for such
Regular Certificate (computed in accordance with the rules set forth above) for
all days after the date of purchase and ending on the date on which the
remaining principal amount of such Regular Certificate is expected to be reduced
to zero under the Prepayment Assumption.
A Certificateholder may elect to include in gross income all stated
interest, original issue discount, de minimis original issue discount, market
discount (as described below under "Market Discount"), de minimis market
discount and unstated interest (as adjusted for any amortizable bond premium or
acquisition premium) currently as it accrues using the constant yield to
maturity method. If this election is made, the holder is treated as satisfying
the requirements for making the elections with respect to amortization of
premium and current inclusion of market discount, each as described under
"Premium" and "Market Discount" below.
Variable Rate Regular Certificates. Regular Certificates may provide for
interest based on a variable rate. The OID Regulations provide special rules for
variable rate instruments that meet three requirements. First, the noncontingent
principal payments may not exceed the instrument's issue price by more than a
specified amount equal to the lesser of (i) .015 multiplied by the product of
the total noncontingent payments and the weighted average maturity or (ii) 15%
of the total noncontingent principal payments. Second, the instrument must
provide for stated interest (compounded or paid at least annually) at (i) one or
more qualified floating rates, (ii) a single fixed rate followed by one or more
qualified floating rates, (iii) a single objective rate or (iv) a single fixed
rate and a single objective rate that is a qualified inverse floating rate.
Third, the instrument must provide that each qualified floating rate or
objective rate in effect during an accrual period is set at a current value of
that rate (one occurring in the interval beginning three months before and
ending one year after the rate is first in effect on the Regular Certificate). A
rate is a qualified floating rate if variations in the rate can reasonably be
expected to measure contemporaneous variations in the cost of newly borrowed
funds. Generally, neither (i) a multiple of a qualified floating rate in excess
of a fixed multiple that is greater than zero but not more than 1.35 (and
increased or decreased by a fixed rate) nor (ii) a cap or floor that is likely
to cause the interest rate on a Regular Certificate to be significantly less or
more than the overall expected return on the Regular Certificate is considered a
qualified floating rate. An objective rate is a rate based on changes in the
price of actively traded property or an index of such prices or is a rate based
on (including multiples of) one or more qualified floating rates. An objective
rate is a qualified inverse floating rate if the rate is equal to a fixed rate
minus a qualified floating rate and variations in such rate can reasonably be
expected to reflect inversely contemporaneous variations in the cost of newly
borrowed funds. A rate will not be an objective rate if it is reasonably
expected that the average rate during the first half of the instrument's term
will be significantly more or less than the average rate in the final term. An
objective rate must be determined according to a single formula that is fixed
throughout the term of the Regular Certificate. Stated interest on a variable
rate debt instrument is qualified stated interest if the interest is
unconditionally payable in cash or property at least annually.
In general, the determination of original issue discount and qualified
stated interest on a variable rate debt instrument is made by converting the
debt instrument into a fixed rate debt instrument and then applying the general
original issue discount rules described above to the instrument. If a variable
rate debt instrument provides for stated interest at a single qualified floating
rate or objective rate, all stated interest is qualified stated interest and the
amount of original issue discount, if any, is determined by assuming the
variable rate is a fixed rate equal to (a) in the case of a qualified floating
or inverse floating rate, the value, as of the issue date, of the qualified
floating inverse floating rate or (b) in the case of an objective rate (other
than a qualified inverse floating rate), a fixed rate that reflects the yield
that is reasonably expected for the debt instrument. For all other variable rate
debt instruments, the amount of interest and original issue discount accruals
are determined using the following steps. First, a fixed rate substitute for
each variable rate under the debt instrument is determined. In general, the
fixed
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rate substitute is a fixed rate equal to the rate of the applicable type of
variable rate as of the issue date. Second, an equivalent fixed rate debt
instrument is constructed using the fixed rate substitute(s) in lieu of the
variable rates and keeping all other terms identical. Third, the amount of
qualified stated interest and original issue discount with respect to the
equivalent fixed rate debt instrument are determined under the rules for fixed
rate debt instruments. Finally, appropriate adjustments for actual variable
rates are made during the term by increasing or decreasing the qualified stated
interest to reflect the amount actually paid during the applicable accrual
period as compared to the interest assumed to be accrued or paid under the
equivalent fixed rate debt instrument. If there is no qualified stated interest
under the equivalent fixed rate debt instrument, the adjustment is made to the
original issue discount for the period.
Where the issue price of a Regular Certificate exceeds the original
principal amount of the Regular Certificate, it appears appropriate to reduce
the ordinary income reportable for an accrual period by a portion of such excess
in a manner similar to the amortization of premium on the constant yield method.
Under proposed regulations (the "contingent payment rules"), a Regular
Certificate that provides for (i) non-contingent payments greater than or equal
to its issue price and (ii) one or more contingent payments determined by
reference to the value of publicly traded stock, securities, commodities, or
other publicly traded property must be divided into its component parts for
purposes of performing original issue discount calculations (and possibly for
other federal income tax purposes as well). The non-contingent portion of the
Regular Certificate would be treated as a debt instrument, and the original
issue discount accruals on that portion would be computed in the same manner as
with any non-contingent debt instrument. The issue price of the non-contingent
portion would be that portion of the issue price of the Regular Certificate that
reflects the right to receive the non-contingent payments, determined in the
same manner as if the separate non-contingent debt instrument were a debt
instrument issued as part of an investment unit. The contingent components of
the Regular Certificate would constitute options or other property rights and
would be taxed as if issued as a separate instrument. No accrual of original
issue discount generally would be required with respect to such components under
the contingent payment rules. Accordingly, the rate at which income is accrued
by a Certificateholder may vary depending on whether the original issue discount
rules or the contingent payment rules apply to certain variable rate debt
instruments.
Market Discount. A purchaser of a Regular Certificate also may be subject
to the market discount rules of Code Sections 1276 through 1278. Under these
sections and the principles applied by the OID Regulations in the context of
original issue discount, "market discount" is the amount by which a subsequent
purchaser's initial basis in the Regular Certificate (i) is exceeded by the
stated redemption price at maturity of the Regular Certificate or (ii) in the
case of a Regular Certificate having original issue discount, is exceed by the
sum of the issue price of such Regular Certificate plus any original issue
discount that would have previously accrued thereon if held by an original
Regular Certificateholder (who purchased the Regular Certificate at its issue
price), in either case less any prior distributions included in the stated
redemption price at maturity of such Regular Certificate. Such purchaser
generally will be required to recognize accrued market discount as ordinary
income as distributions includible in the stated redemption price at maturity of
such Regular Certificate are received in an amount not exceeding any such
distribution. That recognition rule would apply regardless of whether the
purchaser is a cash-basis or accrual-basis taxpayer. Such market discount would
accrue in a manner to be provided in Treasury regulations and should take into
account the Prepayment Assumption. The Conference Committee Report to the 1986
Act provides that until such regulations are issued, such market discount would
accrue either (i) on the basis of a constant interest rate or (ii) in the ratio
of stated interest allocable to the relevant period to the sum of the interest
for such period plus the remaining interest as of the end of such period, or in
the case of a Regular Certificate issued with original issue discount, in the
ratio of original issue discount accrued for the relevant period to the sum of
the original issue discount accrued for such period plus the remaining original
issue discount as of the end of such period. Such purchaser also generally will
be required to treat a portion of any gain on a sale or exchange of the Regular
Certificate as ordinary income to the extent of the market discount accrued to
the date of disposition under one of the foregoing methods, less any accrued
market discount previously reported as ordinary income as partial distributions
in reduction of the stated redemption price at maturity were received. Such
purchaser will be required to defer deduction of a portion of the excess of the
interest paid or accrued on indebtedness incurred to purchase or carry a Regular
Certificate over the interest distributable thereon. The deferred portion of
such interest expense in any taxable year generally will not exceed the accrued
market discount on the Regular Certificate for such year. Any such deferred
interest expense is, in general, allowed as a deduction not later than the year
in
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which the related market discount income is recognized or the Regular
Certificate is disposed of. As an alternative to the inclusion of market
discount in income on the foregoing basis, the Regular Certificateholder may
elect to include market discount in income currently as it accrues in all market
discount instruments acquired by such Regular Certificateholder in that taxable
year or thereafter, in which case the interest deferral rule will not apply. In
Revenue Procedure 92-67, the Internal Revenue Service set forth procedures for
taxpayers (1) electing under Code Section 1278(b) to include market discount in
income currently, (2) electing under rules of Code Section 1276(b) to use a
constant interest rate to determine accrued market discount on a bond where the
holder of the bond is required to determine the amount of accrued market
discount at a time prior to the holder's disposition of the bond, and (3)
requesting consent to revoke an election under Code Section 1278(b).
By analogy to the OID Regulations, market discount with respect to a
Regular Certificate will be considered to be zero if such market discount is
less than 0.25% of the remaining stated redemption price at maturity of such
Regular Certificate multiplied by the weighted average maturity of the Regular
Certificate (determined as described above under "Original Issue Discount")
remaining after the date of purchase. Treasury regulations implementing the
market discount rules have not yet been issued, and therefore investors should
consult their own tax advisors regarding the application of these rules as well
as the advisability of making any of the elections with respect thereto.
Premium. A Regular Certificate purchased at a cost greater than its
remaining stated redemption price at maturity generally is considered to be
purchased at a premium. If the Regular Certificateholder holds such Regular
Certificate as a "capital asset" within the meaning of Code Section 1221, the
Regular Certificateholder may elect under Code Section 171 to amortize such
premium under a constant yield method that reflects compounding based on the
interval between payments on the Regular Certificates. This election, once made,
applies to all obligations held by the taxpayer at the beginning of the first
taxable year to which such section applies and to all taxable debt obligations
thereafter acquired and is binding on such taxpayer in all subsequent years. The
Conference Committee Report to the 1986 Act indicates a Congressional intent
that the same rules that apply to the accrual of market discount on installment
obligations will also apply to amortizing bond premium under Code Section 171 on
installment obligations such as the Regular Certificates, although it is unclear
whether the alternatives to the constant interest method described above under
"Market Discount" are available. Except as otherwise provided in Treasury
regulations yet to be issued amortizable bond premium will be treated as an
offset to interest income on a Regular Certificate rather than as a separate
deduction item. Purchasers who pay a premium for their Regular Certificates
should consult their tax advisors regarding the election to amortize premium and
the method to be employed.
Sale or Exchange of Regular Certificates. If a Regular Certificateholder
sells or exchanges a Regular Certificate, the Regular Certificateholder will
recognize gain or loss equal to the difference, if any, between the amount
received and his adjusted basis in the Regular Certificate. The adjusted basis
of a Regular Certificate generally will equal the cost of the Regular
Certificate to the seller, increased by any original issue discount or market
discount previously included in the seller's gross income with respect to the
Regular Certificate and reduced by amounts included in the stated redemption
price at maturity of the Regular Certificate that were previously received by
the seller and by any amortized premium.
Except as described above with respect to market discount, and except as
provided in this paragraph, any gain or loss on the sale or exchange of a
Regular Certificate realized by an investor who holds the Regular Certificate as
a capital asset will be capital gain or loss and will be long-term or short-term
depending on whether the Regular Certificate has been held for the long-term
capital gain holding period (currently more than one year). Gain from the
disposition of a Regular Certificate that might otherwise be capital gain will
be treated as ordinary income to the extent that such gain does not exceed the
excess, if any, of (i) the amount that would have been includible in the gross
income of the holder if his yield on such Regular Certificate were 110% of the
applicable Federal rate under Code Section 1274(d) as of the date of purchase
over (ii) the amount of income actually includible in the gross income of such
holder with respect to the Regular Certificate. In addition, gain or loss
recognized from the sale of a Regular Certificate by certain banks or thrift
institutions will be treated as ordinary income or loss pursuant to Code Section
582(c). The maximum tax rate for individuals on the excess of net long-term
capital gain over net short-term capital loss is 28%.
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Taxation of Residual Certificates
Taxation of REMIC Income. Generally, the "daily portions" of REMIC taxable
income or net loss will be includible as ordinary income or loss in determining
the federal taxable income of holders of Residual Certificates ("Residual
Certificateholders") and will not be taxed separately to the REMIC Pool. The
daily portions of REMIC taxable income or net loss of a Residual
Certificateholder are determined by allocating the REMIC Pool's taxable income
or net loss for each calendar quarter ratably to each day in such quarter and by
allocating such daily portion among the Residual Certificateholders in
proportion to their respective holdings of Residual Certificates in the REMIC
Pool on such day. REMIC taxable income is generally determined in the same
manner as the taxable income of an individual using a calendar year and the
accrual method of accounting, except that (i) the limitation on deductibility of
investment interest expense and expenses for the production of income do not
apply, (ii) all bad loans will be deductible as business bad debts and (iii) the
limitation on the deductibility of interest and expenses related to tax-exempt
income will apply. REMIC taxable income generally means the REMIC Pool's gross
income, including interest, original issue discount income and market discount
income, if any, on the Mortgage Assets, plus income on reinvestment of cashflows
and reserve assets, minus deductions, including interest and original issue
discount expense on the Regular Certificates, servicing fees on the Mortgage
Assets and other administrative expenses of the REMIC Pool, amortization of
premium, if any, with respect to the Mortgage Assets, and any tax imposed on the
REMIC's income from foreclosure property. The requirement that Residual
Certificateholders report their pro rata share of taxable income or net loss of
the REMIC Pool will continue until there are no Certificates of any class of the
related series outstanding.
The taxable income recognized by a Residual Certificateholder in any
taxable year will be affected by, among other factors, the relationship between
the timing of recognition of interest and original issue discount or market
discount income or amortization of premium with respect to the Mortgage Assets,
on the one hand, and the timing of deductions for interest (including original
issue discount) on the Regular Certificates, on the other hand. Because of the
way REMIC taxable income is calculated, a Residual Certificateholder may
recognize "phantom" income (i.e., income recognized for tax purposes in excess
of income as determined under financial accounting or economic principles) which
will be matched in later years by a corresponding tax loss or reduction in
taxable income, but which could lower the yield to Residual Certificateholders
due to the lower present value of such future loss or reduction. For example, if
an interest in the Mortgage Assets is acquired by the REMIC Pool at a discount,
and one or more of such Mortgage Assets is prepaid, the Residual
Certificateholder may recognize taxable income without being entitled to receive
a corresponding amount of cash because (i) the prepayment may be used in whole
or in part to make distributions in reduction of principal on the Regular
Certificates and (ii) the discount income on the Mortgage Loan which is
includible in the REMIC's taxable income may exceed the discount deduction
allowed to the REMIC upon such distributions on the Regular Certificates. When
there is more than one class of Regular Certificates that distribute principal
sequentially, this mismatching of income and deductions is particularly likely
to occur in the early years following issuance of the Regular Certificates when
distributions in reduction of principal are being made in respect of earlier
maturing classes of Certificates to the extent that such classes are not issued
with substantial discount. If taxable income attributable to such a mismatching
is realized in general, losses would be allowed in later years as distributions
on the later classes of Regular Certificates are made. Taxable income may also
be greater in earlier years than in later years as a result of the fact that
interest expense deductions, expressed as a percentage of the outstanding
principal amount of such a series of Regular Certificates, may increase over
time as distributions in reduction of principal are made on the lower yielding
classes of Regular Certificates, where interest income with respect to any given
Mortgage Loan will remain constant over time as a percentage of the outstanding
principal amount of that loan. Consequently, Residual Certificateholders must
have sufficient other sources of cash to pay any federal, state or local income
taxes due as a result of such mismatching or unrelated deductions against which
to offset such income. Prospective investors should be aware, however, that a
portion of such income may be ineligible for offset by such investor's unrelated
deductions. See the discussion of "excess inclusions" below under "Limitations
on Offset or Exemption of REMIC Income; Excess Inclusions." The timing of such
mismatching of income and deductions described in this paragraph, if present
with respect to a series of Certificates, may have a significant adverse effect
upon the Residual Certificateholders after-tax rate of return. In addition, a
Residual Certificateholder's taxable income during certain periods may exceed
the income reflected by such Certificateholder for such periods in accordance
with generally accepted accounting principles. Investors
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should consult their own advisors concerning the proper tax and accounting
treatment of their investment in Residual Certificates.
Basis and Losses. The amount of any net loss of the REMIC Pool that may be
taken into account by the Residual Certificateholder is limited to the adjusted
basis of the Residual Certificate as of the close of the quarter (or time of
disposition of the Residual Certificate if earlier), determined without taking
into account the net loss for the quarter. The initial adjusted basis of a
purchaser of a Residual Certificate is the amount paid for such Residual
Certificate. Such adjusted basis will be increased by the amount of taxable
income of the REMIC Pool reportable by the Residual Certificateholder and
decreased by the amount of loss of the REMIC Pool reportable by the Residual
Certificateholder. A cash distribution from the REMIC Pool also will reduce such
adjusted basis (but not below zero). Any loss that is disallowed on account of
this limitation may be carried over indefinitely with respect to the Residual
Certificateholder as to whom such loss was disallowed and may be used by such
Residual Certificateholder only to offset any income generated by the same REMIC
Pool. Residual Certificateholders should consult their tax advisors about other
limitations on the deductibility of net losses that may apply to them.
A Residual Certificateholder will not be permitted to amortize directly the
cost of its Residual Certificate as an offset to its share of the taxable income
of the related REMIC Pool. However, such taxable income will not include cash
received by the REMIC Pool that represents a recovery of the REMIC Pool's basis
in its assets. Such recovery of basis by the REMIC Pool will have the effect of
amortization of the issue price of the Residual Certificates over their life.
However, in view of the possible acceleration of the income of Residual
Certificateholders described above under "Taxation of REMIC Income," the period
of time over which such issue price is effectively amortized may be longer than
the economic life of the Residual Certificates.
If a Residual Certificate has a negative value, it is not clear whether its
issue price would be considered to be zero or such negative amount for purposes
of determining the REMIC Pool's basis in its assets. The REMIC Regulations do
not address whether residual interests could have a negative basis and a
negative issue price. The Depositor does not intend to treat a class of Residual
Certificates as having a value of less than zero for purposes of determining the
bases of the related REMIC Pool in its assets.
Further, to the extent that the initial adjusted basis of Residual
Certificateholder (other than an original holder) in the Residual Certificate is
greater than the corresponding portion of the REMIC Pool's basis in the Mortgage
Assets, the Residual Certificateholder will not recover a portion of such basis
until termination of the REMIC Pool unless Treasury regulations yet to be issued
provide for periodic adjustments to the REMIC income otherwise reportable by
such holder. The REMIC Regulations do not so provide. See "Treatment of Certain
Items of REMIC Income and Expense - Market Discount" below regarding the basis
of Mortgage Assets to the REMIC Pool and "Sale or Exchange of Residual
Certificates" below regarding possible treatment of a loss upon termination of
the REMIC Pool as a capital loss.
Mark to Market Rules
Prospective purchasers of a Residual Certificate should be aware that on
December 18, 1993, the Internal Revenue Service released temporary regulations
(the "Temporary 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 Regulations provide that for purposes of this mark-to-market
requirement, a "negative value" Residual Certificate is not treated as a
security and thus may not be marked to market. In general, a Residual
Certificate has negative value if, as of the date a taxpayer acquires the
Residual Certificate, the present value of the tax liabilities associated with
holding the Residual Certificate exceeds the sum of (i) the present value of the
expected future distributions on the Residual Certificate, and (ii) the present
value of the anticipated tax savings associated with holding the Residual
Certificate 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 original issue discount, (ii)
any required or permitted clean up calls, or required qualified liquidation,
provided for in the REMIC's organizational documents
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and (iii) a discount rate equal to the "applicable Federal rate" instrument
issued on the date of acquisition of the Residual Certificate ending on or after
December 31, 1993. Prospective purchasers of a Residual Certificate should
consult their tax advisors regarding the possible application of the Temporary
Regulations.
Treatment of Certain Items of REMIC Income and Expense
Original Issue Discount. Generally, the REMIC Pool's deductions for
original issue discount will be determined in the same manner as original issue
discount income on Regular Certificates as described above under "Taxation of
Regular Certificates - Original Issue Discount" and "Variable Rate Regular
Certificates," without regard to the de minimis rule described therein.
Market Discount. The REMIC Pool will have market discount income in respect
of Mortgage Assets if, in general, the basis of the REMIC Pool in such Mortgage
Assets is exceeded by their unpaid principal balances. The REMIC Pool's basis in
such Mortgage Assets is generally the fair market value of the Mortgage Assets
immediately after the transfer thereof to the REMIC Pool. The REMIC Regulations
provide that such basis is equal in the aggregate to the issue prices of all
regular and residual interests in the REMIC Pool. In respect of Mortgage Assets
that have market discount to which Code Section 1276 applies, the accrued
portion of such market discount would be recognized currently by the REMIC as an
item of ordinary income. Market discount income generally should accrue in the
manner described above under "Taxation of Regular Certificates - Market
Discount." However, the rules of Code Section 1276 concerning market discount
income will not apply in the case of Mortgage Assets originated on or prior to
July 18, 1984, if any. With respect to such Mortgage Assets market discount is
generally includible in REMIC taxable income or ordinary gross income pro rata
as principal payments are received. Under another interpretation of the Code and
relevant legislative history, market discount on such Mortgage Assets might be
required to be recognized currently by the REMIC, in the same manner that market
discount would be recognized with respect to Mortgage Assets originated after
July 18, 1984. Under that method, a REMIC would tend to recognize market
discount more rapidly than it would otherwise. In either case, the deduction of
a portion of the interest expense on the Regular Certificates allocable to such
discount may be deferred until such discount is included in income, and any gain
on the sale or exchange thereof will be treated as ordinary income to the extent
of the deferred interest deductible at that time.
Premium. Generally, if the basis of the REMIC Pool in the Mortgage Assets
exceeds the unpaid principal balances thereof, the REMIC Pool will be considered
to have acquired such Mortgage Assets at a premium equal to the amount of such
excess. As stated above,the REMIC Pool's basis in the Mortgage Assets is the
fair market value of the Mortgage Assets, based on the aggregate of the issue
prices of the regular and residual interests in the REMIC Pool immediately after
the transfer thereof to the REMIC Pool. In a manner analogous to the discussion
above under "Taxation of Regular Certificates - Premium," a person that holds a
Mortgage Loan as a capital asset under Code Section 1221 may elect under Code
Section 171 to amortize premium on Mortgage Assets originated after September
27, 1985 under a constant yield method. Amortizable bond premium will be treated
as an offset to interest income on the Mortgage Assets, rather than as a
separate deduction item. Because substantially all the mortgagors with respect
to the Mortgage Assets are expected to be individuals, Code Section 171 will not
be available. Premium on Mortgage Assets may be deductible in accordance with a
reasonable method regularly employed by the holder thereof. The allocation of
such premium pro rata among principal payments should be considered a reasonable
method; however, the Internal Revenue Service may argue that such premium should
be allocated in a different manner, such as allocating such premium entirely to
the final payment of principal.
Limitations on Offset or Exemption of REMIC Income; Excess Inclusions. A
portion of the income allocable to a Residual Certificate (referred to in the
Code as an "excess inclusion") for any calendar quarter, with an exception
discussed below for certain thrift institutions, will be subject to federal
income tax in all events. Thus, for example, an excess inclusion (i) cannot,
except as described below, be offset by any unrelated losses or loss carryovers
of a Residual Certificateholder, (ii) will be treated as "unrelated business
taxable income" within the meaning of Code Section 512 if the Residual
Certificateholder is a pension fund or any other organization that is subject to
tax only on its unrelated business taxable income and (iii) is not eligible for
any reduction in the rate of withholding tax in the case of a Residual
Certificateholder that is a foreign investor, as further discussed in "Taxation
of Certain Foreign Investors - Residual Certificates" below. Except as
discussed below with respect
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to excess inclusions from Residual Certificates without "significant value,"
this general rule does not apply to thrift institutions to which Code Section
593 applies. For this purpose a thrift institution and its qualified subsidiary
are considered a single corporation. A qualified subsidiary is one all the stock
of which, and substantially all the debt of which, is held by the thrift
institution and which is organized and operating exclusively in connection with
the organization and operation of one or more REMICs. Except in the case of a
thrift institution (including qualified subsidiaries) members of an affiliated
group are treated as one corporation for purposes of applying the limitation on
offset of excess inclusion income.
Except as discussed in the following paragraph, with respect to excess
inclusions from Residual Certificates without "significant value," for any
Residual Certificateholder, the excess inclusion for any calendar quarter is the
excess, if any, of (i) the income of such Residual Certificateholder for that
calendar quarter from its Residual Certificate over (ii) the sum of the "daily
accruals" (as defined below) for all days during the calendar quarter on which
the Residual Certificateholder holds such Residual Certificate. For this
purpose, the daily accruals with respect to a Residual Certificate are
determined by allocating to each day in the calendar quarter its ratable portion
of the product of the "adjusted issue price" (as defined below) of the Residual
Certificate at the beginning of the calendar quarter and 120 percent of the
"Federal long-term rate" in effect at the time the Residual Certificate is
issued. For this purposes the "adjusted issue price" of a Residual Certificate
at the beginning of any calendar quarter equals the issue price of the Residual
Certificate (adjusted for contributions), increased by the amount of daily
accruals for all prior quarters, and decreased (but not below zero) by the
aggregate amount of payments made on the Residual Certificate before the
beginning of such quarter. The Federal long-term rate is an average of current
yields on Treasury securities with a remaining term of greater than nine years,
computed and published monthly by the IRS.
The Code provides that to the extent provided in regulations, as an
exception to the general rule described above, the entire amount of income
accruing on a Residual Certificate will be treated as an excess inclusion if the
Residual Certificates in the aggregate are considered not to have "significant
value." The Treasury Department has not yet provided regulations in this respect
and the REMIC Regulations did not adopt this rule. However, the exception from
the excess inclusion rules applicable to thrift institutions does not apply if
the Residual Certificates do not have significant value. Under the REMIC
Regulations, the Residual Certificates will have significant value if: (i) the
aggregate of the issue prices of the Residual Certificates is at least two
percent of the aggregate issue prices of all Regular Certificates and Residual
Certificates in the REMIC and (ii) the anticipated weighted average life of the
Residual Certificates is at least 20 percent of the REMIC's anticipated weighted
average life based on the prepayment and reinvestment assumptions used in
pricing the transaction and any recognized or permitted clean up calls or any
required qualified liquidation. Although not entirely clear, the REMIC
Regulations indicate that the significant value determination is made only on
the Startup Day. The anticipated weighted average life of a Residual Certificate
with a principal balance and a market rate of interest is computed by
multiplying the amount of each expected principal payment by the number of years
(or portions thereof) from the Startup Day, adding these sums and dividing by
the total principal expected to be paid on such Residual Certificate based on
the relevant prepayment assumption and expected reinvestment income. The
anticipated weighted average life of a Residual Certificate with either no
specified principal balance or a principal balance and rights to interest
payments disproportionate to such principal balance, would be computed under the
formula described above but would include all payments expected on the Residual
Certificate instead of only the principal payments. The anticipated weighted
average life of a REMIC is a weighted average of the anticipated weighted
average lives of all classes of interest in the REMIC.
Under Treasury regulations to be promulgated, a portion of the dividends
paid by a REIT which owns a Residual Certificate are to be designated as excess
inclusions in an amount corresponding to the Residual Certificate's allocable
share of the excess inclusions. Similar rules apply in the case of regulated
investment companies, common trust funds and cooperatives. Thus, investors in
such entities which own a Residual Certificate will be subject to the
limitations on excess inclusions described above. The REMIC Regulations do not
provide guidance on this issue.
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Tax-Related Restrictions on Transfer of Residual Certificates
Disqualified Organizations. If legal title or beneficial interest in a
Residual Certificate is transferred to a Disqualified Organization (as defined
below), a tax would be imposed in an amount equal to the product of (i) the
present value of the total anticipated excess inclusions with respect to such
Residual Certificate for periods after the transfer and (ii) the highest
marginal federal corporate income tax rate. The REMIC Regulations provide that
the anticipated excess inclusion are based on actual prepayment experience to
the date of the transfer and projected payments based on the Prepayment
Assumption. The present value discount rate equals the applicable Federal rate
under Code Section 1274(d) that would apply to a debt instrument that was issued
on the date the Disqualified Organization acquired the Residual Certificate and
whose term ended on the close of the last quarter in which excess inclusion was
expected to accrue with respect to the Residual Certificate. Such a tax
generally would be imposed on the transferor of the Residual Certificate, except
that where such transfer is through an agent (including a broker, nominee, or
other middleman) for a Disqualified Organization, the tax would instead be
imposed on such agent. However, a transferor of a Residual Certificate would in
no event be liable for such tax with respect to a transfer if the transferee
furnishes to the transferor an affidavit that the transferee is not a
Disqualified Organization and, as of the time of the transfer, the transferor
does not have actual knowledge that such affidavit is false. The tax also may be
waived by the Treasury Department if the Disqualified Organization promptly
disposes of the Residual Certificate and the transferor pays income tax at the
highest corporate rate on the excess inclusion for the period the Residual
Certificate is actually held by the Disqualified Organization.
In addition, if a "Pass-Through Entity" (as defined below) has excess
inclusion income with respect to a Residual Certificate during a taxable year
and a Disqualified Organization is the record holder of an equity interest in
such entity, then a tax is imposed on such entity equal to the product of (i)
the amount of excess inclusions that are allocable to the interest in the
Pass-Through Entity during the period such interest is held by such Disqualified
Organization and (ii) the highest marginal federal corporate income tax rate.
Such tax would be deductible from the ordinary gross income of the Pass-Through
Entity for the taxable year. The Pass-Through Entity would not be liable for
such tax if it has received an affidavit from such record holder that (i) states
under penalty of perjury that it is not a Disqualified Organization or (ii)
furnishes a social security number and states under penalties of perjury that
the social security number is that of the transferee, provided that during the
period such person is the record holder of the Residual Certificate, the
Pass-Through Entity does not have actual knowledge that such affidavit is false.
For these purposes, (i) "Disqualified Organization" means the United
States, any state or political subdivision thereof, any foreign government, any
international organization, any agency or instrumentality of any of the
foregoing (provided, that such term does not include an instrumentality if all
its activities are subject to tax and a majority of its board of directors is
not selected by any such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to persons in rural
areas as described in Code Section 1381(a)(2)(C), and any organization (other
than a farmers' cooperative described in Code Section 521) that is exempt from
taxation under the Code unless such organization is subject to the tax on
unrelated business income imposed by Code Section 511 and (ii) "Pass-Through
Entity" means any regulated investment company, real estate investment trust,
common trust fund, partnership, trust or estate and certain corporations
operating on a cooperative basis. Except as may be provided in Treasury
regulations yet to be issued, any person holding an interest in a Pass-Through
Entity as a nominee for another will, with respect to such interest, be treated
as a Pass-Through Entity.
The Agreement with respect to a series of Certificates will provide that
neither legal title nor beneficial interest in a Residual Certificate may be
transferred or registered unless (i) the proposed transferee provides to the
Depositor and the Trustee an affidavit to the effect that such transferee is not
a Disqualified Organization, is not purchasing such Residual Certificates on
behalf of a Disqualified Organization (i.e., as a broker, nominee or middleman
thereof) and is not an entity that holds REMIC residual securities as nominee to
facilitate the clearance and settlement of such securities through electronic
book-entry changes in accounts of participating organizations and (ii) the
transferor provides a statement in writing to the Depositor and the Trustee that
it has no actual knowledge that such affidavit is false. Moreover, the Agreement
will provide that any attempted or purported transfer in violation of these
transfer restrictions will be null and void and will vest no rights in any
purported transferee. Each Residual Certificate with respect to a series will
have a legend referring to such restrictions on
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transfer, and each Residual Certificateholder will be deemed to have agreed, as
a condition of ownership thereof, to any amendments to the related Agreement
required under the Code or applicable Treasury regulations to effectuate the
foregoing restrictions. Information necessary to compute an applicable excise
tax must be furnished to the Internal Revenue Service and to the requesting
party within 60 days of the request, and the Depositor or the Trustee may charge
a fee for computing and providing such information.
Noneconomic Residual Interests. Under the REMIC Regulations certain
transfers of Residual Certificates are disregarded, in which case the transferor
continues to be treated as the owner of the Residual Certificates and thus
continues to be subject to tax on its allocable portion of the net income of the
REMIC Pool. Under the Final REMIC Regulations, a transfer of a Noneconomic
Residual Interest (defined below) to a Residual Certificateholder (other than a
Residual Certificateholder who is not a U.S. Person, as defined below under
"Foreign Investors") is disregarded for all federal income tax purposes unless
no significant purpose of the transfer is to impede the assessment or collection
of tax. A residual interest in a REMIC (including a residual interest with a
positive value at issuance) is a "Noneconomic Residual Interest" unless, at the
time of the transfer, (i) the present value of the expected future distributions
on the residual interest at least equals the product of the present value of the
anticipated excess inclusions and the highest federal corporate income tax rate
in effect for the year in which the transfer occurs, and (ii) the transferor
reasonably expects that the transferee will receive distributions from the REMIC
at or after the time at which taxes accrue on the anticipated excess inclusions
in an amount sufficient to satisfy the accrued taxes. The anticipated excess
inclusions and the present value rate are determined in the same manner as set
forth above under "Disqualified Organizations." 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
transferor would be unwilling or unable to pay taxes due on its share of the
taxable income of the REMIC. Under the REMIC Regulations, a transferor is
presumed not to have improper knowledge if (i) the transferor conducted, 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 found that
the transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the transferor will not continue to pay
its debts as they come due in the future; and (ii) the transferee represents to
the transferor that it understands that, as the holder of the Noneconomic
Residual Interest, the transferee may incur tax liabilities in excess of any
cash flows generated by the residual interest and that the transferee intends to
pay taxes associated with holding of residual interest as they become due. The
Agreement will require the transferee of a Residual Certificate to state as part
of the affidavit described above under the heading "Disqualified Organizations"
that such transferee (i) has historically paid its debts as they come due, (ii)
intends to continue to pay its debts as they come due in the future, (iii)
understands that, as the holder of a Noneconomic Residual Interest, it may incur
tax liabilities in excess of any cash flows generated by the Residual
Certificate, and (iv) intends to pay any and all taxes associated with holding
the Residual Certificate as they become due. The transferor must have no reason
to believe that such statement is untrue.
Foreign Investors. The REMIC Regulations provide that the transfer of a
Residual Certificate that has "tax avoidance potential" to a "foreign person"
will be disregarded for all federal tax purposes. This rule appears intended to
apply to a transferee who is not a "U.S. Person" (as defined below), unless such
transferee's income is effectively connected with the conduct of a trade or
business within the United States. A Residual Certificate is deemed to have tax
avoidance potential unless, at the time of the transfer, the transferor
reasonably expects that, for each excess inclusion, (i) the REMIC Pool will
distribute to the transferee residual interest holder an amount that will equal
at least 30% of the excess inclusions and (ii) that each such amount will be
distributed at or after the time at which the excess inclusion accrues and not
later than the close of the calendar year following the calendar year of
accrual. If the non-U.S. Person transfers the Residual Certificate back to a
U.S. Person, the transfer will be disregarded and the foreign transferor will
continue to be treated as the owner unless arrangements are made so that the
transfer does not have the effect of allowing the transferor to avoid tax on
accrued excess inclusions.
The Prospectus Supplement relating to a series of Certificates may provide
that a Residual Certificate may not be purchased by or transferred to any person
that is not a U.S. Person or may describe the circumstances and restrictions
pursuant to which such a transfer may be made. The term "U.S. Person" means a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the
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United States or any political subdivision thereof or an estate or trust that is
subject to U.S. federal income tax regardless of the source of its income.
Sale or Exchange of a Residual Certificate
Upon the sale or exchange of a Residual Certificate, the Residual
Certificateholder will recognize gain or loss equal to the excess, if any, of
the amount realized over the adjusted basis (as described above under "Taxation
of Residual Certificates - Basis and Losses") of such Residual Certificateholder
in such Residual Certificate at the time of the sale or exchange. In addition to
reporting the taxable income of the REMIC Pool, a Residual Certificateholder
will have taxable income to the extent that any cash distribution to him from
the REMIC Pool exceeds such adjusted basis on that Distribution Date. Such
income will be treated as gain from the sale or exchange of the Residual
Certificate. It is possible that the termination of the REMIC Pool may be
treated as a sale or exchange of a Residual Certificateholder's Residual
Certificate, in which case, if the Residual Certificateholder has an adjusted
basis in his Residual Certificate remaining when his interest in the REMIC Pool
terminates, and if he holds such Residual Certificate as a capital asset under
Code Section 1221, then he will recognize a capital loss at that time in the
amount of such remaining adjusted basis.
The Conference Committee Report to the 1986 Act provides that, except as
provided in Treasury regulations yet to be issued the wash sale rules of Code
Section 1091 will apply to disposition of Residual Certificates. Consequently,
losses on dispositions of Residual Certificates will be disallowed where the
seller of the Residual Certificate, during the period beginning six months
before the sale or disposition of the Residual Certificate and ending six months
after such sale or disposition, acquires (or enters into any other transaction
that results in the application of Code Section 1091) any residual interest in
any REMIC or any interest in a "taxable mortgage pool" (such as a non-REMIC
owner trust) that is economically comparable to a Residual Certificate.
Taxes That May Be Imposed on the REMIC Pool
Prohibited Transactions. Net income from certain transactions by the REMIC
Pool, called prohibited transactions, will not be part of the calculation of
income or loss includible in the federal income tax returns of Residual
Certificateholders, but rather will be taxed directly to the REMIC Pool at a
100% rate. Prohibited transactions generally include (i) the disposition of a
qualified mortgage other than for (a) substitution within two years of the
Startup Day for a defective (including a defaulted) obligation (or repurchase in
lieu of substitution of a defective (including a defaulted) obligation at any
time) or for any qualified mortgage within three months of the Startup Day, (b)
foreclosure, default or imminent default of a qualified mortgage, (c) bankruptcy
or insolvency of the REMIC Pool or (d) a qualified (complete) liquidation, (ii)
the receipt of income from assets that are not the type of mortgages or
investments that the REMIC Pool is permitted to hold, (iii) the receipt of
compensation for services or (iv) the receipt of gain from disposition of cash
flow investments other than pursuant to a qualified liquidation. Notwithstanding
(i) and (iv), it is not a prohibited transaction to sell REMIC Pool property to
prevent a default on Regular Certificates as a result of a default on qualified
mortgages or to facilitate a clean-up call (generally, an optional termination
to save administrative costs when no more than a small percentage of the
Certificates is outstanding). The REMIC Regulations indicate that the
modification of a Mortgage Loan generally will not be treated as a disposition
if it is occasioned by a default or reasonably foreseeable default, an
assumption of the Mortgage Loan, the waiver of a due-on-sale or encumbrance
clause or the conversion of an interest rate by a mortgagor pursuant to the
terms of a convertible adjustable rate Mortgage Loan. The REMIC Regulations also
provide that the modification of mortgage loans underlying Mortgage-Backed
Securities will not be treated as a modification of the Mortgage-Backed
Securities, provided that the trust including the was not created to avoid
prohibited transaction rules.
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Contributions to the REMIC Pool After the Startup Day. In general, the
REMIC Pool will be subject to a tax at a 100% rate on the value of any property
contributed to the REMIC Pool after the Startup Day. Exceptions are provided for
cash contributions to the REMIC Pool (i) during the three months following the
Startup Day, (ii) made to a qualified reserve fund by a Residual
Certificateholder, (iii) in the nature of a guarantee, (iv) made to facilitate a
qualified liquidation or clean-up call and (v) as otherwise permitted in
Treasury regulations yet to be issued.
Net Income from Foreclosure Property. The REMIC Pool will be subject to
federal income tax at the highest corporate rate on "net income from foreclosure
property," determined by reference to the rules applicable to real estate
investment trusts. Generally, property acquired by the REMIC Pool through
foreclosure or deed in lieu of foreclosure would be treated as "foreclosure
property" for a period of two years, with possible extensions. Net income from
foreclosure property generally means (i) gain from the sale of a foreclosure
property that is inventory property and (ii) gross income from foreclosure
property other than qualifying rents and other qualifying income for a real
estate investment trust.
Liquidation of the REMIC Pool
If a REMIC Pool and the Trustee adopt a plan of complete liquidation,
within the meaning of Code Section 860F(a)(4)(A)(i) and sell all of the REMIC
Pool's assets (other than cash) within a 90-day period beginning on the date of
the adoption of the plan of liquidation, the REMIC Pool will recognize no gain
or loss on the sale of its assets, provided that the REMIC Pool credits or
distributes in liquidation all of the sale proceeds plus its cash (other than
amounts retained to meet claims against the REMIC Pool) to holders of Regular
Certificates and Residual Certificateholders within the 90-day period.
Administrative Matters
The REMIC Pool will be required to maintain its books on a calendar year
basis and to file federal income tax returns for federal income tax purposes in
a manner similar to a partnership. The form for such income tax return is Form
1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return. The
Trustee will be required to sign the REMIC Pool's returns. Treasury regulations
provide that, except where there is a single Residual Certificateholder for an
entire taxable year, the REMIC Pool generally will be subject to the procedural
and administrative rules of the Code applicable to partnerships, including the
determination by the Internal Revenue Service of any adjustments to, among other
things, items of REMIC income, gain, loss, deduction or credit in a unified
administrative proceeding. The Depositor or other designated Residual
Certificateholders will be obligated to act as "tax matters person," as defined
in applicable Treasury regulations, with respect to the REMIC Pool. If the Code
or applicable Treasury regulations do not permit the Depositor to act as tax
matters person in its capacity as agent of the Residual Certificateholders, the
Residual Certificateholder chosen by the Residual Certificateholders or such
other person specified pursuant to Treasury regulations will be required to act
as tax matters person.
Treasury regulations provide that a holder of a Residual Certificate is not
required to treat items on its return consistently with their treatment on the
REMIC Pool's return if a holder owns 100% of the Residual Certificates for the
entire calendar year. Otherwise, each holder of a Residual Certificate is
required to treat items on its return consistently with their treatment on the
REMIC Pool's return, unless the holder of a Residual Certificate either files a
statement identifying the inconsistency or establishes that the inconsistency
resulted from incorrect information received from the REMIC Pool. The Service
may assess a deficiency resulting from a failure to comply with the consistency
requirement without instituting an administrative proceeding at the REMIC Pool
level.
Limitations on Deduction of Certain Expenses
An investor who is an individual, estate or trust will be subject to
limitation with respect to certain itemized deductions described in Code Section
67, to the extent that such itemized deductions, in the aggregate, do not exceed
2% of the investor's adjusted gross income. In addition, Code Section 68
provides that itemized deductions otherwise allowable for a taxable year of an
individual taxpayer will be reduced by the lesser of (i) 3% of the
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excess, if any, of adjusted gross income over $100,000, adjusted yearly for
inflation ($50,000, adjusted yearly for inflation, in the case of a married
individual filing a separate return), or (ii) 80% of the amount of itemized
deductions otherwise allowable for such year. In the case of a REMIC Pool, such
deductions may include deductions under Code Section 212 for servicing fees and
all administrative and other expenses relating to the REMIC Pool or any similar
expenses allocated to the REMIC Pool with respect to a regular interest it holds
in another REMIC. Such investors who hold REMIC Certificates either directly or
indirectly through certain pass-through entities may have their pro rata share
of such expenses allocated to them as additional gross income, but may be
subject to such limitation on deductions. In addition, such expenses are not
deductible at all for purposes of computing the alternative minimum tax, and may
cause such investors to be subject to significant additional tax liability.
Treasury regulations provide that the additional gross income and corresponding
amount of expenses generally are to be allocated entirely to the holders of
Residual Certificates in the case of a REMIC Pool that would not qualify as a
fixed investment trust in the absence of a REMIC election. However, such
additional gross income and limitation on deductions will apply to the allocable
portion of such expenses to holders of Regular Certificates, as well as holders
of Residual Certificates, where such Regular Certificates are issued in a manner
that is similar to pass-through certificates in a fixed investment trust. In
general, such allocable portion will be determined based on the ratio that a
REMIC Certificateholder's income, determined on a daily basis, bears to the
income of all holders of Regular Certificates and Residual Certificates with
respect to a REMIC Pool. As a result, individuals, estates or trusts holding
REMIC Certificates (either directly or indirectly through a grantor trust,
partnership, S corporation, REMIC, or certain other pass-through entities
described in the foregoing Treasury regulations) may have taxable income in
excess of the interest income at the pass-through rate on Regular Certificates
that are issued in a single class or otherwise consistently with fixed
investment trust status or in excess of cash distributions for the related
period on Residual Certificates.
Taxation of Certain Foreign Investors
Regular Certificates. Interest, including original issue discount,
distributable to Regular Certificateholders who are nonresident aliens, foreign
corporations, or other Non-U.S. Persons (as defined below), will be considered
"portfolio interest" and therefore, generally will not be subject to 30% United
States withholding tax, provided that such Non-U.S. Person (i) is not a
"10-percent shareholder" within the meaning of Code Section 871(h)(3)(B) or a
controlled foreign corporation described in Code Section 881(c)(3)(C) and (ii)
provides the Trustee, or the person who would otherwise be required to withhold
tax from such distributions under Code Sections 1441 or 1442, with an
appropriate statement, signed under penalties of perjury, identifying the
beneficial owner and stating, among other things, that the beneficial owner of
the Regular Certificate is a Non-U.S. Person. If such statement, or any other
required statement, is not provided, 30% withholding will apply unless reduced
or eliminated pursuant to an applicable tax treaty or unless the interest on the
Regular Certificate is effectively connected with the conduct of a trade or
business within the United States by such Non-U.S. Person. In the latter case,
such Non-U.S. Person will be subject to United States federal income tax at
regular rates. Investors who are Non-U.S. Persons should consult their own tax
advisors regarding the specific tax consequences to them of owning a Regular
Certificate. The term "Non-U.S. Person" means any person who is not a U.S.
Person.
Residual Certificates. The Conference Committee Report to the 1986 Act
indicates that amounts paid to Residual Certificateholders who are Non-U.S.
Persons are treated as interest for purposes of the 30% (or lower treaty rate)
United States withholding tax. Treasury regulations provide that amounts
distributed to Residual Certificateholders qualify as "portfolio interest,"
subject to the conditions described in "Regular Certificates" above, but only to
the extent that (i) the Mortgage Assets were issued after July 18, 1984 and (ii)
the Trust fund or segregated pool of assets therein (as to which a separate
REMIC election will be made), to which the Residual Certificate relates,
consists of obligations issued in "registered form" within the meaning of Code
Section 163(f)(1). Generally, Mortgage Assets will not be, but regular interests
in another REMIC Pool will be, considered obligations issued in registered form.
Furthermore, a Residual Certificateholder will not be entitled to any exemption
from the 30% withholding tax (or lower treaty rate) to the extent of that
portion of REMIC taxable income that constitutes an "excess inclusion." See
"Taxation of Residual Certificates - Limitations on Offset or Exemption of
REMIC Income; Excess Inclusions." If the amounts paid to Residual
Certificateholders who are Non-U.S. Persons are effectively connected with the
conduct of a trade or business within the United States by such Non-U.S.
Persons, 30% (or lower treaty rate) withholding will not apply. Instead, the
amounts paid to such Non-U.S. Persons will
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be subject to United States federal income tax at regular rates. If 30% (or
lower treaty rate) withholding is applicable, such amounts generally will be
taken into account for purposes of withholding only when paid or otherwise
distributed (or when the Residual Certificate is disposed of) under rules
similar to withholding upon disposition of debt instruments that have original
issue discount. See "Tax-Related Restrictions on Transfer of Residual
Certificates - Foreign Investors" above concerning the disregard of certain
transfers having "tax avoidance potential." Investors who are Non-U.S. Persons
should consult their own tax advisors regarding the specific tax consequences to
them of owning Residual Certificates.
Backup Withholding
Distributions made on the Regular Certificates, and proceeds from the sale
of the Regular Certificates to or through certain brokers, may be subject to a
"backup" withholding tax under Code Section 3406 of 31% on "reportable payments"
(including interest distributions, original issue discount, and, under certain
circumstances, principal distributions) unless the Regular Certificateholder
complies with certain reporting and/or certification procedures, including the
provision of its taxpayer identification number to the Trustee, its agent or the
broker who effected the sale of the Regular Certificate, or such
Certificateholder is otherwise an exempt recipient under applicable provisions
of the Code. Any amounts to be withheld from distribution on the Regular
Certificates would be refunded by the Internal Revenue Service or allowed as a
credit against the Regular Certificateholder's federal income tax liability.
Reporting Requirements
Reports of accrued interest and original issue discount will be made
annually to the Internal Revenue Service and to individuals, estates, non-exempt
and non-charitable trusts, and partnerships who are either holders of record of
Regular Certificates or beneficial owners who own Regular Certificates through a
broker or middleman as nominee. All brokers, nominees and all other non-exempt
holders of record of Regular Certificates (including corporations, non-calendar
year taxpayers, securities or commodities dealers, real estate investment
trusts, investment companies, common trust funds, thrift institutions and
charitable trusts) may request such information for any calendar quarter by
telephone or in writing by contacting the person designated in Internal Revenue
Service Publication 938 with respect to a particular series of Regular
Certificates. Holders through nominees must request such information from the
nominee. Treasury regulations provide that information necessary to compute the
accrual of any market discount on the Regular Certificates must be furnished for
calendar years beginning after 1990.
The Internal Revenue Service's Form 1066 has an accompanying Schedule Q,
Quarterly Notice to Residual Interest Holders of REMIC Taxable Income or Net
Loss Allocation. Treasury regulations require that Schedule Q be furnished by
the REMIC Pool to each Residual Certificateholder by the end of the month
following the close of each calendar quarter (41 days after the end of a quarter
under proposed Treasury regulations) in which the REMIC Pool is in existence.
Treasury regulations require that, in addition to the foregoing
requirements, information must be furnished quarterly to Residual
Certificateholders, furnished annually, if applicable, to holders of Regular
Certificates, and filed annually with the Internal Revenue Service concerning
Code Section 67 expenses (see "Limitations on Deduction of Certain Expenses"
above) allocable to such holders. Furthermore, under such regulations,
information must be furnished quarterly to Residual Certificateholders,
furnished annually to holders of Regular Certificates, and filed annually with
the Internal Revenue Service concerning the percentage of the REMIC Pool's
assets meeting the qualified asset tests described above under "Federal Income
Tax Consequences for REMIC Certificates," above."
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Federal Income Tax Consequences for Certificates as to Which No REMIC Election
Is Made
Arter & Hadden, special counsel to the Depositor, is of the opinion that if
a Trust does not elect REMIC status and is not treated as a partnership, the tax
consequences to the Owners will be as described below.
Standard Certificates
General. If no election is made to treat a Trust (or a segregated pool of
assets therein) with respect to a series of Certificates as a REMIC, the Trust
may be classified as a grantor trust under subparagraph E, Part 1 of subchapter
J of the Code and not as a partnership or an association taxable as a
corporation. Where there is no fixed retained yield with respect to the Mortgage
Assets underlying the Certificates of a series, and where such Certificates are
not designated as Stripped Certificates, as described below under "Stripped
Certificates" or as Partnership Interests described under "Taxation of
Securities Classified as Partnership Interests," the holder of each such
"Standard Certificate" in such series will be treated as the owner of a pro rata
undivided interest in the ordinary income and corpus portions of the Trust
represented by his Certificate and will be considered the beneficial owner of a
pro rata undivided interest in each of the Mortgage Assets, subject to the
discussion below under "Recharacterization of Servicing Fees." Accordingly, the
holder of a Certificate (a "Certificateholder") of a particular series will be
required to report on its federal income tax return its pro rata share of the
entire income from the Mortgage Assets, original issue discount (if any),
prepayment fees, assumption fees, and late payment charges received by or on
behalf of the Trust, in accordance with such Certificateholder's method of
accounting. A Certificateholder generally will be able to deduct its share of
servicing fees and all administrative and other expenses of the Trust in
accordance with his method of accounting, provided that such amounts are
reasonable compensation for services rendered to that Trust. However, investors
who are individuals, estates or trusts who own Certificates, either directly or
indirectly through certain pass-through entities, will be subject to limitation
with respect to certain itemized deductions described in Code Section 67,
including deductions under Code Section 212 for servicing fees and all such
administrative and other expenses of the Trust, to the extent that such
deductions, in the aggregate, do not exceed two percent of an investor's
adjusted gross income. In addition, Code Section 68 provides that itemized
deductions otherwise allowable for a taxable year of an individual taxpayer will
be reduced by the lesser of (i) 3% of the excess, if any, of adjusted gross
income over $100,000, adjusted yearly for inflation ($50,000, adjusted yearly
for inflation, in the case of a married individual filing a separate return), or
(ii) 80% of the amount of itemized deductions otherwise allowable for such year.
As a result such investors holding Certificates, directly or indirectly through
a pass-through entity, may have aggregate taxable income in excess of the
aggregate amount of cash received on such Certificates with respect to interest
at the pass-through rate on such Certificates or discount thereon. In addition,
such expenses are not deductible at all for purposes of computing the
alternative minimum tax and may cause such investors to be subject to
significant additional tax liability. Moreover, where there is fixed retained
yield with respect to the Mortgage Assets underlying a series of Certificates or
where the servicing fees are in excess of reasonable servicing compensation, the
transaction will be subject to the application of the "stripped bond" and
"stripped coupon" rules of the Code, as described below under "Stripped
Certificates" and "Premium and Discount - Recharacterization of Servicing
Fees," respectively.
Tax Status. Subject to the discussion below, Arter & Hadden, special
counsel to the Depositor, is of the opinion that:
1. A Standard Certificate owned by a "domestic building and loan
association" within the meaning of Code Section 7701(a)(19) will be
considered to represent "loans . . . secured by an interest in real
property" within the meaning of Code Section 7701(a)(19)(C)(v), provided
that the real property securing the Mortgage Assets represented by that
Certificate is of the type described in such section.
2. A Standard Certificate owned by a financial institution described
in Code Section 593(a) will be considered to represent "qualifying real
property loans" within the meaning of Code Section 592(d)(1), provided that
the real property securing the Mortgage Assets represented by that
Certificate is of the type described in such section.
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3. A Standard Certificate owned by a real estate investment trust will
be considered to represent "real estate assets" within the meaning of Code
Section 856(C) (5) (A) to the extent that the assets of the related Trust
consist of qualified assets, and interest income on such assets will he
considered "interest on obligations secured by mortgages on real property"
within the meaning of Code Section 856(c)(3)(B).
4. A Standard Certificate owned by a REMIC will be considered to
represent an "obligation (including any participation or certificate of
beneficial ownership therein) which is principally secured by an interest
in real property" within the meaning of Code Section 860G(a)(3)(A) to the
extent that the assets of the related Trust consist of "qualified
mortgages" within the meaning of Code Section 860G(a)(3).
An issue arises as to whether buy-down Mortgage Assets may be characterized
in their entirety under the Code provisions cited in the immediately preceding
paragraph. Code Section 593(d)(l)(C) provides that the term "qualifying real
property loan" does not include a loan "to the extent secured by a deposit in or
share of the taxpayer." The application of this provision to a buy-down fund
with respect to a buy-down Mortgage Loan is uncertain, but may require that a
taxpayer's investment in a buy-down Mortgage Loan be reduced by the buy-down
fund. As to the treatment of buy-down Mortgage Assets as "qualifying real
property loans" under Code Section 593(d)(i) if the exception of Code Section
593(d)(1)(C) is inapplicable, as "loans . . . secured "by an interest in real
property" under Code Section 7701(a)(19)(C)(v), as "real estate assets" under
Code Section 856(c)(5)(A), and as "obligation[s] principally secured by an
interest in real property" under Code Section 860G(a)(3)(A), there is indirect
authority supporting treatment of an investment in a buy-down Mortgage Loan as
entirely secured by real property if the fair market value of the real property
securing the loan exceeds the principal amount of the loan at the time of
issuance or acquisition, as the case may be. There is no assurance that the
treatment described above is proper. Accordingly, Certificateholders are urged
to consult their own tax advisors concerning the effects of such arrangements on
the characterization of such Certificateholder's investment for federal income
tax purposes.
Premium and Discount
Certificateholders are advised to consult with their tax advisors as to the
federal income tax treatment of premium and discount arising either upon initial
acquisition of Certificates or thereafter.
Premium. The treatment of premium incurred upon the purchase of a
Certificate will be determined generally as described above under " - Taxation
of Regular Certificates - Premium."
Original Issue Discount. The Internal Revenue Service has stated in
published rulings that, in circumstances similar to those described herein, the
original issue discount rules will be applicable to a Certificateholder's
interest in those Mortgage Assets as to which the conditions for the application
of those sections are met. Rules regarding periodic inclusion of original issue
discount income are applicable to mortgages of corporations originated after May
27, 1969, mortgages of noncorporate mortgagors (other than individuals)
originated after July l, 1982, and mortgages of individuals originated after
March 2, 1984. Such original issue discount could arise by the charging of
points by the originator of the mortgages in an amount greater than a statutory
de minimis exception, to the extent that the points are not currently deductible
under applicable Code provisions or are not for services provided by the lender.
It is generally not anticipated that adjustable rate Mortgage Assets will be
treated as issued with original issue discount. However, the application of the
OID Regulations to adjustable rate mortgage loans with incentive interest rates
or annual or lifetime interest rate caps may result in original issue discount.
Original issue discount must generally be reported as ordinary gross income
as it accrues under a constant yield method that takes into account the
compounding of interest, in advance of the cash attributable to such income.
However, Code Section 1272 provide for a reduction in the amount of original
issue discount includible in the income of a holder of an obligation that
acquires the obligation after its initial issuance at a price greater than the
sum of the original issue price and the previously accrued original issue
discount, less prior payments of principal. Accordingly, if such Mortgage Assets
acquired by a Certificateholder are purchased at a price equal to the then
unpaid principal amount of such Mortgage Assets, no original issue discount
attributable to the difference between
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the issue price and the original principal amount of such Mortgage Assets (i.e.,
points) will be includible by such holder.
Market Discount. Certificateholders also will be subject to the market
discount rules to the extent that the conditions for application of those
sections are met. Market discount on the Mortgage Assets will be determined and
will be reported as ordinary income generally in the manner described above
under " - Taxation of Regular Certificates - Market Discount."
Recharacterization of Servicing Fees. If the servicing fees paid to
Servicers were deemed to exceed reasonable servicing compensation, the amount of
such excess would be nondeductible under Code Section 162 or 212. In this
regard,there are no authoritative guidelines for federal income tax purposes as
to either the maximum amount of servicing compensation that may be considered
reasonable in the context of this or similar transactions or whether, in the
case of the Certificates, the reasonableness of servicing compensation should be
determined on a weighted average or loan-by-loan basis. If a loan-by-loan basis
is appropriate, the likelihood that such amount would exceed reasonable
servicing compensation as to some of the Mortgage Assets would be increased.
Recently issued Internal Revenue Service guidance indicates that a servicing fee
in excess of reasonable compensation ("excess servicing") will cause the
Mortgage Assets to be treated under the "stripped bond" rules. Such guidance
provides safe harbors for servicing deemed to be reasonable and requires
taxpayers to demonstrate that the value of servicing fees in excess of such
amounts is not greater than the value of the services provided.
Accordingly, if the Internal Revenue Service's approach is upheld, a
servicer that receives excess servicing fees would be viewed as retaining an
ownership interest in a portion of the interest payments on the Mortgage Assets.
Under the rules of Code Section 1286, the separation of the right to receive
some or all of the interest payments on an obligation from the right to receive
some or all of the principal payments on the obligation would result in
treatment of such Mortgage Assets as "stripped coupons" and "stripped bonds."
While Certificateholders would still be treated as owners of beneficial
interests in a grantor trust for federal income tax purposes, the corpus of such
trust could be viewed as excluding the portion of the Mortgage Assets the
ownership of which is attributed to a servicer, or as including such portion as
a second class of equitable interest. Applicable Treasury regulations treat such
an arrangement as a fixed investment trust, since the multiple classes of trust
interests should be treated as merely facilitating direct investments in the
trust assets and the existence of multiple classes of ownership interests is
incidental to that purpose. In general, such a recharacterization should not
have any significant effect upon the timing or amount of income reported by a
Certificateholder, except that the income reported by a cash method holder may
be slightly accelerated. See "Stripped Certificates" below for a further
description of the federal income tax treatment of stripped bonds and stripped
coupons.
In the alternative, the amount, if any, by which the servicing fees paid to
the servicers are deemed to exceed reasonable compensation for servicing could
be treated as deferred payments of purchase price by the Certificateholders to
purchase an undivided interest in the Mortgage Assets. In such event, the
present value of such additional payments might be included in the
Certificateholder's basis in such undivided interests for purposes of
determining whether the Certificate was acquired at a discount, at par, or at a
premium. Under this alternative, Certificateholders may also be entitled to a
deduction for unstated interest with respect to each deferred payment. The
Internal Revenue Service may take the position that the specific statutory
provisions of Code Section 1286 described above override the alternative
described in this paragraph. Certificateholders are advised to consult their tax
advisors as to the proper treatment of the amounts paid to the servicers as set
forth herein as servicing compensation or under either of the alternatives set
forth above.
Sale or Exchange of Certificates. Upon sale or exchange of a Certificate, a
Certificateholder will recognize gain or loss equal to the difference between
the amount realized on the sale and its aggregate adjusted basis in the Mortgage
Assets and other assets represented by the Certificate. In general, the
aggregate adjusted basis will equal the Certificateholder's cost for the
Certificate, increased by the amount of any income previously reported with
respect to the Certificate and decreased by the amount of any losses previously
reported with respect to the Certificate and the amount of any distributions
received thereon. Except as provided above with respect to market discount on
any Mortgage Assets, and except for certain financial institutions subject to
the provisions of Code Section 582(c), any such gain or loss would be capital
gain or loss if the Certificate was held as a capital asset.
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Stripped Certificates
General. Pursuant to Code Section 1286, the separation of ownership of the
right to receive some or all of the principal payments on an obligation from
ownership of the right to receive some or all of the interest payments results
in the creation of "stripped bonds" with respect to principal payments and
"stripped coupons" with respect to interest payments. For purposes of this
discussion, Certificates that are subject to those rules will be referred to as
"Stripped Certificates." The Certificates will be subject to those rules if (i)
the Depositor or any of its affiliates retains (for its own account or for
purposes of resale), in the form of fixed retained yield or otherwise, an
ownership interest in a portion of the payments on the Mortgage Assets, (ii) the
Depositor, any of its affiliates or a servicer is treated as having an ownership
interest in the Mortgage Assets to the extent it is paid (or retains) servicing
compensation in an amount greater than reasonable consideration for servicing
the Mortgage Assets (see "Standard Certificates - Recharacterization of the
Servicing Fees" above) and (iii) a class of Certificates are issued in two or
more classes or subclasses representing the right to non pro rata percentages of
the interest and principal payments on the Mortgage Assets.
In general, a holder of a Stripped Certificate (a "Stripped
Certificateholder") will be considered to own "stripped bonds" with respect to
its pro rata share of all or a portion of the principal payments on each
Mortgage Loan and/or "stripped coupons" with respect to its pro rata share of
all or a portion of the interest payments on each Mortgage Loan, including the
Stripped Certificate's allocable share of the servicing fees paid, to the extent
that such fees represent reasonable compensation for services rendered. See
discussion above under "Standard Certificates - Recharacterization of Servicing
Fees." For this purpose the servicing fees will be allocated to the Stripped
Certificates in proportion to the respective offering price of each class (or
subclass) of Stripped Certificates. The holder of a Stripped Certificate
generally will be entitled to a deduction each year in respect of the servicing
fees, as described above under " - Federal Income Tax Consequences for
Certificates as to Which No REMIC Election is Made - Standard Certificates -
General," subject to the limitation described therein.
Code Section 1286 treats a stripped bond or a stripped coupon generally as
a new obligation issued (i) on the date that the stripped interest is purchased
and (ii) at a price equal to its purchase price or, if more than one stripped
interest is purchased, the share of the purchase price allocable to such
stripped interest. Each stripped interest generally will have original issue
discount equal to the excess of its stated redemption price at maturity (or, in
the case of a stripped coupon, the amount payable on the due date of such
coupon) over its issue price. Although the treatment of Stripped Certificates
for federal income tax purposes is not clear in certain respects at this time,
particularly where such Stripped Certificates are issued with respect to a Trust
containing variable-rate Mortgage Assets, the Depositor has been advised by
counsel that (i) the Trust will be treated as a grantor trust under subpart E,
Part 1 of subchapter J of the Code and not as an association taxable as a
corporation, and (ii) each Stripped Certificate should be treated as a single
installment obligation for purposes of calculating original issue discount and
gain or loss on disposition. This treatment is based on the interrelationship of
Code Section 1286 and the regulations thereunder, Code Sections 1272 through
1275, and the OID Regulations. While under Code Section 1286 computations with
respect to Stripped Certificates arguably should be made in one of the ways
described below, the OID Regulations state, in general, that all debt
instruments issued in connection with the same transaction must be treated as a
single debt instrument. The Trustee will make and report all computations
described below using this aggregate approach, unless substantial legal
authority requires otherwise.
Furthermore, the regulations under Code Section 1286 support the treatment
of a Stripped Certificate as a single debt instrument issued on the date it is
originated for purposes of calculating any original issue discount. The preamble
to such regulations state that such regulations are premised on the assumption
that an aggregation approach is appropriate in determining whether original
issue discount on a stripped bond or stripped coupon is de minimis. In addition,
under these regulations, a Stripped Certificate that represents a right to
payments of both interest and principal may be viewed either as issued with
original issue discount or market discount (as described below), at a de minimis
original issue discount, or presumably, at a premium. The preamble to such
regulations also provide that such regulations are premised on the assumption
that generally the interest component of such a Stripped Certificate would be
treated as stated interest under the original issue discount rules. Further, the
regulations provide that the purchaser of such a Stripped Certificate may be
required to account for any discount as market discount rather than original
issue discount if either (i) the initial discount with respect to the Strip
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Certificate was treated as zero under the de minimis rule or (ii) no more than
100 basis points in excess of reasonable servicing is stripped off the related
Mortgage Assets. Any such market discount would be reportable as described above
under "Federal Income Tax Consequences for REMIC Certificates - Taxation of
Regular Certificates - Market Discount," without regard to the de minimis rule
therein.
Status of Stripped Certificates. No specific legal authority exists as to
whether the character of the Stripped Certificates, for federal income tax
purposes, will be the same as that of the Mortgage Assets. Although the issue is
not free from doubt, counsel has advised the Depositor that Stripped
Certificates owned by applicable holders should be considered to represent
"qualifying real property loans" within the meaning or Code Section 593(d)(1),
"real estate assets" within the meaning of Code Section 856(c)(A),
"obligations(s) . . . principally secured by an interest in real property"
within the meaning of Code Section 860G(a)(3)(A), and "loans . . . secured by an
interest in real property" within the meaning of Code Section 7701(a)(19)(C)(v),
and interest (including original issue discount) income attributable to Stripped
Certificates should be considered to represent "interest on obligations secured
by mortgages on real property" within the meaning or Code Section 856(c)(3)(B),
provided that in each case the Mortgage Assets and interest on such Mortgage
Assets qualify for such treatment. The application of such Code provisions to
buy-down Mortgage Assets is uncertain. See " - Federal Income Tax Consequences
for Certificates as to Which No REMIC Election is Made" and " - Standard
Certificates - Tax Status" above.
Original Issue Discount. Except as described above under " - General,"
each Stripped Certificate will be considered to have been issued (i) on the date
that the stripped interest is purchased and (ii) at a price equal to its
purchase price or, if more than one stripped interest is purchased, the share of
the purchase price allocable to such stripped interest. Each stripped interest
generally will have original issue discount equal to the excess of its stated
redemption price at maturity (or, in the case of a stripped coupon, the amount
payable on the due date of such coupon) over its issue price. Original issue
discount with respect to a Stripped Certificate must be included in ordinary
income as it accrues, in accordance with a constant yield method that takes into
account the compounding of interest, which may be prior to the receipt of the
cash attributable to such income. Counsel has advised the Depositor that the
amount of original issue discount required to be included in the income of a
Stripped Certificateholder in any taxable year likely will be computed generally
as described above under "Federal Income Tax Consequences for REMIC Certificates
- Taxation of Regular Certificates - Original Issue Discount" and " -
Variable Rate Regular Certificates." However, with the apparent exception of a
Stripped Certificate issued with de minimis original issue discount, as
described above under " - General," the issue price of a Stripped Certificate
will be the purchase price paid by each holder thereof, and the stated
redemption price at maturity will include the aggregate amount of the payments
to be made on the Stripped Certificate to such Stripped Certificateholder,
presumably under the Prepayment Assumption, other than amounts treated as
qualified stated interest.
If the Mortgage Assets prepay at a rate either faster or slower than that
under the Prepayment Assumption, a Stripped Certificateholder's recognition of
original issue discount will be either accelerated or decelerated and the amount
of such original issue discount will be either increased or decreased depending
on the relative interests in principal and interest on each Mortgage Loan
represented by such Stripped Certificateholder's Stripped Certificate. While the
matter is not free from doubt, the holder of a Stripped Certificate should be
entitled in the year that it becomes certain (assuming no further prepayments)
that the holder will not recover a portion of its adjusted basis in such
Stripped Certificate to recognize an ordinary loss equal to such portion of
unrecoverable basis.
As an alternative to the method described above, the fact that some of or
all the interest payments with respect to the Stripped Certificates will not be
made if the Mortgage Assets are prepaid could lead to the interpretation that
such interest payments are "contingent" within the meaning of the proposed
regulations issued under Code Section 1274 that address the treatment of
contingent payments. If the rules of those proposed regulations apply, treatment
of a Stripped Certificate under such rules depends on whether the aggregate
amount of principal payments, if any, to be made on the Stripped Certificate is
less than or greater than its issue price. If the aggregate principal payments
are greater than or equal to the issue price, the principal payments would be
treated as a separate installment obligation issued at a price equal to the
purchase price for the Stripped Certificate. In such case, original issue
discount would be calculated and accrued under the method described above
without consideration of the interest payments with respect to the Stripped
Certificate. Such payments of interest would be includible in the Stripped
Certificateholder's gross income in the taxable year in which the amounts become
fixed.
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If the aggregate amount of principal payments to be made on the Stripped
Certificate is less than its issue price, each payment of principal would be
treated as a return of basis. Each payment of interest would be treated as
includible in gross income to the extent of the applicable Federal rate under
Code Section 1274(d), as applied to the adjusted basis of the Stripped
Certificate, while amounts received in excess of the applicable Federal rate, as
applied to the adjusted basis of the Stripped Certificate, would be
characterized as a return of basis until the total amount of interest payments
treated as a return of basis equalled the excess of the purchase price over the
aggregate stated principal payments. Any additional interest payments thereafter
would be treated as ordinary income. While not free from doubt uncertainty as to
the payment of interest arising as a result of the possibility of prepayment of
the Mortgage Assets should not cause the rules under the proposed contingent
payment regulations to apply to interest with respect to the Stripped
Certificates.
Sale or Exchange of Stripped Certificates. Sale or exchange of a Stripped
Certificate prior to its maturity will result in gain or loss equal to the
difference, if any, between the amount received and the Stripped
Certificateholder's adjusted basis in such Stripped Certificate, as described
above under "Federal Income Tax Consequences for REMIC Certificates - Taxation
of Regular Certificates - Sale or Exchange of Regular Certificates." To the
extent that a subsequent purchaser's purchase price is exceeded by the remaining
payments on the Stripped Certificates, such subsequent purchaser will be
required for federal income tax purposes to accrue and report such excess as if
it were original issue discount in the manner described above. It is not clear
for this purpose whether the assumed prepayment rate that is to be used in the
case of a Stripped Certificateholder other than by original Stripped
Certificateholder should be the Prepayment Assumption or a new rate based on the
circumstances at the date of subsequent purchase.
Purchase of More Than One Class of Stripped Certificates. Where an investor
purchases more than one class of Stripped Certificates, it is currently unclear
whether for federal income tax purposes such classes of Stripped Certificates
should be treated separately or aggregated for purposes of the rules described
above.
Because of these possible varying characterizations of Stripped
Certificates and the resultant differing treatment of income recognition,
Stripped Certificateholders are urged to consult their own tax advisors
regarding the proper treatment of Stripped Certificates for federal income tax
purposes.
Reporting Requirements and Backup Withholding
The Trustee will furnish, within a reasonable time after the end of each
calendar year, to each Certificateholder or Stripped Certificateholder at any
time during such year, such information (prepared on the basis described above)
as the Trustee deems to be necessary or desirable to enable such
Certificateholders to prepare their federal income tax returns. Such information
will include the amount of original issue discount accrued on Certificates held
by persons other than Certificateholders exempted from the reporting
requirements. The amounts required to be reported by the Trustee may not be
equal to the proper amount of original issue discount required to be reported as
taxable income by a Certificateholder, other than an original Certificateholder.
The Trustee will also file such original issue discount information with the
Internal Revenue Service. If a Certificateholder fails to supply an accurate
taxpayer identification number or if the Secretary of the Treasury determines
that a Certificateholder has not reported all interest and dividend income
required to be shown on his federal income tax return, 31% backup withholding
may be required in respect of any reportable payments, as described above under
" - Backup Withholding."
Taxation of Certain Foreign Investors
To the extent that a Certificate evidences ownership in Mortgage Assets
that are issued on or before July 18, 1984, interest or original issue discount
paid by the person required to withhold tax under Code Section 1441 or 1442,
which apply to nonresident aliens, foreign corporations, or other Non-U.S.
Persons generally will be subject to 30% United States withholding tax, or such
lower rate as may be provided for interest by an applicable tax treaty. Accrued
original issue discount or market discount recognized by the Certificateholder
on the sale or exchange of such a Certificate also will be subject to federal
income tax at the same rate.
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Treasury regulations provide that interest or original issue discount paid
by the Trustee or other withholding agent to a Non-U.S. Person evidencing
ownership interest in Mortgage Assets issued after July 18, 1984 will be
"portfolio interest" and will be treated in the manner, and such persons will be
subject to the same certification requirements described above under " -
Taxation of Certain Foreign Investors - Regular Certificates."
Taxation of Securities Classified as Partnership Interests
Certain Trusts may be treated as partnerships for Federal income tax
purposes. In such event, the Trusts may issue Certificates characterized as
"Partnership Interests" as discussed in the related Prospectus Supplement. With
respect to such series of Partnership Interests, Arter & Hadden, special counsel
to the Depositor, is of the opinion that (unless otherwise limited in the
related Prospectus Supplement) the Trust will be characterized as a partnership
and not an association taxable as a corporation for federal income tax purposes,
which will also cover any material federal income tax consequences applicable to
the Owners.
PLAN OF DISTRIBUTION
Certificates are being offered hereby in series through one or more
underwriters or groups of underwriters (the "Underwriters"). The Prospectus
Supplement will set forth the terms of offering of the series of Certificates,
including the public offering or purchase price of each class of Certificates of
such series being offered thereby or the method by which such price will be
determined and the net proceeds to the Depositor from the sale of each such
class. Such Certificates will be acquired by the Underwriters for their own
account or may be offered by the Underwriters on a best efforts basis. The
Underwriters may resell such Certificates from time to time in one or more
transactions including negotiated transactions, at fixed public offering prices
or at varying prices to be determined at the time of sale or at the time of
commitment therefor. The managing Underwriter or Underwriters with respect to
the offer and sale of a particular series of Certificates will be set forth on
the cover of the Prospectus Supplement relating to such series and the members
of the underwriting syndicate, if any, will be named in such Prospectus
Supplement
In connection with the sale of the Certificates, Underwriters may receive
compensation from the Depositor or from purchasers of the Certificates in the
form of discounts, concessions or commissions. Underwriters and dealers
participating in the distribution of the Certificates may be deemed to be
underwriters in connection with such Certificates, and any discounts or
commissions received by them from the Depositor and any profit on the resale of
Certificates by them may be deemed to be underwriting discounts and commissions
under the Securities Act of 1933, as amended. The Prospectus Supplement will
describe any such compensation paid by the Depositor.
It is anticipated that the underwriting agreement pertaining to the sale of
any series of Certificates will provide that the obligations of the Underwriters
will be subject to certain conditions precedent, that the Underwriters will be
obligated to purchase all such Certificates if any are purchased and that the
Depositor will indemnify the Underwriters against certain civil liabilities,
including liabilities under the Securities Act of 1933, as amended.
LEGAL MATTERS
Certain legal matters relating to the validity of the issuance of the
Certificates will be passed upon for the Depositor by Arter & Hadden,
Washington, D.C. and by Alan L. Langus, Chief Counsel for the Depositor. Certain
legal matters relating to insolvency issues and certain federal income tax
matters concerning the Certificates will be passed upon for the Depositor by
Arter & Hadden.
FINANCIAL INFORMATION
A Trust will be formed with respect to each series of Certificates. No
Trust will have any assets or obligations prior to the issuance of the related
series of Certificates. No Trust will engage in any activities other
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than those described herein or in the Prospectus Supplement. Accordingly, no
financial statement with respect to any Trust is included in this Prospectus or
will be included in the Prospectus Supplement.
The Depositor has determined that its financial statements are not material
to the offering made hereby.
A Prospectus Supplement and the related Form 8-K (which will be
incorporated by reference to the Registration Statement) may contain financial
statements of the related Credit Enhancer, if any.
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APPENDIX A
INDEX TO LOCATION OF PRINCIPAL DEFINED TERMS
Page
1986 Act .................................................................. 51
Agreement ................................................................. 1
Annual Reduction .......................................................... 46
Applicable Accounting Standards ........................................... 30
Balloon Loans ............................................................. 6
Beneficial Owners ......................................................... 4
BIF ....................................................................... 31
Book Entry Certificates ................................................... 4
Certificate Account ....................................................... 11
Certificate Interest Rate ................................................. 10
Certificate Principal Balance ............................................. 9
Certificate Register ...................................................... 9
Certificate Registrar ..................................................... 9
Certificateholder ......................................................... 67
Certificates .............................................................. 1
Clearing Agency ........................................................... 4
Clearing Agency Participants .............................................. 4
Code ...................................................................... 5
Companion Certificates .................................................... 11
Compound Interest Certificates ............................................ 10
Contract Loan Schedule .................................................... 29
Contract Pool ............................................................. 15
Contracts ................................................................. 15
Cooperative Loans ......................................................... 14
Cooperatives .............................................................. 1
Credit Enhancement ........................................................ 4
Credit Enhancer ........................................................... 8
Custodial Account ......................................................... 22
Cut-Off Date .............................................................. 10
Defective Mortgage Loan ................................................... 30
Delivery Date ............................................................. 9
Deposit Date .............................................................. 29
Depositor ................................................................. 1
Disqualified Organization ................................................. 61
Distribution Date ......................................................... 11
DOL ....................................................................... 48
Eligible Investments ...................................................... 31
ERISA ..................................................................... 5
Events of Default ......................................................... 32
FDIC ...................................................................... 22
FHA ....................................................................... 2
FHLMC ..................................................................... 2
Financial Guaranty Insurance Policy ....................................... 17
Financial Guaranty Insurer ................................................ 17
FNMA ...................................................................... 2
Garn-St Germain Act ....................................................... 39
GNMA ...................................................................... 2
HUD ....................................................................... 44
Indenture Trustee ......................................................... 9
Insurance Paying Agent .................................................... 17
Insurance Proceeds ........................................................ 22
Insured Payment ........................................................... 17
Interest Accrual Period ................................................... 11
Liquidation Proceeds ...................................................... 22
Loan-to-Value Ratio ....................................................... 15
Manufactured Home ......................................................... 15
Manufactured Home Loans ................................................... 43
Manufacturer's Invoice Price .............................................. 16
Master Servicer ........................................................... 1
MBS ....................................................................... 2
MBS Agreement ............................................................. 16
MBS Issuer ................................................................ 16
MBS Servicer .............................................................. 16
MBS Trustee ............................................................... 16
Monthly Advance ........................................................... 23
Mortgage Assets ........................................................... 1
Mortgage Loans ............................................................ 1
Mortgage Notes ............................................................ 14
Mortgage Pool Insurance Policy ............................................ 19
Mortgage Rates ............................................................ 15
Mortgage-Backed Securities ................................................ 2
Mortgaged Properties ...................................................... 14
Mortgages ................................................................. 14
Mortgagors ................................................................ 22
NCUA ...................................................................... 22
Non-Priority Certificates ................................................. 11
Non-U.S. Person ........................................................... 65
Noneconomic Residual Interest ............................................. 62
Nonrecoverable Advance .................................................... 23
Notional Principal Balance ................................................ 12
OBRA ...................................................................... 50
OID Regulations ........................................................... 50
Original Value ............................................................ 15
OTS ....................................................................... 39
Owners .................................................................... 11
Partnership Interests ..................................................... 73
Pass-Through Entity ....................................................... 61
Pass-Through Rate ......................................................... 3
Plans ..................................................................... 48
Policy Statement .......................................................... 48
Pool Insurer .............................................................. 19
Pre-Funding Account ....................................................... 3
Pre-Funding Agreement ..................................................... 3
Prepayment Assumption ..................................................... 53
Principal Balance ......................................................... 15
Principal Prepayments ..................................................... 12
Priority Certificates ..................................................... 11
Property Improvement Loans ................................................ 43
PTE 83-1 .................................................................. 49
Record Date ............................................................... 11
Regular Certificateholder ................................................. 52
Regular Certificates ...................................................... 50
REIT ...................................................................... 50
Relief Act ................................................................ 8
REMIC ..................................................................... 5
REMIC Certificates ........................................................ 50
REMIC Pool ................................................................ 50
REMIC Regulations ......................................................... 50
Remittance Date ........................................................... 22
Remittance Rate ........................................................... 22
Reserve Fund .............................................................. 21
Residual Certificateholders ............................................... 57
Residual Certificates ..................................................... 50
Retail Class Certificate .................................................. 52
SAIF ...................................................................... 31
Scheduled Amortization Certificates ....................................... 11
Seller .................................................................... 1
Senior Certificates ....................................................... 18
Servicer .................................................................. 1
SMMEA ..................................................................... 5
Special Allocation Certificates ........................................... 11
Special Hazard Insurance Policy ........................................... 20
Special Hazard Insurer .................................................... 20
Standard Certificate ...................................................... 67
Stripped Certificateholder ................................................ 70
Stripped Certificates ..................................................... 70
Subordinated Certificates ................................................. 18
Thrift Institution ........................................................ 50
Title I Contracts ......................................................... 43
Title I Loans ............................................................. 43
Title I Program ........................................................... 43
TMP ....................................................................... 51
Trust ..................................................................... 1
Trustee ................................................................... 1
U S Person ............................................................... 62
UCC ....................................................................... 37
Underwriters .............................................................. 73
VA ........................................................................ 2
A-1
<PAGE>
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No dealer, salesperson or other person has
been authorized to give any information or to
make any representation not contained in this
Prospectus Supplement or the Prospectus and, if
given or made, such information or representation
must not be relied upon as having been authorized
by the Depositor or by the Underwriters. 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 in
any jurisdiction to any person to whom it is
unlawful to make such offer in such jurisdiction.
Neither the delivery of this Prospectus Supplement
or the Prospectus nor any sale made hereunder
shall, under any circumstances, create any
implication that information herein is correct as of
any time subsequent to the date hereof or that
there has been no change in the affairs of the
Depositor since such date.
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TABLE OF CONTENTS
Page
PROSPECTUS SUPPLEMENT
Summary of Terms........................................................ S-1
Risk Factors ............................................................S-16
The Sellers and Servicer.................................................S-19
Use of Proceeds..........................................................S-23
The Depositor............................................................S-23
The Home Equity Loan Pool................................................S-23
Prepayment and Yield Considerations......................................S-37
Formation of the Trust and Trust Property................................S-46
Additional Information...................................................S-46
Description of the Class A Certificates..................................S-47
The Certificate Insurer..................................................S-54
Credit Enhancement.......................................................S-58
The Pooling and Servicing Agreement......................................S-60
Certain Federal Income Tax Consequences..................................S-68
ERISA Considerations.....................................................S-70
Ratings..................................................................S-72
Legal Investment Considerations..........................................S-73
Underwriting.............................................................S-73
Report of Experts........................................................S-76
Certain Legal Matters....................................................S-76
Global Clearance, Settlement and Tax
Documentation Procedures.....................................Annex I
Index to Location of Principal Defined Terms..............................A-1
PROSPECTUS
Summary of Prospectus.......................................................1
Risk Factors................................................................6
Description of the Certificates.............................................9
The Trusts.................................................................13
Credit Enhancement.........................................................17
Servicing of the Mortgage Loans and Contracts..............................22
Administration.............................................................28
Use of Proceeds............................................................34
The Depositor..............................................................34
Certain Legal Aspects of the Mortgage Assets...............................34
Legal Investment Matters...................................................47
ERISA Considerations.......................................................48
Certain Federal Income Tax Consequences....................................50
Plan of Distribution.......................................................73
Legal Matters..............................................................73
Financial Information......................................................73
Index to Location of Principal Defined Terms..............................A-1
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<PAGE>
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$900,000,000
ContiMortgage Home Equity
Loan Trust 1996-4
ContiMortgage Home Equity
Loan Pass-Through Certificates
Series 1996-4
ContiMortgage Corporation
Seller and Servicer
ContiWest Corporation
Seller
ContiSecurities Asset Funding
Corp.
Depositor
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PROSPECTUS SUPPLEMENT
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BEAR, STEARNS & CO. INC.
CS FIRST BOSTON
CONTIFINANCIAL SERVICES
CORPORATION
GREENWICH CAPITAL MARKETS, INC.
LEHMAN BROTHERS
MERRILL LYNCH & CO.
MORGAN STANLEY & CO.
November 15, 1996
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