As filed with the Securities and Exchange Commission on January 8, 1997
Registration Statement No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------------------
CONTISECURITIES ASSET FUNDING CORP.
(Exact name of Registrant as specified in its governing instruments)
---------------------------------------
DELAWARE 13-2937238
(State of Incorporation) (I.R.S. Employer Identification Number)
277 Park Avenue
New York, New York 10172
(Address of principal executive offices)
(212) 207-2840
James E. Moore
President
ContiSecurities Asset Funding Corp.
(212) 207-2842
Fax: (212) 207-5251
277 Park Avenue
New York, New York 10172
(Name and address of agent for service)
---------------------------------------
Please send copies of communications to:
Joseph V. Gatti, Esq. Alan L. Langus, Esq.
Arter & Hadden Chief Counsel
1801 K Street, N.W. ContiTrade Services L.L.C.
Suite 400K 277 Park Avenue, 38th Floor
Washington, DC 20006 New York, New York 10172
(202) 775-4442 (212) 207-2822
Fax: (202) 857-0172 Fax: (212) 207-2937
---------------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC. From time to
time after the effective date of this Registration Statement as determined by
market conditions and pursuant to Rule 415.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus filed
as part of this Registration Statement may be used in connection with the
securities covered by Registration Statement No. 33-99340.
---------------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount Being Offering Price Aggregate Offering Registration Fee
Being Registered Registered Per Unit* Price
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Asset-Backed Certificates $1,000,000 100% $1,000,000 $303.03
============================================================================================================================
</TABLE>
* Estimated solely for purposes of calculating the registration fee.
---------------------------------------
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Commission acting pursuant to said
Section 8(a), may determine.
<PAGE>
CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
Items and Caption in Form S-3 Location in Prospectus
<S> <C>
1. Forepart of Registration Statement and Outside Front Cover
Page of Prospectus.............................................. Forepart of Registration
Statement and Outside Front
Cover Page **
2. Inside Front and Outside Back Cover Pages of Prospectus............ Inside Front Cover Page and
Outside Back Cover Page of
Prospectus **
3. Summary Information, Risk Factors and Ratio of
Earnings to Fixed Charges....................................... Summary of Prospectus**; The
Company**; Risk Factors**
4. Use of Proceeds.................................................... Use of Proceeds**
5. Determination of Offering Price.................................... *
6. Dilution........................................................... *
7. Selling Security-Holders........................................... *
8. Plan of Distribution............................................... Plan of Distribution **
9. Description of Securities to be Registered......................... Outside Front Cover page;
Summary of Terms; The Trust
Fund; Description of
Certificates; Pooling and
Servicing Agreement**
10. Interests of Named Experts and Counsel............................. *
11. Material Changes................................................... *
12. Incorporation of Certain Information by Reference.................. Inside Front Cover Page**;
Incorporation of Certain
Documents by Reference**
13. Disclosure of Commission Position on Indemnification for
Securities Act Liabilities...................................... See Page II-2
</TABLE>
- --------------------------
* Answer negative or item inapplicable.
** To be completed or supplemented from time to time by Prospectus Supplement.
2
[Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This preliminary prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of any
such State.]
- --------------------------------------------------------------------------------
SUBJECT TO COMPLETION, DATED __________, 199_ VERSION 1
<PAGE>
PROSPECTUS SUPPLEMENT
(To Prospectus Dated ________, 199__,
$-----------
_______________ Home Equity Loan Trust 199__-__
$___________ ____% Class A-1 Certificates
$___________ ____% Class A-2 Certificates
$__________ ____% Class A-3 Certificates
$__________ ____% Class A-4 Certificates
$__________ ____% Class A-5 Certificates*
$__________ Class A-6 Adjustable Rate Certificates
----------
[Insert name of Servicer]
Servicer
CONTISECURITIES ASSET FUNDING CORP.
Depositor
----------
The _______________ Home Equity Loan Pass-Through Certificates, Series
199__-__ (the "Certificates") will consist of (i) the Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates and Class
A-5 Certificates (collectively, the "Fixed Rate Certificates"), (ii) the Class
A-6 Certificates (the "Adjustable Rate Certificates") and the Class A-7IO
Certificates (collectively, with the Fixed Rate Certificates and the Adjustable
Rate Certificates, the "Class A Certificates"), (iii) one or more classes of
subordinate Certificates and (iv) 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 mortgage
loans (the "Home Equity Loans") held by _______________ Home Equity Loan Trust
199__-__ (the "Trust"). The Fixed Rate 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 Class A-6
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. The Class A Certificates also represent undivided
ownership interest in all monies due under the respective Home Equity Loans
(other than Retained Yield referred to herein) after _______, 199_ (the "Cut-Off
Date"), security interests in the properties which secure the Home Equity Loans
(the "Mortgaged Properties"), a certificate guaranty insurance policy, funds on
deposit in certain trust accounts, and certain other property. The Home Equity
Loans were originated or purchased by the Seller. The Trust will be created
pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") to be dated as of ________, 199_, among the Depositor, the Seller,
the Servicer, _______________, as Master Servicer and
_______________________________, as Trustee (the "Trustee").
For a discussion of significant matters affecting investment in the
Certificates, see "Risk Factors" beginning on Page S-13 herein and beginning on
Page 6 in the related Prospectus.
(Cover continued on next page)
----------
THE CLASS A CERTIFICATES REPRESENT BENEFICIAL INTERESTS IN THE TRUST ONLY AND
DO NOT REPRESENT INTERESTS IN OR OBLIGATIONS OF THE DEPOSITOR, THE SELLER, THE
SERVICER OR ANY OF THEIR AFFILIATES. NEITHER THE CLASS A CERTIFICATES NOR THE
MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGECOMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGECOMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
----------
The Class A Certificates will be purchased by the Underwriters from the
Depositor and will be offered by the Underwriters from time to time to the
public in negotiated transactions or otherwise at varying prices to be
determined at the time of sale. Proceeds to the Depositor from the sale of the
Class A Certificates will be approximately $_______________, plus accrued
interest on the Fixed Rate Certificates at the applicable Pass-Through Rate from
________, ____ to, but not including, the Closing Date, before deducting
expenses payable by the Depositor estimated to be approximately
$_______________.
The Class A Certificates are offered subject to prior sale, when, as,
and if accepted by the Underwriters and subject to the Underwriters' right to
reject orders in whole or in part. It is expected that delivery of the Class A
Certificates will be made in book-entry form through the facilities of The
Depository Trust Seller, CEDEL S.A. and the Euroclear System on or about
_________, 199_. The Class A Certificates will be offered in Europe and the
United States of America.
- --------
* The Class A-5 Pass-Through Rate will be subject to certain limitations
described in the Summary herein.
[UNDERWRITERS]
The date of this Prospectus Supplement is ________, 199_
<PAGE>
(Cover continued from previous page)
On or before the issuance of the Certificates, the Depositor will
obtain from __________________________ (the "Certificate Insurer") a certificate
guaranty insurance policy relating to the Class A Certificates (the "Certificate
Insurance Policy") in favor of the Trustee. The Certificate Insurance Policy
will provide for a 100% coverage of the principal amount of, and scheduled
interest due on, the Class A Certificates.
[Guarantor Logo]
The Home Equity Loan Pool will be divided into two groups (each, a
"Home Equity Loan Group" or a "Group"). The Fixed Rate Certificates will
represent an undivided ownership interest in a group of fixed-rate Home Equity
Loans (the "Fixed Rate Group"). The Adjustable Rate Certificates will represent
an undivided ownership interest in a group of adjustable-rate Home Equity Loans
(the "Adjustable Rate Group").
The Pooling and Servicing Agreement provides that additional fixed rate
mortgage loans (the "Subsequent Home Equity Loans") may be purchased by the
Trust from the Depositor from time to time on or before __________, 199_ from
funds on deposit in the Pre-Funding Account. All Subsequent Home Equity Loans so
acquired by the Trust will be assigned to the Fixed Rate Group. On the Closing
Date an aggregate cash amount of approximately $_____________ will be deposited
with the Trustee in the Pre-Funding Account to be used to acquire Subsequent
Home Equity Loans for the Fixed Rate Group.
It is a condition to issuance of the Class A Certificates that the
Class A Certificates be rated "Aaa" by Moody's Investors Service and "AAA" by
Standard and Poor's Ratings Group.
Distributions of interest will be made to the Owners of the
Certificates on the 25th day of each month (or, if such day is not a business
day, the next business day) beginning ____________, 199_. 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), 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
Certificates is set out on the cover hereof. The Pass-Through Rate for the
Adjustable Rate Certificates adjusts monthly based upon one-month LIBOR (as
defined herein) or as otherwise described herein. Distributions 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 yield to investors on the Class A 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 Home
Equity Loans, which may vary over time. See "Prepayment and Yield
Considerations" herein and "Risk Factors" and "Yield, Prepayment and Maturity
Considerations" in the Prospectus.
An election will be made to treat certain assets of the Trust as a
"real estate mortgage investment conduit" (a "REMIC")
for federal income tax purposes. All of the Class A Certificates will constitute
"regular interests" in a REMIC. See "Certain Federal Income Tax Consequences"
herein and in the Prospectus.
----------
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 _______, 199_, 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.
AVAILABLE INFORMATION
The Depositor has filed with the Securities and Exchange 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.
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.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Prospectus Supplement
Page
<S> <C>
SUMMARY OF TERMS...................................................................S-1
RISK FACTORS.......................................................................S-13
THE PORTFOLIO OF HOME EQUITY LOANS.................................................S-17
General.......................................................................S-17
Underwriting Standards........................................................S-18
The Servicer..................................................................S-18
USE OF PROCEEDS....................................................................S-20
THE DEPOSITOR......................................................................S-20
THE HOME EQUITY LOAN POOL..........................................................S-20
General.......................................................................S-20
Initial Home Equity Loans -- Fixed Rate Group.................................S-21
Initial Home Equity Loans -- Adjustable Rate Group............................S-27
Conveyance of Subsequent Home Equity Loans....................................S-33
Interest Payments on the Home Equity Loans....................................S-33
PREPAYMENT AND YIELD CONSIDERATIONS................................................S-34
General.......................................................................S-34
Mandatory Prepayment..........................................................S-34
Projected Prepayment and Yield for Class A Certificates.......................S-35
Payment Lag Feature of Class A Certificates...................................S-39
FORMATION OF THE TRUST AND TRUST PROPERTY..........................................S-39
ADDITIONAL INFORMATION.............................................................S-39
DESCRIPTION OF THE CLASS A CERTIFICATES............................................S-40
General.......................................................................S-40
Payment Dates.................................................................S-40
Distributions.................................................................S-40
Pre-Funding Account...........................................................S-43
Capitalized Interest Account..................................................S-43
Calculation of LIBOR..........................................................S-43
Book Entry Registration of the Class A Certificates...........................S-44
Assignment of Rights..........................................................S-47
THE CERTIFICATE INSURER............................................................S-47
CREDIT ENHANCEMENT.................................................................S-50
Certificate Insurance Policy..................................................S-50
Overcollateralization Provisions..............................................S-50
Crosscollateralization Provisions.............................................S-52
THE POOLING AND SERVICING AGREEMENT................................................S-52
Covenant of the Seller to Take Certain Actions with Respect to the Home
Equity Loans in Certain Situations........................................S-52
Assignment of Home Equity Loans...............................................S-53
Servicing and Sub-Servicing...................................................S-54
Removal and Resignation of Servicer...........................................S-57
The Trustee...................................................................S-58
Reporting Requirements........................................................S-58
Removal of Trustee for Cause..................................................S-59
Governing Law.................................................................S-59
Amendments....................................................................S-59
Termination of the Trust......................................................S-60
Optional Termination..........................................................S-60
CERTAIN FEDERAL INCOME TAX CONSEQUENCES............................................S-61
REMIC Election................................................................S-61
ERISA CONSIDERATIONS...............................................................S-61
RATINGS............................................................................S-64
LEGAL INVESTMENT CONSIDERATIONS....................................................S-64
UNDERWRITING.......................................................................S-64
REPORT OF EXPERTS..................................................................S-65
CERTAIN LEGAL MATTERS..............................................................S-66
GLOBAL CLEARANCE, SETTLEMENT AND TAX
DOCUMENTATION PROCEDURES......................................................Annex I
INDEX TO LOCATION OF PRINCIPAL DEFINED TERMS........................................A-1
AUDITED FINANCIAL STATEMENTS FOR THE
CERTIFICATE INSURER...............................................................B-1
UNAUDITED FINANCIAL STATEMENTS FOR THE
CERTIFICATE INSURER...............................................................C-1
</TABLE>
Prospectus
<PAGE>
Page
SUMMARY OF PROSPECTUS.................................................... 1
RISK FACTORS............................................................. 6
DESCRIPTION OF THE CERTIFICATES.......................................... 9
General................................................................ 10
Classes of Certificates................................................ 10
Distributions of Principal and Interest................................ 11
Book Entry Registration................................................ 13
List Owners of Certificates............................................ 13
THE TRUSTS............................................................... 14
Home Equity Loans...................................................... 14
Contracts.............................................................. 16
Mortgage-Backed Securities............................................. 16
Other Mortgage Securities.............................................. 17
CREDIT ENHANCEMENT....................................................... 17
SERVICING OF Home Equity LoanS AND CONTRACTS............................. 21
Payments on Home Equity Loans.......................................... 22
Advances............................................................... 22
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........................................................... 27
Assignment of Mortgage Assets.......................................... 27
Evidence as to Compliance.............................................. 30
The Trustee............................................................ 30
Administration of the Certificate Account.............................. 30
Reports................................................................ 31
Forward Commitments; Pre-Funding....................................... 32
Servicer Events of Default............................................. 32
Rights Upon Servicer Event of Default.................................. 32
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.................................. 49
Federal Income Tax Consequences For REMIC Certificates................. 49
Taxation of Regular Certificates....................................... 51
Taxation of Residual Certificates...................................... 56
Treatment of Certain Items of REMIC Income and Expense................. 58
Tax-Related Restrictions on Transfer of Residual Certificates.......... 60
Sale or Exchange of a Residual Certificate..............................62
Taxes That May Be Imposed on the REMIC Pool............................ 62
Liquidation of the REMIC Pool.......................................... 63
Administrative Matters................................................. 63
Limitations on Deduction of Certain Expenses........................... 64
Taxation of Certain Foreign Investors.................................. 64
Backup Withholding..................................................... 65
Reporting Requirements................................................. 65
Federal Income Tax Consequences for Certificates as to Which
No REMIC Election Is Made......................................... 66
Premium and Discount................................................... 66
Standard Certificates ................................................. 67
Stripped Certificates.................................................. 69
Reporting Requirements and Backup Withholding.......................... 71
Taxation of Certain Foreign Investors.................................. 71
Debt Securities........................................................ 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: _______________ Home Equity Loan Trust 199__-__
(the "Trust").
Certificates Offered: $___________ Home Equity Loan Pass-Through
Certificates, Series 199__-__, to be issued in
the following Classes (each, a "Class"):
<TABLE>
<CAPTION>
Initial Certificate Pass-Through
Principal Balance Rate Class
----------------- ---- -----
<S> <C> <C>
$__________ ____% Class A-1 Certificates
$__________ ____% Class A-2 Certificates
$__________ ____% Class A-3 Certificates
$__________ ____% Class A-4 Certificates
$__________ ____% (1) Class A-5 Certificates
$__________ (2) Class A-6 Certificates
</TABLE>
(1) The Pass-Through Rate with respect to the
Class A-5 Certificates shall be the lower of
____% and the weighted average of the Coupon
Rates of each Home Equity Loan in the Fixed Rate
Group less ____% representing the sum of the
rates at which the Servicing Fee, the Premium
Amount and the Trustee Fee are calculated (except
as otherwise set forth in the Pooling and
Servicing Agreement). Approximately ____% of the
Initial Home Equity Loans in the Fixed Rate Group
by Loan Balance as of the Cut-Off Date bear
interest at Coupon Rates which, after the
deduction of ____% would be lower than ____%. As
a result, it is unlikely that the weighted
average of the Coupon Rates of the Home Equity
Loans in the Fixed Rate Group will be less than
____%.
(2) On each Payment Date, the Class A-6
Pass-Through Rate will be equal to the lesser of
(i) the rate equal to the London interbank
offered rate for one-month United States dollar
deposits ("LIBOR") (calculated as described under
"Description of the Class A Certificates --
Calculation of LIBOR" herein) plus ____% per
annum and (ii) the weighted average of the Coupon
Rates on the Home Equity Loans in the Adjustable
Rate Group, less ____% per annum (the "Available
Funds Cap").
The Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4
Certificates and Class A-5 Certificates are
collectively referred to herein as the "Fixed
Rate Certificates," and the Class A-6
Certificates are also referred to herein as the
"Adjustable Rate Certificates." The Fixed Rate
Certificates, the Adjustable Rate Certificates
and the Class A-7IO Certificates are collectively
referred to as the "Class A Certificates."
Depositor: ContiSecurities Asset Funding Corp. (the
"Depositor"), a Delaware corporation.
Seller and Servicer: ______________________ (the "Seller" and
"Servicer"), a Delaware corporation.
Trustee: _______________________________ (the "Trustee"),
a _______________ banking corporation.
Cut-Off Date: As of the close of business on _______, 199_.
Closing Date: On or about _________, 199_.
S-1
<PAGE>
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 ________, 199_, among the Depositor,
the Seller, the Servicer and the Trustee. Only
the Class A Certificates will be offered hereby.
On the Closing Date, an aggregate cash amount of
approximately $_____________ (the "Original
Pre-Funded Amount") will be deposited in a trust
account in the name of the Trustee (the
"Pre-Funding Account"). It is intended that
additional fixed-rate Home Equity Loans
satisfying the criteria specified in the Pooling
and Servicing Agreement (the "Subsequent Home
Equity Loans") will be purchased by the Trust
from the Depositor from time to time on or before
__________, 199_ from funds on deposit in the
Pre-Funding Account. Each Subsequent Home Equity
Loan so acquired by the Trust will be assigned to
the Fixed Rate Group. As a result, the aggregate
principal balance of the Home Equity Loans in the
Fixed Rate Group will increase by an amount equal
to the aggregate principal balance of the
Subsequent Home Equity Loans so purchased and the
amount in the Pre-Funding Account will decrease
proportionately.
As described below, on the Closing Date, cash
will be deposited in the name of the Trustee in
the Capitalized Interest Account (as defined
herein). Funds in the Capitalized Interest
Account will be applied by the Trustee to cover
shortfalls in interest during the Funding Period
(as described under "Pre-Funding Account") on the
Class A Certificates attributable to the
provisions allowing for purchase of Subsequent
Home Equity Loans.
Denominations: The Class A Certificates are issuable in book
entry form in minimum original principal amounts
of $_____ and integral multiples thereof.
The Home Equity Loans: The mortgage loans to be conveyed to the Trust by
the Depositor on the Closing Date (the "Initial
Home Equity Loans") consist of ______ fixed and
adjustable rate conventional mortgage loans
evidenced by promissory notes (the "Notes")
secured by first and second lien deeds of trust,
security deeds or mortgages (the "Mortgages"),
which are located in _____ states and the
District of Columbia. The properties securing the
Initial Home Equity Loans (the "Properties")
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. The Properties may
be owner-occupied and non-owner occupied
investment properties. No Combined Loan-to-Value
Ratio (based upon appraisals made at the time of
origination) exceeded _____% as of the Cut-Off
Date. The Initial 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 Policy. See "Credit Enhancement"
herein. The Home Equity Loans are not guaranteed
by the Seller 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.
Unless otherwise noted, all statistical
percentages in this Prospectus Supplement are
measured by the aggregate principal balance of
the Initial Home Equity Loans (the "Original
Aggregate Loan Balance") or of the Initial Home
Equity
S-2
<PAGE>
Loans in the applicable Home Equity Loan Group,
in each case as of the CutOff Date. The
statistical characteristics of the Home Equity
Loans will vary upon the transfer into the Fixed
Rate Group of Subsequent Home Equity Loans.
Fixed Rate Group. As of the Cut-Off Date, the
average Loan Balance of the Initial Home Equity
Loans in the Fixed Rate Group was $_________; the
interest rates (the "Coupon Rates") of such
Initial Home Equity Loans ranged from ____% to
_____%; the weighted average Loan-to-Value Ratio
of such Initial Home Equity Loans was _____%; the
weighted average Combined Loan- to-Value Ratio of
the Initial Home Equity Loans was _____%; the
weighted average Coupon Rate of such Initial Home
Equity Loans was _____%; the weighted average of
the Coupon Rate being retained by the Seller and
not being sold to the Trust (the "Retained
Yield") for such Initial Home Equity Loans was
_______%; the weighted average remaining term to
maturity of such Initial Home Equity Loans was
_____ months. The remaining terms to maturity as
of the Cut-Off Date of the Initial Home Equity
Loans in the Fixed Rate Group ranged from _____
months to _____ months. The maximum Loan Balance
of the Home Equity Loans in the Fixed Rate Group
as of the Cut-Off Date was $__________. Initial
Home Equity Loans in the Fixed Rate Group
containing "balloon" payments represented not
more than _____% of the Original Aggregate Loan
Balance of the Fixed Rate Group. No Initial Home
Equity Loan in the Fixed Rate Group will mature
later than ________, ____. _____ of the Initial
Home Equity Loans in the Fixed Rate Group are
secured by first mortgages representing in the
aggregate _____% of the Original Aggregate Loan
Balance of the Fixed Rate Group and ____ of the
Initial Home Equity Loans in the Fixed Rate Group
are secured by second lien mortgages representing
in the aggregate _____% 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, _____% were secured by
mortgages on single-family detached dwellings,
____% by mortgages on single-family attached
dwellings, ____% by mortgages on two-to-four
family dwellings, ____% by condominiums, and
____% by other types of dwellings. See "The Home
Equity Loan Pool -- Initial Home Equity Loans --
Fixed Rate Group" herein.
Adjustable Rate Group. [All] of the Home Equity
Loans in the Adjustable Rate Group bear interest
at rates that adjust semiannually based on the
London interbank offered rate for six-month
United States dollar deposits. [Other indices.]
The Coupon Rates with respect to all of the Home
Equity Loans in the Adjustable Rate Group are
subject to periodic and lifetime interest rate
adjustment caps. See "The Home Equity Loan Pool
-- Initial Home Equity Loans -- Adjustable Rate
Group."
As of the Cut-Off Date, the average Loan Balance
of the Initial Home Equity Loans in the
Adjustable Rate Group was $_________; the Coupon
Rates of such Initial Home Equity Loans ranged
from ____% to _____%; the weighted average
Loan-to-Value Ratio of such Initial Home Equity
Loans was _____%; the weighted average Coupon
Rate of such Initial Home Equity Loans was
_____%; the weighted average remaining term to
maturity of such Initial Home Equity Loans was
_____ months. The remaining terms to maturity as
of the Cut-Off Date of the Initial Home Equity
Loans in the Adjustable Rate Group ranged from
_____ months to _____ months. The maximum Loan
Balance of the Home Equity Loans in the
Adjustable Rate Group as of the Cut-Off Date was
$__________. None of the Initial Home Equity
Loans in the Adjustable Rate Group contain
"balloon" payments. No Initial Home Equity Loan
in the Adjustable Rate Group will mature later
than ________, ____. All of the Initial Home
Equity Loans in the Adjustable Rate Group are
secured by first mortgages representing in the
aggregate ___% of the Original Aggregate Loan
Balance of the Adjustable Rate Group and none of
the Initial Home Equity Loans in the
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<PAGE>
Adjustable Rate Group are secured by a second
lien mortgage. As a percentage of the Original
Aggregate Loan Balance of the Adjustable Rate
Group, _____% were secured by mortgages on
single-family detached dwellings, ____% by
mortgages on single-family attached dwellings,
____% by mortgages on two-to-four family
dwellings and ____% by condominiums. See "The
Home Equity Loan Pool -- Initial 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
Initial Home Equity Loans in the Adjustable Rate
Group is _____%, with maximum Coupon Rates that
range from approximately _____% to _____%. The
Initial Home Equity Loans in the Adjustable Rate
Group have a weighted average gross margin as of
the Cut-Off Date of ____%. The gross margin for
the Initial Home Equity Loans in the Adjustable
Rate Group ranges from ____% to -----%.
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 may
occur earlier than the Final Scheduled Payment
Date. See "Prepayment and Yield Considerations"
herein.
<TABLE>
<CAPTION>
Final Scheduled
Payment Date
<S> <C> <C>
Class A-1 Certificates: ____________, ____
Class A-2 Certificates: ____________, ____
Class A-3 Certificates: ____________, ____
Class A-4 Certificates: ____________, ____
Class A-5 Certificates: ____________, ____
Class A-6 Certificates: ____________, ____
</TABLE>
Distributions--General: On the _____ day of each month, or if such day is
not a Business Day, then the next succeeding
Business Day, commencing ____________, 199_ (each
such day being a "Payment Date"), the Trustee
will be required to distribute to the Owners of
the Fixed Rate 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
Adjustable Rate 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 Fixed Rate Certificates will be interest
which has accrued thereon during the calendar
month immediately preceding the month in which
such Payment Date occurs; the interest due with
respect to the Adjustable Rate Certificates will
be the interest which has accrued thereon at the
Class A-6 Pass-Through Rate 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
period referred to in the prior sentence relating
to the accrual of interest is the "Accrual
Period" for the related Class of Class A
Certificates. All calculations of interest on the
Fixed Rate 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
Adjustable Rate 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.
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<PAGE>
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, to the Owners of the Class A
Certificates of the related Group, the related
Class A Current Interest on a pro rata basis
without any priority among such Class A
Certificates.
(ii) Second, to the Owners of the related Class
of Class A Certificates (A) the Principal
Distribution Amount (as defined below under the
heading "Principal") applicable to the Fixed Rate
Group shall be distributed as follows: (I) first,
to the Owners of the Class A-1 Certificates until
the Class A-1 Certificate Principal Balance is
reduced to zero; (II) second, to the Owners of
the Class A-2 Certificates until the Class A-2
Certificate Principal Balance is reduced to zero;
(III) third, to the Owners of the Class A-3
Certificates, until the Class A-3 Certificate
Principal Balance is reduced to zero; (IV)
fourth, to the Owners of the Class A-4
Certificates, until the Class A-4 Certificate
Principal Balance is reduced to zero; and, (V)
fifth, to the Owners of the Class A-5
Certificates, until the Class A-5 Certificate
Principal Balance is reduced to zero and (B) the
Principal Distribution Amount applicable to the
Adjustable Rate Group shall be distributed to the
Owners of the Class A-6 Certificates until the
Class A-6 Certificate Principal Balance has been
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 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 Carry Forward
Amount, 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.
Principal: The credit enhancement provisions of the Trust
result in a limited acceleration of principal
payments to the Owners of the Classes of Class A
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. In addition, the
following discussion makes use of a number of
technical defined terms which are defined under
"Credit Enhancement--Overcollateralization
Provisions" and "Credit Enhancement--
Crosscollateralization Provisions" herein.
S-5
<PAGE>
The Fixed Rate Certificates are "sequential pay"
classes such that 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.
On each Payment Date, distributions in reduction
of the Certificate Principal Balance of the Class
A 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;
(C) the Loan Balance of each Home Equity Loan
in the related Home Equity Loan Group that was
repurchased by the 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 the 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);
S-6
<PAGE>
(H) with respect to the Fixed Rate Group
only, any moneys released from the Pre-Funding
Account as a prepayment of the Fixed Rate
Certificates on the Payment Date which
immediately follows the end of the Funding
Period; and
(I) 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;
over
(ii) the amount of any Subordination Reduction
Amount with respect to the related Home Equity
Loan Group for such Payment Date.
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 "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. 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
_____ 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 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 on the next following Payment Date if not
covered through Net Monthly Excess Cashflow from
the related Home Equity Loan Group or
cross-collateralization 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 sum of
(i) 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 and (ii) with
respect to the Fixed Rate Group only, the amount,
if any, on deposit in the Pre-Funding Account 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 as
amended from time to time, in accordance with a
final nonappealable order of a court having
competent jurisdiction.
Monthly Servicing Fees: The Master Servicer is entitled to a fee (the
"[Master] Servicing Fee") equal to ____% per
annum (subject to certain exceptions set forth in
the Pooling and Servicing Agreement), payable
monthly at one-twelfth the annual rate, of the
S-7
<PAGE>
then outstanding principal amount of each Home
Equity Loan as of the first day of each calendar
month. [Allocation to servicers/subservicers or
separate payment.]
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 Policy (as defined below).
Overcollateralization. The credit enhancement
provisions of the Trust result in a limited
acceleration of the Class A Certificates (in the
aggregate) 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
Class A Certificate principal. 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 Class A
Certificates 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 Certificates, any such accelerated
principal will be paid to that class of the Fixed
Rate 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" herein and "Credit
Enhancement" in the Prospectus.
Certificate Insurance Policy.
__________________________, a New York stock
insurance company (the "Certificate Insurer"),
will provide a Certificate Insurance Policy with
respect to the Class A Certificates.
Subject to the terms thereof, the 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 Policy is
noncancellable for any reason.
"Insured Payments" means with respect to any Home
Equity Loan Group and Payment Date, (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
S-8
<PAGE>
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 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) 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 the 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.
The Certificate Insurance Policy does not
guarantee any specified rate of prepayments, nor
does the Certificate Insurance Policy provide
funds to redeem the Certificates on any specified
date. The Certificate Insurer's obligation under
the Certificate Insurance Policy 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.
[Pre-Funding Account: On the Closing Date, the Original Pre-Funded
Amount will be deposited in the Pre-Funding
Account which account will be in the name of, and
maintained by, the Trustee on behalf of the Trust
and used to acquire the Subsequent Home Equity
Loans for addition to the Fixed Rate Group.
During the period (the "Funding Period") from and
including the Closing Date until the earliest of
(i) the date on which the amount on deposit in
the Pre-Funding Account is less than $_______,
(ii) the date on which an event of default under
the Pooling and Servicing Agreement occurs and
(iii) __________, 199_, the Pre-Funded Amount
will be maintained in the Pre-Funding Account.
The Original Pre- Funded Amount will be reduced
during the Funding Period by the amount thereof
used to purchase Subsequent Home Equity Loans in
accordance with the Pooling and Servicing
Agreement. The amount on deposit in the
Pre-Funding Account at any time is the
"Pre-Funded Amount". Subsequent Home Equity Loans
purchased by and added to the Fixed Rate Group on
any date (each, a "Subsequent Transfer Date")
must satisfy the criteria set forth in the
Pooling and Servicing Agreement. Any Pre-Funded
Amount remaining at the end of the Funding Period
will be distributed to the Owners of the Fixed
Rate Certificates then entitled to receive
distributions of principal on the Payment Date
that immediately follows the end of the Funding
Period in reduction of the Certificate Principal
Balance of such Owners' Certificates, thus
resulting in a partial principal prepayment of
such Class of Fixed Rate Certificates as
specified herein under "Description of the
Certificates-- Distributions." All interest and
other investment earnings on amounts on deposit
in the Pre-Funding Account will be deposited in
the Capitalized Interest Account. The Pre-Funding
Account will not be an asset of the REMIC (as
defined herein).]
Although no assurance can be given, it is
intended that the principal amount of Subsequent
Home Equity Loans sold to the Trust and added to
the Fixed Rate Group will require application of
substantially all of the Original Pre-Funded
Amount and it is not intended that there will be
any material amount of principal prepaid to the
holders of the Fixed Rate Certificates from the
Pre-Funding Account. In the event that the
Depositor is unable to sell Subsequent Home
Equity Loans to the Trust in an amount equal to
the Original Pre-Funded Amount, principal
prepayments to Owners of the Fixed Rate
Certificates will occur on the Payment Date in
________ 199_ in an amount equal to the Pre-
Funded Amount remaining at the end of the Funding
Period.
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<PAGE>
Capitalized Interest Account: On the Closing Date, cash will be deposited in a
trust account (the "Capitalized Interest
Account") in the name of, and maintained by, the
Trustee on behalf of the Trust. The amount on
deposit in the Capitalized Interest Account,
including reinvestment income thereon, will be
used by the Trustee to fund the excess, if any,
of (i) the sum of the amount of interest accruing
during the related Accrual Period at the weighted
average Pass-Through Rate on all Fixed Rate
Certificates on the amount by which the aggregate
Certificate Principal Balance of the Fixed Rate
Certificates exceeds the aggregate Loan Balance
of the Home Equity Loans in the Fixed Rate Group
plus the Trustee and Certificate Insurer fees
accruing during the related Accrual Period on
such excess balance over (ii) the amount of any
reinvestment income on monies on deposit in the
Pre-Funding Account; such amounts on deposit will
be so applied by the Trustee on each Payment Date
in the Funding Period to fund such excess, if
any. Any amounts remaining in the Capitalized
Interest Account not needed for such purpose will
be paid to the Seller at the end of the Funding
Period. The Capitalized Interest Account will not
be an asset of the REMIC (as defined herein).
Mandatory Prepayment of
Certificates: In the event that at the end of the Funding
Period, not all of the Original Pre- Funded
Amount has been used to acquire Subsequent Home
Equity Loans, then the Fixed Rate Certificates
then entitled to receive payments of principal
will receive a prepayment on the Payment Date in
________ 199_.
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 __% of the sum of
(x) the aggregate Loan Balances of all Initial
Home Equity Loans as of the Cut-Off Date plus (y)
the original Pre-Funded Amount (the "Maximum
Collateral Amount"). See "The Pooling and
Servicing Agreement--Optional Termination"
herein.
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 Seller
("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 Morgan
Guaranty Trust Seller of New York ("Morgan", 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
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<PAGE>
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
receive ratings of "AAA" by Standard & Poor's
Ratings Group, a division of McGraw Hill ("S&P")
and "Aaa" by Moody's Investors Service
("Moody's"). S&P and Moody's 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.
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 and of the failure of the
Depositor to purchase Subsequent Home Equity
Loans during the Funding Period in an amount
equal to the Original Pre-Funded Amount, see
"Prepayment and Yield Considerations" and "Risk
Factors"--"Sensitivity to Prepayments" and "--The
Subsequent Home Equity Loans and the Pre-Funding
Account" 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: An election will be made to treat the Trust
Estate (exclusive of the Pre-Funding Account and
the Capitalized Interest Account) created by the
Pooling and Servicing Agreement as a "real estate
mortgage investment conduit" ("REMIC"). The
Certificates (other than the Class R
Certificates) will constitute "regular interests"
in the REMIC. The Class R Certificates will be
designated as the "residual interest" in the
REMIC.
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.
The Class A Certificates may be considered to
have been issued with original issue discount or
at a premium. 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. 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 as
regular interests in a REMIC, the Class A
Certificates will be treated as "qualifying real
property loans" under Section 593(d) of the
Internal Revenue Code of 1986, as amended (the
"Code"), "regular . . . interest(s) in a REMIC"
under Section 7701(a)(19)(C) of the Code and
"real estate assets" under Section 856(c) of the
Code in the same proportion that the assets in
the 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.
S-11
<PAGE>
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. Legal Investment
Considerations: [The Class [A/A-6] Certificates
will constitute "mortgage related securities" for
purposes of the Secondary Mortgage Market
Enhancement Act of 1984 ("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, such
Classes of 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.]
[Although the Fixed Rate Certificates are
expected to be rated "AAA" by S&P and "Aaa" by
Moody's, 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 Class A
Certificates.]
S-12
<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. [Describe Prepayment
penalty provisions?] 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, 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, and, if purchased at other than
par, the yields realized by Owners of the Class A 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 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 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. See "Prepayment and Yield Considerations" herein.
[Nature of Collateral. Because ____ of the Initial Home Equity Loans,
all of which are in the Fixed Rate Group, 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.]
Risk of Home Equity Loan Rates Reducing the Class A-6 Pass-Through
Rate. The calculation of the Class A-6 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 as described under "The Home Equity Loan
Pool -- Initial Home Equity Loans -- Adjustable Rate Group" (either as a result
of the use of a different rate determination date or rate
S-13
<PAGE>
adjustment date) and (ii) the weighted average on 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. The Home Equity
Loans in the Adjustable Rate Group 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-6 Certificates adjusts
monthly based upon LIBOR as described under "Description of the Class A
Certificates -- Calculation of LIBOR" herein, subject to the 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 and the
Trustee Fee related to the Adjustable Rate Group) during any Remittance Period
may not equal the amount of interest that would accrue at LIBOR plus the margin
on the Class A-6 Certificates during the related Accrual Period. In particular,
the Class A-6 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 Available Funds Cap may limit increases in the Class A-6
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 Available Funds Cap determines the Class A-6 Pass-Through
Rate for a Payment Date, the value of the Class A-6 Certificates may be
temporarily or permanently reduced.
The Subsequent Home Equity Loans and the Pre-Funding Account. If the
principal amount of eligible Home Equity Loans available during the Funding
Period and sold by the Seller to the Depositor is less than 100% of the Original
Pre-Funded Amount, the Depositor will have insufficient Home Equity Loans to
sell to the Trust for addition to the Fixed Rate Group on the Subsequent
Transfer Dates, thereby resulting in a prepayment of principal to Owners of the
Fixed Rate Certificates as described herein. See "Social, Economic and Other
Factors" below. In addition, any conveyance of Subsequent Home Equity Loans is
subject to the following conditions, among others (i) each such Subsequent Home
Equity Loan must satisfy the representations and warranties specified in the
agreement pursuant to which such Subsequent Home Equity Loans are transferred to
the Trust (each a "Subsequent Transfer Agreement") and in the Pooling and
Servicing Agreement; (ii) the Depositor will not select such Subsequent Home
Equity Loans in a manner that it believes is adverse to the interest of the
Owners of the Fixed Rate Certificates or the Certificate Insurer; (iii) the
Depositor will deliver certain opinions of counsel with respect to the validity
of the conveyance of such Subsequent Home Equity Loans; and (iv) as of each
cut-off date (each, a "Subsequent Cut-Off Date") applicable thereto, the Home
Equity Loans, including the Subsequent Home Equity Loans to be conveyed by the
Depositor as of such Subsequent Cut-Off Date, will satisfy the criteria set
forth in the Pooling and Servicing Agreement, as described herein under "The
Home Equity Loan Pool--Conveyance of Subsequent Home Equity Loans."
To the extent that amounts on deposit in the Pre-Funding Account have
not been fully applied to the purchase of Subsequent Home Equity Loans by the
Trust for inclusion in the Fixed Rate Group by the end of the Funding Period,
the Owners of the Fixed Rate Certificates then entitled to receive payments of
principal will receive a prepayment of principal in an amount equal to the
Pre-Funded Amount remaining in the Pre-Funding Account on the first Payment Date
following the end of the Funding Period (in no event later than the ________
199_ Payment Date). Although no assurances can be given, the Depositor intends
that the principal amount of Subsequent Home Equity Loans sold to the Trust will
require the application of substantially all amounts on deposit in the
Pre-Funding Account and that there will be no material principal prepayment to
the Owners of the Fixed Rate Certificates from the Pre-Funded Amount.
Each Subsequent Home Equity Loan must satisfy the eligibility criteria
referred to above at the time of its addition. However, Subsequent Home Equity
Loans may have been originated or purchased by the Depositor using credit
criteria different from those which were applied to the Initial Home Equity
Loans and may be of a different credit quality. Therefore, following the
transfer of Subsequent Home Equity Loans to the Fixed Rate Group, the aggregate
characteristics of the Home Equity Loans then held in the Fixed Rate Group may
vary from those of the Initial Home Equity Loans in the Fixed Rate Group. See
"The Home Equity Loan Pool--Conveyance of Subsequent Home Equity Loans."
S-14
<PAGE>
Social, Economic and Other Factors. The ability of the Trust to invest
in Subsequent Home Equity Loans is largely dependent upon the ability of the
Seller to originate or purchase additional mortgage loans. The ability of the
Seller to originate or purchase additional mortgage loans may be affected as a
result of a variety of social and economic factors. Economic factors include
interest rates, unemployment levels, the rate of inflation and consumer
perception of economic conditions generally. However, the Depositor is unable to
determine and has no basis to predict whether or to what extent economic or
social factors will affect the Seller's origination ability and the availability
of Subsequent Home Equity Loans.
Other Legal Considerations. Applicable state laws generally regulate
interest rates and other charges, require certain disclosure, and require
licensing of the Originators. 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 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 Seller 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.
Violations of certain provisions of these federal laws may limit the ability of
the Seller to collect all or part of the principal of or interest on the Home
Equity Loans and in addition could subject the Seller to damages and
administrative enforcement. The 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
S-15
<PAGE>
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. _____% of the Initial 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"). None of the Home Equity Loans in
the Adjustable Rate Group 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. The Seller believes that the transfer of the
Home Equity Loans to the Depositor and by the Depositor to the Trust constitutes
a sale by the 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 the
Seller in the event of the insolvency of the Seller and will not be available to
the creditors of the Seller. However, in the event of an insolvency of the
Seller, it is possible that a bankruptcy trustee or a creditor of the Seller may
argue that the transaction between the Seller and the Depositor was a pledge of
such Home Equity Loans in connection with a borrowing by the 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 Seller will have received an
opinion of Arter & Hadden, counsel to the Seller, with respect to the true sale
of the Initial Home Equity Loans from the Seller 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.
[Risk of Higher Default Rates Associated with _______________ Real
Property. Because _____% of the Mortgaged Properties relating to Initial Home
Equity Loans are located in the State of _______________, an overall decline in
the related residential real estate markets could adversely affect the values of
the Mortgaged Properties securing such Home Equity Loans causing the Loan
Balances of the related Home Equity Loans to equal or exceed the value of such
Mortgaged Properties.
The standard hazard insurance policy required to be maintained under
the terms of each Home Equity Loan does not insure against physical damage
arising from earth movement (including earthquakes, landslides and mudflows).
See "Servicing of Home Equity Loans and Contracts--Standard Hazard Insurance" in
the Prospectus.]
Risk Associated with the Certificate Insurer. If the protection
afforded by overcollateralization is insufficient and if, upon the occurrence of
a Subordination Deficit, the Certificate Insurer is unable to meet its
obligations under the Certificate Insurance Policies, then the Owners of the
Class A Certificates could experience a loss on their investment.
Risk of Higher Delinquencies Associated with Underwriting Standards.
The Guidelines (as described below under "The Portfolio of Home Equity
Loans--Underwriting Standards") are intended to assess the credit quality of a
borrower and the value of the mortgaged property and to evaluate the adequacy of
such property as collateral for the mortgage loan. The Originators provide loans
primarily to borrowers who do not qualify for loans conforming to FNMA and FHLMC
guidelines but who also have substantial equity in their property.
As a result of the Guidelines, the Home Equity Loans are likely to
experience rates of delinquency, foreclosure and bankruptcy that are higher, and
that may be substantially higher, than those experienced by mortgage loans
underwritten to FNMA and FHLMC conforming guidelines. Furthermore, changes in
the values
S-16
<PAGE>
of Mortgaged Properties may have a greater effect on the delinquency,
foreclosure, bankruptcy and loss experience of the Home Equity Loans than on
mortgage loans originated in a more traditional manner. No assurance can be
given that the values of the Mortgaged Properties have remained or will remain
at the levels in effect on the dates of origination of the related Home Equity
Loans.
In addition, [none of the Originators nor] the Seller has
representative historical delinquency, bankruptcy, foreclosure, default or loss
experience that may be referred to for purposes of estimating the future
delinquency and loss experience of the Home Equity Loans.
The Subsequent Home Equity Loans and the Pre-Funding Account. If the
principal amount of eligible Home Equity Loans available during the Funding
Period and sold by the Seller to the Depositor is less than 100% of the Original
Pre-Funded Amount, the Depositor will have insufficient Home Equity Loans to
sell to the Trust on the Subsequent Transfer Dates, thereby resulting in a
prepayment of principal to Owners of the Class A-1 Certificates as described
herein and a return to the Owners of the Class A-1 Certificates of a
proportionate amount of their purchase price related to the Pre-Funded Amount.
See "Social, Economic and Other Factors" below and "Prepayment and Yield
Considerations--Mandatory Prepayments" herein. In addition, any conveyance of
Subsequent Home Equity Loans is subject to the following conditions, among
others (i) each such Subsequent Home Equity Loan must satisfy the
representations and warranties specified in the agreement pursuant to which such
Subsequent Home Equity Loans are transferred to the Trust (each a "Subsequent
Transfer Agreement") and in the Agreement; (ii) the Depositor will not select
such Subsequent Home Equity Loans in a manner that it believes is adverse to the
interest of the Owners of the Class A Certificates or the Certificate Insurer;
(iii) the Depositor will deliver certain opinions of counsel with respect to the
validity of the conveyance of such Subsequent Home Equity Loans; and (iv) as of
each cut-off date (each, a "Subsequent Cut-Off Date") applicable thereto, the
Home Equity Loans, including the Subsequent Home Equity Loans to be conveyed by
the Depositor as of such Subsequent CutOff Date, will satisfy the criteria set
forth in the Agreement, as described herein under "The Portfolio of Home Equity
Loans--Conveyance of Subsequent Home Equity Loans."
To the extent that amounts on deposit in the Pre-Funding Account have
not been fully applied to the purchase of Subsequent Home Equity Loans by the
Trust by the end of the Funding Period, the Owners of the Class A-1 Certificates
will receive a prepayment of principal in an amount equal to the Pre-Funded
Amount remaining in the Pre-Funding Account no later than the first Distribution
Date following the end of the Funding Period. Although no assurances can be
given, the Depositor intends that the principal amount of Subsequent Home Equity
Loans sold to the Trust will require the application of substantially all
amounts on deposit in the Pre-Funding Account and that there will be no material
principal prepayment to the Owners of the Class A-1 Certificates from the
Pre-Funded Amount.
Each Subsequent Home Equity Loan must satisfy the eligibility criteria
referred to above at the time of its addition. However, Subsequent Home Equity
Loans may have been purchased by the Depositor using credit criteria different
from those which were applied to the Initial Home Equity Loans and may be of a
different credit quality. Therefore, following the transfer of Subsequent Home
Equity Loans to the Home Equity Loan Pool, the aggregate characteristics of the
Home Equity Loans then held in the Home Equity Loan Pool may vary from those of
the Initial Home Equity Loans. See "The Portfolio of Home Equity
Loans--Conveyance of Subsequent Home Equity Loans."
THE PORTFOLIO OF HOME EQUITY LOANS
General
The Home Equity Loan Pool primarily includes newly originated loans
which were purchased by the Depositor from the Seller, which acquired such loans
from the Originators.
[None of the Originators], the Seller [or the Servicer] have
representative historical delinquency, bankruptcy, foreclosure or default
experience that may be referred to for purposes of estimating the future
delinquency and loss experience of the Home Equity Loans.
S-17
<PAGE>
The Originator of a Home Equity Loan has made certain representations
and warranties with respect to such Home Equity Loan, as specified below, and,
upon a breach of such representations and warranties occurring after sale of the
related Home Equity Loan to the Trust, may be required to repurchase such Home
Equity Loan from the Trust.
Underwriting Standards
[To be provided]
The Servicer
[Description of Servicer]
The following tables set forth, as of December 31, 1993 and 1994 and
_______________ 1995 certain information relating to the delinquency experience
(including imminent foreclosures, foreclosures in progress and bankruptcies) of
one- to four-family residential mortgage loans included in the Servicer's
servicing portfolio (which portfolio does not include mortgage loans that are
subserviced by others) at the end of the indicated periods. The indicated
periods of delinquency are based on the number of days past due on a contractual
basis. No mortgage loan is considered delinquent for these purposes until it is
one month past due on a contractual basis.
<TABLE>
<CAPTION>
Delinquencies and Foreclosures
(Dollars in Thousands)
At December 31, At December 31, At December 31,
1993 1994 1995
------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Percent Percent Percent Percent Percent Percent
By No. By By No. by By By No. by By No. By By No. by
of Dollar of Dollar By No. Dollar of Dollar of Dollar of Dollar
Loans Amount Loans Amount of Loan Amount Loans Amount Loans Amount Loans Amount
------------------------------------------------------------------------------------------------------
</TABLE>
Total Portfolio.................
Period of Delinquency:
0 - 30 days...........
31 - 59 days...........
60 - 89 days...........
90 days or more........
Total Delinquent Loans..........
Loans in Foreclosure*...........
- --------------------
* Loans in foreclosure are also included under the heading "Total Delinquent
Loans."
S-18
<PAGE>
<TABLE>
<CAPTION>
Real Estate Owned
(Dollars in Thousands)
At December 31, At December 31, At December 31,
1993 1994 1995 (1)
-------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
By Dollar By Dollar By Dollar
By No. Amount By No. Amount By No. Amount
of Loans of Loans of Loans of Loans of Loans of Loans
-------------------------------------------------------------------------------------------
</TABLE>
Total Portfolio............
Foreclosed Loans(1)........
Foreclosed Ratio(2)........
- ------------------------
(1) For the purposes of these tables, Foreclosed Loans means the principal
balance of mortgage loans secured by mortgaged properties the title to
which has been acquired by the Servicer, by investors or by an insurer
following foreclosure or delivery of a deed in lieu of foreclosure.
(2) The Foreclosure Ratio is equal to the aggregate principal balance or
number of Foreclosed Loans divided by the aggregate principal balance,
or number, as applicable, of mortgage loans in the Total Portfolio at
the end of the indicated period.
Loan Loss Experience on the
Servicer's Servicing Portfolio
of Home Equity Loans
(Dollars in Thousands)
Year Ended Year Ending December 31,
December 31,
1995 1994 1993
-----------------------------------------------------------------
Total Portfolio (1)
Gross Losses (2)
Recoveries (3)
Net Losses (4)
Net Losses as a Percentage of
Total Portfolio (5)
- -----------------------------------
(1) "Total Portfolio" on the date stated above is the principal balances of
the mortgage loans outstanding on the last day of the period.
(2) "Gross Losses" are actual losses incurred on liquidated properties for
each respective period. Losses include all principal, foreclosure costs
and accrued interest to the date of liquidation.
(3) "Recoveries" are recoveries from liquidation proceeds and deficiency
judgments.
(4) "Net Losses" means "Gross Losses" minus "Recoveries."
(5) For the six months ending June 30, 1995, "Net Losses as a Percentage of
Total Portfolio" was annualized by multiplying "Net Losses" by 2.0
before calculating the percentage of "Net Losses as a Percentage of
Total Portfolio."
There can be no assurance that the delinquency experience of the Home
Equity Loans comprising the Home Equity Loan Pool will correspond to the
delinquency experience of the Servicer's mortgage portfolio set forth in the
foregoing tables. See "The Portfolio of Home Equity Loans -- General" herein.
The statistics shown above represent the delinquency experience for the
Servicer's residential mortgage servicing portfolios only for the periods
presented, whereas the delinquency experience on the Home Equity Loans
comprising the Home Equity Loan Pool will depend on the results obtained over
the life of the Home Equity Loan Pool. The Servicer's residential mortgage
servicing portfolios include mortgage loans with a variety of payment, credit
and other characteristics (including geographic location) which may not be
representative of the payment, credit and other characteristics of the Home
Equity Loans comprising the Home Equity Loan Pool. It should be noted that if
the residential real estate market should experience an overall decline in
property values, the actual rates of delinquencies and foreclosures could be
higher than those previously experienced by the Servicer. In addition, adverse
economic conditions may affect the
S-19
<PAGE>
timely payment by Mortgagors of scheduled payments of principal and interest on
the Home Equity Loans and accordingly, the actual rates of delinquencies and
foreclosures with respect to the Home Equity Loan Pool.
USE OF PROCEEDS
The Depositor will sell the Initial 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
Initial Home Equity Loans from the Seller, to the deposit of the Pre-Funded
Amount in the Pre-Funding Account and to the deposit of certain amounts to the
Capitalized Interest Account. Such net proceeds less the Pre- Funded Amount and
the amount deposited in the Capitalized Interest Account 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 Initial 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. The
Depositor maintains its principal offices at 277 Park Avenue, New York, NY
10172. Neither the Depositor, the Seller nor the Servicer nor any of their
affiliates will insure or guarantee distributions on the Certificates.
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 Initial Home
Equity Loans as of the Cut-Off Date. Subsequent Home Equity Loans are intended
to be purchased by the Trust for inclusion in the Fixed Rate Group from the
Depositor from time to time on or before __________, 199_ from funds on deposit
in the Pre-Funding Account. The Initial Home Equity Loans and the Subsequent
Home Equity Loans are referred to herein collectively as the "Home Equity
Loans." The Subsequent Home Equity Loans, if available, to be purchased by the
Trust will be sold by the Seller to the Depositor and then by the Depositor to
the Trust.
This subsection describes generally certain characteristics of the
Initial Home Equity Loans. Unless otherwise specified herein, references herein
to percentages of Initial Home Equity Loans refer in each case to the
approximate percentage of the aggregate principal balance of the Initial Home
Equity Loans as of the Cut-Off Date, based on the outstanding principal balances
of the Initial Home Equity Loans or the Home Equity Loans in the applicable Home
Equity Loan Group, in each case as of the Cut-Off Date, and giving effect to all
payments received prior to the Cut-Off Date. The Initial 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 Initial 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 Initial 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
mortgage 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 Certificates represent undivided ownership interests in all Home
Equity Loans contained in the Fixed Rate Group, and distributions on the Fixed
Rate Certificates will be based primarily on amounts available for distribution
in respect of Home Equity Loans in the Fixed Rate Group. The Adjustable Rate
Certificates represent undivided ownership interests in all Home Equity Loans
contained in the Adjustable Rate Group, and distributions on the Adjustable Rate
Certificates will be based primarily on amounts available for distribution in
respect of Home Equity Loans in the Adjustable Rate Group.
S-20
<PAGE>
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 Seller's underwriting guidelines, the Seller 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.
Initial Home Equity Loans -- Fixed Rate Group
As of the Cut-Off Date, the average Loan Balance of the Initial Home
Equity Loans in the Fixed Rate Group was $______; the Coupon Rates of the
Initial Home Equity Loans in the Fixed Rate Group ranged from ____% to ____%;
the weighted average Loan-to-Value Ratio of the Initial Home Equity Loans in the
Fixed Rate Group was ____%; the weighted average Combined Loan-to-Value Ratio of
the Initial Home Equity Loans in the Fixed Rate Group was ____%; the weighted
average Coupon Rate of the Initial Home Equity Loans in the Fixed Rate Group was
____%; the weighted average Retained Yield for the Initial Home Equity Loans in
the Fixed Rate Group was ____%; the weighted average remaining term to maturity
was ____ months; the weighted average original term to maturity was ____ months.
The remaining terms to maturity as of the Cut-Off Date of the Initial Home
Equity Loans in the Fixed Rate Group ranged from ____ months to ____ months. The
minimum and maximum Loan Balances of Initial Home Equity Loans in the Fixed Rate
Group as of the Cut-Off Date were $_____ and $_____, respectively. Initial Home
Equity Loans in the Fixed Rate Group containing "balloon" payments represented
not more than _____%; of the Original Aggregate Loan Balance of Initial Home
Equity Loans in the Fixed Rate Group. No Initial Home Equity Loan in the Fixed
Rate Group will mature later than ________, ____.
S-21
<PAGE>
Geographic Distribution of Mortgaged Properties -- Fixed Rate Group
The geographic distribution of Initial Home Equity Loans in the Fixed
Rate Group by state, as of the Cut-Off Date, was as follows:
<TABLE>
<S> <C> <C> <C>
Number of Initial Aggregate % of Aggregate
State Home Equity Loans Loan Balance Loan Balance
- ----- ----------------- ------------ ------------
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
Wisconsin
Wyoming
Total
</TABLE>
S-22
<PAGE>
Original Loan-to-Value Ratios -- Fixed Rate Group
The original loan-to-value ratios as of the date of origination of the
Initial Mortgage in the Fixed Rate Group Loans (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:
<TABLE>
<S> <C> <C> <C>
Range of Number of Initial Aggregate % of Aggregate
Original LTV's Home Equity Loans Loan Balance Loan Balance
- -------------- ----------------- ------------ ------------
</TABLE>
S-23
<PAGE>
Combined Loan-to-Value Ratios -- Fixed Rate Group
The original combined loan-to-value ratios as of the dates of
origination of the Initial 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:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Range of Number of Initial Aggregate % of Aggregate
Original CLTV's Home Equity Loans Loan Balance Loan Balance
- --------------- ----------------- ------------ ------------
Cut-Off Date Coupon Rates -- Fixed Rate Group
The Coupon Rates borne by the Notes relating to the Initial Home Equity
Loans in the Fixed Rate Group were distributed as follows as of the Cut-Off
Date:
Range of Number of Initial Aggregate % of Aggregate
Coupon Rates Home Equity Loans Loan Balance Loan Balance
- ------------ ----------------- ------------ ------------
</TABLE>
S-24
<PAGE>
Cut-Off Date Loan Balances -- Fixed Rate Group
The distribution of the outstanding principal amounts of the Initial
Home Equity Loans in the Fixed Rate Group as of the Cut-Off Date was as follows:
<TABLE>
<S> <C> <C> <C>
Number of Initial Aggregate % of Aggregate
Range of Loan Balances Home Equity Loans Loan Balance Loan Balance
- ---------------------- ----------------- ------------ ------------
Types of Mortgaged Properties -- Fixed Rate Group
The Properties securing the Initial Home Equity Loans in the Fixed Rate
Group as of the Cut-Off Date were of the property types as follows:
Number of Initial Aggregate % of Aggregate
Property Types Home Equity Loans Loan Balance Loan Balance
- -------------- ----------------- ------------ ------------
</TABLE>
S-25
<PAGE>
Distribution of Months Since Origination -- Fixed Rate Group
The distribution of the number of months since the date of origination
of the Initial Home Equity Loans in the Fixed Rate Group as of the Cut-Off Date
was as follows:
<TABLE>
<S> <C> <C> <C>
Months Elapsed Number of Initial Aggregate % of Aggregate
Since Origination Home Equity Loans Loan Balance Loan Balance
- ----------------- ----------------- ------------ ------------
Distribution of Remaining Term to Maturity -- Fixed Rate Group
The distribution of the number of months remaining to maturity of the
Initial Home Equity Loans in the Fixed Rate Group as of the Cut-Off Date was as
follows:
Months Remaining Number of Initial Aggregate % of Aggregate
to Maturity Home Equity Loans Loan Balance Loan Balance
- ----------- ----------------- ------------ ------------
Occupancy Status -- Fixed Rate Group
The occupancy status of the Properties securing the Initial Home Equity
Loans in the Fixed Rate Group as of the CutOff Date was as follows
Number of Initial Aggregate % of Aggregate
Occupancy Status Home Equity Loans Loan Balance Loan Balance
- ---------------- ----------------- ------------ ------------
</TABLE>
S-26
<PAGE>
Initial Home Equity Loans -- Adjustable Rate Group
As of the Cut-Off Date, the average Loan Balance of the Initial Home
Equity Loans in the Adjustable Rate Group was $_________; the Coupon Rates of
the Initial Home Equity Loans in the Adjustable Rate Group ranged from ____% to
_____%; the weighted average Loan-to-Value Ratio of the Initial Home Equity
Loans in the Adjustable Rate Group was _____%; the weighted average Coupon Rate
of the Initial Home Equity Loans in the Adjustable Rate Group was _____%; the
weighted average remaining term to maturity was 353 months; the weighted average
original term to maturity was 355 months. The remaining terms to maturity as of
the Cut-Off Date of the Initial Home Equity Loans in the Adjustable Rate Group
ranged from 119 months to 360 months. The minimum and maximum Loan Balances of
Initial Home Equity Loans in the Adjustable Rate Group as of the CutOff Date
were $______ and $__________, respectively. None of the Initial Home Equity
Loans in the Adjustable Rate Group contained "balloon" payments. No Initial Home
Equity Loan in the Adjustable Rate Group will mature later than ________, ____.
All of the Home Equity Loans in the Adjustable Rate Group have maximum
Coupon Rates. The weighted average maximum Coupon Rate of the Initial Home
Equity Loans in the Adjustable Rate Group was _____%, with maximum Coupon Rates
that range from _____% to _____%. The Initial Home Equity Loans in the
Adjustable Rate Group have a weighted average gross margin as of the Cut-Off
Date of ____%. The gross margin for the Initial Home Equity Loans in the
Adjustable Rate Group ranges from ____% to _____%.
[All] of the Initial Home Equity Loans in the Adjustable Rate Group
bear interest rates that adjust based on Six-Month LIBOR. [Other indices.] All
of the Initial Home Equity Loans in the Adjustable Rate Group have periodic rate
adjustment caps that range from ____% to ____% and a periodic rate adjustment
floor of ____%. _____% of the Initial Home Equity Loans in the Adjustable Rate
Group have a lifetime rate adjustment cap of _% over the initial Coupon Rate of
each respective Home Equity Loan in the Adjustable Rate Group and _____% of the
Initial Home Equity Loans in the Adjustable Rate Group have a lifetime rate
adjustment cap of _% over the initial Coupon Rate of each respective Home Equity
Loan in the Adjustable Rate Group.
S-27
<PAGE>
Geographic Distribution of Mortgaged Properties -- Adjustable Rate Group
The geographic distribution of Initial Home Equity Loans in the
Adjustable Rate Group by state, as of the Cut-Off Date, was as follows:
<TABLE>
<S> <C> <C> <C>
Number of Initial Aggregate % of Aggregate
State Home Equity Loans Loan Balance Loan Balance
- ----- ----------------- ------------ ------------
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
Wisconsin
Wyoming
Total
</TABLE>
S-28
<PAGE>
Original Loan-to-Value Ratios -- Adjustable Rate Group
The original Loan-to-Value Ratios of the Initial Mortgage in the
Adjustable Rate Group Loans as of the Cut-Off Date were distributed as follows:
Original LTV's Home Equity Loans Loan Balance Loan Balance
- -------------- ----------------- ------------ ------------
S-29
<PAGE>
Cut-Off Date Coupon Rates -- Adjustable Rate Group
The Coupon Rates borne by the Notes relating to the Initial Home Equity
Loans in the Adjustable Rate Group were distributed as follows as of the Cut-Off
Date:
Range of Number of Initial Aggregate % of Aggregate
Coupon Rates Home Equity Loans Loan Balance Loan Balance
- ------------ ----------------- ------------ ------------
Cut-Off Date Loan Balances -- Adjustable Rate Group
The distribution of the outstanding principal amounts of the Initial
Home Equity Loans in the Adjustable Rate Group as of the Cut-Off Date was as
follows:
Number of Initial Aggregate % of Aggregate
Range of Loan Balances Home Equity Loans Loan Balance Loan Balance
- ---------------------- ----------------- ------------ ------------
S-30
<PAGE>
Types of Mortgaged Properties -- Adjustable Rate Group
The Properties securing the Initial Home Equity Loans in the Adjustable
Rate Group as of the Cut-Off Date were of the property types as follows:
Number of Initial Aggregate % of Aggregate
Property Types Home Equity Loans Loan Balance Loan Balance
- -------------- ----------------- ------------ ------------
Distribution of Months Since Origination -- Adjustable Rate Group
The distribution of the number of months since the date of origination
of the Initial Home Equity Loans in the Adjustable Rate Group as of the Cut-Off
Date was as follows:
Months Elapsed Number of Initial Aggregate % of Aggregate
Since Origination Home Equity Loans Loan Balance Loan Balance
- ----------------- ----------------- ------------ ------------
Distribution of Remaining Term to Maturity -- Adjustable Rate Group
The distribution of the number of months remaining to maturity of the
Initial Home Equity Loans in the Adjustable Rate Group as of the Cut-Off Date
was as follows:
Months Remaining Number of Initial Aggregate % of Aggregate
to Maturity Home Equity Loans Loan Balance Loan Balance
- ----------- ----------------- ------------ ------------
S-31
<PAGE>
Occupancy Status -- Adjustable Rate Group
The occupancy status of the Properties securing the Initial Home Equity
Loans in the Adjustable Rate Group as of the Cut-Off Date was as follows:
Number of Initial Aggregate % of Aggregate
Occupancy Status Home Equity Loans Loan Balance Loan Balance
- ---------------- ----------------- ------------ ------------
Distribution of Margins -- Adjustable Rate Group
The margins borne by the Notes relating to the Initial Home Equity
Loans in the Adjustable Rate Group as of the CutOff Date was as follows:
Number of Initial Aggregate % of Aggregate
Margins Home Equity Loans Loan Balance Loan Balance
------- ----------------- ------------ ------------
Distribution of Maximum Coupon Rates -- Adjustable Rate Group
The maximum Coupon Rates borne by the Notes relating to the Initial
Home Equity Loans in the Adjustable Rate Group as of the Cut-Off Date was as
follows:
Maximum Number of Initial Aggregate % of Aggregate
Coupon Rates Home Equity Loans Loan Balance Loan Balance
------------ ----------------- ------------ ------------
S-32
<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 Initial Home Equity Loans in the Adjustable Rate Group as
of the Cut-Off Date was as follows:
Month of Next Coupon Number of Initial Aggregate % of Aggregate
Rate Change Home Equity Loans Loan Balance Loan Balance
----------- ----------------- ------------ ------------
Conveyance of Subsequent Home Equity Loans
The Pooling and Servicing Agreement permits the Trust to acquire
approximately $_____________ in aggregate principal balance of Subsequent Home
Equity Loans for addition to the Fixed Rate Group. Accordingly, the statistical
characteristics of the Home Equity Loan Pool and the Fixed Rate Group will vary
as of any Subsequent Cut-Off Date upon the acquisition of Subsequent Home Equity
Loans.
The obligation of the Trust to purchase Subsequent Home Equity Loans
for addition to the Fixed Rate Group on a Subsequent Transfer Date is subject to
the following requirements: (i) such Subsequent Home Equity Loan may not be 30
or more days contractually delinquent as of the related Subsequent Cut-Off Date;
(ii) the remaining term to maturity of such Subsequent Home Equity Loan may not
exceed 30 years; (iii) no Subsequent Home Equity Loan will have a Coupon Rate
less than ____%; and (iv) following the purchase of such Subsequent Home Equity
Loans by the Trust, the Home Equity Loans (including the Subsequent Home Equity
Loans) (a) will have a weighted average Coupon Rate of at least _____%; (b) will
have a weighted average Combined Loan-to- Value Ratio of not more than __%; (c)
will not have Balloon Loans representing more than __% by aggregate principal
balance of the Home Equity Loans; (d) will not have a weighted average remaining
term to stated maturity of more than 210 months; and (e) will have no Home
Equity Loan with a principal balance in excess of $_______.
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 Maximum
Collateral Amount. 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 may be affected by the fact that actual Mortgagor
payments may not be made on the due date therefor.
S-33
<PAGE>
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 discussion, 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 Seller of Home Equity Loans. 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 mortgage loans with fixed rates such as the Home Equity Loans in the
Fixed Rate Group is affected by prevailing market rates for mortgage 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
mortgage 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 mortgage loans. As is the case with conventional fixed-rate
mortgage loans, adjustable-rate mortgage 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 mortgage loans
could be subject to higher prepayment rates than if prevailing interest rates
remain constant because the availability of fixed-rate mortgage loans at
competitive interest rates may encourage mortgagors to refinance their
adjustable-rate mortgage 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 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 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 over the
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.
Mandatory Prepayment
In the event that at the end of the Funding Period, not all of the
Original Pre-Funded Amount has been used to acquire Subsequent Home Equity Loans
for inclusion in the Fixed Rate Group, then the Fixed Rate Certificates then
entitled to receive payments of principal will receive a partial prepayment on
the Payment Date in ______ 199_.
Although no assurances can be given, the Depositor intends that the
principal amount of Subsequent Home Equity Loans sold to the Trust for inclusion
in the Fixed Rate Group will require the application of substantially all the
amount on deposit in the Pre-Funding Account and that there should be no
material principal prepaid to the Owners of the Fixed Rate Certificates.
S-34
<PAGE>
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 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 Home Equity Loans is faster than the rate anticipated by an investor who
purchases a 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 follows: Class A-1, _______, ____, Class A-2, _______, ____,
Class A-3, ____________, ____, Class A-4, ____________, ____, Class A-5,
___________, ____ and Class A-6, ____________, ____. These dates are the dates
on which the "Initial Certificate Principal Balance" set forth in the summary
hereof for the related Class as of the Closing Date less all amounts previously
distributed to the Owners on account of principal (such amount as to any Class
of the Class A Certificates and as of any time, the related "Class A Certificate
Principal Balance" and as to the Class A Certificates collectively, the
"Certificate Principal Balance" or the "Class A Certificate Principal Balance")
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 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-5 Certificates is the thirteenth
Payment Date following the calendar month in which the Loan Balances of all Home
Equity Loans (including Subsequent 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-6 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 when the aggregate outstanding Loan Balance of the Home Equity
Loans is less than __% of the Maximum Collateral Amount thereof.
"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 will be influenced by 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 weighted average lives of the Class A Certificates.
The model used in this Prospectus Supplement 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 Certificates, a ___% Prepayment Assumption assumes conditional
prepayment rates of _% 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 _____% (precisely _____%) per annum in each
month thereafter until the twelfth month. Beginning in the thirteenth month and
in each month thereafter during the life of the mortgage loans, ___% Prepayment
Assumption assumes a conditional prepayment rate of __% per annum each month.
With respect to the Adjustable Rate Certificates, a ___% Prepayment Assumption
assumes a conditional prepayment rate of __% per annum of the then outstanding
principal balance of the Home Equity Loans in the Adjustable Rate Group. As used
in the table below, _% Prepayment Assumption assumes prepayment rates equal to
_% of the Prepayment Assumption i.e., no prepayments. Correspondingly, ___%
Prepayment Assumption assumes prepayment rates equal to ___% 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
S-35
<PAGE>
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 set forth in the tables. In addition,
since the actual Home Equity Loans in the Trust have characteristics which
differ from those assumed in preparing the tables set forth below, the
distributions of principal on the Class A 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 of Retained Yield, if any), 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
_________, 199_, (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 in _________ 199_ in accordance with the priorities described
herein, (iv) the difference between the Gross Coupon Rate (net of Retained
Yield, if any) 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 are a multiple of the applicable
Prepayment Assumption, (vi) prepayments include 30 day's 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) all of the Pre-Funded Amount is used to acquire Subsequent Home
Equity Loans for inclusion in the Fixed Rate Group on ___________, 199_ and
prior to such date, the Pre-Funded Amount accrued interest at a rate of ____%
per annum for one month, (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) an
assumed level of the applicable index _____% 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-6 Pass-Through Rate remains constant at
_____%.
S-36
<PAGE>
<TABLE>
<CAPTION>
FIXED RATE GROUP
----------------
Initial Home Equity Loans
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>
- -----------------------------------------------------------------------------------------------------------------------
Subsequent Home Equity Loans
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
- -----------------------------------------------------------------------------------------------------------------------
ADJUSTABLE RATE GROUP
---------------------
Original Remaining Original
Gross Months Term to Term to Amortization
Pool Principal Coupon Net to Rate Maximum Maturity Maturity Term Amortization
Number Balance Rate Coupon Rate Change Margin Interest Rate (in months) (in months) (in months) Method
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
S-37
<PAGE>
The following tables set forth the percentages of the initial principal
amount of the Class A Certificates that would be outstanding after each of the
dates shown, based on a rate equal to _%, __%, __%, ___%, ___% and ___% of the
Prepayment Assumption (as defined above).
<TABLE>
<CAPTION>
PERCENTAGE OF INITIAL CERTIFICATE PRINCIPAL BALANCE
Class A-1 Class A-2 Class A-3
Payment Date 0% 50% 75% 100% 25% 150% 0% 50% 75% 100% 125% 150% 0% 50% 75% 100% 125% 150%
-- --- --- ---- --- ---- -- --- --- ---- ---- ---- -- --- --- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Class A-4 Class A-5 Class A-6
Payment Date 0% 50% 75% 100% 125% 150% 0% 50% 75% 100% 125% 150% 0% 50% 75% 100% 125% 150%
-- --- --- ---- ---- ---- -- --- --- ---- ---- ---- -- --- --- ---- ---- ----
- -----------------------------
(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
Certificate.
</TABLE>
S-38
<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 and Retained Yield) 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
____________, 199_. Thus, the effective yield to the Owners of the Class A
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 25th day of the following
month.
FORMATION OF THE TRUST AND TRUST PROPERTY
_____________ Home Equity Loan Trust 199__-__ (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 the Retained Yield and 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 Pre-Funding Account, the Capitalized Interest Account
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 Policy and (d) proceeds of all the foregoing (including, but not by
way of limitation, all proceeds of any hazard insurance and title insurance
policy 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 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 Seller, 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 Initial Home
Equity Loans and the Properties is based upon the pool as constituted at the
close of business on the Cut-Off Date, as adjusted for the scheduled principal
payments due on or before such date. Prior to the issuance of the Class A
Certificates, Initial 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 Initial
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
the Securities and Exchange Commission within fifteen days after the initial
issuance of the Class A Certificates.
S-39
<PAGE>
In the event Initial 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
the 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 Home Equity Loans and the Adjustable Rate Group, which contains only
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 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 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
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 of such Certificate as of the Cut-Off
Date by the Certificate Principal Balance 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. The Trustee will also be required to deposit into the
Certificate Account any Pre-Funded Amounts to be distributed as a prepayment at
the end of the Funding Period.
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 herein under "Certificates Offered"; 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 herein
under "Certificates Offered"; provided, further, the Pass-Through Rate with
respect to the Class A-5 Certificates shall be the lower of ____% and the
weighted average of the Coupon Rates of each Home Equity Loan less ____%
representing the sum of the rates at which the amount
S-40
<PAGE>
distributable with respect to the Servicing Fee, the Premium Amount and the
Trustee Fee are calculated (except as otherwise provided in the Pooling and
Servicing Agreement). Approximately, ____% of the Initial Home Equity Loans in
the Fixed Rate Group by Loan Balance as of the Cut-Off Date bear interest at
Coupon Rates which, after deduction of ____% representing the sum of the rates
at which the amount distributable with respect to the Servicing Fee, the Premium
Amount and the Trustee Fee are calculated, would be lower than ____%. As a
result, it is unlikely that such weighted average will be less than ____%;
provided, further, that the Pass-Through Rate with respect to the Class A-6
Certificates will equal the lesser of (i) the London interbank offered rate for
one-month United States dollar deposits (calculated as described under "--
Calculation of LIBOR" below) as of the second to last business day prior to the
immediately preceding Payment Date (or as of the second to last business day
prior to the Closing Date with respect to the _________ 199_ Payment Date) (the
"LIBOR Determination Date") plus ____% per annum, and (ii) the weighted average
of the Coupon Rates of the Home Equity Loans in the Adjustable Rate Group less
____% per annum, calculated as of the first day of the related Remittance
Period.
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 out of Total Monthly Excess Spread
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 to the Certificate Insurer.
(ii) second, on each Payment Date, the Trustee shall allocate an
amount equal to the sum of (x) the Total Monthly Excess Spread
with respect to such 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 (iv)(C) below and the amounts
payable to the Certificate Insurer with respect to such Home
Equity Loan Group (the "Premium Amount") as described in
clause (i) above) 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 (iv)(A) and (B) 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
(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 with respect to the other Home Equity Loan
Group.
(iii) third, on each Payment Date the amount, if any, of the Total
Monthly Excess Cashflow with respect to such Home Equity Loan
Group on a Payment Date remaining after the allocations
S-41
<PAGE>
described in clause (ii) above (the "Net Monthly Excess
Cashflow" with respect to such Home Equity Loan Group for such
Payment Date) is required to be applied 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 (iv)
below, any Subordination Deficiency Amount (as
defined 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 payment
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.
(iv) fourth, 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, the related Class A Current Interest,
on a pro rata basis without any priority among such
Class A Certificates;
(B) To the Owners of the related Class of Class A
Certificates, (I) the Principal Distribution Amount
applicable to the Fixed Rate Group shall be
distributed as follows: (a) first, to ----- the
Owners of the Class A-1 Certificates until the Class
A-1 Certificate Principal Balance is reduced to zero;
(b) second, to the Owners of the Class A-2
Certificates, until the ------ Class A-2 Certificate
Principal Balance is reduced to zero; (c) third, to
the Owners of the ----- Class A-3 Certificates, until
the Class A-3 Certificate Principal Balance is
reduced to zero; (d) fourth, to the Owners of the
Class A-4 Certificates, until the Class A-4 ------
Certificate Principal Balance is reduced to zero; and
(e) fifth, to the Owners of the Class ----- A-5
Certificates, until the Class A-5 Certificate
Principal Balance is reduced to zero and (II) the
Principal Distribution Amount applicable to the
Adjustable Rate Group shall be distributed to the
Owners of the Class A-6 Certificates until the Class
A-6 Certificate Principal Balance has been reduced to
zero;
(C) To the Trustee, the Trustee Fees with respect to such
Home Equity Loan Group then due; and
(D) 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 on such Payment Date (net of
Total Monthly Excess Cashflow and disregarding the amounts of any Insured
Payments with respect to a 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 (net of Total
Monthly Excess Cashflow) on such Payment Date plus (y) any amounts of Total
Monthly Excess Cashflow with respect to a Home Equity Loan Group to be applied
on such Payment Date (disregarding the amount of any Insured Payment with
respect to a Home Equity Loan Group to be made on such Payment Date) plus, in
the case of the Fixed Rate Group, (z) any deposit to the Certificate Account
from the Pre-Funding Account and Capitalized Interest Account expected to be
made in accordance with the Pooling and Servicing Agreement.
S-42
<PAGE>
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 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.
Pre-Funding Account
On the Closing Date, the Original Pre-Funded Amount will be deposited
in the Pre-Funding Account, which account shall be in the name of and maintained
by the Trustee and shall be part of the Trust. During the Funding Period, the
Pre-Funded Amount will be maintained in the Pre-Funding Account. The Original
Pre-Funded Amount will be reduced during the Funding Period by the amount
thereof used to purchase Subsequent Home Equity Loans for addition to the Fixed
Rate Group in accordance with the Pooling and Servicing Agreement. Any
Pre-Funded Amount remaining at the end of the Funding Period will be distributed
to the Owners of the Fixed Rate Certificates then entitled to receive principal
in accordance with the terms of the Pooling and Servicing Agreement on the
Payment Date that immediately follows the end of the Funding Period in reduction
of the Certificate Principal Balance of such Owner's Certificates, thus
resulting in a principal prepayment of such Class of Fixed Rate Certificates.
Amounts on deposit in the Pre-Funding Account will be invested in
Eligible Investments. All interest and any other investment earnings on amounts
on deposit in the Pre-Funding Account will be deposited in the Capitalized
Interest Account prior to each Payment Date during the Funding Period. The
Pre-Funding Account will not be an asset of the REMIC.
Capitalized Interest Account
On the Closing Date cash will be deposited in the Capitalized Interest
Account, which account shall be in the name of and maintained by the Trustee and
shall be part of the Trust. The amount on deposit in the Capitalized Interest
Account, including reinvestment income thereon and amounts deposited thereto
from the Pre-Funding Account, will be used by the Trustee to fund the excess, if
any, of (i) the sum of the amount of interest accruing at the weighted average
Pass-Through Rate on all Fixed Rate Certificates on the amount by which the
aggregate Certificate Principal Balance of the Fixed Rate Certificates exceeds
the aggregate Loan Balance of the Home Equity Loans in the Fixed Rate Group plus
the Trustee Fees and Premium Amount with respect to the Fixed Rate Group
accruing on such excess balance over (ii) the amount of any reinvestment income
on monies on deposit in the Pre- Funding Account; such amounts on deposit will
be so applied by the Trustee on each Payment Date in the Funding Period to fund
such excess, if any. Any amounts remaining in the Capitalized Interest Account
at the end of the Funding Period and not needed for such purpose will be paid to
the Depositor and will not thereafter be available for distribution to the
Owners of the Fixed Rate Certificates.
Amounts on deposit in the Capitalized Interest Account will be invested
in Eligible Investments. The Capitalized Interest Account will not be an asset
of the REMIC.
Calculation of LIBOR.
On each LIBOR Determination Date (as defined above), the Trustee will
determine LIBOR for the next Accrual Period for the Class A-6 Certificates.
S-43
<PAGE>
"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).
"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 Book-
Entry 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 Book- Entry
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 & Co., the
nominee of DTC. CEDEL and Euroclear will hold omnibus positions on behalf of
their Participants through customers' securities accounts in CEDEL's and
Euroclear's names on the books of their respective depositaries which in turn
will hold such positions in customers' securities accounts in the depositaries'
names on the books of DTC. Citibank will act as depositary for CEDEL and Morgan
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 $____ 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 & Co., 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
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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 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 Book- Entry Certificates
will be subject to the rules, regulations and procedures governing DTC and DTC
Participants as in effect from time to time.
CEDEL is incorporated under the laws of Luxembourg as a professional
depository. CEDEL holds securities for its 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
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United States dollars. Euroclear includes various other services, including
securities lending and borrowing and interfaces with domestic markets in several
countries generally similar to the arrangements for cross-market transfers with
DTC described above. Euroclear is operated by the Brussels, Belgium office of
Morgan Guaranty Trust Company of New York (the "Euroclear Operator"), under
contract with Euroclear Clearance Systems S.C., a Belgian cooperative
corporation (the "Cooperative"). All operations are conducted by the Euroclear
Operator, and all Euroclear Securities clearance accounts and Euroclear cash
accounts are accounts with the Euroclear Operator, not the Cooperative. The
Cooperative establishes policy for Euroclear on behalf of Euroclear
Participants. Euroclear Participants include banks (including central banks),
securities brokers and dealers and other professional financial intermediaries.
Indirect access to Euroclear is also available to other firms that clear through
or maintain a custodial relationship with a Euroclear Participant, either
directly or indirectly.
The Euroclear Operator is the Belgian branch of a New York banking
corporation which is a member bank of the Federal Reserve System. As such, it is
regulated and examined by the Board of Governors of the Federal Reserve System
and the New York State Banking Department, as well as the Belgian Banking
Commission.
Securities clearance accounts and cash accounts with the Euroclear
Operator are governed by the Terms and Conditions Governing Use of Euroclear and
the related Operating Procedures of the Euroclear System and applicable Belgian
law (collectively, the "Terms and Conditions"). The Terms and Conditions govern
transfers of securities and cash within Euroclear, withdrawals of securities and
cash from Euroclear, and receipts of payments with respect to securities in
Euroclear. All securities in Euroclear are held on a fungible basis without
attribution of specific certificates to specific securities clearance accounts.
The Euroclear Operator acts under the Terms and Conditions only on behalf of
Euroclear Participants, and has no record of or relationship with persons
holding through Euroclear Participants.
Distributions on the Book-Entry 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.
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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 Book- Entry 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.
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 information set forth in this section and in the financial
statements of the Certificate Insurer set forth in Appendix B and Appendix C
hereto have been provided by the Certificate Insurer. No representation is made
by any Underwriter, the Seller, the Servicer, the Depositor or any of their
affiliates as to the accuracy or completeness of any such information.
The Certificate Insurer will issue its Certificate Insurance Policy for
the Class A Certificates. The Certificate Insurance Policy unconditionally
guarantees the payment of principal and scheduled interest on the Class A
Certificates. The Certificate Insurer will make each required Insured Payment to
the Trustee on the later of (i) the Payment Date on which such Insured Payment
is distributable to the Owners of the Class A Certificates pursuant to the
Pooling and Servicing Agreement and (ii) the Business Day next following the day
on which the Certificate Insurer shall have received telephonic or telegraphic
notice, subsequently confirmed in writing, or written notice by registered or
certified mail, from the Trustee, specifying that an Insured Payment is due in
accordance with the terms of the Certificate Insurance Policy.
The Certificate Insurer's obligation under the Certificate Insurance
Policy will be discharged to the extent that funds are received by the Trustee
for distribution to the Owners of the Class A Certificates, whether or not such
funds are properly distributed by the Trustee.
For purposes of the Certificate Insurance Policy, the Owner of a Class
A Certificate as to a particular Certificate, does not and may not include the
Trust, the Servicer, any Subservicer, the Seller or the Depositor.
The Certificate Insurance Policy does not guarantee to the Owners of
the Class A Certificates any specified rate of prepayments of principal of the
Home Equity Loans or any specified return.
The Certificate Insurance Policy is non-cancelable.
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THE 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 Insurer is a wholly-owned subsidiary of _______________
(the "Corporation"), a Delaware holding company. The Corporation is a subsidiary
of ______________________________ ("_______________"). Neither the Corporation
nor _______________ is obligated to pay the debts of or the claims of the
Certificate Insurer.
The Certificate Insurer, a New York stock insurance company, is a
monoline financial guaranty insurance company which, since January 1984, has
been a leading insurer of bonds issued by municipal governmental subdivisions
and agencies thereof. The Certificate Insurer also insures a variety of
non-municipal structured debt obligations. The Certificate Insurer is authorized
to write insurance in 50 states and the District of Columbia and is also
authorized to carry on general insurance business in the United Kingdom and to
write credit and guaranty insurance in France. The Certificate Insurer is
subject to regulation by the State of New York Insurance Department.
The Certificate Insurer and the Corporation, are subject to regulation
by each jurisdiction in which the Certificate Insurer is licensed to write
insurance. These regulations vary from jurisdiction to jurisdiction, but
generally require insurance holding companies and their insurance subsidiaries
to register and file certain reports, including information concerning their
capital structure, ownership and financial condition and require prior approval
by the insurance department of their states of domicile, of changes in control,
of certain dividends and other intercorporate transfer of assets and of
transactions between insurance companies, their parents and other affiliates.
The Certificate Insurer is required to file quarterly and annual statutory
financial statements and is subject to statutory restrictions concerning the
types and quality of investments, the use of policy forms, premium rates and the
size of risk that it may insure, subject to reinsurance. Additionally, the
Certificate Insurer is subject to triennial audits by the State of New York
Insurance Department.
The Certificate Insurer considers its role in providing insurance to be
credit enhancement rather than credit substitution. The Certificate Insurer only
insures securities that the Certificate Insurer considers to be of investment
grade quality. With respect to each category of obligations considered for
insurance, the Certificate Insurer has established and maintains its own
underwriting standards that are based on those aspects of credit quality that
the Certificate Insurer deems important for the category and that take into
account criteria established for the category typically used by rating agencies.
Credit criteria for evaluating securities include economic and social trends,
debt management, financial management and legal and administrative factors, the
adequacy of anticipated cash flow, including the historical and expected
performance of assets pledged for payment of securities under varying economic
scenarios, underlying levels of protection such as insurance or
overcollateralization, and, particularly in the case of long-term municipal
securities, the importance of the project being financed.
The Certificate Insurer also reviews the security features and reserves
created by the financing documentation, as well as the financial and other
covenants imposed upon the credit backing the issue. In connection with the
underwriting of new issues, the Certificate Insurer sometimes requires, as a
condition to insuring an issue, that collateral be pledged or, in some
instances, that a third-party guarantee be provided for a term of the insured
obligation by a party of acceptable credit quality obligated to make payment
prior to any payment by the Certificate Insurer.
Insurance written by the Certificate Insurer insures the full and
timely payment of principal and interest on insured debt securities and
scheduled payments due in respect of pass-through securities such as the Class A
Certificates. If the issuer of a security insured by the Certificate Insurer
defaults on its obligations to pay the insured amounts, or, in the case of a
pass-through security, available funds are insufficient to pay the insured
amounts, the Certificate Insurer will make the scheduled insured payments,
without regard to any acceleration of the securities which may have occurred,
and will be subrogated to the rights of security holders to the extent of its
payments. Securities insured to maturity by the Certificate Insurer are rated
"AAA" or "AAAr" by S&P and Aaa by Moody's.
In consideration for issuing its insurance, the Certificate Insurer
receives a premium which is generally paid in full upon issuance of the policy
or on an annual, semiannual or monthly basis. The premium rates charged depend
principally on the credit strength of the securities as judged by the
Certificate Insurer according to its internal credit rating system and the type
of issue.
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Committees of senior officers of the Certificate Insurer must approve
all issues for insurance with the exception of certain small exposures, which
may be approved by the Director of Public Finance. These committees review
reports prepared by credit analysts on the staff of the Certificate Insurer
assigned to review such issues. Prior to its presentation to a committee, the
recommendation for insurance in such report must be reviewed by the director of
the group responsible for the underwriting of the type of security under
consideration.
As of ________, 199_ and ___________, 199_ the Certificate Insurer had
written directly, or assumed through reinsurance, guaranties of approximately
$_____ billion and $_____ billion par value of securities, respectively (of
which approximately __ percent constituted guaranties of municipal bonds), for
which it had collected gross premiums of approximately $____ billion and $____
billion, respectively. As of ________, 199_, the Certificate Insurer had
reinsured approximately __ percent of the risks it had written, __ percent
through quota share reinsurance and __ percent through facultative arrangements.
The following table sets forth capitalization of the Certificate
Insurer as of ___________, 199_, ___________, 199_ and ________, 199_
respectively, on the basis of generally accepted accounting principles. No
material adverse change in the capitalization of the Certificate Insurer has
occurred since ________, 199_.
(unaudited)
-------------, -------------, ------------,
199__(2) 199__ 199__
(in millions) (in millions) (in millions)
Unearned Premiums.................................
Other Liabilities(1)..............................
Stockholder's Equity
Common Stock...................................
Additional Paid-in Capital.....................
Unrealized Gains (Losses)......................
Foreign currency translation adjustment........
Retained Earnings..............................
Total Stockholder's Equity........................
Total Liabilities and Stockholder's Equity........
- ---------------
(1) Including any short-term liabilities.
(2) The financial information presented has been adjusted to reflect the
effect of Statement of Financial Accounting Standards No. 113
"Accounting and Reporting for Reinsurance of Short-Duration and Long-
Duration Contracts", which the Certificate Insurer adopted during 199_.
(3) Effective ______, 199_, the common stock par value was changed from
$___ per share to $_____ per share.
(4) Effective ___________, 199_, the Certificate Insurer adopted the
provisions of Statement of Financial Accounting Standards No. 115,
"Accounting for Certain Investments in Debt and Equity Securities."
(5) In 199_, the Certificate Insurer changed its method of accounting for
retrospectively rated reinsurance contracts.
For further financial information concerning the Certificate Insurer,
see the audited financial statements of the Certificate Insurer included as
Appendix B of this Prospectus Supplement and the unaudited interim financial
statements of the Certificate Insurer included in Appendix C of this Prospectus
Supplement.
Copies of the Certificate Insurer's quarterly and annual statutory
statements filed by the Certificate Insurer with the New York Insurance
Department are available upon request to __________________________,
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_______________, New York, New York 10006, Attention: Corporate Communications
Department. The Certificate Insurer's telephone number is (_____)
_______________.
The Certificate Insurer does not accept any responsibility for the
accuracy or completeness of this Prospectus Supplement or the Prospectus or any
information or disclosure contained herein, or omitted herefrom, other than with
respect to the accuracy of information in this Prospectus Supplement regarding
the Certificate Insurer and the Certificate Insurance Policy set forth under the
heading "The Certificate Insurer" and in Appendix B and Appendix C.
CREDIT ENHANCEMENT
Certificate Insurance Policy
The Certificate Insurer in consideration of the payment of the premium
and subject to the terms of the Certificate Insurance Policy 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, as
trustee for the Owners, on behalf of the Owners, 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 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 the 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
Policy does not cover shortfalls, if any, attributable to the liability of the
Trust, the REMIC or the Trustee for withholding taxes, if any (including
interest and penalties in respect of any such liability).
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, 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 and Retained Yield 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 Class 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
Class A Certificates 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 related Classes of Class A Certificates 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 sum of (i) 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 and (ii) with respect to the Fixed Rate Group only,
any amount on deposit in the Pre-Funding Account at such time 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
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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 on such Payment Date shall instead be distributed to the Owners of
the Subordinate Certificates in an amount equal to the lesser of (x) the Excess
Subordinated Amount and (y) the amount available for distribution on account of
principal with respect to the Class A Certificates 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 will, except for
the provisions relating to the Subordination Amount, be entitled to receive ___%
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 ___% 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 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
requires 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 Policy. 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 sum of (a) 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 and (b) with respect to the Fixed Rate Group only, the amount, if any, on
deposit in the Pre-Funding Account 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
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the 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
entitled to such Insured Payment on such Payment Date. The Certificate Insurance
Policy is similar to the overcollateralization provisions described above
insofar as the Certificate Insurance Policy guarantees ultimate, rather than
current, payment of the amounts of any Realized Losses to the Owners of the
Class A Certificates. Investors in the Class A 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 depends in part on the ability of the
Certificate Insurer to satisfy its obligations under the Certificate Insurance
Policy. In that respect and to the extent that the Certificate Insurer satisfies
such obligations, the Owners of the Class A Certificates are insulated from
shortfalls in Available Funds that may arise.
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 Seller 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, 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 the 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, the 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, the 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 the 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 REMIC Pool 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, the Seller agrees 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 Seller 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
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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 less the Retained Yield together with the aggregate
amount of all unreimbursed Delinquency Advances and Servicing 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, the 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 (other than any
Retained Yield) and all its respective right, title and interest in and to
principal and interest due (other than any Retained Yield) on each such Home
Equity Loan after the Cut-Off Date; provided, however, that the Seller will
reserve and retain all 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,
the 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 Initial Home
Equity Loans on the Closing Date and the Subsequent Home Equity Loans on each
Subsequent Transfer Date, the Seller will be required to:
(i) deliver without recourse to the Trustee on the Closing
Date with respect to each Initial Home Equity Loan or on each
Subsequent Transfer Date with respect to each Subsequent Home Equity
Loan identified in the related schedule of Home Equity Loans (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 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 with
respect to the Initial Home Equity Loans, or Subsequent Transfer Date
with respect to the Subsequent Home Equity Loans, assignments of the
Mortgages to "_______________________________, as Trustee of
_______________ Home Equity Loan Trust 199__-__ under the Pooling and
Servicing Agreement dated as of ________, 199_" to be submitted for
recording in the appropriate jurisdictions; provided, however, that the
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 the Seller
furnishes to the Trustee and the Certificate Insurer, on or before the
Closing Date, with respect to the Initial Home Equity Loans, or
Subsequent Transfer Date with respect to the Subsequent Home Equity
Loans at the Seller's 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);
(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 Seller (but in any event, with
respect to any Mortgage as to which original
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recording information has been made available to the Seller within one
year after the Closing Date with respect to the Initial Home Equity
Loans, or Subsequent Transfer Date with respect to the Subsequent Home
Equity Loans); and
(iv) furnish to the Trustee and the Certificate Insurer, at
the Seller's expense, an opinion of counsel with respect to the sale
and perfection of all Subsequent Home Equity Loans delivered to the
Trust in form and substance satisfactory to the Trustee and the
Certificate Insurer.
The Trustee will agree, for the benefit of the Owners, to review each
File within 45 days after the Closing Date or Subsequent Transfer 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 Seller and the Certificate Insurer. The 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 Insurer, the 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.
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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) the Retained Yield
on any Home Equity Loan actually received by the Servicer, (v) reimbursements
for Delinquency Advances, and (vi) 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:
(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
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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 recover 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 Retained
Yield, if any, and 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
Retained Yield that is due and 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.
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 Seller and 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 $_________ 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 _______________________________ 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,
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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 199_, 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 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 ________, 199_ and on or before _______ of any year
commencing in 199_, a letter or letters of a firm of independent, nationally
recognized certified public accountants reasonably acceptable to the Certificate
Insurer dated as of ___________, 199_ in the case of the 199_ letter and as of
the date of the Servicer's fiscal audit for each subsequent letter stating that
such firm has examined the Servicer's overall servicing operations in accordance
with the requirements of the Uniform Single Audit 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 $_________, 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.
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The Trustee
_______________________________, a _______________ banking corporation,
having its principal corporate trust office at ___________________________ 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 $_____);
(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, with respect to the Fixed Rate Group, any Pre-Funded
Amounts distributed as a Prepayment at the end of the Funding Period
(based on a Certificate in the original principal amount of $_____) and
any Subordination Increase Amount with respect to each such Group;
(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 $_____);
(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 of each Class of the Class A
Certificate (based on a Certificate in the original principal amount of
$_____) 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, the
aggregate Loan Balance of the Home Equity Loans in each Group and, in
the case of the Fixed Rate Group only, the aggregate Loan Balance of
the Initial Home Equity Loans and the Subsequent Home Equity Loans, in
each case 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) such other information as the Certificate Insurer may
reasonably request with respect to delinquent Home Equity Loans;
(xiii) the largest Home Equity Loan balance outstanding; and
(xiv) for Payment Dates during the Funding Period, the remaining
Pre-Funded Amount.
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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;
(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
Seller 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
_______________ applicable to agreements made and to be performed therein.
Amendments
The Trustee, the Depositor, the Seller 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 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,
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(iii) curing any ambiguity and (iv) correcting or supplementing any provisions
therein which are inconsistent with any other provisions therein.
The Pooling and Servicing Agreement may also be amended by the Trustee,
the Depositor, the Seller and the Servicer at any time and from time to time,
with the prior written approval of the Certificate Insurer and not less than a
majority of the Percentage Interest represented by each affected Class of
Certificates then outstanding, for the purpose of adding any provisions or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the Owners
thereunder; provided, however, that 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 Policy.
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 Policy 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 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 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 __% of the Maximum Collateral Amount, 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 Class R Certificate Owners, or (ii) in the
absence of such agreement at a price equal to ___% 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 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.
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CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is the opinion of Arter & Hadden, special counsel to the
Depositor as to certain of the material federal income tax consequences of the
purchase, ownership and disposition of the Class A Certificates and 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 Election
Pursuant to the Pooling and Servicing Agreement, the Trustee will elect
to treat the Trust Estate (other than the Pre-Funding Account and the
Capitalized Interest Account) as a REMIC for federal income tax purposes. The
REMIC will issue the Class A Certificates and the Subordinate Certificates
(other than the Class R Certificates) which will be designated as regular
interests in the REMIC and the Class R Certificates which will be designated as
the residual interest in the REMIC. See "Formation of the Trust and Trust
Property" herein.
The Fixed Rate Certificates are expected to be sold at a 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 to the Depositor, is of the
opinion that, for federal income tax purposes, assuming (i) the REMIC election
is made and (ii) compliance with the Pooling and Servicing Agreement, the REMIC
will be treated as a REMIC, the Class A Certificates will be treated as "regular
interests" in the REMIC and the Class R Certificates will be the sole "residual
interest" in the REMIC. 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 each Class of the Class A Certificates
for calculating original issue discount is ___% of the applicable Prepayment
Assumption. See "Prepayment and Yield Considerations -- Projected Prepayment and
Yield for Class A Certificates" herein.
As a result of the qualification of certain specified assets of the
Trust as a REMIC, 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.
ERISA CONSIDERATIONS
The Employee Retirement Income Security Act of 1974, as amended
("ERISA"), imposes certain restrictions on employee benefit plans subject to
ERISA ("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.
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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.
One such exception applies if the class of equity interests in question
is (i) "widely held", (ii) freely transferable, and (iii) sold as part of an
offering pursuant to (A) an effective registration statement under the
Securities Act of 1933, and then subsequently registered under the Securities
Exchange Act of 1934 or (B) an effective registration statement under Section
12(b) or 12(g) of the Securities Exchange Act of 1934 ("Publicly Offered
Securities"). In addition the regulation provides that if at all times more than
__% of the value of classes of equity interests in the Trust are held by
investors other than benefit plan investors (which is defined as including plans
subject to ERISA, government plans and individual retirement accounts), the
investing Plan's assets will not include any of the underlying assets of the
Trust.
An additional exemption may also be available. The DOL has granted an
administrative exemption to [Underwriters] (PTE 91-14, Exemption Application No.
D-7958, 56 Fed. Reg. 7414) (the "Exemption") which exempts 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 such 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 Exemption are satisfied.
The general conditions which must be satisfied for the Exemption by a
Plan of the Class A Certificates are the following:
(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 S&P, Moody's, Fitch Investors Service,
Inc.
or Duff & Phelps Credit Rating Co.;
(iv) the Trustee is not an affiliate of [Underwriters], the Depositor,
the Seller, the Servicer, the Certificate Insurer, any borrower whose
obligations under one or more Home Equity Loans constitute more than _% of the
aggregate unamortized principal balance of the assets in the Trust, or any of
their respective affiliates (the "Restricted Group");
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(v) the sum of all payments made to, and retained by, [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.
A fiduciary of a Plan considering whether to purchase any Class A Certificates
should individually determine that the Plan satisfied the conditions described
in clauses (i) and (vi) above. The Depositor believes that the Trust will
satisfy the conditions described in the other clauses above.
Section I.A of the Exemption 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 Exemption 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 Exemption, the following conditions
are satisfied: (i) such Plan is not sponsored by a member of the Restricted
Group; (ii) at least __% of the Class A Certificates is acquired by persons
independent of the Restricted Group and at least __% of the aggregate interest
in the Trust is acquired by persons independent of the Restricted Group; (iii)
the total investment of such Plan in the Class A Certificates does not exceed
__% of all the Class A Certificates outstanding at the time of the acquisition;
and (iv) immediately after such investment, no more than __% 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. A fiduciary intending to
cause a Plan to purchase any Class A Certificates to which the exemption
described in this paragraph is applicable should individually ascertain
satisfaction of the conditions described in clauses (i) and (iv) above.
Section I.C of the Exemption 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 Exemption, 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. The Depositor intends to
comply with the foregoing conditions.
Section I.D of the Exemption 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 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 Certificates.
Prospective Plan investors should consult with their legal advisors
concerning the impact of ERISA and the Code and the potential consequences to
their specific circumstances, prior to making an investment in the 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.
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RATINGS
It is a condition of the issuance of the Class A Certificates that the
Class A Certificates receive ratings of "AAA" by S&P and "Aaa" by Moody's. 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 and S&P, 25 Broadway, New York, New York 10004. Such
ratings will be the views only of such rating agencies. There is no assurance
that any 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 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-7IO
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-7IO 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-7IO 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" ratings received on the Class
A-7IO Certificates.
The "r" symbol is appended to the rating by Standard & Poor's of the
Class A-7IO 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 Certificates are expected to be rated "AAA" by
S&P and "Aaa" by Moody's, 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 Class A Certificates.]
The Class [A/A-6] 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, such Classes of 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
------------ ----------------
[Underwriters] $__________
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Class A-2 Certificates
Underwriters Principal Amount
[Underwriters] $__________
Class A-3 Certificates
Underwriters Principal Amount
[Underwriters] $__________
Class A-4 Certificates
Underwriters Principal Amount
[Underwriters] $__________
Class A-5 Certificates
Underwriters Principal Amount
[Underwriters] $__________
Class A-6 Certificates
Underwriters Principal Amount
[Underwriters] $__________
Class A-7IO Certificates
Underwriters Percentage Interest
[Underwriters] $__________
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.
REPORT OF EXPERTS
The financial statements of __________________________, for the year
ended ___________, 199_, appearing in Appendix B of this Prospectus Supplement,
have been audited by _______________, independent auditors, as set forth in
their report thereon appearing in Appendix B, and are included in reliance upon
such report given upon the authority of such firm as experts in accounting and
auditing.
The financial statements of __________________________ included in this
Prospectus Supplement in Appendix B, as of ___________, 199_ and 199_ and for
each of the years in the two year period then ended, have been included in
reliance upon the report of ________________________, independent certified
public accountants, appearing in Appendix B, upon the authority of such firm as
experts in accounting and auditing.
The report of ________________________ covering the ___________, 199_
and 199_ financial statements refers to changes, in 199_, in accounting methods
for multiple-year retrospectively rated reinsurance contracts, and for the
adoption of the provisions of the Financial Accounting Standards Board's
Statement of Financial Accounting Standards No. 113, "Accounting and Reporting
for Reinsurance of Short-Duration and Long-Duration Contracts" and No. 115,
"Accounting for Certain Investments in Debt and Equity Securities."
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CERTAIN LEGAL MATTERS
Certain legal matters relating to the validity of the issuance of the
Certificates will be passed upon for the Seller 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.
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ANNEX I
TO PROSPECTUS SUPPLEMENT
GLOBAL CLEARANCE, SETTLEMENT AND TAX DOCUMENTATION PROCEDURES
Except in certain limited circumstances, the globally offered
_______________ Home Equity Loan Trust 199__-__ 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 mortgage
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
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<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:
(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;
I-2
<PAGE>
(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 __% 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>
======================================== ===================================
No dealer, salesperson or other
person has been authorized to give any _______________ Home Equity
information or to make any Loan Trust 199__-__
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 Class A-1 Certificates
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 Class A-2 Certificates
Prospectus nor any sale made hereunder
shall, under any circumstances, create
any implication that information herein $----------
is correct as of any time subsequent to Class A-3 Certificates
the date hereof or that there has been
no change in the affairs of the
Depositor since such date. $----------
Class A-4 Certificates
----------
TABLE OF CONTENTS
Page $----------
PROSPECTUS SUPPLEMENT Class A-5 Certificates
Summary.............................S-1
Risk Factors.......................S-13
The Seller and Servicer............S-16 $----------
Use of Proceeds....................S-20 Class A-6 Adjustable Rate Certificates
The Depositor......................S-20
The Home Equity Loan Pool..........S-20
Prepayment and Yield
Considerations...................S-34
Formation of the Trust and Trust
Property...........................S-39
Additional Information.............S-39
Description of the Class A
Certificates.......................S-40
The Certificate Insurer............S-47
Credit Enhancement.................S-50
The Pooling and Servicing
Agreement........................S-52
Certain Federal Income Tax
Consequences.......................S-61 _______________ Home Equity Loan
ERISA Considerations...............S-62 Pass-Through Certificates, Series
Ratings............................S-64 199__-__
Legal Investment Considerations....S-64
Underwriting.......................S-64
Report of Experts..................S-65
Certain Legal Matters..............S-66
Global Clearance, Settlement and
Tax Documentation Procedures..Annex I
Index to Location of Principal
Defined Terms.....................A-1
Audited Financial Statements for
the Certificate Insurer...........B-1
Unaudited Financial Statements for
the Certificate Insurer...........C-1
PROSPECTUS
Summary of Prospectus.................1 -----------
Risk Factors..........................6 PROSPECTUS SUPPLEMENT
Description of the Certificates.......9 -----------
The Trusts...........................14
Credit Enhancement...................17
Servicing of the Home Equity
Loans and Contracts................21
Administration.......................27 [UNDERWRITERS]
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.......................49
Plan of Distribution.................73
Legal Matters........................73
Financial Information................73
Index to Location of Principal
Defined Terms.....................A-1
======================================= ===================================
<PAGE>
APPENDIX A
INDEX TO LOCATION OF PRINCIPAL
DEFINED TERMS
<TABLE>
<CAPTION>
Page Page
---- ----
<S> <C> <C> <C>
Accrual Period S-4 Mortgagor S-33
Actuarial Loans S-34 Net Liquidation Proceeds S-55
Adjustable Rate Certificates S-1 Net Monthly Excess Cashflow S-42
Appraised Values S-21 Notes S-2
Available Funds S-42 Original Pre-Funded Amount S-2
Available Funds Cap S-1 Owners S-2
Available Funds Shortfall S-41 Participants S-44
Balloon Loans S-16 Pass-Through Rate S-40
Beneficial Owners S-10 Payment Date S-4
Book-Entry Certificates S-44 Percentage Interest S-40
Business Day S-5 Plans S-61
Capitalized Interest Account S-10 Preference Amount S-7
Carry Forward Amount S-5 Pre-Funded Amount S-9
Cede S-10 Pre-Funding Account S-2
CEDEL S-10 Premium Amount S-41
CEDEL Participants S-45 Prepayment Assumption S-35
Certificate Account S-40 Prepayments S-13
Certificate Insurance Policy S-8 Preservation Expenses S-56
Certificate Insurer S-8 Principal and Interest Account S-54
Certificate Principal Balance S-35 Principal Distribution Amount S-6
Certificates S-2 Properties S-2
Citibank S-10 Qualified Replacement Mortgage S-54
Class S-1 Rating Agencies S-11
Class A Certificate Principal Balance S-35 Realized Loss S-51
Class A Certificates S-1 Record Date S-4
Class A Distribution Amount S-4 Reference Banks S-44
Class A-1 Certificates S-1 Register S-40
Class A-2 Certificates S-1 Registrar S-40
Class A-3 Certificates S-1 Relevant Depositary S-44
Class A-4 Certificates S-1 REMIC S-11
Class A-5 Certificates S-1 REMIC Opinion S-52
Class A-6 Certificates S-1 Remittance Period S-7
Class R Certificates S-2 Retained Yield S-3
Closing Date S-1 Riegle Act S-15
Code S-11 Rules S-44
Combined Loan-to-Value Ratios S-24 S&P S-11
Compensating Interest S-56 Seller S-1
Cooperative S-46 Servicing Advance S-56
Coupon Rates S-3 Servicing Fee S-7
Current Interest S-5 Six-Month LIBOR S-14
Cut-Off Date S-1 SMMEA S-12
Daily Collections S-55 Specified Subordinated Amount S-51
Date-of-Payment Loans S-33 Subordinate Certificates S-2
Definitive Certificate S-44 Subordinated Amount S-50
Delinquency Advances S-55 Subordination Deficit S-7
Depositor S-1 Subordination Increase Amount S-50
DOL S-62 Subordination Reduction Amount S-51
DTC S-10 Subsequent Cut-Off Date S-14
DTC Participants S-45 Subsequent Home Equity Loans S-2
ERISA S-61 Subsequent Transfer Agreement S-14
Euroclear S-10 Subsequent Transfer Date S-9
Euroclear Operator S-46 Substitution Amount S-54
Euroclear Participants S-45 Telerate Page 3750 S-44
European Depositaries S-10 Terms and Conditions S-46
Excess Subordinated Amount S-51 Total Available Funds S-42
FHLMC S-57 Total Monthly Excess Cashflow S-41
Final Certification S-54 Total Monthly Excess Spread S-50
Final Scheduled Payment Dates S-35 Trust S-39
Financial Intermediary S-44 Trust Estate S-39
Fixed Rate Certificates S-1 Trustee S-1
FNMA S-57 Underwriters S-64
FNMA Guide S-54 Weighted average life S-35
Funding Period S-9
Group 2
Home Equity Loan Group 2
Home Equity Loans S-20
Initial Certificate Principal Balance S-35
Initial Home Equity Loans S-2
Insured Payments S-8
LIBOR S-1
Liquidated Home Equity Loan S-7
Loan Balance S-53
Loan Purchase Price S-53
Loan-to-Value Ratios S-23
Maximum Collateral Amount S-10
Monthly Remittance Date S-7
Moody's S-11
Morgan S-10
Mortgages S-2
A-1
</TABLE>
<PAGE>
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
[Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This preliminary prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of any
such State.]
- --------------------------------------------------------------------------------
SUBJECT TO COMPLETION DATED __________ ___, 199_ VERSION 2
PROSPECTUS SUPPLEMENT
(To Prospectus Dated _________ __, 199_)
- --------------------------------------------------------------------------------
CTS TITLE I HOME IMPROVEMENT LOAN TRUST
$_______________ Class A Certificates
$_______________ Class S-A Interest Only Certificates
Pass-Through Certificates
Series 199__-__
CONTISECURITIES ASSET FUNDING CORP.
Depositor
- --------------------------------------------------------------------------------
The CTS Title I Home Improvement Loan Pass-Through Certificates, Series
199__-__ (the "Certificates") will consist of the Class A Certificates and the
Class S-A Certificates (collectively, the "Offered Certificates") and the Class
R Certificates.
Only the Offered Certificates are offered hereby.
[Guarantor Logo]
On or before the issuance of the Certificates, ContiSecurities Asset
Funding Corp. (the "Depositor") will obtain from _________________________ (the
"Certificate Insurer") a certificate guaranty insurance policy, relating to the
Offered Certificates (the "Policy") in favor of the Trustee. The Certificate
Insurance Policy will provide for 100% coverage of the principal amount of, and
scheduled interest due on, the Offered Certificates.
As more fully described herein, interest distributions on the Offered
Certificates will be based on the Certificate Principal Balance of the related
Class A Certificates or the aggregate outstanding principal amount of the
Mortgage loans (the "Notional Principal Balance") and the then applicable
Pass-Through Rate.
For a discussion of significant matters affecting investment in the
Certificates, see "Risk Factors"beginning on page S-14 herein, and beginning on
page 6 in the Prospectus.
(cover continued on next page)
- --------------------------------------------------------------------------------
THE OFFERED CERTIFICATES REPRESENT BENEFICIAL INTERESTS IN THE TRUST ONLY AND DO
NOT REPRESENT INTERESTS IN OR OBLIGATIONS OF CONTISECURITIES ASSET FUNDING
CORP., ANY ORIGINATORS OR ANY OF THEIR AFFILIATES. NEITHER THE OFFERED
CERTIFICATES NOR THE MORTGAGE 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. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
[THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON
OR ENDORSED THE MERITS OF THIS OFFERING. ANY
REPRESENTATION TO THE CONTRARY
IS UNLAWFUL.]
- --------------------------------------------------------------------------------
The Offered Certificates will be purchased by the Underwriters from the
Depositor and will be offered by the Underwriters from time to time to the
public in negotiated transactions or otherwise at varying prices to be
determined at the time of sale.
Proceeds to the Depositor will be approximately $____________ from the
sale of the Offered Certificates, before deducting expenses payable by the
Depositor estimated to be approximately $_______ in the aggregate.
The Offered Certificates are offered subject to prior sale, when, as,
and if accepted by the Underwriters and subject to the approval of certain legal
matters. It is expected that delivery of the Offered Certificates in book-entry
form will be made on or about ____________ ___, 199___ only through the Same Day
Funds Settlement System of The Depository Trust Company.
[UNDERWRITERS]
The date of this Prospectus Supplement is __________, 199__.
<PAGE>
(Cover continued from previous page)
The Certificates represent undivided ownership interests in a pool of
fixed-rate residential first and junior lien home improvement mortgage loans
(the "Mortgage Loans") partially insured by the Federal Housing Administration
(the "FHA") of the United States Department of Housing and Urban Development
under Title I of the National Housing Act of 1934, all monies due thereunder
after ____________ __, 199__ (the "Cut-Off Date"), security interests in the
properties which secure the Mortgage Loans (the "Mortgaged Properties"), a
certificate guaranty insurance policy and certain other property. The Mortgage
Loans will be held in the CTS Title I Home Improvement Loan Trust 199___-___
(the "Trust"). The Trust will be created pursuant to a Pooling and Servicing
Agreement dated as of ______________ __, 199__ (the "Agreement") among the
Depositor in its capacity as sponsor of the Trust, ContiTrade Services
Corporation (the "Company"), ___________________, in its capacity as the master
servicer and claims administrator of the Mortgage Loans (the "Master Servicer"
and "Claims Administrator"), and _______________________________, in its
capacity as Trustee (the "Trustee"). On or prior to the Closing Date, the
Company will cause the Mortgage Loans to be acquired from Originators, as
described herein. The obligations of the Depositor with respect to the
Certificates will be limited to its respective contractual obligations under the
Agreement.
Distributions of interest will be made to holders (the "Owners") of the
Certificates on the ___th day of each month, (or, if such day is not a business
day, the next following business day) beginning __________ __, 199__. Interest
will be passed through on each Distribution Date to the Owners of the Class A
Certificates based on the Class A Certificate Principal Balance (as defined
herein) at the pass-through rate thereon (the "Class A Pass-Through Rate") and
to the Owners of the Class S-A Certificates based on the Notional Principal
Balance (as defined herein) at the pass-through rate thereon (the "Class S-A
Pass-Through Rate") and principal will also be passed through to the Owners of
the Class A Certificates on each Distribution Date as described herein. The
final scheduled Distribution Date of the Offered Certificates will be __________
20, _____. The Class S-A Certificates are interest-only Certificates. The yield
to investors on the Class S-A Certificates will be extremely sensitive to the
rate and timing of principal payments (including prepayments, repurchases,
defaults and liquidations) on the Mortgage Loans, which may vary over time. A
rapid rate of principal payments (including prepayments, repurchases, defaults
and liquidations) on the Mortgage Loans could result in the failure of investors
in the Class S-A Certificates to recover their initial investments. See "Summary
- - Nature of Class S-A Certificates," "Certain Yield, Prepayment and Weighted
Average Life Considerations" herein and "Risk Factors" and "Yield, Prepayment
and Maturity Considerations" in the Prospectus.
It is a condition to issuance of the Offered Certificates that the
Offered Certificates be rated "Aaa" by Moody's Investor Service and "AAA" by
Standard & Poors.
An election will be made to treat the Trust as a real estate mortgage
investment conduit (a "REMIC") for federal income tax purposes. As described
more fully herein, each Class of Offered Certificates will constitute "regular
interests" in the REMIC. See "Certain Federal Income Tax Consequences" in the
Prospectus.
Prior to their issuance there has been no market for the Offered
Certificates nor can there be any assurance that one will develop, or if it does
develop, that it will provide the Owners of the Offered Certificates with
liquidity or will continue for the life of the Offered Certificates. The
Underwriters intend, but are not obligated, to make a market in the Offered
Certificates.
[IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE OFFERED
CERTIFICATES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.]
UNTIL __________, 199___, ALL DEALERS EFFECTING TRANSACTIONS IN THE
OFFERED 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 Company pursuant to its
Prospectus dated ____________ __, 199__ 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.
AVAILABLE INFORMATION
The Depositor has filed with the Securities and Exchange 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 Northwestern Atrium 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.
REPORTS TO CERTIFICATEHOLDERS
The Trustee will mail monthly reports concerning the Offered
Certificates to all registered Owners.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page Page
<S> <C> <C> <C>
USE OF PROCEEDS................................S-14
SUMMARY .......................................S-1 THE DEPOSITOR..................................S-14
RISK FACTORS...................................S-13 THE TITLE I LOAN PROGRAM AND THE
USE OF PROCEEDS................................S-14 CONTRACT OF INSURANCE.................S-14
THE DEPOSITOR..................................S-14 THE ORIGINATORS................................S-15
THE TITLE I LOAN PROGRAM AND THE THE MASTER SERVICER AND CLAIMS
CONTRACT OF INSURANCE.................S-14 ADMINISTRATOR.........................S-15
THE ORIGINATORS................................S-15 THE TRUSTEE AND CONTRACT OF
THE MASTER SERVICER AND CLAIMS INSURANCE HOLDER......................S-15
ADMINISTRATOR.........................S-15 THE MORTGAGE LOAN POOL.........................S-16
THE TRUSTEE AND CONTRACT OF PREPAYMENT AND YIELD CONSIDERATIONS............S-19
INSURANCE HOLDER......................S-15 ADDITIONAL INFORMATION.........................S-22
THE MORTGAGE LOAN POOL.........................S-16 DESCRIPTION OF THE OFFERED
PREPAYMENT AND YIELD CONSIDERATIONS............S-19 CERTIFICATES..........................S-22
ADDITIONAL INFORMATION.........................S-22 THE POLICY.....................................S-26
DESCRIPTION OF THE OFFERED THE CERTIFICATE INSURER........................S-28
CERTIFICATES..........................S-22 OVERCOLLATERALIZATION PROVISIONS...............S-29
THE POLICY.....................................S-26 THE POOLING AND SERVICING AGREEMENT............S-30
THE CERTIFICATE INSURER........................S-28 CERTAIN FEDERAL INCOME TAX
OVERCOLLATERALIZATION PROVISIONS...............S-29 CONSEQUENCES..........................S-39
THE POOLING AND SERVICING AGREEMENT............S-30 ERISA CONSIDERATIONS...........................S-40
CERTAIN FEDERAL INCOME TAX RATINGS ......................................S-42
CONSEQUENCES..........................S-39 LEGAL INVESTMENT CONSIDERATIONS................S-42
ERISA CONSIDERATIONS...........................S-40 UNDERWRITING...................................S-42
RATINGS ......................................S-42 REPORT OF EXPERTS..............................S-42
LEGAL INVESTMENT CONSIDERATIONS................S-42 CERTAIN LEGAL MATTERS..........................S-43
UNDERWRITING...................................S-42
REPORT OF EXPERTS..............................S-42 APPENDIX A INDEX OF PRINCIPAL DEFINED
CERTAIN LEGAL MATTERS..........................S-43 TERMS
SUMMARY .......................................S-1 APPENDIX B AUDITED FINANCIAL STATEMENTS
RISK FACTORS...................................S-13 OF THE CERTIFICATE INSURER
APPENDIX C SPECIMEN OF THE POLICY
</TABLE>
<PAGE>
SUMMARY
The following 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 the definitions of certain capitalized terms.
Issuer............................. CTS Title I Home Improvement Loan Trust,
Series 199__-__ (the "Trust").
Certificates Offered............... CTS Title I Home Improvement Loan
Certificates, Series 199__-__, Class A
Certificates (the "Class A Certificates")
and Class S-A Interest-Only Certificates
(the "Class S-A Certificates" and
collectively with the Class A Certificates
the "Offered Certificates").
Depositor......................... ContiSecurities Asset Funding Corp. (the
"Depositor"), a Delaware corporation,
having its principal executive offices at
277 Park Avenue, 38th Floor, New York, New
York 10172.
Trustee........................... ____________________, a __________ banking
corporation having its principal corporate
trust offices at ____________________.
Master Servicer and
Claims Administrator............ ________________________, a
_______________ corporation having its
principal executive offices at
______________________________.
The Originators................... Each of the Mortgage Loans to be acquired
by the Trust from the Depositor were
acquired directly or indirectly by the
Depositor from ContiTrade Services L.L.C.
(the "Company") which previously acquired
the Mortgage Loans from the entity that
either originated or acquired such
Mortgage Loans (each such entity an
"Originator"). Each Mortgage Loan has been
re-underwritten by the Depositor or an
entity engaged by the Depositor for the
purpose of determining whether each such
Mortgage Loan was originated in accordance
with the FHA Title I home improvement loan
program by an Originator approved for such
program by the United States Department of
Housing and Urban Development ("HUD") and
holding a valid Title I contract of
insurance.
Cut-Off Date...................... _______________ __, 199__.
Closing Date...................... _______________ __, 199___.
Description of the Certificates... The Pass-Through Certificates consist of
the Offered Certificates and the Class R
Certificates. The Certificates will be
issued pursuant to a pooling and servicing
agreement to be dated __________, 199__
(the "Agreement"), among the Depositor,
the Company, the Master Servicer and
Claims Administrator and the Trustee. Only
the Offered Certificates are offered
hereby.
.................................. The Offered Certificates represent
fractional undivided ownership interests
in the Trust, having the rights described
in the Agreement. The Trust
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assets will include a pool of fixed rate
residential first and junior lien home
improvement mortgage loans (the "Mortgage
Loans") partially insured by the Federal
Housing Administration (the "FHA") of the
Department of Housing and Urban
Development ("HUD") under Title I of the
National Housing Act of 1934 (the "Title I
Program"), all monies due thereunder after
the Cut-Off Date, security interests in
the properties which secure the Mortgage
Loans (the "Mortgaged Properties"), the
Policy and certain other property.
.................................. The final scheduled Distribution Date on
the Offered Certificates is ____________
__,____, although it is expected that the
actual final Distribution Date for the
Offered Certificates will occur
significantly earlier than the final
scheduled Distribution Date. See
"Prepayment and Yield Considerations"
herein.
Original Class A Certificate
Principal Balance............... $__________.
Original Class S-A Notional
Principal Balance............... $__________.
Class A Pass-Through Rate......... ___% per annum.
Class S-A Pass-Through Rate....... ___% per annum.
Denominations..................... The Class A Certificates are issuable in
denominations of original principal
amounts of $__________ and integral
multiples thereof. The Class S-A
Certificates will be issued in [book entry
fully registered, definitive form] in
percentage interests of ownership of such
class of not less than ---%.
The Mortgage Loans................ Unless otherwise noted, all references to
the dollar amount of the Mortgage Loans
and the related statistical percentages in
this Prospectus Supplement are based on
the principal balances of the Mortgage
Loans as of the close of business on the
Cut-Off Date.
The Mortgage Loans to be conveyed to the
Trust consist of ________ mortgages or
deeds of trust (the "Mortgages") and the
related notes and retail installment sales
contracts (the "Notes") on residences
(which may be condominiums, townhouses,
homes in one-to-four-family and multi-
family residences or manufactured homes
which have permanent foundations and
qualify as real property), including
investment properties, located in ____
states, and having an original Aggregate
Principal Balance of $______________. The
Mortgage Loans are not insured by primary
mortgage insurance policies, nor does any
pool insurance insure the Mortgage Loans;
however, the Mortgage Loans are partially
insured under the FHA Title I Program. See
"The Title I Loan Program and the Contract
of Insurance" herein. The Mortgage Loans
are not guaranteed by the Depositor, the
Company or any affiliate thereof. The
Agreement requires the Master Servicer to
service the Mortgage Loans in accordance
with the standards and procedures required
by the FHA under the Title I
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Program. [Each Originator may act as
sub-servicer of the Mortgage Loans that
they originate.] The FHA Title I insurance
claims administration will be performed by
the Claims Administrator.
Class A Distributions............. On the ___th day of each month, or if such
a day is not a Business Day, then the next
succeeding Business Day, commencing
______________ __, 199__ (each such day
being a "Distribution Date"), the Trustee
will be required to distribute out of the
Amount Available (as defined below), pro
rata to the Owners of the Class A
Certificates of record as of the last day
of the calendar month immediately
preceding the calendar month in which such
Distribution Date occurs (the "Record
Date"), the sum of (a) the Class A
Interest Distribution (as defined below)
and (b) the Class A Guaranteed Principal
Distribution Amount (as defined below),
and (c) to the extent of the Distribution
Amount (as defined below), the Class A
Monthly Principal Distributable Amount (as
defined below) in excess of any amounts
described in clause (b) above.
.................................. Interest
.................................. "Class A Interest Distribution" means,
with respect to any Distribution Date, the
sum of (a) the "Class A Monthly Interest
Distributable Amount" (i.e., 30 days
interest at the Pass-Through Rate on the
Class A Certificate Balance as of the
close of business on the preceding
Distribution Date (or, in the case of the
first Distribution Date, on the Closing
Date)) and (b) any Class A Interest
Carryover Shortfall (i.e., the excess of
the Class A Monthly Interest Distributable
Amount for the preceding Distribution Date
and any outstanding Class A Interest
Carryover Shortfall on such preceding
Distribution Date, over the amount in
respect of interest that was actually
distributed to the Class A
Certificateholders on such preceding
Distribution Date, plus interest on such
excess, to the extent permitted by law, at
the Pass-Through Rate from such preceding
Distribution Date through the current
Distribution Date).
.................................. Principal
"Class A Guaranteed Principal Distribution
Amount" means, with respect to any
Distribution Date, the positive excess, if
any, of (i) the aggregate of the
Outstanding Class A Certificate Balances
of all Outstanding Class A Certificates as
of such Distribution Date (taking into
account distributions of the Class A
Principal Distribution on such
Distribution Date) over (ii) the aggregate
of the Class A Guaranteed Certificate
Balance (as defined below) as of such
Distribution Date. "Class A Monthly
Principal Distributable Amount" means,
with respect to any Distribution Date, the
amount equal to the sum of the following
amounts (without duplication) with respect
to the immediately preceding Due Period
(as defined below): (i) that portion of
all Mortgage Payments allocable to
principal, including all full and partial
principal prepayments (excluding such
amounts in respect of Mortgage Loans
included in clause (ii) for a prior
Distribution Date), (ii) the Principal
Balance of all Mortgage Loans that became
Defaulted Mortgage Loans during the
related Due Period, (iii) the portion of
the Purchase Amount allocable to principal
of all Mortgage
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<PAGE>
Loans that became Purchased Mortgage Loans
as of the immediately preceding Monthly
Cut-Off Date excluding such amounts in
respect ofMortgage Loans included in
clause (ii) for a prior Distribution Date
and, in the sole discretion of the
Certificate Insurer, the Principal Balance
as of the immediately preceding Monthly
Cut-Off Date of all Mortgage Loans that
were required to be purchased or
repurchased as of the immediately
preceding Monthly Cut-Off Date pursuant to
the Servicing Agreement but were not so
purchased, (iv) the aggregate amount of
Cram Down Losses (as defined herein) that
shall have occurred during the related Due
Period, (v) the amount of Distributable
Excess Spread (as defined below) in
respect of such Distribution Date and (vi)
amounts, if any, delivered by the
Certificate Insurer to the Trustee for
deposit in the Certificate Account and
distribution in respect of the Class A
Certificates in accordance with the
Insurance Agreement; provided, however,
that if with respect to any Distribution
Date, Distributable Excess Spread is zero,
the Class A Monthly Principal
Distributable Amount shall equal such
portion of the sum of the amounts included
in clauses (i) through (iv) above such
that following distribution in reduction
of the Aggregate Class A Certificate
Balance the Required OC Test (as defined
herein) would be satisfied.
"Class A Guaranteed Certificate Balance"
means, with respect to any outstanding
Class A Certificate as of any date of
determination, the hypothetical Class A
Certificate Balance equal to the initial
Class A Certificate Balance of such Class
A Certificate set forth on the face
thereof, reduced by the pro rata portion
allocable to such Class A Certificate of
the aggregate of the Class A Minimum
Principal Distributable Amounts with
respect to all Distribution Dates on or
prior to such date of determination.
Distributions to the Class A
Certificateholders of Distributable Excess
Spread will result in acceleration of
principal payments to the Owners of the
Class A Certificates and reduce the
weighted average life of the Class A
Certificates to a lesser number than would
be the case if such Distributable Excess
Spread were instead distributed to the
Class R Certificateholders. See
"Overcollateralization Provisions" and
"Prepayment and Yield Considerations"
herein.
"Class A Minimum Principal Distributable
Amount" means, with respect to any
Distribution Date, the amount set forth on
the schedule to the Agreement for such
Distribution Date.
"Due Period" means, with respect to any
Distribution Date, the calendar month
immediately preceding such Distribution
Date.
"Excess Spread" means, with respect to any
Distribution Date, the positive excess, if
any, of (x) the aggregate amount of the
Mortgage Payments (or amounts deposited by
Depositor if it elects to acquire the
Mortgage Loans at the time the outstanding
balance of the Mortgage Loans is less than
10% of the Initial Principal Balance with
respect to the related Due Period) over
(y) the sum of (A) the amount required to
be distributed pursuant to priorities (i)
through (vii) set forth under the heading
"Description of
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<PAGE>
Offered Certificates - Distributions"
herein on such Distribution Date plus (B)
the sum of any outstanding Class A
Principal Carryover Shortfall as of the
close of the preceding Distribution Date
plus (C) the sum of the amounts described
in clauses (i) through (iv) of the
definition of Class A Monthly Principal
Distributable Amount (as set forth above)
for such Distribution Date.
"Distributable Excess Spread" means with
respect to any Distribution Date, such
portion (not greater than 100%) of Excess
Spread with respect to such Distribution
Date, which, if distributed in accordance
with clause (v) of the definition of Class
A Monthly Principal Amount, would cause
the Required OC Test (as defined under the
caption "Overcollateralization
Provisions") to be satisfied with respect
to such Distribution Date, after giving
effect to all distributions on such
Distribution Date, provided, however, that
if the Required OC Multiple (as defined
herein) is unlimited, Distributable Excess
Spread shall equal 100% of Excess Spread;
provided, further, that so long as an
Insurer Default (as defined in the
Agreement) shall not have occurred and be
continuing, Distributable Excess Spread
may, in the discretion of the Certificate
Insurer with respect to any Distribution
Date with respect to which the Required OC
Multiple is greater than 100%, be a
portion of Excess Spread which is less
than would otherwise be determinable
pursuant to this definition but which is
not less than the portion of Excess Spread
that would be determinable pursuant to
this definition if the Required OC
Multiple were equal to 100%.
"Cram Down Loss" means with respect to a
Mortgage Loan, if a court of appropriate
jurisdiction in an insolvency proceeding
shall have issued an order reducing the
Principal Balance of such Mortgage Loan,
the amount of such reduction. A "Cram Down
Loss" shall be deemed to have occurred on
the date of issuance of such order.
Class S-A Distributions........... The Class S-A Certificates are
interest-only certificates which will not
be entitled to any distribution of
principal, but will be entitled to
interest on the "Notional Principal
Balance," which is equal to the aggregate
outstanding principal balance, from time
to time, of the Mortgage Loans. The
interest due with respect to the Class S-A
Certificate will be the interest which has
accrued thereon at the Class S-A
Pass-Through Rate during the calendar
month in which such Distribution Date
occurs (the "Class S-A Interest
Distribution"). See "Description of the
Offered Certificates - The Class S-A
Distributions" and "Prepayment and Yield
Considerations-- Yield Sensitivity of the
Class S-A Certificates."
The Certificate Insurer does not directly
or indirectly guarantee any specified rate
of prepayments, nor does it guarantee a
Certificateholder's investment in the
Class S-A Certificates that might be
adversely affected by such prepayments.
All calculations of interest on the
Offered Certificates will be made on the
basis of a 360-day year assumed to consist
of twelve 30-day months.
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<PAGE>
Credit Enhancement................ The Credit Enhancement provided for the
benefit of the Owners of the Offered
Certificates consists of (x) FHA Title I
insurance, (y) the overcollateralization
mechanics which utilize the internal cash
flows of the Trust and (z) the Policy.
FHA Insurance Program and Contract of
Insurance: The insurance provided by the
FHA pursuant to the Title I Program (the
"FHA Insurance") available to the Claims
Administrator is limited to an amount (the
"FHA Insurance Amount") currently equal to
___% of the outstanding principal balance
as of the Cut-Off Date of all Title I
loans originated or purchased and
currently reported for FHA Insurance by
the Contract of Insurance Holder, less the
sum of (i) annual reductions (the "Annual
Reductions") of 10% of the then
outstanding FHA Insurance amount available
to the Contract of Insurance Holder,
commencing October 1, _____ (the October
following the fifth year in which the
Contract of Insurance Holder's contract of
insurance has been in effect); provided,
however, that in no case shall the amount
of FHA Insurance be reduced below $50,000,
and (ii) insurance claims previously paid
to the Contract of Insurance Holder by the
FHA, including payments in respect of
loans other than the Mortgage Loans; and
increased by an amount equal to 10% of the
lesser of the original principal balance
of or the purchase price paid for Title I
loans subsequently originated or purchased
and owned of record by the Contract of
Insurance Holder. Such amount of insurance
is reflected in an insurance reserve
account maintained by FHA in the name of
the Contract of Insurance Holder. See "The
Title I Loan Program - FHA Insurance" in
the Prospectus.
The Contract of Insurance Holder will be
the Trustee for the benefit of the Trust
and for the benefit of all past and
subsequent series of trusts to which loans
are sold by the Seller (the "Related
Series Trusts"). The Secretary of HUD will
not earmark the insurance reserves held
for the Trustee for the benefit of any
particular trust held by the Trustee,
although the Trustee has agreed not to
hold other Title I Mortgage Loans that
would be qualified for Title I insurance
coverage other than mortgage loans
included in Related Series Trusts (the
"Related Series Mortgage Loans").
Subject to the then remaining FHA
Insurance Amount each Mortgage Loan will
be insured by the FHA in an amount
currently equal to 90% of the sum of the
following: (i) the unpaid principal and
uncollected interest earned to the date of
default, calculated on the actuarial
method, reduced by certain amounts
received by the Contract of Insurance
Holder in connection with enforcing a lien
on the Mortgaged Property prior to the
lien of the related Mortgage Loan; (ii)
the unpaid amount of interest on the
unpaid principal from the date of default
to the date of the claim's initial
submission to the FHA for payment plus 15
calendar days, but not for any period
greater than nine months from the date of
default, calculated at 7% per annum; and
(iii) the amount of certain uncollected
court costs, attorneys' fees, and expenses
for recording the assignment of the
related Mortgage Loan to the United States
of America. See "The Title I Loan Program
- General" in the Prospectus. Since the
adequacy of the FHA Insurance Amount is
dependent upon future events, including
Annual
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<PAGE>
Reductions and reductions for the payment
of claims, no assurance can be given that
the FHA Insurance Amount is or will be
adequate to cover 90% of all potential
losses on the Mortgage Loans.
On the Closing Date, the Trustee will hold
for the benefit of the Trust the FHA
Contract of Insurance relating to some of
but not all the Mortgage Loans. With
respect to those Mortgage Loans that are
not covered by the Trustee's Contract of
Insurance on the Closing Date, each of the
related Originators will be required to
cause the related reserve accounts
maintained by FHA to be transferred on the
FHA's books from the related Originator's
contract of insurance to the Trustee's
Contract of Insurance. To accomplish this
transfer, on or after the date on which
the Originators receive the FHA Title I
Case Numbers for the Mortgage Loans, the
Originators will be required to submit a
sale report to the FHA regarding the
conveyance of the Mortgage Loans to the
Trustee. If the Insurance Reserves
relating to any Mortgage Loans have not be
transferred to the Contract of Insurance
on or before 120 days following the
Closing Date, the Depositor will be
required to repurchase such Mortgage
Loans.
If a Mortgage Loan is assigned to the
Claims Administrator for submission to the
FHA, the Claims Administrator will be
required to submit a claim with respect to
such Mortgage Loan to the FHA. The Owners
of the Certificates will not have any
direct right to receive the FHA Insurance
proceeds from the FHA. All FHA Insurance
Proceeds received in respect of such FHA
Claims shall be deposited into the
Collection Account.
FHA Insurance Premium Account: A separate
account (the "FHA Premium Account") shall
be established by the Trustee into which
an initial deposit of $_______ (the
"Initial FHA Premium Account Deposit")
shall be made on the Closing Date. No
later than the Business Day following each
Determination Date, the Trustee will
deposit into the FHA Premium Account FHA
insurance premiums received from
Mortgagors on Invoiced Mortgage Loans. The
Trustee will also deposit into the FHA
Premium Account, to the extent of the
Distribution Amount Available, an amount
equal to the greater of (i) ___% of the
aggregate principal balance of each
outstanding Mortgage Loan, other than
Invoiced Mortgage Loans (as defined
below), divided by 12 and (ii) the
positive excess, if any, of (A) the amount
of premium and other charges due under the
Contract of Insurance for the next
succeeding Due Period and (B) the balance
in the FHA Premium Account as of the
related Determination Date (the "FHA
Premium Account Deposit"). "Invoiced
Mortgage Loans" are Mortgage Loans with
respect to which the related Mortgagee is
required to pay the premium on FHA
Insurance with respect to such Mortgage
Loan.
Overcollateralization: Distributions to
the Class A Certificateholders of
Distributable Excess Spread will result in
a limited acceleration of the payment of
the Class A Certificates relative to the
amortization of the principal of the
related Mortgage Loans in the early months
of the transaction and
overcollateralization of the Class A
Certificates. Once the required level of
overcollateralization is reached, and
subject to the provisions described in the
next paragraph, the acceleration feature
will
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<PAGE>
cease, unless necessary to maintain the
required level of overcollateralization.
The Agreement provides that, subject to
certain floors, caps and triggers, the
required level of overcollateralization
(the "Required OC Test," as defined
herein) may increase or decrease over
time. An increase would cause a temporary
period of accelerated amortization of the
Class A Certificates until the actual
level of overcollateralization reached its
required level; whereas, a decrease would
cause a temporary period of decelerated
amortization to reduce the actual level of
overcollateralization to its required
level. See "Overcollateralization
Provisions" herein.
The Policy:
___________________________________ (the
"Certificate Insurer") will issue a
certificate guaranty insurance policy (the
"Policy") pursuant to which it will
irrevocably and unconditionally guarantee
payment on each Distribution Date to the
Trustee for the benefit of the Owners of
the Offered Certificates of the Class A
Interest Distribution and the Class S-A
Interest Distribution for such
Distribution Date and the Class A
Guaranteed Principal Distribution Amount
for such Distribution Date. So long as (i)
there does not exist a continuing failure
by the Certificate Insurer to make a
required payment under the Policy and (ii)
certain bankruptcy related events
specified in the Agreement have not
occurred in respect of the Certificate
Insurer (any of the events described in
these clauses (i) and (ii), a "Certificate
Insurer Default"), the Certificate Insurer
shall have the exclusive right to exercise
certain rights under the Agreement, such
as the right to remove the Master Servicer
upon the occurrence of certain Servicer
Termination Events specified in the
Agreement and to appoint a successor
thereto. In addition, to the extent of
unreimbursed payments under the Policy
("Insurance Payments"), the Certificate
Insurer will be subrogated to the rights
of the holders of the Offered Certificates
with respect to which such Insurance
Payments were made. In connection with
each Insurance Payment on an Offered
Certificate, the Trustee as
attorney-in-fact for the holder thereof
will be required to assign to the
Certificate Insurer the rights of such
holders with respect to the Offered
Certificates, to the extent of such
Insurance Payment, including, without
limitation, in respect of any amounts due
to such holders as a result of any
securities law violation arising from the
offer and sale of such Offered
Certificate. Payments to the Certificate
Insurer in respect of such assignment
shall be subject to and subordinate to the
rights of the Holders to receive
Guaranteed Distributions with respect to
the Certificate. See "The Policy" herein.
The Certificate Insurer: The Certificate
Insurer is a New York monoline insurance
company engaged exclusively in the
business of writing financial guaranty
insurance, principally in respect of
securities offered in domestic and foreign
markets. The Certificate Insurer's claims
paying ability is rated Aaa by Moody's
Investors Service, Inc. ("Moody's") and
"AAA" by Standard and Poor's Rating Group,
a division of McGraw Hill ("S&P"). See
"The Certificate Insurer" herein.
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<PAGE>
Nature of Class S-A Certificates... General Character as an Interest-Only
Security. The Owners of the Class S-A
Certificateholders will be entitled to
receive monthly distributions equal to
one-month's interest at the Class S-A
Pass-Through Rate on the Notional
Principal Amount then outstanding. The
Owners of the Class S-A Certificates will
not be entitled to receive any
distributions of principal collected on
the Mortgage Loans. Because they will not
receive any distributions of principal,
the Owners of the Class S-A Certificates
will be affected by prepayments,
liquidations and other dispositions of the
Mortgage Loans to a greater degree than
will the Owners of the Class A
Certificates. As an extreme illustration,
in the event that the entire Mortgage Pool
prepays in full during the first month,
then on the initial Distribution Date the
Owners of the Class A Certificates will
receive the full par value of their
Certificates while the Owners of the Class
S-A Certificates will suffer nearly a
complete loss (except for one month's
interest) on their investment. Because,
however, the Mortgage Pool contains
approximately _____ Mortgage Loans, the
prepayment experience of any one Mortgage
Loan is not expected to be material to an
investor's overall return.
In general, liquidations due to losses,
repurchases by the Company and other
dispositions of Mortgage Loans from the
Trust will have the same effect on the
Owners of the Class S-A Certificates as do
prepayments of principal, and are
collectively referred to as "Prepayments."
Because the yield to the Class S-A
Certificateholders is sensitive to certain
constant rates of prepayment, it is
advisable for potential investors in the
Class S-A 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
Mortgage Loans will increase as borrowers
seek to refinance at lower rates. This
will have the effect of reducing the
future stream of payments on an
interest-only security based on such
receivables pool, thus adversely affecting
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
yield. See "Risk Factors - Prepayment
Consideration" in the Prospectus for other
factors which may also influence
prepayment rates.
Applicability of Credit Enhancement to the
Class S-A Certificates. The
overcollateralization/subordination
feature of the Trust includes provisions
which subordinate the Class R Certificates
for each Distribution Date for the
purpose, inter alia, of funding the full
amounts due on each Class of Offered
Certificates, including the Class S-A
Certificates, on each Distribution Date.
The Policy will provide for the funding of
an amount equal to the Insured
Distribution Amount due on the Offered
Certificates.
In general, the protection afforded by the
overcollateralization/subordination
feature and by the Policy is for credit
risk and not for
S-9
<PAGE>
prepayment risk. The
overcollateralization/subordination
feature does not, nor may a claim be made
under the Policy to, guarantee or insure
that any particular rate of prepayment is
experienced by the Trust. If the entire
pool were to prepay in the initial month,
with the result that the Owners of the
Class S-A 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/subordination
feature or from the Policy to mitigate
such loss.
Accrual of "Original Issue Discount." The
Class S-A Certificates may 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 S-A Certificates to
accrue original issue discount at a rate
in excess of the rate at which
distributions are received by such
Certificateholders. See "Certain Federal
Income Tax Consequences" herein and in the
Prospectus.
Monthly Servicing Fees............ The Master Servicer will retain a fee
equal to ___% per annum for Master
Servicer and Claims Administration duties
(the "Master Servicing Fee") and each
subservicer will retain a fee equal to
_____% per annum (the "Servicing Fees"),
in each case payable monthly at
one-twelfth the annual rate, of the
principal amount of each Mortgage Loan
outstanding as of the close of business on
the last day of the second preceding month
serviced pursuant to the related servicing
agreement as of the first day of each
calendar month.
Advances.......................... The Master Servicer will be obligated to
make advances ("Delinquency Advances")
with respect to delinquent payments of
interest (at the related Coupon Rate less
the Servicing Fee Rate, as defined below)
and scheduled principal due on each
Mortgage Loan to the extent that such
Delinquency Advances are recoverable from
(i) future collections on the Mortgage
Loan which gave rise to the Delinquency
Advance, (ii) Liquidation Proceeds for
such Mortgage Loans, and (iii) from
certain excess moneys which would
otherwise be paid to the Owners of the
Class R Certificates.
The Master Servicer will also be required
to advance certain amounts in respect of
foreclosure expenses that the Master
Servicer determines in its good faith
judgment are recoverable from liquidation
proceeds. Foreclosure Advances are
recoverable from all related Mortgage
Payments.
Book-Entry Registration of the
Offered Certificates............ The Offered Certificates initially will be
represented by physical certificates
registered in the name of Cede & Co.
("Cede"), as the nominee of The Depository
Trust Company ("DTC"). No person acquiring
an interest in the Offered Certificates (a
"Beneficial Owner") will be entitled to
receive a definitive certificate
representing such person's interest in the
Trust, except in the event that Physical
Certificates are issued under certain
limited circumstances. For each Offered
Certificate held by DTC, DTC will effect
payments to, and transfers of such Offered
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<PAGE>
Certificates among, Beneficial Owners by
means of its electronic record keeping
services, acting through organizations
that participate in DTC. This arrangement
may result in certain delays in receipt of
distributions by Beneficial Owners and may
restrict a Beneficial Owner's ability to
pledge the Offered Certificates
beneficially owned by it. All references
herein to the Owners of Offered
Certificates shall mean and include the
rights of Beneficial Owners, as such
rights may be exercised through DTC and
its participating organizations. See
"Description of the Offered Certificates -
Book Entry Registration of the Class A
Certificates" herein and "Description of
the Certificates - Book Entry
Registration" in the Prospectus.
Optional Termination.............. On any Distribution Date on or after the
date on which the aggregate Principal
Balance of the Mortgage Loans remaining in
the Trust is less than 10% of the
aggregate Principal Balance of the
Mortgage Loans as of the Cut-Off Date, the
Depositor will have the option, subject to
certain conditions set forth in the
Agreement, to purchase all, but not less
than all, the remaining Mortgage Loans at
the purchase price described herein. The
payment of such purchase price will result
in the retirement of the then outstanding
Certificates.
Ratings........................... It is a condition of the original issuance
of the Offered Certificates that the
Offered Certificates receive ratings of
AAA by S&P, and Aaa by Moody's. 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
"Ratings" herein.
Ratings of the Class S-A Certificates. The
Class S-A Certificates will, upon initial
issuance, receive ratings of "AAA" by S&P
and of "Aaa" by Moody's. Ratings which are
assigned to securities such as the Class
S-A Certificates generally evaluate the
ability of the issuer (i.e., the Trust)
and any guarantor (i.e., the Certificate
Insurer) to make timely payments when such
payments are due, as required by such
securities. As described above, such
amounts with respect to the Class S-A
Certificates consist only of interest. In
general, the ratings thus address credit
risk and not prepayment risk. See
"Ratings" herein.
Federal Tax Aspects............... For Federal income tax purposes an
election will be made to treat the Trust
as a "real estate mortgage investment
conduit" (a "REMIC"). Each Class of
Offered Certificates will be designated as
"regular interests" in the related REMIC
and will be treated as debt instruments of
the Trust for federal income tax purposes.
The REMIC will issue the Class R
Certificates, which will be designated as
the sole class of "residual interests" in
the REMIC. See "Certain Federal Income Tax
Consequences" herein and in the
Prospectus.
[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.]
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<PAGE>
Risk Factors....................... Credit Considerations. For information
with regard to the Mortgage Loans and
their related risks, see "The Mortgage
Loan Pool" herein.
Prepayment Considerations. For information
regarding the consequences of prepayments,
particularly for Owners of the Class S-A
Certificates, see "Prepayment and Yield
Considerations" herein.
Other. For a discussion of certain risk
factors that should be considered by
prospective investors in the Offered
Certificates, see "Risk Factors" herein
and in the Prospectus.
Legal Investment
Considerations.................. Although the Offered Certificates are
expected to be rated "AAA" by S&P and
"Aaa" by Moody's, the Offered Certificates
will not constitute "mortgage related
securities" for purposes of the Secondary
Mortgage Market Enhancement Act of 1984
("SMMEA") because the Mortgage Loans
include junior 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
Offered Certificates.
Certain 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. 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
____________________, _______________.
Certain legal matters relating to the
Certificate Insurer and the Policy will be
passed upon for the Insurer by
____________________.
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<PAGE>
RISK FACTORS
Prospective investors in the Offered 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 Offered
Certificates.
Nature of Collateral. Because a substantial amount of the Mortgage
Loans are secured by junior liens subordinate to the rights of the mortgagee(s)
or beneficiary under the related senior mortgages or deeds of trust, the
proceeds from any liquidation, insurance or condemnation proceedings with
respect to such Mortgage Loans will be available to satisfy the outstanding
balance of a Mortgage Loan only to the extent that the claims of such senior
mortgagees or beneficiary(ies) have been satisfied in full, including any
related foreclosure costs. Furthermore, Title I loans generally are not required
to be written with any equity in the Mortgaged Property above the aggregate
amount of the mortgage liens (including the amount of the related Title I lien
on the Mortgage Property). In addition, a junior mortgagee may not foreclose on
the property securing a junior mortgage unless it forecloses subject to the
senior mortgage(s), in which case it must either pay the entire amount due on
the senior mortgage(s) to the senior mortgagee at or prior to the foreclosure
sale or undertake the obligation to make payments on the senior mortgage(s) in
the event the mortgagor is in default thereunder. In servicing Title I mortgages
in their portfolios, it is not the Master Servicer's or the related Servicers'
practices to satisfy the senior mortgage(s) at or prior to the foreclosure sale,
nor to advance funds to keep the senior mortgage(s) current. The Trust will have
no source of funds (and may not be permitted under the REMIC provisions of the
Code) to satisfy the senior mortgage(s) or make payments due to the senior
mortgagee(s), and therefore, investors in the Class A Certificates should not
expect that any senior mortgage(s) will be kept current by the Trust for the
purpose of protecting the Trust's junior lien. See "The Pooling and Servicing
Agreement - Master Servicer and Subservicers" herein.
An overall decline in the residential real estate market, the general
condition of a Mortgaged Property, or other factors, could adversely affect the
values of the Mortgaged Properties such that the outstanding balances of the
Mortgage Loans, together with any senior liens on the Mortgaged Properties,
equal or exceed the value of the Mortgaged Properties. A decline in the value of
a Mortgaged Property would affect the interest of the Trust in the Mortgaged
Property before having any effect on the interest of the related first
mortgagee, and could cause the Trust's interest in the Mortgaged Property to be
extinguished. If such a decline occurs, the actual rates of delinquencies,
foreclosures and losses on the Mortgage 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 Mortgage Loans and, accordingly, the actual rates of
delinquencies, foreclosures and losses with respect to the Trust.
[Risk of Higher Default Rates Associated with __________ or __________
Real Property. Since a substantial portion of the Mortgaged Properties are
located in __________ or __________, an overall decline in the __________ or
__________ residential real estate markets could adversely affect the values of
the Mortgaged Properties securing such Mortgage Loans such that the Principal
Balances of the related Mortgage Loans, together with any primary financing on
such Mortgaged Properties, equal or exceed the value of such Mortgaged
Properties. As the residential real estate market is influenced by many factors,
including the general condition of the economy and interest rates, no assurances
may be given that the __________ or __________ real estate market will not
weaken further. If the __________ or __________ residential real estate market
should experience an overall decline in property values after the dates of
origination of the Mortgage Loans, the rates of losses on the Mortgage Loans may
be expected to increase, and may increase substantially. [To be modified if the
Mortgage Loans for a Series includes a concentration within regions, counties or
other subdivisions of a state whose adverse economic conditions are greater than
those of the state as a whole.]
Limitations on FHA Insurance. The availability of FHA Insurance
following a default on a Mortgage Loan is subject to a number of conditions,
including strict compliance by the Trustee, the Claims Administrator,
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the Master Servicer, any subservicers, and the Originators with FHA Regulations
in originating and servicing the Mortgage Loan and limits on the aggregate
insurance coverage available with respect to all FHA Title I loans then owned
and reported for FHA Insurance by the Trustee, as Contract of Insurance Holder.
Although the Trustee and the Depositor have obtained representations from the
Originators that they have complied with all FHA Regulations, such regulations
are susceptible to substantial interpretation. The Trustee, as Contract of
Insurance Holder, is not required to obtain, and has not obtained, approval from
FHA of the origination and servicing practices of the Originators. Failure to
comply with all FHA Regulations may result in a denial of FHA Insurance claims,
and there can be no assurance that FHA's enforcement of its regulations will not
become stricter in the future. In addition, any claim paid by FHA will cover
only 90% of the sum of the unpaid principal on the Mortgage Loan, a portion of
the unpaid interest and certain other liquidation costs. The Depositor has
agreed in the Agreement to purchase from the Trust any Mortgage Loan that is
rejected by the FHA for insurance benefits under the Contract of Insurance.
The FHA Insurance available to the Trustee, as Contract of Insurance
Holder, is limited to an amount, currently equal to ____% of the principal
balance of all Title I loans originated or purchased and currently reported for
FHA Insurance by the Trustee, as Contract of Insurance Holder, less amounts for
annual reductions as described below and for insurance claims previously paid to
the Trustee, as Contract of Insurance Holder, by the FHA, Mortgage Loans, and
increased by an amount equal to 10% of the lesser of the outstanding principal
balance as of the Cut-Off Date and the purchase price paid for Title I loans
subsequently originated or purchased of record by the Trustee, as Contract of
Insurance Holder. On each October 1, commencing five years after an entity's FHA
contract of insurance has been in effect, such entity's available FHA Insurance
is reduced by 10% of the then outstanding FHA Insurance amount available to the
Trustee, as Contract of Insurance Holder, as of each such October 1. The
Trustee, as Contract of Insurance Holder, has had an FHA contract of insurance
since __________. Accordingly, on each October 1, commencing October 1, 199___,
the FHA Insurance available to the Claims Administrator will be reduced by 10%
of the then outstanding FHA Insurance amount; provided, however, that in no case
shall such amount be reduced below $50,000.
The Contract of Insurance will be held by the Trustee for the benefit
of the Trust and for the benefit of Related Series Trusts. The Secretary of HUD
will not earmark the insurance reserves held for the Trustee for the benefit of
any particular Related Series Trust held by the Trustee, although the Trustee
has agreed not to hold Related Series Mortgage Loans.
USE OF PROCEEDS
The net proceeds to be received from the sale of the Class A
Certificates will be used to purchase the Mortgage Loans from the Seller.
THE DEPOSITOR
The Depositor was incorporated in the State of Delaware on January 31,
1991 and is a wholly-owned subsidiary of the ContiFinancial Corporation. The
Depositor maintains its principal offices at 277 Park Avenue, New York, New York
10172. Neither the Depositor, the Company nor any of their affiliates will
insure or guarantee distribution on the Certificates.
THE TITLE I LOAN PROGRAM AND THE CONTRACT OF INSURANCE
On the Closing Date, the Trustee will hold for the benefit of the Trust
and all Related Series Trusts the FHA Contract of Insurance in an amount equal
to ____% of the outstanding Principal Balance of all Mortgage Loans held by the
Trust and the Related Series Trusts as of the Cut-Off Date acknowledged by the
FHA as having been transferred to the Trustee (the "Initial FHA Insurance
Amount"). With respect to those Mortgage Loans that
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are not covered by the Trustee's Contract of Insurance on the Closing Date, each
of the related Originators will be required to cause the related reserve
accounts maintained by the Secretary of HUD to be transferred on the FHA's books
from the related Originator's Contract of Insurance to the Trustee's Contract of
Insurance. To accomplish this transfer, on or after the date on which the
Originators receive the FHA Title I Case Numbers for the Mortgage Loans, the
Originators will be required to submit a sale report to the Secretary of HUD
regarding the conveyance of the Mortgage Loans to the Trustee. The "FHA
Insurance Amount" shall mean the Initial FHA Insurance Amount less (i) the
aggregate amount of all Annual Reductions applicable to the Contract of
Insurance plus all reserves subsequently transferred by the Secretary of HUD and
(ii) the amount of FHA Insurance proceeds previously received with respect to
the Mortgage Loans and any Related Series Mortgage Loans (as described below)
since the related Transfer Date. The Claims Administrator shall not submit any
claim to the FHA if the amount of such claim would exceed the FHA Insurance
Amount applicable to the Contract of Insurance. All FHA Insurance Proceeds
received in respect of such FHA Claims shall be deposited into the Collection
Account.
THE ORIGINATORS
[To Be Provided]
THE MASTER SERVICER AND CLAIMS ADMINISTRATOR
The Master Servicer and Claims Administrator is _____________________,
a _________________ corporation. ____________ is principally engaged in the
business of servicing, on behalf of third party investors, residential single
family mortgages secured by properties located in
______________________________. As of _____________ __, 199___, the Master
Servicer was master servicing more than ___________ mortgage loans representing
an aggregate outstanding principal balance of approximately $____ billion. No
specific delinquency or foreclosure data relating to ________'s servicing
portfolio is provided because ___________'s servicing experience with FHA Title
I Mortgage Loans is not sufficient to be indicative of the delinquency and
foreclosure that might be expected with respect to the Mortgage Loans.
The following tables set forth information relating to the delinquency,
loan loss and foreclosure experience of the Master Servicer for its servicing
portfolio of Mortgage Loans for the past three years.
THE TRUSTEE AND CONTRACT OF INSURANCE HOLDER
_________________________________, a __________ banking corporation
located in ____________________, will be named as Trustee and Contract of
Insurance Holder under the Agreement.
The Trustee will at all times be required to be a corporation or
national banking association organized and doing business under the laws of the
United States of America or of any state authorized under such laws to exercise
corporate trust powers, subject to supervision or examination by federal or
state authority and either (i) having a combined capital and surplus of at least
$50,000,000 or (ii) being a wholly-owned subsidiary of a bank holding company
having such a capital and surplus. If at any time the Trustee shall cease to be
eligible in accordance with the provisions described in this paragraph, it will
be required to resign immediately.
No resignation or removal of the Trustee or the Contract of Insurance
Holder, as the case may be, and no appointment of a successor thereto shall
become effective until the acceptance of appointment by a successor trustee.
The Trustee or the Contract of Insurance Holder, as the case may be, or
any trustees or contract of insurance holders, respectively, hereafter
appointed, may resign at any time in the manner set forth in the Agreement. Upon
receiving notice of resignation, the Master Servicer with the prior written
consent of the Certificate Insurer is required promptly to appoint a successor
trustee or Contract of Insurance Holder, as the case
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<PAGE>
may be, acceptable to the Certificate Insurer by written instrument meeting the
eligibility requirements in the manner set forth in the Agreement. If no
successor trustee or Contract of Insurance Holder, as the case may be, shall
have been appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee or Contract of
Insurance Holder, as the case may be, may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee or the Contract of Insurance Holder, as the
case may be, shall cease to meet the eligibility requirements, or if, as
determined by a court of competent jurisdiction in a proceeding in which the
Trustee has been given an opportunity to be heard, the Trustee has failed to
perform any obligation under the Agreement and such failure materially and
adversely affects the Owners of the Certificates, and, in either such case, the
Trustee shall fail to resign after written request therefor by the Master
Servicer, or if at any time the Trustee shall become incapable of acting, or
shall be adjusted as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case the Master
Servicer may with the prior written consent of the Certificate Insurer or at the
written request of the Certificate Insurer shall remove the Trustee and appoint
a successor trustee acceptable to the Certificate Insurer by written instrument,
in duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee.
The Depositor will be required to give notice of any removal of the
Trustee to the Owners, which notice will be required to include the name of the
successor trustee and the address of its corporate trust office. The Depositor
also will be required to give notice to the Owners of the acceptance by a
successor of its appointment.
THE MORTGAGE LOAN POOL
General
The Mortgage Loans to be transferred to the Trust on the Closing Date
will consist of _____ fixed-rate FHA home improvement loans evidenced by
promissory notes or retail installment sales contracts (the "Notes") secured by
first and junior lien deeds of trust, security deeds or mortgages, which are
located in ___ states. The Properties securing the Mortgage Loans consist of
residences (which may be detached, part of a two-to-four family dwelling, a
condominium unit, a unit in a planned unit development, multi-unit properties or
manufactured homes (to the extent such homes are considered real estate under
applicable state law)). All the Mortgage Loans are partially insured by the FHA
under Title I. The Properties may be owner-occupied (which includes second and
vacation homes) and non-owner occupied investment properties. All Mortgage Loans
were originated on or after _____________ __, 199___.
As of the Cut-Off Date, the average Principal Balance of the Mortgage
Loans was $___________; the Coupon Rates of the Mortgage Loans ranged from
_____% to _____%; the weighted average Coupon Rate of the Mortgage Loans was
_____%; the weighted average remaining term to maturity of the Mortgage Loans
was _____ months. The remaining terms to maturity as of the Cut-Off Date of the
Mortgage Loans ranged from 8 months to ____ months. The maximum Principal
Balance as of the Cut-Off Date was $________. No Mortgage Loan will mature later
than _____________ __, 199__. The Mortgage Loans relate to properties in ___
states.
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Geographic Distribution of Mortgaged Properties
The geographic distribution of Mortgage Loans by State was as follows:
Original Aggregate
State No. Percent Principal Balance Percent
----- --- ------- ----------------- -------
Total
Cut-Off Date Loan Rates
The Coupon Rates borne by the Notes relating to the Mortgage Loans were
distributed as follows as of the Cut-Off Date:
Original Aggregate
Coupon Rate (%) No. Percent Principal Balance Percent
- --------------- --- ------- ----------------- -------
Total
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Cut-Off Date Loan Balances
The distribution of the outstanding principal amounts of the Mortgage
Loans as of the Cut-Off Date was as follows:
Principal Amount Original Aggregate
Cut-Off Date No. Percent Principal Balance Percent
------------ --- ------- ----------------- -------
Total
Distribution of Months Since Origination
The distribution of the number of months since origination of the Mortgage
Loans as of the Cut-Off Date was as follows:
Original Aggregate
Months No. Percent Principal Balance Percent
- ------ --- ------- ----------------- -------
Total
Distribution of Remaining Term to Maturity
The distribution of the number of months remaining to maturity of the
Mortgage Loans as of the Cut-Off Date was as follows:
Original Aggregate
Months No. Percent Principal Balance Percent
- ------ --- ------- ----------------- -------
Total
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Interest Payments on the Mortgage Loans
The Mortgage Loans are actuarial loans which 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.
Each payment made by the Mortgagor is, therefore, treated as containing
predetermined amount of interest and principal. Scheduled monthly payments made
by the Mortgagors on the Mortgage 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 discussion, the effects on an investor's
yield resulting from the timing of the settlement date and those considerations
discussed below under "Payment Lag Feature of Class A Certificates"), the yield
to maturity on a Offered Certificate will be directly related to the rate of
payment of principal of the Mortgage Loans including for this purpose
Prepayments, liquidations due to defaults, casualties and condemnations, and
repurchases of Mortgage Loans by the Company. 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.
The timing of changes in the rate of prepayments may significantly
affect the actual yield to investors, even if the average rate of principal
prepayments is consistent with the expectations of investors. In general, the
earlier the payment of principal of the Mortgage Loans the greater the effect on
an investor's yield to maturity. As a result, the effect on an investor's yield
of principal prepayments occurring at a rate higher (or lower) than the rate
anticipated by the investor during the period immediately following the issuance
of the Offered Certificates will not be offset by a subsequent like reduction
(or increase) in the rate of principal prepayments. Investors must make their
own decisions as to the appropriate prepayment assumptions to be used in
deciding whether to purchase any of the Offered Certificates. The Company makes
no representations or warranties as to the rate of prepayment or the factors to
be considered in connection with such determination.
Certain Yield, Prepayment and Weighted Average Life Considerations
If purchased at other than par, the yield to maturity on an Offered
Certificate will be affected by the rate of the payment of principal of the
Mortgage Loans. If the actual rate of payments on the Mortgage Loans is slower
than the rate anticipated by an investor who purchases an Offered 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 Mortgage Loans is
faster than the rate anticipated by an investor who purchases an Offered
Certificate at a premium, the actual yield to such investor will be lower than
such investor's anticipated yield.
The rate of prepayments with respect to conventional fixed rate
mortgage loans has fluctuated significantly in recent years. In general, if
prevailing interest rates fall significantly below the interest rates on fixed
rate mortgage loans, such mortgage loans are likely to be subject to higher
prepayment rates than if prevailing rates remain at or above the interest rate
on such mortgage loans. However, the monthly payment on a home improvement loan
is often smaller than the monthly payment on a purchase money first mortgage
loan. Consequently, a decrease in the interest rate payable results in a smaller
reduction in the amount of the monthly payment on the smaller balance loan.
Conversely if prevailing interest rates rise appreciably above the interest
rates
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on fixed rate mortgage loans, such mortgage loans are likely to experience a
lower prepayment rate than if prevailing rates remain at or below the interest
rates on such mortgage loans.
The final scheduled Distribution Date for the Class A Certificates is
_____________ __, 20__, which is the date on which the original principal amount
of the Class A Certificates as of the Closing Date less all amounts previously
distributed to the Owners on account of principal (such amount as of any time,
the "Class A Principal Balance") would be reduced to zero, assuming that no
Prepayments are received on the Mortgage Loans and that payments of principal of
and interest on each of the Mortgage Loans are timely received. 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 Mortgage Loans conformed to the
foregoing assumptions, and the final Distribution Date with respect to the Class
A Certificates could occur significantly earlier than the final scheduled
Distribution Date because (i) Distributable Excess Spread will be used to make
accelerated payments of principal to the Owners of the Class A Certificates,
which payments will have the effect of shortening the weighted average lives of
the Class A Certificates, (ii) Prepayments are likely to occur, and (iii) the
Depositor and, in limited circumstances, the Certificate Insurer, may cause a
termination of the Trust when the aggregate outstanding principal balance of the
Mortgage Loans is 10% or less of the aggregate principal balance of the Mortgage
Loans in the Trust as of the Cut-Off Date.
Weighted Average Life of the Class A Certificates
"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 the
Class A Certificates will be influenced by the rate at which principal of the
Mortgage Loans 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). Prepayments on mortgage loans are commonly
measured relative to a prepayment standard or model. In the model used in this
Prospectus Supplement, the constant prepayment rate ("CPR") represents an
assumed annualized rate of payment relative to the then outstanding principal
balance of a pool of new mortgage loans.
Based upon the foregoing assumptions, the following table indicates the
projected weighted average life of the Class A Certificates, at various CPR
assumptions.
Class A Certificates
Weighted Earliest
Average Retirement at
Life Class R Owner's
CPR (years)* Option**
--- -------- --------
- -------------------------
* The weighted average life of a Certificate is determined by (i) multiplying
the amount of each distribution in reduction of the outstanding principal amount
of such Certificate by the number of years from the date of issuance of the
Certificates to the related Distribution Date, (ii) adding the results and (iii)
dividing the sum by the initial principal amount of the Certificate.
** Assuming early retirement of the Class A Certificates upon termination of the
Trust on the second Distribution Date following the Remittance Date on which the
aggregate unpaid Principal Balance of the Mortgage Loans declines to a level
less than 10% of the aggregate principal balance of the Mortgage Loans in the
Trust as of the Cut-Off Date.
There is no assurance that Prepayments will occur, or, if they do
occur, that they will occur at any constant percentage of CPR.
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Payment Lag Feature of Class A Certificates
An amount equal to Mortgagor payments with respect to each Mortgage
Loan (net of the Servicing Fee and Master Servicer Fee) received during each Due
Period is to be remitted to the Trustee within two Business Days of receipt
thereof; however, the Trustee will be required to distribute such amounts to the
Owners on the Distribution Date following such Due Period. The first
Distribution Date will not occur until _____________ __, 199__, and will include
Mortgagor payments for the Due Period ending on _____________ __, 199__. Thus,
the effective yield to the Owners will be below that otherwise produced by the
Pass-Through Rate because the distributions to the Class A Owners in respect of
any given month will not be made until on or about the 20th day of the following
month.
Yield Sensitivity of the Class S-A Certificates
Because amounts distributable to Owners of the Class S-A Certificates
consist entirely of interest, the yield to maturity of the Class S-A
Certificates will be extremely sensitive to the repurchase, prepayment and
default experience of the Mortgage 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
S-A Certificates should be aware that Depositor may cause a termination of the
Trust when the aggregate outstanding principal balance of the Mortgage Loans has
declined to ___% or less of the aggregate pool balance of the Mortgage Loans as
of the Cut-Off Date.
The following table indicates certain relationships between the assumed
purchase price and the yield to maturity on the Class S-A Certificates, stated
on a corporate bond equivalent basis. Such table also indicates such
relationships on the assumption that (a) the Trust is not terminated by the
Depositor pursuant to its __% "clean-up call", and (b) the Trust is so
terminated.
Sensitivity of the Class S-A Certificates to Prepayments
Pre-Tax Yield to Maturity
0% __% __% __% __%
CPR CPR CPR CPR CPR
--- --- --- --- ---
Prepayment Scenario
-------------------
I
II
III
IV
V
On the basis of approximately __% CPR, and a purchase price of ____%,
no termination of the Trust by the Company pursuant to its __% "clean-up call"
and the other assumptions described above, the pre-tax yield to maturity of the
Class S-A Certificates would be approximately __%. If the actual prepayment rate
were to exceed approximately __% CPR, based on such assumptions, an investor in
the Class S-A Certificates as to which such percentage of CPR was exceeded would
not fully recover the initial purchase price thereof.
On the basis of approximately ___% CPR, a purchase price of _______%,
termination of the Trust by the Company pursuant to its __% "clean-up call" and
the other assumptions described above, the pre-tax yield to maturity of the
Class S-A Certificates would be approximately __%. If the actual prepayment rate
were to exceed approximately __% CPR based on such assumptions, an investor in
the Class S-A Certificates as to which such percentage of CPR was exceeded would
not fully recover the initial purchase price thereof.
It is highly unlikely that the Mortgage Loans will prepay at a constant
rate until maturity or that all of the Mortgage Loans will prepay at the same
rate. In fact, Mortgage Loans will prepay at different rates.
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The yields set forth in the preceding tables were calculated by
determining the monthly discount rates which, when applied to the assumed stream
of cash flow to be paid on the Class S-A Certificates, would cause the
discounted present value of such assumed cash flows to equal the assumed
purchase price of such Class S-A Certificates 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 S-A
Certificates and consequently do not purport to reflect the return on any
investment in the Class S-A Certificates when such reinvestment rates are
considered.
The Mortgage Loans will not necessarily have the characteristics
assumed above, and there can be no assurance the (i) the Mortgage 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 the Class S-A
Certificates will correspond to any of the pre-tax yields shown above or (iii)
the aggregate purchase price of the Class S-A Certificates will be equal to the
purchase price assumed.
Scheduled Final Distribution Date. The scheduled final Distribution
Date for the Class S-A Certificates is ___________ __, ____.
ADDITIONAL INFORMATION
The description in this Prospectus Supplement of the Mortgage Loans and
the Mortgaged Properties is based upon the pool as constituted at the close of
business on the Cut-Off Date, as adjusted for the scheduled principal payments
due on or before such date. Prior to the issuance of the Offered Certificates,
Mortgage Loans may be removed from the pool as a result of incomplete
documentation or non-compliance with representations and warranties set forth in
the Agreement, if the Depositor deems such removal necessary or appropriate. A
limited number of other Mortgage Loans may be included in the pool prior to the
issuance of the Offered Certificates.
A current report on Form 8-K will be available to purchasers of the
Offered Certificates and will be filed and incorporated by reference to the
Registration Statement together with the Agreement with the Securities and
Exchange Commission within fifteen days after the initial issuance of the
Offered Certificates. In the event Mortgage Loans are removed from or added to
the mortgage pool as set forth in the preceding paragraph, such removal or
addition will be noted in the current report on Form 8-K.
DESCRIPTION OF THE OFFERED CERTIFICATES
General
The Class A Certificates will be available in minimum denominations of
$________________ and integral multiples of $1,000 in excess thereof, except
that one Class A Certificate may be issued in any amount. The Class S-A
Certificate will be issuable in minimum Percentage Interests of 10% and integral
multiples of 1% in excess thereof.
As described in "The Mortgage Loan Pool" herein, the Mortgage Loans
include first and junior lien Mortgage Loans. Each Class A Certificate will
evidence the right to receive on each Distribution Date the Class A Interest
Distribution and the Class A Principal Distribution until the Class A
Certificate Balance has been reduced to zero and each Class S-A Certificate,
which is an interest-only Certificate, will evidence the right to receive on
each Distribution Date the Class S-A Interest Distribution.
One-hundred percent of the Class A Distribution Amount and the Class
S-A Interest Distribution due to the related Owners of the Offered Certificates
on each Distribution Date is insured by the Certificate Insurer pursuant to the
Policy. See "The Policy" herein.
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Distribution Dates
On each Distribution Date each Owner of Class A Certificates will be
entitled to receive, from amounts then on deposit in the Certificate Account and
until the Class A Certificate Balance is reduced to zero, to the extent of the
Amount Available on such Distribution Date, the Class A Interest Distribution
and, to the extent of the Distribution Amount on such Distribution Date, the
Class A Monthly Principal Distributable Amount as of such Distribution Date and
each Owner of a Class S-A Certificate will be entitled to receive, from amounts
then on deposit in the Certificate Account, to the extent of the Amount
Available on such Distribution Date, the Class S-A Interest Distribution as of
such Distribution Date. Distributions will be made in immediately available
funds to Owners of Offered 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 "Certificate Register") maintained by the Trustee as registrar
(the "Certificate Registrar").
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 Mortgage Loans required to be remitted by the Master Servicer or the related
subservicers on each Business Day, together with any Purchase Price Amount, (ii)
any Insurance Payment and (iii) the proceeds of any liquidation of Mortgage
Loans.
On each Distribution Date, the Trustee is required to make the
following disbursements and transfers from moneys then on deposit in the
Certificate Account in the following order of priority:
(i) from the Distribution Amount, for deposit in the FHA
Premium Account, the FHA Premium Account Deposit for such Distribution
Date;
(ii) from the Distribution Amount, to the Master Servicer, the
Master Servicer Fee for such Distribution Date;
(iii) from the Distribution Amount, to the Master Servicer,
any amount in respect of reimbursement of Delinquency Advances or
Foreclosure Advances to which the Master Servicer is entitled with
respect to such Distribution Date;
(iv) from the Distribution Amount, to the Trustee, the Trustee
Fee for such Distribution Date;
(v) from the Distribution Amount, Priority Expenses to the
Persons entitled thereto on such Distribution Date;
(vi) from the Amount Available, to the Owners of the Class A
Certificates, an amount equal to the Class A Interest Distribution for
such Distribution Date and to the Owners of the Class S-A Certificates,
an amount equal to the Class S-A Interest Distribution for such
Distribution Date;
(vii) from the Distribution Amount, to the Certificate
Insurer, any amounts owing to the Certificate Insurer under the
Insurance Agreement and not paid, whether or not any other Person is
obligated to pay such amounts;
(viii) from the Distribution Amount, to the Owners of the
Class A Certificates, the Class A Principal Distribution for such
Distribution Date;
(ix) from the Amount Available, to the Owners of the Class A
Certificates, an amount equal to the Class A Guaranteed Principal
Distribution Amount, if any, for such Distribution Date;
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(x) from the Distribution Amount, to any successor Master
Servicer, such fee, if any, for such Distribution Date payable in
accordance with the Pooling and Servicing Agreement in addition to the
Master Servicer Fee; and
(xi) the balance of any Distribution Amount, to the Owners of
the Class R Certificates.
The Trustee's Fee as of each Distribution Date will be one-twelfth of
the product of ___% and the aggregate Class A Certificate Balance as of the
close of business on the last day of the second month before such Distribution
Date, and prior to the distribution of the Class A Principal Distribution on
such Distribution Date.
The Class A Distributions
On each Distribution Date, the Class A Certificateholders will be
entitled to receive the sum of (a) the Class A Interest Distribution and (b) the
Class A Guaranteed Principal Distribution Amount, and (c) to the extent of the
Distribution Amount available after the distribution pursuant to clauses (i)
through (viii) above, the Class A Monthly Principal Distributable Amount in
excess of any amounts described in clause (b) above.
"Class A Interest Distribution" means, with respect to any Distribution
Date, the sum of (a) the "Class A Monthly Interest Distributable Amount" (i.e.,
30 days interest at the Pass-Through Rate on the Class A Certificate Balance as
of the close of business on the preceding Distribution Date (or, in the case of
the first Distribution Date, on the Closing Date)) and (b) any Class A Interest
Carryover Shortfall (i.e., the excess of the Class A Monthly Interest
Distributable Amount for the preceding Distribution Date and any outstanding
Class A Interest Carryover Shortfall on such preceding Distribution Date over
the amount in respect of interest that is actually distributed to the Class A
Certificateholders on such preceding Distribution Date, plus interest on such
excess, to the extent permitted by law, at the Pass-Through Rate from such
preceding Distribution Date through the current Distribution Date).
"Class A Guaranteed Principal Distribution Amount" means, with respect
to any Distribution Date, the positive excess, if any, of (i) the aggregate of
the Outstanding Class A Certificate Balances of all Outstanding Class A
Certificates as of such Distribution Date (taking into account distributions on
such Distribution Date pursuant to clause (viii) above) over (ii) the aggregate
of the Class A Guaranteed Certificate Balances as of such Distribution Date.
"Class A Monthly Principal Distributable Amount" means, with respect to
any Distribution Date, the amount equal to the sum of the collateral amounts
(without duplication) with respect to the immediately preceding Due Period: (i)
that portion of all Mortgage Payments allocable to principal, including all full
and partial principal prepayments (excluding such amounts in respect of Mortgage
Loans included in clause (ii) for a prior Distribution Date), (ii) the Principal
Balance of all Mortgage Loans that became Defaulted Mortgage Loans during the
related Due Period, (iii) the portion of the Purchase Amount allocable to
principal of all Mortgage Loans that became Purchased Mortgage Loans as of the
immediately preceding Monthly Cut-Off Date excluding such amounts in respect of
Mortgage Loans included in clause (ii) for a prior Distribution Date and, in the
sole discretion of the Certificate Insurer, the Principal Balance as of the
immediately preceding Monthly Cut-Off Date of all Mortgage Loans that were
required to be purchased or repurchased as of the immediately preceding Monthly
Cut-Off Date pursuant to the Agreement but were not so purchased, (iv) the
aggregate amount of Cram Down Losses that shall have occurred during the related
Due Period, (v) the amount of Distributable Excess Spread in respect of such
Distribution Date and (vi) amounts, if any, delivered by the Certificate Insurer
to the Trustee for deposit in the Certificate Account and distribution in
respect of the Class A Certificates in accordance with the Insurance Agreement;
provided, however, that, if with respect to any Distribution Date, Distributable
Excess Spread is zero, the Class A Monthly Principal Distributable Amount shall
equal such portion of the sum of the amounts included in clauses (i) through
(iv) above such that following distribution in reduction of the Aggregate Class
A Certificate balance the Required OC Test would be satisfied.
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"Class A Guaranteed Certificate Balance" means with respect to any
outstanding Class A Certificate as of any date of determination, the
hypothetical Class A Certificate Balance equal to the initial Class A
Certificate Balance of such Class A Certificate set forth on the face thereof,
reduced by the pro rata portion allocable to such Class A Certificate of the
aggregate of the Class A Minimum Principal Distributable Amounts with respect to
all Distribution Dates on or prior to such date of determination.
"Class A Minimum Principal Distributable Amount" means with respect to
any Distribution Date, the amount set forth on the schedule to the Agreement for
such Distribution Date
"Due Period" means with respect to any Distribution Date, the calendar
month immediately preceding such Distribution Date.
"Excess Spread" means with respect to any Distribution Date, the
positive excess, if any, of (x) the aggregate amount of the Mortgage Payments or
amounts deposited by the Depositor if it elects to acquire the Mortgage Loans at
the time the outstanding balance of the Mortgage Loans is less than 10% of the
Initial Principal Balance with respect to the related Due Period over (y) the
sum of (A) the amount required to be distributed pursuant to priorities (i)
through (vii) under "Distributions" above on such Distribution Date plus (B) the
sum of any outstanding Class A Principal Carryover Shortfall as of the close of
the preceding Distribution Date plus (C) the sum of the amounts described in
clauses (i) through (iv) of the definition of Class A Monthly Principal
Distributable Amount (set forth above) for such Distribution Date.
"Distributable Excess Spread" means with respect to any Distribution
Date, such portion (not greater than 100%) of Excess Spread with respect to such
Distribution Date, which if distributed in accordance with clause (v) of the
definition of Class A Monthly Principal Amount would cause the Required OC Test
to be satisfied with respect to such Distribution Date, after giving effect to
all distributions on such Distribution Date, provided, however, that if the
Required OC Multiple is unlimited, Distributable Excess Spread shall equal 100%
of Excess Spread; provided, further, however, that so long as an Insurer Default
(as defined in the Agreement) shall not have occurred and be continuing,
Distributable Excess Spread may, in the discretion of the Certificate Insurer
with respect to any Distribution Date with respect to which the Required OC
Multiple is greater than 100%, be a portion of Excess Spread which is less than
would otherwise be determinable pursuant to this definition but which is not
less than the portion of Excess Spread that would be determinable pursuant to
this definition if the Required OC Multiple were equal to 100%.
The Class S-A Distributions
The Class S-A Certificates are interest-only certificates which will
not be entitled to any distribution of principal, but will be entitled to
interest on the Notional Principal Balance. The interest due with respect to the
Class S-A Certificate will be the interest which has accrued thereon at the
Class S-A Pass-Through Rate during the calendar month in which such Distribution
Date occurs (the "Class S-A Interest Distribution").
The Agreement will provide that, to the extent the Certificate Insurer
makes Guaranteed Distributions, either directly or indirectly (as by paying
through the Trustee or Paying Agent), to the Owners of such Offered
Certificates, if any, the Certificate Insurer will be subrogated to the rights
of such Owners of Offered Certificates with respect to such Guaranteed
Distributions. The Certificate Insurer shall receive reimbursement for such
Guaranteed Distribution as provided in the Agreement, but only from the same
sources and in the same manner provided in the Agreement for the payment of the
Class A Distribution Amount to Owners of Class A Certificates and the Class S-A
Interest Distribution, if any. The subrogation and reimbursement will have no
effect on the Certificate Insurer's obligations under the Policy.
Book Entry Registration of the Offered Certificates
The Offered Certificates will be represented by a single certificate
registered in the name of the nominee of The Depository Trust Company (the
"Clearing Agency"). The Clearing Agency will maintain book entry records
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of ownership, transfers and pledges of such Certificates only in the names of
its participants and indirect participants (the "Clearing Agency Participants"),
which include securities brokers and dealers, banks and trust companies and
clearing corporations and may include certain other organizations. Prior to Book
Entry Termination (as definedbelow), Beneficial Owners who are not Clearing
Agency Participants may transfer and pledge their interests in the Offered
Certificates, and exercise any other rights and remedies of Certificateholders,
only through Clearing Agency Participants or other entities that maintain
relationships with Clearing Agency Participants. The Clearing Agency may charge
its customary fee to Clearing Agency Participants in connection with any such
transfers and pledges. In addition, prior to Book Entry Termination,
distributions on the Offered Certificates will be made to Beneficial Owners only
through the Clearing Agency and its Clearing Agency Participants. Consequently,
Beneficial Owners may experience some delay in the receipt of their payments.
See "Risk Factors - Book Entry Registration" and "Description of the
Certificates - Book Entry Registration" in the Prospectus.
The Offered Certificates will be issued in definitive, registered form
to Beneficial Owners or their nominees, and thereupon such Beneficial Owners
will become Owners of the Certificates, if, and only if, one of the following
events shall occur (any such event being referred to as "Book Entry
Termination"): (i) the Clearing Agency or the Depositor advises the Trustee in
writing that the Clearing Agency is no longer willing or able properly to
discharge its responsibilities as a clearing corporation with respect to the
Offered Certificates and the Depositor and the Trustee are unable to engage a
qualified successor to serve as the Clearing Agency, or (ii) the Clearing
Agency, at the direction of Beneficial Owners representing a majority of the
outstanding principal amount of the Offered Certificates, advise the Trustee in
writing that the continuation of a book entry system is no longer in the best
interests of Beneficial Owners, or (iii) the Depositor, at its option, advises
the Trustee that it elects to terminate the book entry system. Upon Book Entry
Termination, Beneficial Owners will become registered Certificateholders and
will deal directly with the Trustee with respect to transfers, notices and
payments.
The Clearing Agency has advised the Depositor and the Trustee that,
prior to Book Entry Termination, the Clearing Agency will take any action
permitted to be taken by a Certificateholder under the Agreement only at the
direction of one or more Clearing Agency Participants to whom the Offered
Certificates are credited in an account maintained by the Clearing Agency. The
Clearing Agency has advised that it will take such action with respect to any
principal amount of the Offered Certificates only at the direction of and on
behalf of Clearing Agency Participants with respect to those principal amounts
of such Offered Certificates.
Issuance of the Offered Certificates in book entry form rather than as
physical Certificates may adversely affect the liquidity of such Offered
Certificates in the secondary market and the ability of Offered
Certificateholders to pledge them. In addition, since distributions on the
Offered Certificates will be made by the Trustee to the Clearing Agency and the
Clearing Agency will credit such distributions to the accounts of its
Participants, which will further credit them to the accounts of indirect
participants of the Offered Certificateholders such Offered Certificateholders
may experience delays in the receipt of such distributions.
Certain Activities
The Trust has not and will not: (i) issue securities (except for the
Certificates); (ii) borrow money; (iii) make loans; (iv) invest in securities
for the purpose of exercising control; (v) underwrite securities; (vi) except as
provided in the Pooling and Servicing Agreement, engage in the purchase and sale
(or turnover) of investments; (vii) offer securities in exchange for property
(except Certificates for the Mortgage Loans); or (viii) repurchase or otherwise
reacquire its securities. See "Pooling and Administration -- Reports to
Certificateholders" in the Prospectus for information regarding reports to the
Owners.
THE POLICY
The following summary of the terms of the Policy does not purport to be
complete and is qualified in its entirety by reference to the Policy.
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Simultaneously with the issuance of the Offered Certificates, the
Certificate Insurer will deliver the Policy to the Trustee for the benefit of
each Offered Certificateholder. Under the Policy, the Certificate Insurer
unconditionally and irrevocably guarantees to the Trustee for the benefit of
each Certificateholder the full and complete payment of (i) Guaranteed
Distributions (as defined below) with respect to the Offered Certificates; and
(ii) the amount of any Guaranteed Distribution which subsequently is avoided in
whole or in part as a preference payment under applicable law.
"Guaranteed Distributions" means, with respect to each Distribution
Date, the distribution to be made to Certificateholders in an aggregate amount
equal to the Class A Interest Distributable Amount due and payable on such
Distribution Date, the Class A Guaranteed Principal Distribution Amount, if any,
and the Class S-A Interest Distribution, if any, due and payable on such
Distribution Date, in each case in accordance with the original terms of the
Certificates when issued and without regard to any amendment or modification of
the Certificates or the Agreement which has not been consented to by the
Certificate Insurer.
Payment of Claims on the Policy made in respect of Guaranteed
Distributions will be made by the Certificate Insurer following Receipt by the
Certificate Insurer of the appropriate notice for payment on the later to occur
of (a) 12:00 noon, New York time, on the third Business Day following Receipt of
such notice for payment, and (b) 12:00 noon, New York City time, on the
Distribution Date such payment was due on the Certificates.
If payment of any amount avoided as a preference under applicable
bankruptcy, insolvency, receivership or similar law is required to be made under
the Policy, the Certificate Insurer shall cause such payment to be made no
earlier than the first to occur of (a) the fourth Business Day following Receipt
by the Certificate Insurer from the Trustee of (i) a certified copy of the order
(the "Order") of the court or other governmental body which exercised
jurisdiction to the effect that the Certificateholder is required to return
principal or interest distributed with respect to the Certificates during the
term of the Policy because such distributions were avoidable as preference
payments under applicable bankruptcy law, (ii) a certificate of the
Certificateholder that the Order has been entered and is not subject to any
stay, and (iii) an assignment duly executed and delivered by the
Certificateholder, in such form as is reasonably required by the Certificate
Insurer and provided to the Certificateholder by the Certificate Insurer,
irrevocably assigning to the Certificate Insurer all rights and claims of the
Certificateholder relating to or arising under the Certificates against the
debtor which made such preference payment or otherwise with respect to such
preference payment, or (b) the date of Receipt by the Certificate Insurer from
the Trustee of the items referred to in clauses (i), (ii) and (iii) above if, at
least four Business Days prior to such date of Receipt, the Certificate Insurer
shall have Received written notice from the Trustee that such items were to be
delivered on such date and such date was specified in such notice. Such payment
shall be disbursed to the receiver, conservator, debtor-in- possession or
trustee in bankruptcy named in the Order and not to the Trustee or any
Certificateholder directly (unless a Certificateholder has previously paid such
amount to the receiver, conservator, debtor-in-possession or trustee in
bankruptcy names in the Order, in which case such payment shall be disbursed to
the Trustee for distribution to such Certificateholder upon proof of such
payment reasonably satisfactory to the Certificate Insurer).
The terms "Receipt" and "Received," with respect to the Policy, shall
mean actual delivery to the Certificate Insurer, prior to 12:00 noon, New York
City time, on a Business Day; delivery either on a day that is not a Business
Day or after 12:00 noon, New York City time, shall be deemed to be Receipt on
the next succeeding Business Day. If any notice or certificate given under the
Policy by the Trustee is not in proper form or is not properly completed,
executed or delivered, it shall be deemed not to have been Received, and the
Certificate Insurer shall promptly so advise the Trustee and the Trustee may
submit an amended notice.
Under the Policy, "Business Day" means any day other than (i) a
Saturday or Sunday or (ii) a day on which banking institutions in the City of
New York are authorized or obligated by law or executive order to be closed.
The Certificate Insurer's obligations under the Policy in respect of
Guaranteed Distributions shall be discharged to the extent funds are transferred
to the Trustee as provided in the Policy whether or not such funds are properly
applied by the Trustee.
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The Certificate Insurer shall be subrogated to the rights of each
Certificateholder to receive payments of principal and interest with respect to
the Guaranteed Distributions to the extent of any payment by the Certificate
Insurer under the Policy.
Claims under the Policy constitute direct, unsecured and unsubordinated
obligations of the Certificate Insurer ranking not less than pari passu with
other unsecured and unsubordinated indebtedness of the Certificate Insurer for
borrowed money. Claims against the Certificate Insurer under each other
financial guaranty insurance policy issued thereby constitutes pari passu claims
against the general assets of the Certificate Insurer. The terms of the Policy
cannot be modified or altered by any other agreement or instrument, or by the
merger, consolidation or dissolution of the Depositor. The Policy may not be
cancelled or revoked prior to distribution in full of all Guaranteed
Distributions with respect to the Certificates. The Policy is not covered by the
property/casualty insurance security fund specified in Article 76 of the New
York Insurance Law. The Policy is governed by the laws of the State of New York.
[Insurance and Indemnity Agreement
The Depositor and the Certificate Insurer will enter into an Insurance
and Indemnity Agreement (the "Insurance Agreement") pursuant to which the
Depositor will agree to reimburse, with interest, the Certificate Insurer for
certain amounts paid pursuant to claims under the Policy. The Depositor will
further agree to pay the Certificate Insurer all reasonable charges and expenses
which the Certificate Insurer may pay or incur relative to any amounts paid
under the Policy or otherwise in connection with the transaction and to
indemnify the Certificate Insurer against certain liabilities.]
THE CERTIFICATE INSURER
The following information has been furnished by the Certificate Insurer
for use herein. Reference is made to Appendix for a specimen of the Policy.
General
[The Certificate Insurer is a monoline insurance company incorporated
on ___________ __, ____ under the laws of the State of New York. The Certificate
Insurer received its New York State insurance license and commenced operations
on __________ __, _____. The Certificate Insurer and its two wholly owned
subsidiaries are licensed to engage in financial guaranty insurance business in
all 50 states, the District of Columbia and Puerto Rico.]
The Certificate Insurer and its subsidiaries are engaged exclusively in
the business of writing financial guaranty insurance, principally in respect of
securities offered in domestic and foreign markets. In general, financial
guaranty insurance consists of the issuance of a guaranty of scheduled payments
of an issuer's securities, thereby enhancing the credit rating of those
securities, in consideration for the payment of a premium to the insurer. The
Certificate Insurer and its subsidiaries principally insure asset-backed,
collateralized and municipal securities. Asset- backed securities are generally
supported by residential mortgage loans, consumer or trade receivables,
securities or other assets having an ascertainable cash flow or market value.
Collateralized securities include public utility first mortgage bonds and
sale/leaseback obligation bonds. Municipal securities consist largely of general
obligation bonds, special revenue bonds and other special obligations of state
and local governments. The Certificate Insurer insures both newly issued
securities sold in the primary market and outstanding securities sold in the
secondary market that satisfy the Certificate Insurer's underwriting criteria.
The principal executive offices of the Certificate Insurer are located
at ______________________, and its telephone number at that location is
________________. At _________________, the Certificate Insurer and its
subsidiaries had ____ employees.
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Reinsurance
Pursuant to an intercompany agreement, liabilities on financial
guaranty insurance written by the Certificate Insurer or either of its
subsidiaries are reinsured among such companies on an agreed-upon percentage
substantially proportional to their respective capital, surplus and reserves,
subject to applicable statutory risk limitations. Inaddition, the Certificate
Insurer reinsures a portion of its liabilities under certain of its financial
guaranty insurance policies with other reinsurers under various quota share
treaties and on a transaction-by-transaction basis. Such reinsurance is utilized
by the Certificate Insurer as a risk management device and to comply with
certain statutory and rating agency requirements; it does not alter or limit the
Certificate Insurer's obligations under any financial guaranty insurance policy.
Ratings of Claims-Paying Ability
The Certificate Insurer's claims-paying ability is rated "Aaa" by
Moody's and "AAA" by S&P. Such ratings reflect only the views of the respective
rating agencies, are not recommendations to buy, sell or hold securities and are
subject to revision or withdrawal at any time by such rating agencies. See
"Ratings."
Capitalization
The following table sets forth the capitalization of the Certificate
Insurer and its wholly owned subsidiaries on the basis of generally accepted
accounting principles as of __________ __, 199__ (in thousands):
(Unaudited)
Unearned Premium Reserve (net of
prepaid reinsurance premiums) $
Shareholder's Equity:
Common Stock
Additional Paid-In Capital
Retained Earnings
Total Shareholder's Equity
Total Unearned Premium Reserve and
Shareholder's Equity $
For further information concerning the Certificate Insurer, see the
Consolidated Financial Statements of the Certificate Insurer and Subsidiaries,
and the notes thereto, included as Appendices C and D in this Prospectus
Supplement. Copies of the statutory quarterly and annual statements filed with
the State of New York Insurance Department by the Certificate Insurer are
available upon request to the State of New York Insurance Department.
Insurance Regulation
The Certificate Insurer and its insurance subsidiaries are licensed and
subject to regulation as insurance corporations under the laws of the State of
New York, the jurisdiction of organization of the Certificate Insurer. In
addition, the Certificate Insurer and its insurance subsidiaries are subject to
regulation by insurance laws of the various other jurisdictions in which they
are licensed to do business. As a financial guaranty insurance corporation
licensed to do business in the State of New York, the Certificate Insurer is
subject to Article 69 of the New York Insurance Law which, among other things,
limits the business of each such insurer to financial guaranty insurance and
related lines requires that each such insurer maintain a minimum surplus to
policyholders, establishes contingency, loss and unearned premium reserve
requirements for each such insurer, and limits the size of individual
transactions ("single risks") and the volume of transactions ("aggregate risks")
that may be underwritten by each such insurer. Other provisions of the New York
Insurance Law, applicable to non-life insurance companies such as the
Certificate Insurer, regulate, among other things, permitted investments,
payment of dividends, transactions with affiliates, mergers, consolidations,
acquisitions or sales of assets and incurrence of liability for borrowings.
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OVERCOLLATERALIZATION PROVISIONS
On each Distribution Date, Distributable Excess Spread will be applied
on such Distribution Date as an accelerated payment of principal on the Class A
Certificates. This has the effect of accelerating the amortizationof the Class A
Certificates relative to the amortization of the Mortgage Loans. To the extent
that any Excess Spread is not so used, it will be paid to the Owners of the
Class R Certificates.
Excess Spread will be applied as an accelerated payment of principal on
the Class A Certificates until the Required OC Test is satisfied. The "Required
OC Test" is met (i) if on the Closing Date the aggregate of the Principal
Balances of the Mortgage Loans as of the Cut-Off Date is _______% of the
aggregate Class A Certificate Balance as of the Closing Date and (ii) on a
subsequent Distribution Date, the Aggregate Principal Balance with respect to
such Distribution Date, exceeds the aggregate Class A Principal Balance by an
amount which is equal to the greater of (i) $_______ and (ii) the Required OC
Multiple with respect to such Distribution Date, times:
(x) in the case of a Distribution Date on or prior to the
Midpoint Date, the amount which is equal to ___% of the Aggregate Class
A Certificate Balance as of the Closing Date;
(y) in the case of a Distribution Date after the Midpoint
Date, in the event that the Required OC Multiple is greater than 100%
on the Midpoint Date, the amount which is equal to ___% of the Original
Aggregate Class A Certificate Balance as of the Closing Date; and
(z) in the case of a Distribution Date after the Midpoint
Date, in the event that the Required OC Multiple is equal to 100% on
the Midpoint Date, the amount equal to ___% of the Aggregate Class A
Certificate Balance as of the Closing Date plus ___% of the Aggregate
Class A Certificate Balance on such Distribution Date (prior to giving
effect to any distributions on such date).
"Midpoint Date" means the Determination Date next succeeding the end of
the ____th full calendar month following the Closing Date. A "Determination
Date" is the fifth Business Day preceding the related Distribution Date.
"Required OC Multiple" means with respect to any Distribution Date, the
percentage set forth in the Collateral Performance Matrix which corresponds to
the data with respect to the applicable Collateral Performance Tests set forth
in the Master Servicer Certificate with respect to the related Determination
Date. The "Collateral Performance Matrix" in the Agreement sets forth various
levels for the Required OC Multiple which are a function of certain delinquency
and default characteristics of the Mortgage Loans existing on each Determination
Date.
In the event that the required level of overcollateralization is
permitted to decrease or "step down" on any Distribution Date, the Agreement
provides that a portion of the principal of the Mortgage Loans which would
otherwise be distributed to the Owners of the Class A Certificates on such
Distribution Date shall be distributed to the Owners of the Class R Certificates
on such Distribution Date. This has the effect of decelerating the amortization
of Class A Certificates relative to the amortization of the Mortgage Loans and
of reducing the amount of overcollateralization.
THE POOLING AND SERVICING AGREEMENT
In addition to the provisions of the Agreement summarized elsewhere in
this Prospectus Supplement, there is set forth below a summary of certain other
provisions of the Agreement.
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Formation of the Trust
Pursuant to the Agreement, the Trust will be created and established,
the Trust will acquire the Mortgage Loans without recourse to the Depositor and
the Trust will issue the Offered Certificates.
The property of the Trust shall include all (a) the Mortgage Loans
together with the related Mortgage Loan documents and the Depositor's interest
in any Mortgaged Property which secures a Mortgage Loan and all payments thereon
and proceeds of the conversion, voluntary or involuntary, of the foregoing, (b)
the FHA Insurance reserves attributable to the Mortgage Loans as of the Cut-Off
Date, (c) such amounts as may be held by the Trustee in theCertificate Account
together with investment earnings on such amounts and such amounts may be held
by the Trustee in the Certificate Account, if any, whether in the form of cash,
instruments, securities or other properties, (d) the Policy, and (e) proceeds of
all the foregoing (including, but not by way of limitation, all proceeds of any
mortgage insurance, hazard insurance and title insurance policy relating to the
Mortgage 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 Agreement (collectively,
the "Trust Property").
The Certificates do not represent an interest in or obligation of the
Depositor, Trustee, Master Servicer, or any of their respective affiliates. The
Certificates will not be savings accounts or deposits and neither the
Certificates nor the underlying mortgage loans will be insured or guaranteed by
any governmental agency, except that the Mortgage Loans are partially insured by
the FHA. The obligations of the FHA with respect to insurance concerning the
Mortgage Loans are not unlimited or unconditional obligations of the FHA, but
are limited contractually to the amount of insurance coverage described herein.
Covenant of Company to Take Certain Actions with Respect to the Mortgage Loans
in Certain Situations
Pursuant to the Agreement, upon the discovery by the Depositor, the
Company, the Master Servicer, the Certificate Insurer or the Trustee that any
representatives and warranty with respect to the Mortgage Loans (including the
related Mortgages and Notes) were materially and adversely untrue as of the
Closing Date with the result that the interests of the Owners in the related
Mortgage Loan or the interests of the Certificate Insurer are materially and
adversely affected, or any required document constituting a part of any Mortgage
File was not delivered to the Trustee by the time required to be so delivered or
was defective in any material respect when so delivered, the party discovering
such breach is required to give prompt written notice to the other parties and
the Certificate Insurer.
If any such omission of or defect in any document constituting part of
the Mortgage File or any such breach of any representation or warranty made by
the Company is not cured, in the opinion of the Certificate Insurer, for any
reason, within 60 days of the receipt of notice thereof, the Company shall be
obligated, if so requested by the Certificate Insurer in its discretion, on the
Monthly Cut-Off Date next succeeding the expiration of such 60 day period, to
repurchase the affected Mortgage Loan. The Certificate Insurer and the Trustee
on behalf of the Owners of the Certificates agree that, if a Mortgage Loan is a
Defective Mortgage Loan because a document as specified in the Agreement is not
included in the Mortgage File, such defect shall be deemed to be cured if the
Trustee shall have received during such sixty day period, a written statement
addressed to it from the Director of HUD Title I Insurance Division that such
document would not be required in connection with a claim for FHA Insurance with
respect to such Mortgage Loan. If the FHA has not assigned a case number under
the Contract of Insurance to a Mortgage Loan to indicate that such Mortgage Loan
is eligible for Title I Insurance coverage under the Contract of Insurance, on
or before the 90th day after the Closing Date, the Company shall be obligated,
on the Monthly CutOff Date next succeeding such 90th day, to repurchase such
Mortgage Loan. If the FHA reserve amount with respect to a Mortgage Loan has not
been transferred to the FHA Insurance Coverage Reserve Account on or before the
120th day after the Closing Date, the Company shall be obligated, on the Monthly
Cut-Off Date next succeeding such 120th day, to repurchase such Mortgage Loan.
If the Company is required to repurchase any Mortgage Loan on a Monthly Cut-Off
Date that is not a Business Day, such repurchase shall be made on the last
Business Day
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preceding such Monthly Cut-Off Date. Any Mortgage Loan that is required to be
purchased or repurchased as described above is referred to as a "Defective
Mortgage Loan."
Within two years after the Closing Date, the Company may elect in lieu of the
purchase or repurchase of a Defective Mortgage Loan, to substitute a Substitute
Mortgage Loan for the Defective Mortgage Loan. A "Substitute Mortgage Loan" is a
Mortgage Loan: (i) having such characteristics such that the representations
relating to Mortgage Loans as set out in the Agreement would have been true and
correct had such Mortgage Loan originally been a Mortgage Loan, (ii) each
scheduled Mortgage Payment with respect to such Mortgage Loan shall be greater
than or equal to the scheduled Mortgage Payment due in the same Due Period on
the Mortgage Loan for which Substitute Mortgage Loan is being substituted; (iii)
the Maturity Date with respect to such Mortgage Loan shall be no later than the
Maturity Date for the Mortgage Loan for which such Maturity Date is being
substituted,(iv) as of the date of substitution, the Principal Balance of such
Mortgage Loan is greater than or equal to the Principal Balance of the Mortgage
Loan for which such Substitute Mortgage Loan is being substituted, (v) the
Coupon Rate with respect to such Mortgage Loan is not less by an amount greater
than ___% than the Coupon Rate of the Mortgage Loan for which such Substitute
Mortgage Loan is being substituted, and (vi) if in excess of $__________ in
Principal Balance (at the time of substitution) of Mortgage Loans has previously
been substituted pursuant to the Agreement, the substitution of such Mortgage
Loan has been approved in advance in writing by the Certificate Insurer.
Sale of Mortgage Loans
Pursuant to the Agreement, the Depositor will transfer, assign, set
over and otherwise convey without recourse to the Trustee in trust all right,
title and interest of the Depositor in and to each Mortgage Loan and all the
right, title and interest in and to principal and interest due to the trust on
each such Mortgage Loan after the Cut-Off Date; provided, however, that the
Depositor will reserve and retain all its right, title and interest in and to
principal (including Prepayments) and interest due on each Mortgage 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, the Depositor has also been deemed to have granted to the
Trustee a security interest in the Trust Property in the event that the transfer
of the Trust Property is deemed to be a loan and not a sale.
In connection with the transfer and assignment of the Mortgage Loans on
the Closing Date, the following documents will be delivered to the Trustee (the
"Mortgage File"):
(i) The Mortgage Note, showing a complete chain of
endorsements or assignments from the named payee to the Depositor and
endorsed without recourse to the order of the Trustee which latter
endorsement may be executed with a facsimile signature of an officer of
the Depositor;
(ii) The original Mortgage with evidence of recording
indicated thereon (except that a true copy thereof certified by an
appropriate public official may be substituted);
(iii) The original assignment of Mortgage to the Trustee, in
recordable form;
(iv) All intermediate assignments of the Mortgage, with
evidence of recording thereon (or true copies thereof certified by
appropriate public officials may be substituted);
(v) An original of each assumption or modification agreement,
if any, relating to such Mortgage Loan; and
(vi) (A) An original notice signed by the Mortgagor
acknowledging HUD insurance, (B) an original or copy of (1)
truth-in-lending disclosure, (2) credit application, (3) consumer
credit report, (4) verification of employment and income or
verification of self-employment income, (5) evidence of the Mortgagor's
interest in the Mortgaged Property, (6) contract of work or written
description with cost estimates, (7) completion certificate, if in
existence on the Closing Date, (8) report on inspection of
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improvements to the Mortgaged Property, if in existence on the Closing
Date, (9) notice of non-compliance, if applicable, (10) to the extent
not included in (2), a written verification that the Mortgagor at the
time of origination was not more than 30 days delinquent on any senior
mortgage or deed of trust on the Mortgaged Property (11) with respect
to each Mortgage Loan with an initial principal balance in excess of
$15,000, an appraisal of the Mortgaged Property as of the time of
origination of the Mortgage Loan, (12) a title search as of the time of
origination with respect to the Mortgaged Property, and (C) any other
documents required for the submission of a claim with respect to the
Mortgage Loan to the FHA.
If the Trustee has not received (i) the original assignment of Mortgage
or (ii) any intermediate assignments of Mortgage (in each case of (i) and (ii),
with evidence of recording thereon (or true copies thereof certified by
appropriate public officials) the Depositor covenants and agrees to take any and
all actions necessary to effect the proper execution, filing and recordation of
the such assignment of the Mortgage and all intermediate assignments of
Mortgage, in the appropriate jurisdiction.
Acceptance by Trustee
The Trustee will acknowledge conveyance of the Trust Property and will
hold all assets included in the Trust Property from time to time in trust for
the use and benefit of all present and future Owners of the Certificates.
The Trustee will also agree for the benefit of the Certificateholders
and the Certificate Insurer to review each Mortgage File within 30 days of the
Closing Date to confirm that all the documents and instruments required to be
included in each Mortgage File are so included and have been executed (and that
documents which are required to be originals bear original signatures) and that
such documents and instruments relate to the Mortgage Loans identified in the
Mortgage Loan Schedule and are what they purport to be on their face. Promptly
upon completion of such review, the Trustee will also prepare and deliver a list
of any such missing documents to the Master Servicer and the Certificate
Insurer. The Trustee also agrees to review each Mortgage File within 90 days of
the Closing Date to confirm that all documents and instruments required to be
included in each Mortgage File are so included and have been executed where
required.
Master Servicer and Subservicers
The Master Servicer will agree to manage, service, administer and make
collections on the Mortgage Loans, and perform the other actions required by the
Master Servicer under the Agreement. In performing such obligations, the Master
Servicer will be required to act in good faith in a commercially reasonable
manner in accordance with all requirements of the FHA applicable to the
servicing of the Mortgage Loans, and to service and administer the Mortgage
Loans in accordance with Title I, the terms of the Agreement and the respective
Mortgage Loans. The Master Servicer will have full power and authority, acting
alone and/or through subservicers, if any, subject only to the specific
requirements and prohibitions of Title I, the Agreement and the respective
Mortgage Loans, to do any and all things in connection with such servicing and
administration which are consistent with the manner in which it services FHA
Title I home improvement mortgage loans owned by the Master Servicer or any of
its affiliates or serviced by the Master Servicer for others and which are
consistent with the ordinary practices of prudent mortgage lending institutions.
Servicing Record. The Master Servicer will be required to establish and
maintain books and records (the "Servicing Record") in which the Master Servicer
will record all Mortgage Payments received or collected by or on behalf of the
Master Servicer or received by the Trustee, the Company or the Depositor in
respect of each Mortgage Loan and each foreclosed property and all amounts owing
to the Master Servicer and subservicers in compensation for services rendered or
in reimbursement of certain costs and expenses incurred. In addition, the Master
Servicer will be required to establish and maintain records for the Insurance
Record (which shall be part of such Servicing Record) in which the Master
Servicer shall record all claims made under the Contract of Insurance, all
payments received from the FHA for each such claim and the amount of insurance
coverage remaining.
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The Master Servicer must separately record various amounts as of the
related Determination Date (i.e., the fifth Business Day preceding the related
Distribution Date) or Distribution Date, as applicable, in the Servicing Record
generally including the following:
(i) the unpaid Master Servicing Fee due the Master Servicer on
the next Distribution Date;
(ii) all subservicing fees which are entitled to be retained
by the subservicers, if any, with respect to the preceding Due Period;
all fees retained during the preceding Due Period by any Independent
Contractor hired by the Master Servicer to operate and manage a
Foreclosed Property; and amounts retained by subservicers in respect of
Mortgage Payments representing less than a Monthly Payment if the
related Mortgage Loan is not a Defaulted Mortgage Loan;
(iii) all amounts due as of the preceding Monthly Cut-Off Date
in reimbursement of Delinquency Advances in respect of prior
Distribution Dates;
(iv) all amounts due as of the preceding Monthly Cut-Off Date
in reimbursement of Foreclosure Advances previously advanced by the
Master Servicer (separately identifying the amount of each then due);
(v) all Priority Expenses required to be distributed on the
next succeeding Distribution Date;
(vi) the aggregate amount of the Master Servicer Fee paid to
Master Servicer on such Distribution Date in respect of each Mortgage
Loan;
(vii) the aggregate amount of Delinquency Advances and
Foreclosure Advances reimbursed to the Master Servicer on such
Distribution Date;
(viii) all unpaid Trustee Fees due the Trustee as of the
preceding Monthly Cut-Off Date;
(ix) on or prior to each Determination Date, the Principal
Balance of Mortgage Loans that became Defaulted Mortgage Loans during
the prior Due Period;
(x) on or before each Determination Date, the 30+ Delinquency
Percentage and the 60+ Delinquency Percentage; the Annual Default
Percentage and such other data as is required by the Trustee to
determine the Required OC Multiple; and
(xi) on or before each Determination Date, any other
information with respect to the Mortgage Loans required by the Trustee
to determine the Class A Principal Distribution with respect to the
next succeeding Distribution Date or otherwise to determine the amount
of required distributions pursuant to the Agreement.
Review of Master Servicer Activities. The Master Servicer will be
required to deliver to the Trustee and the Certificate Insurer on or before
__________ of each year, beginning on __________ of the calendar year following
the calendar year in which the Closing Date occurs, an officer's certificate
signed by a responsible officer of the Master Servicer generally to the effect
that based upon a review of the Master Servicer's activities during the
preceding calendar year, the Master Servicer has fulfilled its obligations under
the Agreement, or there has been a default in the fulfillment of such obligation
and specifying each such default, the nature and status thereof and the action
the Master Servicer proposes to take with respect thereto.
The Master Servicer will cause a firm of nationally recognized
independent certified public accountants, who may also render other services to
the Master Servicer, to deliver to the Trustee and the Certificate Insurer on or
before __________ (or 90 days after the end of the Master Servicer's fiscal year
of each year), beginning
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____________ __, 19__ with respect to the twelve months ended the immediately
preceding __________ (or other applicable date) (i) an opinion by a firm of
independent certified public accountants as to the financial position of the
Master Servicer in accordance with generally accepted accounting standards; and
(ii) a statement from the firm of independent certified public accountants to
the effect that, based on an examination of certain specified documents and
records relating to the servicing of the Master Servicer's mortgage loan
portfolio conducted in compliance with certain Applicable Accounting Standards
(as defined in the Agreement), such firm is of the opinion that such servicing
has been conducted in compliance with such Applicable Account Standards.
Access to Records. The Master Servicer must provide to representatives
of the Trustee and the Certificate Insurer and holders of a majority in
principal amount of the Certificates reasonable access to the documentation
regarding the Mortgage Loans. The Master Servicer must provide such access to
any other Certificateholder only in such cases where the Master Servicer is
required by applicable statutes or regulations (whether applicable to the Master
Servicer or to such Certificateholder) to permit such Certificateholder to
review such documentation. Any Certificateholder, by its acceptance of a
Certificate (or by acquisition of its beneficial interest therein), will
bedeemed to have agreed to keep confidential and not to use for its own benefit
any information obtained by it, except as may be required by applicable law.
Master Servicer Advances. With respect to each Mortgage Loan (other
than a Defaulted Mortgage Loan) and each Distribution Date, the Master Servicer
must advance from its own funds and deposit into the Certificate Account no
later than the related Determination Date, the positive excess, if any, of (i)
the portion of the Monthly Payment due (net of any subservicing fee and Master
Servicing Fee) with respect to such Mortgage Loan in the related Due Period
allocable to interest calculated at the related Net Coupon Rate over (ii) the
amount deposited into the Certificate Account with respect to such Mortgage Loan
and such Due Period. A "Defaulted Mortgage Loan" is any Mortgage Loan with
respect to which: (i) a claim has been submitted pursuant to the Contract of
Insurance, (ii) foreclosure proceedings have been commenced, (iii) any portion
of a Monthly Payment is more than 120 days past due (without giving effect to
any grace period) or (iv) the Master Servicer has determined in good faith in
accordance with customary mortgage loan servicing practices that all amounts
which it expects to receive with respect to the Mortgage Loan have been
received.
The Master Servicer will be entitled to be reimbursed for previously
unreimbursed Delinquency Advances with respect to a Mortgage Loan on
Distribution Dates subsequent to the Distribution Date in respect of which such
Delinquency Advance was made from Mortgage Payments with respect to such
Mortgage Loan. If a Mortgage Loan shall become a Defaulted Loan and the Master
Servicer shall not have been fully reimbursed for any Delinquency Advances with
respect to such Mortgage Loan, the Master Servicer shall be entitled to be
reimbursed for the outstanding amount of such Delinquency Advances from
unrelated Mortgage Loans. No interest shall be due to the Master Servicer in
respect of any Delinquency Advance for any period prior to the reimbursement
thereof.
The Master Servicer must advance from its own funds the following
amounts in respect of any Mortgage Loan on foreclosed property (collectively,
"Foreclosure Advances"):
(i) all third party costs and expenses (including legal fees
and costs and expenses relating to bankruptcy or insolvency proceedings
in respect of any Mortgagor) associated with the institution of
foreclosure proceedings in respect of any Mortgage Loan;
(ii) all insurance premiums due and payable in respect of each
Foreclosed Property, prior to the date on which the related insurance
policy would otherwise be terminated;
(iii) all real estate taxes and assessments in respect of each
Foreclosed Property that have resulted in the imposition of a lien
thereon, other than amounts that are due but not yet delinquent;
(iv) all costs and expenses necessary to maintain each
Foreclosed Property;
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(v) all fees and expenses payable to any independent
contractor hired to operate and manage a Foreclosed Property, other
than fees and expenses retained by such independent contractor from the
proceeds of the operation of such Foreclosed Property;
(vi) all third party costs to prepare and file FHA claims; and
(vii) all fees and expenses of any independent appraiser or
other real estate expert retained by the Trustee.
The Master Servicer shall be entitled to be reimbursed from related
Mortgage Payments for Foreclosure Advances advanced on or prior to the related
Monthly Cut-Off Date.
The Master Servicer must advance the Foreclosure Advances described in
clauses (i) through (v) above if, but only if, the Master Servicer would make
such an advance if it or an affiliate held the affected Mortgage Loan or
Foreclosed Property for its own account and, in the Master Servicer's good faith
judgment, such amounts will be recoverable from related Mortgage Payments.
Modifications, Waivers and Amendments. The Master Servicer may not
agree to any modification, waiver or amendment of any provision of any Mortgage
Loan unless, in the Master Servicer's good faith opinion, such modification,
waiver or amendment (i) would minimize the loss that might otherwise be
experienced with respect to such Mortgage Loan and complies with the
requirements of Title I or (ii) is required by Title I. Notwithstanding the
foregoing, so long as an Insurer Default shall not have occurred and be
continuing, the Master Servicer may not agree, without the prior written consent
of the Certificate Insurer, during any period of twelve consecutive Due Periods
to modifications, waivers or amendments of the provisions of Mortgage Loans
having (at the time of such modification, waiver or amendment) an aggregate
Principal Balance greater than one percent (1%) of the Aggregate Principal
Balance as of the Determination Date in the first of such Due Periods.
Enforcement of "Due-On-Sale" and "Due on Encumbrance." If any Mortgage
Loan contains a provision, in the nature of a "due-on-sale" clause, the Master
Servicer, on behalf of the Trustee will exercise any right the Trustee may have
as the mortgagee of record with respect to such Mortgage Loan (x) to accelerate
the payments thereon or (y) to withhold its consent to any such sale or to the
transfer, in a manner consistent with the servicing standard set forth in the
Agreement.
If any Mortgage Loan contains a provision, in the nature of a
"due-on-encumbrance" clause, the Master Servicer, on behalf of the Trustee, will
exercise any right the Trustee may have as the Mortgagee of record with respect
to such Mortgage Loan (x) to accelerate the payments thereon or (y) to withhold
its consent to the creation of any such lien or other encumbrance, in a manner
consistent with the servicing standard.
FHA Insurance Claims; Foreclosures. If any Monthly Payment due under
any Mortgage Loan is not paid when the same becomes due and payable, or if the
Mortgagor fails to perform any other covenant or obligation under the Mortgage
Loan and such failure continues beyond any applicable grace period, the Master
Servicer must take such action (consistent with Title I, including efforts to
cure the default of such Mortgage Loan) as it shall deem to be in the best
interest of the Trust. If the maturity of the related Mortgage Note has been
accelerated pursuant to the requirements under Title I following the Master
Servicer's efforts to cure the default of the Mortgage Loan (and such Mortgage
Loan is not required to be purchased pursuant to the Agreement) and (i) if an
FHA Insurance Coverage Insufficiency does not exist at the time, the Master
Servicer must initiate, on behalf of the Trust, a claim under the Contract of
Insurance for reimbursement for loss on such Mortgage Loan pursuant to Title I
or (ii) if an FHA Insurance Coverage Insufficiency exists at the time, the
Master Servicer may proceed against the Mortgaged Property securing the Mortgage
Loan pursuant to the Agreement, and if thereafter an FHA Insurance Coverage
Insufficiency does not exist, may submit a claim under the Contract of Insurance
with respect to such Mortgage Loan if it has obtained the prior approval of the
Secretary of HUD.
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If the FHA rejects or refuses to pay any claim made under the Contract
of Insurance (including a rejection of a previously paid claim and a demand by
the FHA of a return of the FHA Insurance Payment Amount for such Mortgage Loan)
for a Mortgage Loan (other than a refusal or rejection for clerical error in
computing the claim amount), upon receipt of the FHA's rejection notice and
determination by the Master Servicer that the rejection was not due to clerical
error, then (i) the Master Servicer must promptly notify the Trustee (if the
Trustee shall not initially have received such notice), the Depositor and the
Certificate Insurer of such fact, and (ii) if the FHA indicates rejection due to
other than a failure to service such Mortgage Loan in accordance with Title I,
the Depositor shall be liable on or before the Monthly Cut-Off Date next
following the date of such notice from the Master Servicer to repurchase such
Mortgage. If the FHA shall have indicated in writing in connection with its
rejection or refusal to pay a claim that such rejection or refusal is due in
whole to a failure to service such Mortgage Loan in accordance with Title I, the
Master Servicer shall notify the Depositor and the Certificate Insurer of such
determination, and the Master Servicer must on or before the next succeeding
Monthly Cut-Off Date repurchase such Mortgage Loan for the Purchase Price.
If the Master Servicer, on behalf of the Trustee, may, at any time,
institute foreclosure proceedings, exercise any power of sale to the extent
permitted by law, obtain a deed in lieu of foreclosure, or otherwise acquire
possession of or title to any Mortgaged Property, by operation of law or
otherwise; the Master Servicer shall comply with the requirements under Title I,
the REMIC regulations and the Agreement, shall follow such practices and
procedures in a manner which is consistent with the Master Servicer's procedure
for foreclosure and operation ofthe foreclosed property with respect to FHA
Title I property improvement mortgage loans held in the Master Servicer's
portfolio for its own account or, if there are no such loans, FHA Title I
property improvement mortgage loans serviced by the Master Servicer for others,
giving due consideration to accepted mortgage servicing practices of prudent
lending institutions, and shall sell or liquidate the Mortgage Loan or Mortgaged
Property.
The Trustee must deposit in the Certificate Account on the day of
receipt all amounts received from the FHA (to the extent FHA Insurance Payment
Amounts are not sent by the FHA directly to the Master Servicer), or any other
Person with respect to the Mortgage Loans or any other assets of the Trust.
If prior to the Termination Date, the FHA rejects an insurance claim,
in whole or part, under the Contract of Insurance after previously paying such
insurance claim and the FHA demands that the Trustee repurchase such Mortgage
Loan, the Master Servicer must pursue such appeals with the FHA as are
reasonable. If the FHA continues to demand that the Trustee repurchase such
Mortgage Loan after the Master Servicer exhausts such administrative appeals as
are reasonable, then notwithstanding that the Depositor, the Master Servicer or
any other person is required to repurchase such Mortgage Loan the Master
Servicer must notify the Trustee of such fact and the Trustee shall cause the
Trust to repurchase such Mortgage Loan from funds available in the Certificate
Account.
The Depositor will reimburse the Trustee for any amounts paid by the
Trustee to the FHA in order to repurchase Mortgage Loans for which the FHA has
rejected an insurance claim for any reason other than a failure to comply with
FHA servicing requirements. The Master Servicer will reimburse the Trustee for
any amounts paid by the Trustee to FHA in order to repurchase Mortgage Loans for
which the FHA has rejected an insurance claim as a result of a failure to
service such Mortgage Loan in accordance with Title I.
Any sale of a Foreclosed Property shall be without recourse to the
Trustee, the Master Servicer or the Trust, and neither the Master Servicer nor
the Trustee shall have any liability to any Certificateholder with respect to
the purchase price therefor accepted by the Master Servicer or the Trustee.
Maintenance of Insurance. The Master Servicer must maintain or cause to
be maintained with respect to each Mortgaged Property at least such insurance as
is required with respect thereto by Title I. The Master Servicer will be
required to maintain or cause to be maintained such other insurance (including
title insurance) as shall be required by the Certificate Insurer or that the
Master Servicer shall deem reasonable.
The Master Servicer must maintain a fidelity bond in such form and
amount as is customary for entities acting as custodian of funds and documents
in respect of mortgage loans on behalf of institutional investors.
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Removal and Resignation of Master Servicer
The Master Servicer has covenanted and agreed to act as such for an
initial term, commencing on the Closing Date and ending on ______________ ___,
19__, which term shall be extendible by the Certificate Insurer (unless a
Servicer Termination Event shall have occurred) for successive quarterly terms
(or, pursuant to revocable written standing instructions from time to time to
the Master Servicer and the Trustee, for any specified number of terms greater
than one), until the termination of the Trust.
The Certificate Insurer or the Owners, with the consent of the
Certificate Insurer, will have the right to remove the Master Servicer upon the
occurrence of any of the following events (each, a "Servicer Termination
Event"):
(a) (i) except with respect to Mortgage Payments representing less than
a Monthly Payment if the related Mortgage Loan is not a Defaulted Mortgage Loan,
failure by the Master Servicer to deposit or cause the related subservicer to
deposit all Mortgage Payments in the related Collection Account no later than
the Business Day following receipt thereof by the Master Servicer or
subservicer, which failure continues unremedied for three Business Days or (ii)
failure by the Master Servicer to deposit or cause the related subservicer to
deposit amounts with respect to Mortgage Payments representing less than a
Monthly Payment if the related Mortgage Loan is not a Defaulted Mortgage Loan
within two Business Days of the date of required deposit therefor; or
(b) failure on the part of the Master Servicer duly to observe or
perform in any material respect any of its other covenants or agreements
contained in the Agreement that continues unremedied for a period of thirty days
after the date on which written notice of such failure, requiring the same to be
remedied, shall be given to the Master Servicer and the Trustee pursuant to a
Certificate Class Vote as provided in the Agreement; provided, however, that if
such failure shall be of a nature that it cannot be cured within 30 days, such
failure shall not constitute a Servicer Termination Event if within such 30-day
period the Master Servicer shall have given notice to the Certificate Insurer of
corrective action it proposes to take, which corrective action is agreed to in
writing by the Certificate Insurer in its sole discretion to be satisfactory,
and the Master Servicer shall thereafter pursue such corrective action
diligently until such default is cured; or
(c) failure by the Master Servicer to deliver to the Trustee and (so
long as an Insurer Default shall not have occurred and be continuing) the
Certificate Insurer the Master Servicer Certificate by the fourth Business Day
prior to each Distribution Date, or failure on the part of the Master Servicer
to comply with or service the Mortgage Loans in accordance with Title I;
(d) the entry of a decree or order for relief by a court or regulatory
authority having jurisdiction in respect of the Master Servicer in an
involuntary case under the federal bankruptcy laws, as now or hereafter in
effect, or another present or future federal or state, bankruptcy, insolvency or
similar law, or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Master Servicer or of any
substantial part of their respective properties or ordering the winding up or
liquidation of the affairs of the Master Servicer and the continuance of any
such decree or order unstayed and in effect for a period of 60 consecutive days
or the commencement of an involuntary case under the federal bankruptcy laws, as
now or hereinafter in effect, or another present or future federal or state
bankruptcy, insolvency or similar law and such case is not dismissed within 60
days; or
(e) the commencement by the Master Servicer of a voluntary case under
the federal bankruptcy laws, as now or hereinafter in effect, or any other
present or future, federal or state bankruptcy, insolvency or similar law, or
the consent by the Master Servicer to the appointment of or taking possession by
a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Master Servicer or of any substantial part of its
property or the making by the Master Servicer of an assignment for the benefit
of creditors or the failure by the Master Servicer generally to pay its debts as
such debts become due or the taking of corporate action by the Master Servicer
in furtherance of any of the foregoing; or
S-38
<PAGE>
(f) any representation, warranty or statement of the Master Servicer
made in the Agreement or any certificate, report or other writing delivered
pursuant hereto shall prove to be incorrect in any material respect as of the
time when the same shall have been made, and the incorrectness of such
representation, warranty or statement has a material adverse effect on the Trust
and, within 30 days after written notice thereof shall have been given to the
Master Servicer by the Trustee or the Certificate Insurer (or, if an Insurer
Default shall have occurred and be continuing, an Owner of a Certificate), the
circumstances or condition in respect of which such representation, warranty or
statement was incorrect shall not have been eliminated or otherwise cured; or
(g) so long as an Insurer Default shall not have occurred and be
continuing, the Certificate Insurer shall not have delivered a servicer
extension notice; or
(h) a claim is made under the Policy.
Consequences of a Servicer Termination Event
If a Servicer Termination Event shall occur and be continuing, the
Certificate Insurer (or, if an Insurer Default shall have occurred and be
continuing, either the Trustee or the Owners of Certificates evidencing not less
than a majority of the Certificates outstanding), by notice given in writing to
the Master Servicer (and to the Trustee if given by the Certificate Insurer or
the Owners of the Certificates) may terminate all the rights and obligations of
the Master Servicer under the Agreement. On or after the receipt by the Master
Servicer of such written notice, and the appointment of and acceptance by a
successor Master Servicer, all authority, power, obligations andresponsibilities
of the Master Servicer under the Agreement, whether with respect to the
Certificates or the Trust or otherwise, shall pass to, be vested in and become
obligations and responsibilities of the successor Master Servicer. The successor
Master Servicer shall have no liability with respect to any obligation which was
required to be performed by the Master Servicer prior to the date that the
successor Master Servicer becomes the Master Servicer or any claim of a third
party based on any alleged action or inaction of the prior Master Servicer. The
prior Master Servicer is required to cooperate with the successor Master
Servicer in effecting the termination of the responsibilities and rights of the
prior Master Servicer.
After the Master Servicer receives a notice of termination or upon the
resignation of the Master Servicer the Certificate Insurer must appoint a
successor Master Servicer by written instrument. The Certificate Insurer
(without limiting its obligations under the Policy) will have no liability to
the Trustee, the Depositor, the person then serving as Master Servicer, any
Owner of a Certificate or any other person related to such appointment. Any
resignation or removal of the Master Servicer will become effective only upon
acceptance of appointment by the successor Master Servicer.
Any successor Master Servicer shall be entitled to such compensation
(whether payable out of the Distribution Amount or otherwise) as the Master
Servicer would have been entitled to if the Master Servicer had not resigned or
been terminated. The Certificate Insurer and a successor Master Servicer may
agree on additional compensation to be paid to such successor Master Servicer as
described under "Description of the Offered Certificates - Distributions." In
addition, any successor Master Servicer shall be entitled to reasonable
transition expenses incurred in acting as successor Master Servicer.
Upon any termination of the Master Servicer or appointment of a
successor to the Master Servicer, the Trustee must give prompt written notice
thereof to Owners of the Certificates at their respective addresses appearing in
the Certificate Register.
Waiver of Past Defaults
The Certificate Insurer (or, if an Insurer Default shall have occurred
and be continuing the Owners of the Certificates pursuant to a certificate class
vote) may, on behalf of all Certificateholders, waive any default by the Master
Servicer in the performance of its obligations and its consequences. Upon any
such waiver of a past default, such default shall cease to exist, and any
Servicer Termination Event arising therefrom shall be deemed to have been
remedied.
S-39
<PAGE>
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is the opinion of Arter & Hadden, special
counsel to the Depositor as to certain of the material federal income tax
consequences of the purchase, ownership and disposition of the Offered
Certificates and 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 Offered Certificates.
REMIC Elections
The Trustee will cause an election to be made to treat the Trust as a
"real estate mortgage investment conduit" ("REMIC") for federal income tax
purposes. Arter & Hadden, special tax counsel, is of the opinion that, for
federal income tax purposes, assuming (i) the REMIC election is made and (ii)
compliance with the Agreement, the Trust will be treated as a REMIC, the Offered
Certificates will be treated as "regular interests" in the REMIC and the Class R
Certificates will be treated as the sole class of "residual interests" in the
REMIC. For federal income tax purposes, regular interests in a REMIC are treated
as debt instruments issued by the REMIC on the dateon which those interests are
created, and not as ownership interests in the REMIC or its assets. Owners of
Offered Certificates that otherwise report income under a cash method of
accounting will be required to report income with respect to such Offered
Certificates under an accrual method. The Offered Certificates may be issued
with "original issue discount" for federal income tax purposes. The prepayment
assumption to be used in determining whether Class A Certificates are issued
with original issue discount and the rate of accrual of original issue discount
is ___%. No representation is made that any of the Mortgage Loans will prepay at
this rate or any other rate. See "Certain Federal Income Tax Consequences -
Federal Income Taxation for REMIC Certificates" and "Taxation of Regular
Certificates" in the Prospectus.
[Although not free from doubt, it is anticipated that the Class S-A
Certificates will be treated as issued with original issue discount in an amount
equal to the excess of all payments thereon over their issue price (including
accrued interest), and the Trustee intends to report income in respect of such
Class of Certificates in this manner. Under this method, any "negative" amounts
of original issue discount attributable to rapid prepayments would not be
deductible currently, but would be offset against future positive accruals of
original issue discount, if any. Finally, a Class S-A Certificateholder may be
entitled to a loss deduction to the extent it becomes certain that such holder
will not recover a portion of its remaining basis in the Class S-A Certificate,
assuming no further prepayments.]
ERISA CONSIDERATIONS
The Employee Retirement Income Security Act of 1974, as amended
("ERISA"), imposes certain requirements on those employee benefit plans and
individual retirement arrangements to which it applies ("Plan") and on those
persons who are fiduciaries with respect to such Plans. Any Plan fiduciary which
proposes to cause a Plan to acquire any of the Offered Certificates should
consult with counsel with respect to the consequences under ERISA and the Code
of the Plan's acquisition and ownership of such Certificates. See "ERISA
Considerations" in the Prospectus.
[The DOL has issued to ____________________ an individual prohibited
transaction exemption, Prohibited Transaction Exemption ___________________ (the
"Exemption"), which generally exempts from the application of the prohibited
transaction provision of Section 406(a), Section 406(b)(1) and Section 406(b)(2)
of ERISA and the excise taxes imposed pursuant to Sections 4975(a) and (b) of
the Code, with respect to the initial purchase, the holding and the subsequent
resale by Plans of certificates in pass-through
S-40
<PAGE>
trusts that consist of certain receivables, loans and other obligations that
meet the conditions and requirements of the Exemption. The loans covered by the
Exemption include mortgage loans such as the Mortgage Loans.
Among the conditions that must be satisfied for the Exemption to apply
are the following:
(1) the acquisition of the certificates by a Plan is on terms
(including the price for the certificates) that are at least as
favorable to the Plan as they would be in an arms-length transaction
with an unrelated party:
(2) the rights and interests evidenced by the certificates
acquired by the Plan are not subordinated to the rights and interests
evidenced by other certificates of the trust:
(3) the certificates acquired by the Plan have received a
rating at the time of such acquisition that is one of the three highest
generic rating categories from either S&P, Moody's, Duff & Phelps
Credit Rating Co. ("D&P") or Fitch Investors Service, Inc. ("Fitch");
(4) the Trustee must not be an affiliate of any other member
of the Restricted Group (as defined below);
(5) the sum of all payments made to and retained by the
Underwriter in connection with the distribution of the certificates
represents not more than reasonable compensation for underwriting the
certificates; the sum of all payments made to and retained by the
Depositor pursuant to the assignment of the loans to the Trust Estate
represents not more than the fair market value of such loans; the sum
of all payments made to and retained by the Master Servicer and any
subservicer represents not more than reasonable compensation for such
person's services under the Agreement and reimbursement of such
person's reasonable expenses in connection therewith; and
(6) the Plan investing in the 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.
The Trust Estate must also meet the following requirements:
(i) the corpus of the Trust Estate must consist solely of
assets of the type that have been included in other investment pools;
(ii) certificates in such other investment pools must have
been rated in one of the three highest rating categories of S&P,
Moody's, Fitch or D&P for at least one year prior to the Plan's
acquisition of certificates; and
(iii) certificates evidencing interests in such other
investment pools must have been purchased by investors other than Plans
for at least one year prior to the Plan's acquisition of certificates.
Moreover, the Exemption provides relief from certain
self-dealing/conflict of interest prohibited transactions that may occur when
the Plan fiduciary causes a Plan to acquire certificates in a trust in which the
fiduciary (or its affiliate) is an obligor on the receivables held in the trust;
provided that, among other requirements, (i) in the case of an acquisition in
connection with the initial issuance of certificates, at least fifty percent of
each class of certificates in which Plans have invested is acquired by persons
independent of the Restricted Group and at least fifty percent of the aggregate
interest in the trust is acquired by persons independent of the Restricted
Group; (ii) such fiduciary (or its affiliate) is an obligor with respect to five
percent or less of the fair market value of the obligations contained in the
trust; (iii) the Plan's investment in certificates of any class does not exceed
twenty-five percent of all of the certificates of that class outstanding
S-41
<PAGE>
at the time of the acquisition; and (iv) immediately after the acquisition, no
more than twenty-five percent of the assets of the Plan with respect to which
such person is a fiduciary are invested in certificates representing an interest
in one or more trusts containing assets sold or serviced by the same entity. The
Exemption does not apply to Plans sponsored by the Company, the Depositor, the
Certificate Insurer, the Underwriter, the Trustee, the Master Servicer, any
obligor with respect to Mortgage Loans included in the Trust Estate constituting
more than five percent of the aggregate unamortized principal balance of the
assets in the Trust Estate, or any affiliate of such parties (the "Restricted
Group").
The Depositor believes that the Exemption will apply to the acquisition
and holding of Offered Certificates by Plans and that all conditions of the
Exemption other than those within the control of the investors will be met. In
addition, as of the date hereof, there is no single Mortgage Loan included in
the Trust Estate that constitutes more than five percent of the aggregate
unamortized principal balance of the assets of the Trust Estate.]
Prospective Plan investors should consult with their legal advisors
concerning the impact of ERISA and the Code[, the applicability of PTCE
_________ and the Exemption,] and the potential consequences in their specific
circumstances, prior to making an investment in the Offered Certificates.
Moreover, each Plan fiduciary should determine whether under the general
fiduciary standards of investment procedure and diversification an investment in
the Offered 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.
RATINGS
It is a condition of the issuance of the Offered Certificates that the
Offered Certificates receive ratings of AAA by S&P and Aaa by Moody's. The
ratings assigned to the Offered 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 Investors Service, 99
Church Street, New York, New York and Standard & Poor's Ratings Group, a
division of McGraw Hill, 25 Broadway, New York, New York 10004. Such ratings
will be the views only of such rating agencies. There is no assurance that any
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
have an adverse effect on the market price of the Offered Certificates. A
security rating is not a recommendation to buy, sell or hold securities.
LEGAL INVESTMENT CONSIDERATIONS
Although the Offered Certificates are expected to be rated "AAA" by
S&P, and "Aaa" by Moody's, the Offered Certificates will not constitute
"mortgage related securities" for purposes of the Secondary Mortgage Market
Enhancement Act of 1984 ("SMMEA") because some of the Mortgage Loans may be
secured by junior 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 Offered Certificates.
UNDERWRITING
Under the terms and subject to the conditions set forth in the
Underwriting Agreement for the sale of the Offered Certificates, the Depositor
has agreed to cause the Trust to sell and ___________________ (the
"Underwriters") has agreed to purchase the Offered Certificates.
The Underwriters have advised the Depositor that they propose to offer
the Offered Certificates for sale from time to time in one or more registered
transactions or otherwise, at market prices prevailing at the time of sale, at
prices related to such market prices or at negotiated prices. The Underwriters
may effect such transactions
S-42
<PAGE>
by selling such Certificates to or through dealers, and such dealers may receive
compensation in the form of underwriting discounts, concessions or commissions
from the Underwriters or purchasers of the Offered Certificates for whom they
may act as agent. Any dealers that participate with the Underwriters in the
distribution of the Offered Certificates purchased by the Underwriters may be
deemed to be underwriters, and any discounts or commissions received by them or
the Underwriters and any profit on the resale of Class A Certificates by them or
the Underwriters may be deemed to be underwriting discounts or commissions under
the Securities Act.
The Company has agreed to indemnify the Underwriters against certain
liabilities including liabilities under the Securities Act of 1933, as amended.
The Company has been advised by the Underwriters that the Underwriters
currently intend to make a market in the Offered Certificates, as permitted by
applicable laws and regulations. The Underwriter is not obligated, however, to
make a market in the Offered Certificates and such market-making may be
discontinued at any time at the sole discretion of the Underwriter. Accordingly,
no assurance can be given as to the liquidity of, or trading markets for, the
Offered Certificates.
REPORT OF EXPERTS
The financial statements of the Certificate Insurer,
_________________________________, for each of the two years in the periods
ending , 199 and 199 , appearing in Appendix B of this Prospectus Supplement
have been audited by _____________________, independent accountants, as
indicated in their report thereonappearing elsewhere herein and in the
Registration Statement, and are included in reliance upon such report and 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 Depositor by Arter & Hadden,
Washington, D.C. and by Alan L. Langus, Chief Counsel for the Company. 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
____________________, __________. Certain legal matters relating to the
Certificate Insurer and the Certificate Insurance Policies will be passed upon
for the Certificate Insurer by ____________________, __________.
S-43
<PAGE>
APPENDIX A
INDEX OF LOCATION OF PRINCIPAL DEFINED TERMS
<TABLE>
<CAPTION>
Page Page
<S> <C> <C> <C>
Agreement...............................................S-1 Received...........................................S-27
Beneficial Owner.......................................S-10 Record Date.........................................S-3
Book Entry Termination.................................S-26 regular interests..................................S-11
Business Day...........................................S-27 Related Series Mortgage Loans.......................S-6
Certificate Insurer.....................................S-8 Related Series Trusts...............................S-6
Certificate Insurer Default.............................S-8 REMIC..............................................S-11
Certificate Register...................................S-23 Required OC Multiple...............................S-30
Certificate Registrar..................................S-23 Required OC Test...................................S-30
Claims Administrator....................................S-1 residual interests.................................S-11
Class A Certificates....................................S-1 S&P.................................................S-8
Class A Guaranteed Certificate Balance..................S-4 Servicer Termination Event.........................S-37
Class A Guaranteed Principal Distribution Amount........S-3 Servicing Fees.....................................S-10
Class A Interest Carryover Shortfall....................S-3 Servicing Record...................................S-33
Class A Interest Distribution...........................S-3 SMMEA..............................................S-12
Class A Minimum Principal Distributable Amount..........S-4 Substitute Mortgage Loan...........................S-31
Class A Monthly Interest Distributable Amount...........S-3 Title I Program.....................................S-2
Class A Monthly Principal Distributable Amount..........S-3 Trust...............................................S-1
Class S-A Certificates..................................S-1 Trust Property.....................................S-31
Class S-A Interest Distribution.........................S-5 Trustee.............................................S-1
Clearing Agency........................................S-25 Trustee's Fee......................................S-24
Clearing Agency Participants...........................S-25 Underwriter........................................S-42
Closing Date............................................S-1 Weighted average life..............................S-20
Company.................................................S-1
Contract of Insurance Holder............................S-6
CPR....................................................S-20
Cram Down Loss..........................................S-5
Cut-Off Date............................................S-1
Defaulted Mortgage Loan................................S-35
Defective Mortgage Loan................................S-31
Delinquency Advances...................................S-10
Depositor...............................................S-1
Determination Date.....................................S-33
Distributable Excess Spread.............................S-5
Distribution Date.......................................S-3
Due Period..............................................S-4
ERISA..................................................S-40
Excess Spread...........................................S-4
FHA.....................................................S-2
FHA Insurance...........................................S-6
FHA Insurance Amount...................................S-15
FHA Premium Account.....................................S-7
FHA Premium Account Deposit.............................S-7
Foreclosure Advances...................................S-35
HUD.....................................................S-2
Initial FHA Insurance Amount...........................S-14
Initial FHA Premium Account Deposit.....................S-7
Insurance Agreement....................................S-28
Insurance Payments......................................S-8
Invoiced Mortgage Loans.................................S-7
Master Servicer.........................................S-1
Master Servicing Fee...................................S-10
Midpoint Date..........................................S-30
Moody's.................................................S-8
Mortgage File..........................................S-32
Mortgage Loans..........................................S-2
Mortgaged Properties....................................S-2
Mortgages...............................................S-2
Notes...................................................S-2
Notional Principal Balance..............................S-5
Offered Certificates....................................S-1
Originator..............................................S-1
Plan...................................................S-40
Policy..................................................S-8
Prepayments.............................................S-9
Receipt................................................S-27
</TABLE>
<PAGE>
APPENDIX B
AUDITED FINANCIAL STATEMENTS OF CERTIFICATE INSURER
C-1
<PAGE>
APPENDIX C
SPECIMEN OF THE INSURANCE POLICY
C-1
<PAGE>
[Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This preliminary prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of any
such State.]
================================================================================
SUBJECT TO COMPLETION, DATED __________ ___, 199_ VERSION 3
PROSPECTUS SUPPLEMENT
(To Prospectus Dated ______________ __, 199___)
- --------------------------------------------------------------------------------
CTS Multifamily Mortgage Loan Trust 199__-__
$__________________ Class A-1 Certificates
$__________________ Class S-A Interest-only Certificates
$___________ Class B Certificates
Multifamily Mortgage Pass-Through Certificates
SERIES 199__-__
CONTISECURITIES ASSET FUNDING CORP.
Depositor
-----------------------
Servicer
- --------------------------------------------------------------------------------
The CTS Multifamily Mortgage Pass-Through Certificates, Series 199__-__
(the "Certificates") will consist of the Class A-1 senior certificates (the
"Class A-1 Certificates"), the Class S-A senior certificates (the "Class S-A
Certificates" and, together with the Class A-1 Certificates (the "Senior
Certificates"), the Class B subordinate certificates (the "Class B
Certificates"), the Class C subordinate Certificates (the "Class C
Certificates") and the Class R residual certificates (the "Class R
Certificates"); (together with the Class B Certificates, and the Class C
Certificates, the "Subordinate Certificates"). Only the Senior Certificates and
Class B Certificates (collectively, the "Offered Certificates") are being
offered hereby.
As more fully described herein, interest distributions on the Offered
Certificates will be based on the Certificate Principal Balance of the related
Class or the aggregate principal balance of the Mortgage Loans or another
specified Class of Certificates (the "Notional Principal Balance") and the then
applicable Pass-Through Rate.
The Pass-Through Rate for the Class A-1 Certificates will be _____% per
annum, for the Class B Certificates will be ___% per annum and for the S-A
Certificates will be ___% per annum. The Class S-A Certificates are
interest-only Certificates. The yield to investors on the Class S-A Certificates
will be extremely sensitive to the rate and timing of principal payments
(including prepayments, repurchases, defaults and liquidations) on the Mortgage
Loans, which may vary over time. A rapid rate of such principal payments on the
Mortgage Loans could result in the failure of investors in the Class S-A
Certificates to recover their initial investments.
For a discussion of significant matters affecting investment in the
Certificates, see "Risk Factors" beginning on page S-10 herein and on page 6 in
the Prospectus. (Cover continued on next page)
- --------------------------------------------------------------------------------
THE OFFERED CERTIFICATES REPRESENT BENEFICIAL INTERESTS IN THE TRUST ONLY AND
DO NOT REPRESENT INTERESTS IN OR OBLIGATIONS OF CONTISECURITIES ASSET FUNDING
CORP., ANY ORIGINATORS OR ANY OF THEIR AFFILIATES. NEITHER THE
OFFERED CERTIFICATES NOR THE MORTGAGE 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. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
[THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON
OR ENDORSED THE MERITS OF THIS OFFERING. ANY
REPRESENTATION TO THE CONTRARY
IS UNLAWFUL.]
- --------------------------------------------------------------------------------
The Offered Certificates will be purchased by the Underwriters from the
Depositor and will be offered by the Underwriters from time to time to the
public in negotiated transactions or otherwise at varying prices to be
determined at the time of sale.
Proceeds to the Depositor from the sale of the Offered Certificates
will be approximately $____________, before deducting expenses payable by the
Depositor estimated to be approximately $_______ in the aggregate. See "Plan of
Distribution" in this Prospectus Supplement.
The Offered Certificates are offered subject to prior sale, when, as,
and if accepted by the Underwriters and subject to the approval of certain legal
matters. It is expected that delivery of the Senior Certificates in book-entry
form will be made on or about ____________, 199___ only through the Same Day
Funds Settlement System of The Depository Trust Company and that delivery of the
Class B Certificates will be made at the offices of ____________, on or about
__, 199_ against payment therefor in immediately available funds.
[UNDERWRITERS]
The date of this Prospectus Supplement is __________, 199__.
<PAGE>
(Cover continued from previous page)
The Certificates will evidence, in the aggregate, 100% of the
beneficial ownership interest in one of two trust funds established pursuant to
a Pooling and Servicing Agreement dated as of _____________, 199_ (the
"Agreement"), among the Depositor, in its capacity as sponsor of the Trust (the
"Depositor"), ContiTrade Services L.L.C., (the "Company"), ____________ as the
servicer (the "Servicer"), and __________, as trustee (the "Trustee"). One trust
fund (the "Trust Fund") will consist of the "regular interests" (and all the
proceeds thereof) in a separate trust fund (the "Mortgage Trust" and, together
with the Trust Fund, the "Trusts") that will consist primarily of a pool of
mortgage loans (the "Mortgage Loans") secured by first [and junior] liens on
multi-family residential (including multi-family/retail mixed-use) properties
located in ___ states (the "Mortgaged Properties"). Each of the Mortgage Loans
bear [fixed/adjustable] rates of interest and contain level pay amortization
schedules extending beyond such Mortgage Loans, scheduled maturity date, with a
"balloon" payment on the maturity date equal to the remaining principal balance
of such Mortgage Loans and any accrued and unpaid interest thereon ending no
later than the Final Scheduled Distribution Date.
The Class A-1 and Class S-A Certificates represent the senior interests
in the Trust Fund. As described herein, the rights of the holders of the Class B
Certificates and Class C Certificates to receive distributions from the Trust
Fund will be subordinate to the rights of the holders of the Class A
Certificates and the rights of the holders of the Class C Certificates will also
be subordinated to the rights of the holders of the Class B Certificates,
respectively, to receive distributions from the Trust Fund.
Principal of and interest on the Offered Certificates are payable on
the ___th day of each month or, if such day is not a business day, on the next
succeeding business day (each, a "Distribution Date"), commencing in __________,
199__. See "Description of the Offered Certificates--Distributions on the
Certificates" herein.
The last scheduled Distribution Date for the Class A-1 Certificates is
_____________ ___, ____. It is expected that the actual last Distribution Date
for each Class of Certificates will occur significantly earlier than such
scheduled Distribution Dates. The yield to maturity on the Offered Certificates
will depend on, among other things, the price at which the Certificates are
acquired and the rate and timing of principal payments (including prepayments,
repurchases, defaults and liquidations) on the Mortgage Loans, which rate may
vary significantly over time. See "Yield, Prepayment and Maturity
Considerations" in this Prospectus Supplement.
It is a condition to the issuance of the Offered Certificates that the
Senior Certificates be rated "___" and "___," and the Class B Certificates be
rated "___" and "___," by Moody's Investor Service and Standard & Poor's.
As described herein, the Trustee will cause elections to be made to
treat the Mortgage Trust and Trust Fund as "real estate mortgage investment
conduits" ("REMICs" or, in the alternative, the "Lower Tier REMIC" and the
"Upper Tier REMIC," respectively) for federal income tax purposes. Each class of
the Offered Certificates will be designated as a "regular interest" in the Upper
Tier REMIC and the Class R Certificates and the Class RL Certificates will be
designated as the sole class of "residual interest" in the Upper Tier REMIC and
the Lower Tier REMIC, respectively. See "Certain Federal Income Tax
Considerations" herein and in the Prospectus.
Prior to their issuance there has been no market for the Offered
Certificates nor can there be any assurance that one will develop, or if it does
develop, that it will provide the Owners of the Offered Certificates with
liquidity or will continue for the life of the Offered Certificates. The
Underwriters intend, but are not obligated, to make a market in the Offered
Certificates.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE OFFERED
CERTIFICATES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
UNTIL _________, 199_ ALL DEALERS EFFECTING TRANSACTIONS IN THE OFFERED
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 ____________, 199__ 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.
AVAILABLE INFORMATION
The Depositor has filed with the Securities and Exchange Commission a
Registration Statement under the Securities Act of 1933, as amended, 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. 20549, and the Commission's regional offices at Seven World
Trade Center, 13th Floor, New York, New York 10048, and Northwestern Atrium
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.
REPORTS TO CERTIFICATEHOLDERS
The Trustee will mail monthly reports concerning the Offered
Certificates to all registered Owners.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page Page
<S> <C> <C> <C>
AVAILABLE INFORMATION......................... 2 YIELD, PREPAYMENT AND MATURITY
REPORTS TO CERTIFICATEHOLDERS................. 2 CONSIDERATIONS.........................S-27
SUMMARY.......................................S-1 DESCRIPTION OF THE POOLING AND SERVICING
RISK FACTORS.................................S-10 AGREEMENT..............................S-31
THE MORTGAGE TRUST...........................S-13 CERTAIN FEDERAL INCOME TAX CONSEQUENCES.....S-38
ADDITIONAL INFORMATION.......................S-20 ERISA CONSIDERATIONS........................S-38
THE DEPOSITOR................................S-20 LEGAL INVESTMENT CONSIDERATIONS.............S-40
THE COMPANY..................................S-20 RATINGS.....................................S-41
THE SERVICER.................................S-21 UNDERWRITING................................S-41
MASTER SERVICER..............................S-21 LEGAL MATTERS...............................S-42
SPECIAL SERVICER.............................S-21
DESCRIPTION OF THE OFFERED CERTIFICATE.......S-21
APPENDIX A INDEX TO LOCATION OF PRINCIPAL
DEFINED TERMS
EXHIBIT A MORTGAGE LOAN SCHEDULE
</TABLE>
<PAGE>
SUMMARY
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 in the Prospectus of the definitions of certain
capitalized terms.
Issuer.......................... CTS Multifamily Mortgage Loan Trust, 199__-_
(the "Trust").
Certificates Offered............ The Class A-1 Certificates and the Class S-A
Certificates (collectively, the "Senior
Certificates") and the Class B Certificates
(collectively with the Senior Certificates,
the "Offered Certificates") evidence
undivided beneficial ownership interests in
the Trust Fund. The Class A-1 Certificates
have an original aggregate principal balance
(the "Original Class A-1 Principal Balance")
of $_________. The Class S-A Certificates
are interest-only Certificates and have no
principal balance. The Class S-A
Certificates will accrue interest on the
Notional Principal Balance, as described
herein. The Class B Certificates have an
original aggregate principal balance of
$________.
Depositor....................... ContiSecurities Asset Funding Corp., a
Delaware corporation, having its principal
executive office at 277 Park Avenue, New
York, New York 10172 (the "Depositor").
Servicer........................ _________________, a _________ corporation
(the "Servicer"). The Servicer's principal
executive offices are located at ________.
Trustee......................... ____________________, a __________ banking
association, the ("Trustee"). The Trustee's
principal executive offices are located at
___________.
Master Servicer................. corporation (the "Master Servicer"). The
Master Servicer's principal executive
offices are located at ----------------.
[Special Servicer............... ___________________ a ___________
corporation (the "Special Servicer"). The
Special Servicer's principal executives
offices are located at ----------------.]
Cut-Off Date.................... _____________, 199___.
Closing Date.................... ________________, 199__.
Description of the
Certificates.................... The CTS Multifamily Mortgage Pass-Through
Certificates, Series 199__-__ (the
"Certificates") will consist of the Offered
Certificates, the Class C Certificates,
which have an original aggregate principal
balance of $________, the Class R residual
certificates (the "Class R Certificates"),
which represent the residual interest in the
Trust Fund, the Class RL residual
certificates (the "Class RL Certificates")
which represent the residual interest in the
Mortgage Trust (the "Class R Certificates"
and the "Class RL Certificates" are referred
to collectively as the "Residual
Certificates"). The Class C Certificates and
the Residual Certificates are not offered
hereby, and may be offered for sale in
privately negotiated transactions. The
Certificates represent in the aggregate the
entire beneficial ownership interest in two
trust funds established pursuant to the
Agreement. One trust fund (the "Trust Fund")
will consist of all the "regular interests"
(and all proceeds thereof) in a separate
trust fund (the "Mortgage
S-1
<PAGE>
Trust" and, together with the Trust Fund,
the "Trusts") that will consist primarily of
a pool of loans (the "Mortgage Loans")
secured by [first] liens on multi-family
residential (including family/retail
mixed-use) properties located in ___states
(the "Mortgaged Properties").
Denominations................... The Class A-1 Certificates will be issued in
book-entry form in denominations of original
principal amounts of $_____ and integral
multiples of $_____ in excess thereof. The
Class S-A Certificates will be issued in
[book entry/fully registered, definitive
form] in percentage interests of ownership
of such class of not less than ___%. The
Class B Certificates will be issuable in
fully registered, certificated form in
denominations of $_______ and integral
multiples in excess thereof and one Class B
Certificate evidencing an additional amount
equal to the remainder of the Original
Certificate Principal Balance of such Class.
See "Description of the Offered
Certificates-- General" and "Description of
the Offered Certificates-- Book-Entry
Registration of the Senior Certificates"
herein.
The Mortgage Loans.............. The Mortgage Loans will have a Cut-Off Date
aggregate principal balance outstanding,
after the deduction of payments of principal
due on such date, of approximately $ ______.
The Mortgage Loans were originated by in
accordance with the Company's Underwriting
Guidelines, as described herein. See "The
Mortgage Trust-Underwriting Standards"
herein. As of the date of origination, the
weighted average Mortgage Rate of the
Mortgage Loans (weighted by the aggregate
principal balance thereof) was approximately
___%. All the Mortgage Loans were originated
on or after __________, 199__. As of the
Cut-Off Date, the Mortgage Loans had an
average remaining term to maturity (weighted
by aggregate principal balance thereof) of
approximately _______. As of their date of
origination, the Mortgage Loans had an
average principal balance of approximately
$_________.
Each Mortgage Loan is secured by a mortgage
creating a [first/junior] lien on the
related Mortgaged Property. The Mortgaged
Properties will consist of a total of ___
multi-family (including ___
multi-family/retail mixed-use) apartment
complexes. Each of the Mortgage Loans bears
interest at a [fixed/adjustable] rate of
interest and had an original term to
maturity of 3, 5 or 7 years, and all of the
Mortgage Loans require monthly payments of
principal based on a ___- year amortization
schedule. The Maturity Dates of the Mortgage
Loans will fall between ___________ and
__________, inclusive. None of the Mortgage
Loans are insured or guaranteed by any
governmental entity or private insurer. [All
of the Mortgage Loans are non-recourse
loans.] See "The Mortgage Trust -- Mortgage
Loan Characteristics" herein.
Originators..................... Each of the Mortgage Loans to be acquired by
the Trust from the Depositor were acquired
by the Depositor from ContiTrade Services
L.L.C. (the "Company"), which previously
originated or acquired the Mortgage Loans
from the related originator (each an
"Originator").
Class A-1 Pass-Through
Rate.......................... ____% per annum.
Class S-A Pass-Through
Rate.......................... ___% per annum on the Notional Principal
Balance.
S-2
<PAGE>
Class B Pass-Through
Rate.......................... ___% per annum.
Distributions on the
Certificates.................. Distributions of interest and principal, if
any, on the Class A-1, Class S-A
Certificates and the Class B Certificates
will be made by the Trustee on each
Distribution Date (i.e., the __th day of
each month or if such __th day is not a
business day, then the business day next
following such __th day), commencing in
199__, to the Owners of Certificates of
record as of the close of business on the
last business day of the month preceding
such Distribution Date (each, a "Record
Date").
Amount of Distributions......... On each Distribution Date, the Trustee will
apply the aggregate of amounts distributed
[in respect of the Lower Tier Interest] on
such Distribution Date in the following
order of priority:
(i) first, concurrently, to the Owners
of the Class A-1 Certificates, the Class A-1
Monthly Interest (as defined below); and to
the Owners of the Class S-A Certificates,
Class S-A Monthly Interest, any shortfall
being allocated among the Class A-1
Certificates and the Class S-A Certificates
in proportion to their respective amounts of
Class A-1 Monthly Interest and Class S-A
Monthly Interest;
(ii) second, to the Owners of the Class
A-1 Certificates, the Class A-1 Principal
Distribution Amount (as defined below) until
the Class A-1 Principal Balance has been
reduced to zero;
(iii) third, to the Owners of the Class
B Certificates, the Class B Monthly
Interest;
(iv) fourth, to the Owners of the Class
A-1 Certificates, any Unpaid Delinquent
Maturity Amount (as defined below) until the
Class A-1 Principal Balance has been reduced
to zero;
(v) fifth, to the Owners of the Class B
Certificates, the Class B Principal
Distribution Amount until the Class B
Principal Balance has been reduced to zero;
(vi) sixth, to the Owners of the Class
C Certificates, the Class C Monthly
Interest;
(vii) seventh, to the Owners of the
Class C Certificates, the Class C Principal
Distribution Amount until the Class C
Principal Balance has been reduced to zero;
and
(viii) eighth, to the Owners of the
Class R Certificates, all remaining
Available Funds, if any.
The "Class A-1 Principal Distribution
Amount," as to any Distribution Date, will
equal the sum of the items set forth below
and, if Available Funds should be less than
such sum, any partial distribution shall be
with respect to such items in the order of
priority set forth below:
S-3
<PAGE>
(i) the product of (x) the Class A
Percentage and (y-1) prior to the
Subordination Termination Date, the sum of
(A) the aggregate of the Unpaid Principal
Balance of all Mortgage Loans which ceased
to be Outstanding Mortgage Loans as of such
Distribution Date other than Mortgage Loans
that were subject to a Principal Prepayment
In Full prior to the end of the preceding
calendar month and (B) all scheduled
principal payments on the Mortgage Loans due
on the related Due Date; or (y-2) on and
after the Subordination Termination Date,
the sum of the amounts described in (y-1)(A)
and (y-1)(B) above, but only to the extent
such amounts are actually received by the
Trustee prior to the Distribution Date;
(ii) all Principal Prepayments made on
or before the related Determination Date;
and
(iii) any Unpaid Principal Shortfall
allocable to the Class A-1 Certificates.
The "Class B Principal Distribution
Amount" as to any Distribution Date, will
equal the sum of the items set forth below
and, if Available Funds should be less than
such sum, any partial distribution shall be
with respect to such items in the order of
priority set forth below:
(i) the product of (x) the Class B
Percentage and the sum of (A) the aggregate
of the Unpaid Principal Balance of all
Mortgage Loans which ceased to be
Outstanding Mortgage Loans as of such
Distribution Date other than Mortgage Loans
that were subject to a Principal Prepayment
In Full prior to the end of the preceding
calendar month and (B) all scheduled
principal payments on the Mortgage Loans due
on the related Due Date;
(ii) after the Class A-1 Termination
Date, all Principal Prepayments made on or
before the related Determination Date; and
(iii) any Unpaid Principal Shortfall
allocable to the Class B Certificates.
[In addition, on each Distribution Date, the
Trustee will withdraw from the Prepayment
Premium Account (as defined herein) an
amount equal to the aggregate of all
Prepayment Premiums deposited therein during
the previous calendar month and will
distribute such amount (i) on each
Distribution Date prior to the Class A
Termination Date, (a) if prior to
__________, to the Owners of Class A
Certificates, allocated ___% to the Class
A-1 Certificates and ___% to the Class S-A
Certificates, and (b) if after __________,
solely to the Owners of Class A-1
Certificates, (ii) on the Class A-1
Termination Date, to the Owners of Class A
Certificates (in accordance with the
allocations described in subclauses (a) and
(b) (as the case may be) of clause (i)
above, only if the Class A-1 Termination
Date is prior to __________) and Class B
Certificates in proportion to the
distributions of principal made in respect
of the Class A-1 and Class B Certificates,
respectively, (iii) on each Distribution
Date thereafter, to the Owners of Class B
Certificates.]
Interest for the Class A and Class B
Certificates for any given Distribution Date
is equal to one month's interest accrued at
the applicable Pass-Through Rate, on the
Class A-1 or Class B Principal Balance, as
the case may be, immediately prior to such
Distribution Date. See "Description of the
Offered Certificates-- Amounts of
Distribution" herein.
S-4
<PAGE>
Monthly Advances................ In the event that a monthly payment on a
Mortgage Loan has not been received by the
Servicer as of the close of business on the
Determination Date immediately preceding the
related Distribution Date, the Servicer will
be obligated to advance, for deposit in the
Certificate Account, the aggregate of
payments of principal (other than any
Balloon Payment) and interest on the
Mortgage Loans that were due on the related
Due Date and that is allocable to the Class
A Certificates, less the aggregate amount of
any such delinquent payments that the
Servicer has determined in its sole,
reasonable judgment would constitute a
nonrecoverable advance if made (a "Monthly
Advance"). The Servicer will be entitled to
be reimbursed from the Certificate Account
for all such Monthly Advances.
The obligation to make Monthly Advances with
respect to any Mortgage Loan shall continue
until the earliest to occur of (i) payment
thereof in full, (ii) liquidation of the
related Mortgaged Property and (iii) the
purchase or repurchase thereof from the
Mortgage Trust pursuant to any applicable
provision of the Agreement. If the rights
and obligations of the Servicer under the
Agreement are terminated upon the occurrence
of an event of default that remains uncured,
the [Trustee/Master Servicer] will be the
successor in all respects (with certain
exceptions relating to the repurchase of
Mortgage Loans under certain circumstances)
to the Servicer in its capacity as servicer
under the Agreement, including the
obligation to make all required Monthly
Advances.
Subordination of the
Subordinate Certificates...... The rights of the Owners of the Class B
Certificates and the Class C Certificates to
receive distributions with respect to the
Mortgage Loans will be subordinated to such
rights of the holders of the Class A
Certificates to the extent described below.
The subordination provided to the Class A
Certificates by the Class B Certificates and
the Class C Certificates is intended to
enhance the likelihood of timely receipt by
the Owners of the Class A Certificates of
the full amount of their scheduled monthly
payments and to afford such Owners
protection against losses resulting form
Liquidated Mortgage Loans.
The rights of the Owners of the Class C
Certificates to receive distributions with
respect to the Loans will be subordinated to
such rights of the Owners of the Class B
Certificates to the extent described below.
The subordination provided to the Class B
Certificates by the Class C Certificates is
intended to enhance the likelihood of timely
receipt by the Owners of the Class B
Certificates of the full amount of their
scheduled monthly payments and to afford
such Owners protection against losses
resulting form Liquidated Mortgage Loans.
The protection afforded to the Owners of
Class A Certificates by means of the
subordination of the Class B Certificates
and the Class C Certificates will be
accomplished by the preferential right of
such Owners to receive, prior to any
distribution being made on a Distribution
Date in respect of the Class B Certificates
and the Class C Certificates, the Class A-1
Monthly Interest and the Class S-A Monthly
Interest, respectively, and to the Owners of
the Class A Certificates the Class A-1
Principal Distribution Amount. The Class B
Certificates will, however, receive the
Class B Monthly Interest before the Owners
of the Class A Certificates receive any
Unpaid Delinquent Maturity Amount. There
will be no other form of Credit Enhancement
available for the benefit of the Offered
Certificates. See "Description of the
Offered Certificates -- Subordination of the
Subordinate Certificates" herein.
S-5
<PAGE>
Allocation of Losses............ Subject to the limitations described herein,
losses of principal and interest realized on
the Mortgage Loans ("Realized Losses") will
be allocated, first, to the Class R
Certificates and, then to the Class C
Certificates and, then to the Class B
Certificates, as described herein, prior to
allocation thereof to the Senior
Certificates. See "Description Of The
Offered Certificates -- Subordination of
Subordinate Certificates" herein.
Servicing Fee................... With respect to each Distribution Date, the
Servicer shall be entitled to withhold from
deposit into the Certificate Account, with
respect to each Mortgage Loan (for which a
Monthly Payment was received) that was an
Outstanding Mortgage Loan as of such
Distribution Date, an amount equal to
one-twelfth of the product of (i) the rate
set forth in the Mortgage Loan Schedule (the
"Servicing Fee Rate") and (ii) the Unpaid
Principal Balance of such Mortgage Loan as
of such Distribution Date. The Servicer will
be entitled to retain additional servicing
compensation in the form of assumption fees,
late payment charges or extension and other
administrative charges to the extent
collected.
Optional Termination............ At its option the Depositor may repurchase
all the Mortgage Loans at any time when the
Pool Principal Balance is less than 10% of
the Cut-Off Date Pool Principal Balance. The
payment of such purchase price will be
applied to the early retirement of the Class
A-1, Class S-A, Class B and Class C
Certificates. See "Description of the
Pooling and Servicing Agreement--
Termination; Retirement of the Certificates"
herein.
Final Scheduled Distribution
Date.......................... Scheduled Payments on the Mortgage Loans
will be sufficient to distribute interest on
the Offered Certificates at the applicable
Pass-Through Rate and to reduce the
principal amount of the Offered Certificates
to zero not later than the "Final Scheduled
Distribution Date" set forth on the cover
page hereof, determined as described herein.
Because the rate of distributions of
principal on the Offered Certificates will
depend on the rate of payment (including
prepayments) of the principal of the
Mortgage Loans and on the timing of receipt
of Liquidation Proceeds and Insurance
Proceeds with respect to the Mortgage Loans,
the actual final Distribution Date for each
Class of the Offered Certificates may be
earlier, and could be substantially earlier,
or may be later, than the Final Scheduled
Distribution Date. See "Description Of The
Offered Certificates -- Final Scheduled
Distribution Date" and "Yield, Prepayment
and Maturity Considerations" herein.
Nature of Class S-A
Certificates.................. General Character as an Interest-Only
Security. The owners of the Class S-A
Certificates will be entitled to receive
monthly distributions equal to one-month's
interest at the Class S-A Pass-Through Rate
on the Notional Principal Balance then
outstanding. The Class S-A
Certificateholders will not be entitled to
receive any distributions of principal
collected on the Mortgage Loans. Because
they will not receive any distributions of
principal, the Class S-A Certificateholders
will be affected by prepayments,
liquidations and other dispositions of the
Mortgage Loans to a greater degree than will
the Class A Certificateholders. As an
extreme illustration, in the event that the
entire Mortgage Pool prepays in full during
the first month, then on the initial
Distribution Date the Owners of the Class A
Certificates will receive the full par value
of their Certificates while the Owners of
the Class S-A Certificates will suffer
nearly a complete loss (except for one
month's interest) on their investment.
S-6
<PAGE>
In general, liquidations due to losses,
repurchases by the Company and other
dispositions of Mortgage Loans from the
Trust Fund will have the same effect on
Class S-A Certificateholders as do
prepayments of principal, liquidations due
to losses, repurchases by the Company and
other dispositions of Mortgage Loans from
the Trust, and are collectively referred to
as "Prepayments."
Because the yield to the Class S-A
Certificateholders is sensitive to certain
constant rates of prepayment, it is
advisable for potential investors in the
Class S-A 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 Mortgage 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
(since attractive refinancing opportunities
are not available) and the future stream of
payments available to such an owner of an
interest-only security may increase, thus
positively affecting such investor's yield.
Accrual of "Original Issue Discount." The
Class S-A Certificates may 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 such
Certificateholders to accrue original issue
discount at a rate in excess of the rate at
which distributions are received by such
Certificateholders. See "Certain Federal
Income Tax Consequences" herein and in the
Prospectus.
Ratings......................... It is a condition to the issuance of the
Offered Certificates that the Class A-1 and
Class S-A Certificates each be rated no
lower than "AAA" and that the Class B
Certificates be rated no lower than "___" by
Standard and Poor's Ratings Group, a
division of McGraw Hill ("S&P") and Moody's
Investors Service, Inc. ("Moody's")
(collectively, the "Rating Agencies"). The
Class C Certificates will not be rated. 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 rating agency. See
"Ratings" herein.
Ratings of the Class S-A Certificates. The
Class S-A Certificates will, upon initial
issuance, receive ratings of "___" by ___
and of "___" by __________. Ratings which
are assigned to securities such as the Class
S-A Certificates generally evaluate the
ability of the issuer (i.e., the Trust) to
make timely payments when such payments are
due, as required by such securities. As
described above, such amounts with respect
to the Class S-A Certificates consist only
of interest. In general, the ratings thus
address credit risk and not prepayment risk.
See "Ratings" herein.
Certain Federal Income
Tax Consequences.............. The Trustee will cause elections to be made
to treat the Mortgage Trust (also referred
to herein as "Lower Tier REMIC") and the
Trust Fund as "real estate mortgage
investment conduits" (each, a "REMIC") for
federal income tax purposes. The Lower Tier
A Interest and the Lower Tier B Interest
will be the "regular interests" in the Lower
Tier REMIC and the Class RL Certificates
will constitute the sole class of "residual
interests" in the Lower Tier REMIC. The
Class A-1, Class S-A and Class B
Certificates will be "regular interests" in
the
S-7
<PAGE>
Trust Fund and the Class R Certificates will
be the sole class of "residual interests" in
the Trust Fund. See "Certain Federal Income
Tax Consequences" herein.
ERISA Considerations............ Any fiduciary of any employee benefit plan
(a "Plan") subject to the Employee
Retirement Income Security Act of 1974, as
amended ("ERISA"), who proposes to cause a
Plan to acquire any of the Offered
Certificates should consult with its own
counsel with respect to the applicability of
ERISA and the Internal Revenue Code of 1986,
as amended (the "Code"), to such investment.
Under current law the purchase and holding
of the Class B Certificates by or on behalf
of any Plan subject to the fiduciary
responsibility provisions of ERISA may
result in "prohibited transactions" within
the meaning of ERISA and the Code. [No
transfer of a Class B Certificate or any
interest therein may be made to any Plan or
other retirement arrangement, including
individual retirement accounts and
annuities, Keogh plans and collective
investment and separate accounts in which
such plans, accounts or arrangements are
invested that is subject to ERISA or the
Code unless the prospective transferee of
the Class B Certificate provides the Trustee
with a representation letter and an opinion
of counsel, each in the form required under
the Agreement. See "ERISA Considerations"
herein and in the Prospectus.]
Risk Factors.................... Credit Considerations. For information with
regard to the Mortgage Loans and their
related risks, see "The Portfolio of
Mortgage Loans" herein.
Prepayment Considerations. For information
regarding the consequences of prepayments of
the Mortgage Loans, particularly Owners of
Class S-A Certificates, see "Prepayment and
Yield Considerations" herein.
Other. For a discussion of other risk
factors that should be considered by
prospective investors in the Offered
Certificates, see "Risk Factors" herein and
in the Prospectus.
Legal Investment
Considerations................ The Senior Certificates will [not]
constitute "mortgage related securities" for
purposes of the Secondary Mortgage Market
Enhancement Act of 1984 ("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 Senior
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.]
The Class B Certificates will not constitute
"mortgage related securities" for purposes
of SMMEA. As a result, the appropriate
characterization of the Class B Certificates
under various legal investment restrictions,
and thus the ability of investors subject to
these restrictions to purchase the Class B
Certificates, maybe subject to significant
interpretative uncertainties.
S-8
<PAGE>
Prospective investors are advised to consult
their counsel as to qualification of the
Offered Certificates as legal investments
under any such laws, regulations, rules and
orders. See "Legal Investment Consideration"
herein and in the Prospectus.
S-9
<PAGE>
RISK FACTORS
Prospective investors in the Offered 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 Offered
Certificates.
The Mortgage Loans
General. The Mortgage Loans were originated by the between _____ and
_______, inclusive. The Mortgage Loans are all secured by multi-family (or, in
some cases, multi-family/retail mixed-use) apartment buildings, each containing
five or more residential units. Owners of multi-family apartment buildings rely
on monthly lease payments from tenants to pay for maintenance and other
operating expenses of the building, to fund capital improvements and to service
the related Mortgage Loan and any other debt that may be secured by such
property. Various factors, many of which are beyond the control of the owner or
operator of an apartment building, may affect the economic viability of the
building.
Adverse economic conditions, either local or national, may limit the
amount of rent that can be charged and may result in a reduction in timely lease
payments or a reduction in occupancy levels. Occupancy and rent levels may also
be affected by construction of additional housing units and local politics,
including rent stabilization or rent control laws and policies. In addition, a
low level of mortgage rates may encourage tenants to purchase single-family
housing.
Changes in payment patterns by tenants may result from a variety of
social, legal and economic factors. Economic factors including the rate of
inflation, unemployment levels and relative rents offered for various types of
housing may be reflected in changes in payment patterns, including increased
risks of defaults by tenants and higher vacancy rates. The Depositor is unable
to determine and has no basis to predict whether, or to what extent, economic,
legal or social factors will affect future rental or payment patterns.
Environmental Risks. Under the laws of certain states where Mortgaged
Properties are located, violation of applicable environmental laws may give may
rise to a "superlien" on the Mortgaged Property (i.e., a lien prior to the lien
of the related mortgage) to assure the payment of the costs of cleanup. In
addition, under the laws of several states and under the federal Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA") a lender may
be liable, as an "owner" or "operator", for cleanup costs on mortgaged property
containing hazardous wastes if agents or employees of the lender have become
involved in the operations of the borrower, regardless of whether a previous
owner caused the environmental damage. If the lender actually takes possession
of the property, it may, more clearly, be liable for cleanup costs pursuant to
CERCLA. Under certain recent court decisions, even very little involvement by
the lender has led to liability for cleanup costs and efforts by the Federal
Environmental Protection Agency to clarify questions relating to lender
liability through rulemaking have been rejected. The Depositor will generally
require the preparation of environmental assessments; however, there can be no
assurance as to the ultimate level of protection, if any, afforded by any such
assessment. Although the lender can bring an action for contribution against the
owner who created the environmental hazard, any amounts awarded to the lender
under such an action may not be collectible if the owner is bankrupt or
otherwise judgment-proof. See "Risk Factors -- Certain Legal Aspects of the
Mortgage Loans--Environmental Risks" in the Prospectus.
The Agreement provides that the Servicer may not, on behalf of the
Trustee, obtain title to (as a result of foreclosure or in lieu of foreclosure
or otherwise), or take possession of or other actions with respect to, a
Mortgaged Property unless the Servicer has previously determined, based on a
report prepared by a person who regularly conducts environmental audits, that
(i) the Mortgaged Property is in compliance with applicable environmental laws
or, if it is not, that it would be in the best economic interest of the holders
of the Certificates to take the actions necessary to bring the Mortgaged
Property into compliance with such laws and (ii) circumstances relating to the
use, management or disposal of certain hazardous materials either are not
present at the Mortgaged Property or should be addressed if to do so would be in
the best economic interest of the holders of the Certificates. See "Description
of the Pooling and Servicing Agreement -- Realization upon Defaulted Mortgage
Loans" herein.
S-10
<PAGE>
Environmental studies were commissioned by the Company or its
correspondent originators prior to the origination of each Mortgage Loan. The
reports indicated that no material environmental conditions existed with respect
to any of the Mortgaged Properties. [Identified environmental conditions which
may result in liability to the issuer will be disclosed in a separate risk
factor.]
In addition, each Mortgagor has represented in the related Mortgage
that, the related Mortgaged Property was in compliance with all applicable
federal, state and local environmental laws and regulations on the date of
origination of the related Mortgage Loan.
Mortgagor Default. The Mortgage Loans are not insured or guaranteed
against Mortgagor default by any governmental entity or by any private mortgage
insurer.
The amount recoverable upon the occurrence of a default may be affected
by, among other things, a decline in real estate values or a change in mortgage
market interest rates. If the multifamily residential real estate market should
experience an overall decline in property values such that the outstanding
balances of the Mortgage Loans exceed the value of the related Mortgaged
Properties, the actual rates of delinquencies, foreclosures and losses could be
higher than those anticipated by investors.
The Agreement also contains limitations on the ability of the Servicer
to foreclose on a Mortgaged Property, to modify the terms of the related
Mortgage Loan as an alternative to foreclosure, and to rehabilitate a Mortgaged
Property acquired by the Mortgage Trust upon foreclosure. These limitations may
delay or otherwise adversely affect recoveries in respect of a defaulted
Mortgage Loan. See "Description of the Pooling and Servicing
Agreement--Realization Upon Defaulted Mortgage Loans".
Nonrecourse Mortgage Loans. All the Mortgage Loans are nonrecourse
loans, as to which, in the event of a Mortgagor default, recourse will be
available solely against the related Mortgaged Property, and not against any
other assets of the Mortgagor, to pay amounts due under the related Mortgage
Loan. In the case of a nonrecourse Mortgage Loan, a decrease in the value of the
related Mortgaged Property will directly reduce the amount of gross liquidation
proceeds that may be realized in respect thereof and, after the deduction of
liquidation expenses, applied to payment of such Mortgage Loan. [In addition,
the laws of some states prohibit obtaining a personal judgment against a
mortgagor for any deficiency in the net liquidation proceeds following a
foreclosure of a defaulted mortgage loan.]
Liquidation Risks. Even assuming that the Mortgaged Properties provide
adequate security for the Mortgage Loans, substantial delay could be encountered
in connection with the liquidation of defaulted Mortgage Loans and corresponding
delays in the receipt of related proceeds by Owners of the Offered Certificates
could occur. Further, liquidation expenses (such as legal fees, real estate
taxes, and maintenance and preservation expenses) will reduce the proceeds
payable to holders of the Offered Certificates and thereby reduce the security
for the Mortgage Loans. In the event any Mortgaged Properties fail to provide
adequate security for the related Mortgage Loans and the protection provided by
the subordination described herein is exhausted or unavailable, holders of
Offered Certificates could experience a loss on their investment.
Other Risks of Multifamily Residential Lending. Multifamily residential
lending is generally viewed as exposing the lender to a greater risk of loss
than one-to-four-family residential lending. Multifamily residential lending
typically involves a larger loan to a single obligor than a residential one- to
four- family mortgage loan. Furthermore, the repayment of loans secured by
income producing properties is typically dependent upon the successful operation
of the related real estate project. If the net operating income from the project
is reduced (for example, if tenant leases are not obtained or renewed), the
obligor's ability to repay the loan may be impaired. Multifamily residential
real estate can be affected significantly by supply and demand in the market for
the type of property securing the loan and, therefore, may be subject to adverse
economic conditions. Market values may vary as a result of economic events or
governmental regulations outside the control of the borrower or lender, such as
the imposition of rent control or changes in the laws which impact the future
cash flow of the property. Market values may also be influenced by the relative
affordability of single-family housing in the area in which the multifamily
residential housing is located.
The successful operation of a multifamily project is also dependent
upon the management of such project.
S-11
<PAGE>
The project manager, in conjunction with the owner of the project, is
responsible for responding to changes in the local rental market, planning and
implementing the rental market, planning and implementing the rental structure,
including establishing levels of rental rates, and insuring that maintenance and
capital improvements are carried out in a timely fashion. Management errors may
adversely affect the long-term viability of a project. There can be no assurance
that such errors by the property manager will not ultimately cause a default on
the related Mortgage Loan. See "Security for the Certificates -- The Mortgage
Loans" herein.
Mortgage Loan Concentration. The ______ largest Mortgage Loans, with an
aggregate Scheduled Principal Balance as of the Cut-Off Date of approximately
$__________, comprise approximately ___% of the aggregate Scheduled Principal
Balance of the Mortgage Loans on such date. The largest of such Mortgage Loans
has a Scheduled Principal Balance of approximately $__________, or approximately
___% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of
the Cut-Off Date. As a result of this relative concentration of the Mortgage
Loans, Losses, prepayments or modifications (including an extension of the final
Due Date) on any such Mortgage Loans are likely to have a greater effect on the
yield to Holders of the Offered Certificates or the anticipated weighted average
lives of the Offered Certificates than if such concentration had not existed. In
addition (i) approximately ___% of the Mortgage Loans by aggregate Scheduled
Principal Balance are secured by Mortgaged Premises located in ________, (ii)
approximately __% by Mortgaged Premises located in _____, (iii) approximately
___% by Mortgaged Premises located in _____ and (iv) approximately ___% by
Mortgage Premises located in ---------.
As a result of this relative geographic concentration of the Mortgage
Loans, the performance of the Offered Certificates may be more dependent upon
the economic conditions in the noted states.
The Mortgage Loans are all secured by Mortgaged Premises that are
either newly constructed or have been recently substantially rehabilitated. As
such, each Mortgaged Premises has limited operating history on which the
calculation of the Debt Service Coverage Ratio was based. There can be no
assurance that the future operating history will be consistent with the limited
recent operating history. To the extent future Net Operating Income is less than
the Net Operating Income used in underwriting a Mortgage Loan, the likelihood of
a default on such Mortgage Loan increases, which may result in a Realized Loss.
Balloon Mortgage Loans and Extension Risk. Because all the Mortgage
Loans have amortization schedules extending significantly beyond their original
terms to maturity, substantial payments (that is "Balloon Payments") will be due
on the Mortgage Loans at their respective stated maturity dates. Such loans
involve a greater risk to lenders because a Mortgagor's ability to make a
Balloon Payment typically will depend upon its ability either to refinance such
Mortgage Loan or to sell the related Mortgaged Property. A mortgagor's ability
to accomplish either of these goals will be affected by the factors described
above under "The Mortgage Loans--General" and by other factors including the
level of available mortgage rates at the time of sale or refinancing, the
Mortgagor's equity in the Mortgaged Property, the financial condition of the
Mortgagor, the operating history and physical condition of the Mortgaged
Property, tax laws and prevailing general economic conditions. A high interest
rate environment may make it more difficult for the Mortgagor to accomplish a
refinancing or sale and may result in delinquencies or defaults which, in turn,
could cause delays in distributions to holders of Offered Certificates.
There is no assurance that the values of the Mortgaged Properties at
maturity of the Mortgage Loans will be equal to or will exceed their values at
the date of origination of the Mortgage Loans. Since the Mortgage Loans require
Balloon Payments at maturity, holders of Offered Certificates will be assuming
the risk that the Mortgage Loans may not be paid off when the Balloon Payments
are due.
In addition, if certain conditions are satisfied, such as the absence
of any deferred maintenance, the satisfaction of a minimum debt service coverage
ratio, the absence of delinquencies and the good faith effort to secure
refinancing, the Servicer may extend a Mortgagor's Balloon Payment due date by
as much as ____ months if the Mortgagor needs more time to refinance. Such
extension of the scheduled maturity date of the loan may cause the weighted
average lives of the Offered Certificates to be longer than if the loan had been
paid under its original terms. See "Yield, Maturity and Prepayment
Considerations" herein.
S-12
<PAGE>
Credit Risk of Subordinate Certificates
As described herein, the rights of the Subordinate Certificateholders
to receive payments of interest and principal will be subordinated to those of
the Holders of the Senior Certificates, and the rights of the Class C
Certificateholders to receive payments of interest and principal will be
subordinated to those of the Holders of the Class B Certificates.
Losses on the Mortgage Loans will first be charged to the Class C
Certificates. If as a consequence of such Losses the Class C Certificate
Principal Balance has been reduced to zero, any additional Losses will be
allocated first to reduce the principal balance of the Class B Certificates to
zero. Further, if as a consequence of such Losses the aggregate outstanding
principal balance of the Class B Certificates and Class C Certificates has been
reduced to zero, any additional Losses will reduce the outstanding principal
balance of the Class A-1 Certificates. See "Description of the Offered
Certificates -- Subordination of Subordinate Certificates" herein.
Certain Bankruptcy Issues
Each Borrower is a limited partnership, which limited partnership is a
special purpose entity with limited liability and limited capitalization. Under
certain circumstances, the bankruptcy of a general partner of a limited
partnership may result in the dissolution of such limited partnership. The
dissolution of a limited partnership, the winding-up of its affairs and the
distribution of its assets could result in an acceleration of its payment
obligations under the related Mortgage Loan, reducing the yield to the
Certificateholders in the same manner as a principal prepayment.
In addition, in the event of the bankruptcy of the general partner of a
Borrower, a trustee in bankruptcy for such general partner, such general partner
as a debtor-in-possession, or a creditor of such general partner could attempt
to seek an order from a court consolidating the assets and liabilities of the
related Borrower with those of the general partner. [Counsel for each Borrower
has delivered an opinion in respect of each Borrower concluding that a court
applying state partnership law should not issue an order, in some cases on the
basis of a reasoned analysis and subject to certain facts, assumptions and
qualifications specified therein. However, notwithstanding such opinion, if such
consolidation were to be permitted, the respective Mortgage, for example, would
likely become property of the estate of such bankrupt general partner. In such a
case, not only would the Mortgaged Property be available to satisfy the claims
of creditors of such general partner, but an automatic stay would apply to any
attempt by the Servicer on behalf of the Trustee to exercise remedies with
respect to such Mortgage. However, such an occurrence should not affect a
properly perfected security interest in the Mortgaged Property or the Trustee's
status as the holder of such security interest.]
[Certain limited liability general partners are affiliated with two or
more Borrowers. The two largest groups of affiliated general partner of the
Borrowers each represent between ___% and ___% of the aggregate principal
balance of the Mortgage Loans. In the event that one of such general partners or
any of its affiliates becomes the subject of a bankruptcy proceeding, the
trustee in bankruptcy for such entity, such entity as debtor-in- possession or a
creditor of such entity, could attempt to seek an order from a court
consolidating the assets and liabilities of one or more of those affiliated
parties that are not part of the bankruptcy proceeding with the assets and
liabilities of such entity. If successful, the number of Borrowers potentially
affected by the concerns addressed in the preceding two paragraphs could be
increased significantly. See also "Certain Legal Aspects of The Mortgage Loans"
in the Prospectus.
THE MORTGAGE TRUST
General
The mortgage assets in the Mortgage Trust will consist primarily of
Mortgage Loans with a Cut-Off Date aggregate principal balance outstanding,
after the deduction of payments of principal due on such date, of approximately
$_______. Each Mortgage Loan is secured by a mortgage creating a [first/junior]
lien on the related Mortgaged Property. The Mortgaged Properties consist of a
total of ___ multifamily (including ___ multifamily/retail mixed-use) apartment
complexes. The Mortgage Loans had an original term to maturity of ____,
S-13
<PAGE>
____ or ____ years, but all the Mortgage Loans require monthly payments of
principal based on a ___ or ___ year amortization schedule. Thus, Balloon
Payments will be due on each Mortgage Loan at its stated maturity date. The
Maturity Dates of the Mortgage Loans will fall between ________ and _________
inclusive. None of the Mortgage Loans are insured or guaranteed by any
governmental entity or private insurer. All the Mortgage Loans are non-recourse
loans. The Mortgage Loans to be included in the Mortgage Trust will be acquired
by the Trust from Depositor, which will have acquired the Mortgage Loans from
the Company. [All the Mortgage Loans were underwritten in accordance with the
Company's Underwriting standards, as described under "Underwriting Standards"
below.]
[The Mortgage Loans permit voluntary prepayment prior to maturity only
upon the payment by the Mortgagor of a prepayment penalty based on a [yield
maintenance formula/predetermined schedule reducing over time]. See "Certain
Yield, Prepayment and Maturity Considerations" herein.]
The Mortgaged Properties
The Mortgaged Properties consist of __ multifamily (including ____
multifamily/retail mixed-use) apartment complexes comprising a total of
approximately ___ rental units. The mortgage amount, name of Mortgagor, property
type and property address for each Mortgaged Property are set forth in the
schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A.
The Mortgage Loan Schedule also sets forth the appraised values for
each of the Mortgaged Properties and the resultant loan-to-value ratios based on
the principal balance of the Mortgage Loans attributable to each such Mortgaged
Property as of the Cut-Off Date.
The original loan-to-value ratio of a Mortgage Loan is the ratio of the
original principal balance of such Mortgage Loan (assuming disbursement of all
funds required or conditionally required to be disbursed thereunder) to the
appraised value of the related Mortgaged Property. The Mortgage Loans had a
weighted average original loan-to-value ratio of approximately _____%, with a
range from _____% of _____%.
Delinquencies
Owned and Managed Servicing Portfolio. The following tables set forth
information relating to the delinquency, loan loss and foreclosure experience of
the Servicer for its servicing portfolio of fixed rate multifamily mortgage
loans for , 199 , , 199 and for each of the three prior years.
Delinquency and Foreclosure Experience of the
Servicer's Owned and Managed Servicing Portfolio of Multifamily Mortgage Loans
<TABLE>
<CAPTION>
As of [ ] Year End [ ],
--------- -------------
199 199 199 199 198
--- --- --- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Number Dollar Number Dollar Number Dollar Number Dollar Number Dollar
of Amount of Amount of Amount of Amount of Amount
Loans (000) Loans (000) Loans (000) Loans (000) Loans (000)
----- ----- ----- ----- ----- ----- ----- ----- ----- -----
Portfolio...........
Delinquent Loans(1).
31-60 (2).........
61-90.............
91 days or more...
Total......
Total Delinquency
Percentage........
REO Properties (3)..
- --------------------
(1) The period of delinquency is based on the number of days payments are
contractually past due and includes all loans in foreclosure.
(2) Generally all Mortgage Loans 31 to 60 days or more delinquent are in
foreclosure.
(3) REO Properties (i.e., "real estate owned" properties--properties
relating to mortgages foreclosed or for which deeds in lieu of
foreclosure have been accepted and held by the Servicer pending
disposition).
</TABLE>
S-14
<PAGE>
<TABLE>
<CAPTION>
Loan Loss Experience of the
Servicer's Owned and Managed Servicing Portfolio of Multifamily Mortgage Loans
[ ] Months
Ending
[ ], Year End [ ],
--------- -------------
<S> <C> <C> <C> <C> <C>
199 199 199 199 198
--- --- --- --- ---
(Dollars in Thousands)
Average Portfolio Balance (1)
Net Losses (2)(3)..........
As a percentage of Average
Portfolio Balance........
</TABLE>
- --------------------
(1) Average Portfolio Balance equals the average of the portfolio balance
of the current period and the portfolio balance of the prior period.
(2) "Net Losses" means actual net profits realized with respect to the
disposition of REO property less net losses incurred with respect to
the liquidation or charge-off of mortgage loans. Net Losses are
presented only if a net loss has occurred or, as $0 if net profit has
occurred.
(3) Annualized for , 199 information.
Mortgage Loan Characteristics
The Mortgage Loans had the following characteristics:
The weighted average Mortgage Rate of the Mortgage Loans was
approximately per annum at origination. _____ of the Mortgage Loans have
Mortgage Rates of ___ per annum (the lowest such rate). The highest Mortgage
Rate of the other Mortgage Loans is ____ per annum.
The weighted average remaining term to maturity of the Mortgage Loans
was approximately four years and two months as of the Cut-Off Date. All of the
Mortgage Loans were originated on or after _______ and before _________. All of
the Mortgage Loans had original terms to maturity of five, seven or ten years.
The Mortgage Loans had principal balances ranging from $______ to $________ at
origination and from $_____ to $______ as of the Cut-Off Date. The average
principal balance of the Mortgage Loans was $______ at origination and
approximately $ ______ as of the Cut-Off Date.
The original amortization of all the Mortgage Loans was either 20 or
either 30 years, with a weighted average remaining amortization term of ____.
The debt service coverage ratios of the Mortgage Loans at origination
ranged from ___% to ___% (after the enhancements described in the next
sentence), with a weighted average of ___. Mortgage Loans with debt service
coverage ratios ranging from ___ to ___ (prior to any enhancement) have posted
letters of credit or cash reserve deposits in amounts sufficient to raise such
ratios to a range of ___ to ___.
The Mortgaged Properties contain between ___ and ___ units, the average
being ___. The Mortgage Loan balance per unit at origination was ___ on average,
with a range from $ ____ to _______.
The Mortgage Loan Schedule sets forth a description of certain other
characteristics of the Mortgage Loans as of the dates of origination of the
Mortgage Loans or as of the Cut-Off Date, as indicated.
S-15
<PAGE>
DISTRIBUTION OF LTV'S
<TABLE>
<CAPTION>
<S> <C> <C> <C>
% of Aggregate
Aggregate Unpaid
Number of Unpaid Principal
Range of LTV's Mortgage Loans Principal Balance Balance
- -------------- -------------- ----------------- -------
Total
</TABLE>
The LTV's shown above were calculated based upon the appraised values
of the Mortgaged Properties at the time of origination (the "Appraised Values").
No assurance can be given that such appraised values of the Mortgaged Properties
have remained or will remain at their levels on the dates of origination of the
related Mortgage Loans. If property values decline such that the outstanding
balances of the Mortgage Loans, [together with the outstanding balances of any
Senior Mortgage Loans,] become equal to or greater than the value of the
Mortgaged Properties, the actual rates of delinquencies, foreclosures and losses
could be higher than those heretofore experienced by the Servicer, as set forth
above under "The Portfolio of Mortgage Loans," and by the mortgage lending
industry in general.
DISTRIBUTION OF MORTGAGE RATES
<TABLE>
<CAPTION>
<S> <C> <C> <C>
% of Aggregate
Aggregate Unpaid
Range of Number of Unpaid Principal
Mortgage Rates Mortgage Loans Principal Balance Balance
- -------------- -------------- ----------------- -------
Total
</TABLE>
S-16
<PAGE>
DISTRIBUTION OF REMAINING TERMS TO MATURITY
<TABLE>
<CAPTION>
<S> <C> <C> <C>
% of Aggregate
Aggregate Unpaid
Number of Unpaid Principal
Range of Months Mortgage Loans Principal Balance Balance
- --------------- -------------- ----------------- -------
</TABLE>
DISTRIBUTION OF PRINCIPAL BALANCES
<TABLE>
<CAPTION>
<S> <C> <C> <C>
% of Aggregate
Aggregate Unpaid
Range of Number of Unpaid Principal
Principal Balances Mortgage Loans Principal Balance Balance
- ------------------ -------------- ----------------- -------
Total
</TABLE>
<TABLE>
<CAPTION>
DEBT SERVICE COVERAGE RATIOS
<S> <C> <C> <C>
% of Aggregate
Aggregate Unpaid
Range of Debt Service Number of Unpaid Principal
Coverage Ratios Mortgage Loans Principal Balance Balance
- --------------- -------------- ----------------- -------
Total
</TABLE>
S-17
<PAGE>
GEOGRAPHIC DISTRIBUTION
<TABLE>
<CAPTION>
<S> <C> <C> <C>
% of Aggregate
Aggregate Unpaid
Number of Unpaid Principal
State Mortgage Loans Principal Balance Balance
- ----- -------------- ----------------- -------
Total
</TABLE>
[If the Mortgage Assets securing the Certificates of a Series include a
multifamily Mortgage Loan or Mortgage-Backed Security or a group of Mortgage
Loans or Mortgage-Backed Securities of a single obligor or affiliated obligors
representing: (a) 20% or more of the principal amount of such Certificates, the
financial statements of such obligor(s) will be included in accordance with Rule
3-14(a) of Regulation S-X; and (b) 10% or more but less than 20% of the
principal amount of such Certificates, information, including financial
information, sufficient for investors to assess the credit quality of the
obligor(s) will be included.
If the Mortgage Assets securing the Certificates of a Series include a
concentration of properties within regions, counties, or other subdivisions of a
state whose adverse economic conditions are greater than those of the state as a
whole, address such concentration in the prospectus supplement.
If the Mortgage Assets securing the Certificates of a Series include a
concentration of multifamily residential properties with brief or financially
troubled operating histories, such concentration will be discussed in the
prospectus supplement.]
Underwriting Standards
[The Company originates multifamily mortgage loans through a network of
approved correspondents; each correspondent is responsible for applying the
Company's standard loan underwriting guidelines and forwarding loan applications
to ___________________ only when guideline requirements concerning the borrower
and property are met. ___________________ verifies all data gathered by the
correspondent to ensure that guidelines are being applied in a consistent
manner.
The Company's underwriting guidelines (which were in effect at the time
of origination of the Mortgage Loans and were applied with respect to each of
them) are presented in detail in the ___________________ Approved Correspondent
Manual. In addition to listing the various documents that must be submitted to
___________________ by the correspondent, the guidelines focus on four major
components of the underwriting process:
1. Net Operating Income/Debt Service Coverage: ___________________
requires that each property's net operating income exceed its debt service by a
factor of not less than _____. Net operating income is equal to gross income
(calculated using a current rent roll) less: (i) a vacancy factor of not less
than, generally, __%--or greater if the actual vacancy is greater or if the
appraisal (see below) uses a larger factor; and (ii) operating expenses,
including ___% management fee and a replacement reserve (____% of adjusted gross
income).
2. Appraisal/Loan-to-Value: ___________________ requires an appraisal
performed by an appraiser with a designation of the Society of Real Estate
Appraisers ("SREA"), Senior Real Property Appraiser ("SRPA") or Member of
Appraisal Institute ("MAI"); the appraiser must be independent and approved by
___________________. The appraisal must use the three traditional approaches to
value and establish a current value for the property such that the loan-to-value
ratio does not exceed ____%. The appraisal must also contain the following:
location maps for the subject and for the comparables, photographs of the
subject
S-18
<PAGE>
and comparables, area and neighborhood analysis, market analysis, site
description and information on current zoning and tax assessments.
3. Property Condition: The correspondent must inspect each property to
ensure that it is in acceptable physical condition. The inspection focuses on:
ongoing maintenance programs, common area upkeep, laundry facility condition,
mechanical systems and grounds maintenance.
4. Borrower Credit: ___________________ requires that a credit
investigation be completed for all prospective borrowers; the file must include
a credit report not more than 60 days old, three years of Federal income tax
returns and current financial statements.
Other important aspects of the Company's underwriting guidelines
include: (i) a requirement for a complete Phase I environmental report for each
property, (ii) a general prohibition against subordinate financing and (iii) a
review of the property's occupancy history.]
[Describe any bulk acquisitions of Mortgage Loans not underwritten in
connection with the Company's program.]
Prepayment Provisions
The principal balance of any Mortgage Loan may be prepaid in whole or
in part upon the payment by the Mortgagor of: (a) interest accrued and unpaid on
the outstanding principal balance of the related note (the "Mortgage Note); (b)
all other sums due under the Mortgage Note and the Mortgage Loan; and (c) a
prepayment consideration [describe yield maintenance or prepayment charges].
In addition, if following the occurrence of any Event of Default (as
hereinafter defined) the Mortgagor shall tender payment of an amount sufficient
to satisfy the remaining sums due on the Mortgage Loan in whole or in part prior
to a foreclosure sale of the Mortgaged Property, such tender shall be deemed to
be a voluntary prepayment of the principal balance of the Mortgage Notes and the
Mortgagor shall, in addition to all sums due on the Mortgage Loan, be required
to pay the prepayment consideration.
Default Provisions
Each of the Mortgage Loans provides for certain events of default by
the Mortgagor ("Events of Default"). Upon the occurrence of any Event of Default
the remaining sums under the Mortgage Loan shall immediately become due and
payable and the Mortgagor will pay, from the date of such Event of Default,
interest on the unpaid principal balance of the Mortgage Note at the rate of
interest (the "Default Rate") equal to the greater of (i) __ above the
applicable interest rate on the Mortgage Note, or (ii) __% above the prime rate
charged on corporate loans or large U.S. money center banks and (b) the
mortgagee shall have the right to exercise any and all rights and remedies
available at law and in equity. If the Default Rate as calculated above is
greater than the maximum rate permitted by applicable law, then the Default Rate
shall then be deemed to equal to the maximum rate permitted by such applicable
law.
Due-on-Sale and Due-on-Encumbrance Provisions
All the Mortgage Loans contain clauses requiring the consent of the
mortgagee to any sale or other transfer of the related Mortgaged Property with
the criteria for granting consent set forth in the related Mortgage Loan
documents and due-on-sale clauses entitling the mortgagee to accelerate payment
of a Mortgage upon any sale or other transfer of the related Mortgaged Property
without the consent of the Mortgagor. Furthermore, the Mortgage Loans contain
certain restrictions regarding further encumbrances on the Mortgaged Properties,
requiring the consent of the mortgagee to the creation of any other lien or
encumbrance on such Mortgaged Property and entitling the mortgagee to accelerate
payment of a Mortgage upon the imposition of any such additional lien or
encumbrance on such Mortgaged Property.
S-19
<PAGE>
The Servicer, on behalf of the Owners of the Certificates, will be
required to exercise any right the Trustee may have as mortgagee of record of
any such Mortgage Loan to withhold its consent to any transfer or further
encumbrance in accordance with the general servicing standards described in the
Agreement.
Hazard, Liability and Other Insurance
Each Mortgage requires the Mortgagor to keep the Mortgaged Property
insured against loss or damage by fire, flood and such other hazards, risks and
matters, including, without limitation, business interruption and/or rental
loss, public habituating and boiler damage and liability, as the mortgagee may
from time to time require in amounts required by the mortgagee, and shall pay
the premiums for such insurance as they become due and payable. All policies of
insurance (the "Policies") shall be issued by an insurer acceptable to the
mortgagee and be rated [A:V] by Best's Key Rating Guide and shall contain the
standard New York mortgagee non-contribution clause naming the mortgagee as the
person to which all payments made by such insurance company shall be paid. The
Mortgagor will assign and deliver the Policies to the mortgagee. Not later than
thirty (30) days prior to the expiration date of each of the Policies, the
Mortgagor will deliver evidence satisfactory to the mortgagee of the renewal of
each of the Policies.
The Servicer will be obligated to cause to be maintained for each
Mortgage Loan fire insurance with extended coverage (and, if applicable, federal
flood insurance) in an amount at least equal to the lesser of the current
principal balance of such Mortgage Loan and the replacement cost of the
improvements which are part of such property or, in lieu thereof, to maintain a
blanket policy insuring against hazard losses on the Mortgaged Properties, with
a deductible clause not in excess of a customary amount.
ADDITIONAL INFORMATION
The description in this Prospectus Supplement of the mortgage pool and
the Mortgaged Properties is based upon the mortgage pool as constituted at the
close of business on the Cut-Off Date, as adjusted for the scheduled principal
payments due on or before such date. Prior to the issuance of the Offered
Certificates, Mortgage Loans may be removed from the mortgage pool as a result
of incomplete documentation or non-compliance with representations and
warranties set forth in the Agreement, if the Depositor deems such removal
necessary or appropriate. A limited number of other mortgage loans may be
included in the mortgage pool prior to the issuance of the Offered Certificates.
A current report on Form 8-K will be available to purchasers of the
Offered Certificates and will be filed and incorporated by reference to the
Registration Statement together with the Agreement with the Securities and
Exchange Commission within fifteen days after the initial issuance of the
Offered Certificates. In the event Mortgage Loans are removed from or added to
the mortgage pool as set forth in the preceding paragraph, such removal or
addition will be noted in the current report on Form 8-K.
THE DEPOSITOR
The Depositor was incorporated in the State of Delaware on January 31,
1991 and is a wholly-owned subsidiary of ContiFinancial Corporation. The
Depositor maintains its principal executive offices at 277 Park Avenue, New
York, New York 10172. Neither the Depositor, the Company nor any of their
affiliates will insure or guarantee distributions on the Certificates.
THE COMPANY
The Company, a Delaware limited liability company, is an affiliate of
the Depositor. The Company maintains its principal executive office at 277 Park
Avenue, New York, New York 10172.
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THE SERVICER
[To be provided]
MASTER SERVICER
[To be provided]
SPECIAL SERVICER
[To be provided]
DESCRIPTION OF THE OFFERED CERTIFICATES
General
The Class A-1 will be available in minimum denominations of
$___________ and integral multiples of $1,000 in excess thereof, except that one
Certificate of each class may be issued in any amount. The Class S-A
Certificates will not have a stated principal balance. The Class S-A
Certificates will be issuable in minimum Percentage Interests of ___% and
integral multiples of ___% in excess thereof. The Senior Certificates will be
issued, maintained and transferred on the book-entry records of DTC and its
Participants as described below. The Class B Certificates will be issuable in
fully registered, certificated form in denominations of $__________ and integral
multiples in excess thereof and one Class B Certificate evidencing an additional
amount equal to the remainder of the Original Certificate Principal Balance of
such Class.
[Until Definitive Senior Certificates are issued, interest in such
Classes will be transferred on the book-entry records of DTC and its
Participants. The Class B Certificates may be transferred or exchanged, subject
to certain restrictions on the transfer of such Certificates to Plans (see
"ERISA Considerations" herein), at the offices of __________________ located at
_________________________________, without the payment of any service charges,
other than any tax or other governmental charge payable in connection therewith.
________________ will initially serve as registrar (in such capacity, the
"Certificate Registrar") for purposes of recording and otherwise providing for
the registration of the Offered Certificates and of transfers and exchanges of
the Class B and, if issued, the Definitive Senior Certificates.
Distributions on the Certificates
Distributions on the Certificates will be made on the ___ day of each
calendar month, or if such day is not a business day, the next succeeding
business day (each, a "Payment Date") commencing in __________ __, 199__, to
holders of record of the Certificates (the "Owners") as of the last day of the
calendar month immediately preceding the calendar month in which such Payment
Date occurs, whether or not such day is a business day (each, a "Record Date")
in an amount equal to the product of such Owner's Percentage Interest and the
amount distributed in respect of such Certificateholder's Class of such
Certificates on such Payment Date. The "Percentage Interest" represented by any
Offered Certificate will be equal to the percentage obtained by dividing the
Original Certificate Principal Balance of such Offered Certificate by the
Original Certificate Principal Balance of all Certificates of the same Class.
Book Entry Registration of the Senior Certificates
Each Class of the Senior Certificates will be represented by a single
certificate registered in the name of the nominee of The Depository Trust
Company (the "Clearing Agency"), [except that one Certificate of each Class of
the Class A Certificates may be issued in an amount of less than $1,000 and held
in fully registered definitive form directly by the applicable investor]. The
Clearing Agency will maintain book entry
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records of ownership, transfers and pledges of such Certificates only in the
names of its participants and indirect participants (the "Clearing Agency
Participants"), which include securities brokers and dealers, banks and trust
companies and clearing corporations and may include certain other organizations.
Prior to Book Entry Termination (as defined below), Beneficial Owners who are
not Clearing Agency Participants may transfer and pledge their interests in the
Offered Certificates, and exercise any other rights and remedies of
Certificateholders, only through Clearing Agency Participants or other entities
that maintain relationships with Clearing Agency Participants. The Clearing
Agency may charge its customary fee to Clearing Agency Participants in
connection with any such transfers and pledges. In addition, prior to Book Entry
Termination, distributions on the Offered Certificates will be made to
Beneficial Owners only through the Clearing Agency and its Clearing Agency
Participants. Consequently, Beneficial Owners may experience some delay in the
receipt of their payments. See "Risk Factors -- Book Entry Registration" and
"Description of the Certificates - Book Entry Registration" in the Prospectus.
The Senior Certificates will be issued in definitive, registered form
to Beneficial Owners or their nominees, and thereupon such Beneficial Owners
will become Certificateholders if, and only if, one of the following events
shall occur (any such event being referred to as "Book Entry Termination"): (i)
the Clearing Agency or the Depositor advises the Trustee in writing that the
Clearing Agency is no longer willing or able properly to discharge its
responsibilities as a clearing corporation with respect to the Senior
Certificates and the Depositor and the Trustee are unable to engage a qualified
successor to serve as the Clearing Agency, or (ii) the Clearing Agency, at the
direction of Beneficial Owners representing a majority of the outstanding
principal amount of the Senior Certificates, advise the Trustee in writing that
the continuation of a book entry system is no longer in the best interests of
Beneficial Owners, or (iii) the Depositor, at its option, advises the Trustee
that it elects to terminate the book entry system. Upon Book Entry Termination,
Beneficial Owners will become registered Certificateholders and will deal
directly with the Trustee with respect to transfers, notices and payments.
The Clearing Agency has advised the Depositor and the Trustee that,
prior to Book Entry Termination, the Clearing Agency will take any action
permitted to be taken by a Certificateholder under the Agreement only at the
direction of one or more Clearing Agency Participants to whom the Senior
Certificates are credited in an account maintained by the Clearing Agency. The
Clearing Agency has advised that it will take such action with respect to any
principal amount of the Senior Certificates only at the direction of and on
behalf of Clearing Agency Participants with respect to those principal amounts
of such Senior Certificates.
Issuance of the Senior Certificates in book entry form rather than as
physical Certificates may adversely affect the liquidity of such Senior
Certificates in the secondary market and the ability of Senior
Certificateholders to pledge them. In addition, because distributions on the
Senior Certificates will be made by the Trustee to the Clearing Agency and the
Clearing Agency will credit such distributions to the accounts of its
Participants, which will further credit them to the accounts of indirect
participants of the Senior Certificateholders such beneficial owners of the
Senior Certificates may experience delays in the receipt of such distributions.
Amounts of Distribution
On each Distribution Date, the Trustee will apply the aggregate of
amounts distributed in respect of the Lower Tier Interests on such Distribution
Date in the following order of priority:
(i) concurrently to the Owners of the Class A-1 Certificates,
Class A-1 Monthly Interest (as defined below) and to the Owners of the
Class S-A Certificates, Class S-A Monthly Interest, any shortfall being
allocated among the Class A-1 Certificates and the Class S-A
Certificates in proportion to their respective amounts of Class A-1
Monthly Interest and Class S-A Monthly Interest;
(ii) to the Owners of the Class A-1 Certificates, the Class A
Principal Distribution Amount until the Class A-1 Principal Balance has
been reduced to zero;
(iii) to the Owners of the Class B Certificates, the Class B
Monthly Interest;
(iv) to the Owners of the Class A-1 Certificates, any Unpaid
Delinquent Maturity Amount (as defined below) until the Class A-1
Principal Balance has been reduced to zero;
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(v) to the Owners of the Class B Certificates, the Class B
Principal Distribution Amount until the Class B Principal Balance has
been reduced to zero; and
(vi) sixth, to the Owners of the Class C Certificates, the
Class C Monthly Interest;
(vii) seventh, to the Owners of the Class C Certificates, the
Class C Principal Distribution Amount until the Class C Principal
Balance has been reduced to zero; and
(viii) eighth, to the Owners of the Class R Certificates, all
remaining Available Funds, if any.
In addition, on each Distribution Date, the Trustee shall withdraw from
the Prepayment Premium Account (as defined herein) an amount equal to the
aggregate of all Prepayment Premiums deposited therein during the previous
calendar month and shall distribute such amount (i) on each Distribution Date
prior to the Class A-1 Termination Date, (A) if such Distribution Date is prior
to , to the Owners of Class A Certificates, allocated ___% to the Class A-1
Certificates and __% to the Class S-A Certificates, and (B) if such Distribution
Date is after , solely to the Owners of Class A-1 Certificates, (ii) on the
Class A-1 Termination Date, to the Holders of Class A-1 Certificates and the
Class S-A Certificates (in accordance with the allocations described in
subclauses (a) and (b) (as the case may be) of clause (i) above) and the Owners
of [Class B] Certificates in proportion to the distributions of principal made
in respect of the Class A-1 and Class B Certificates, respectively, on the Class
A-1 Termination Date, to the Owners of Class [B Certificates].
"Monthly Interest" for the Class A-1, Class B and Class C Certificates
for any given Distribution Date is equal to one month's interest accrued at the
applicable Pass-Through Rate on the Certificate Principal Balance immediately
prior to such Distribution Date. Monthly Interest for the Class S-A Certificates
for any given Distribution Date is equal to the sum of (i) one month's interest
accrued at the Class S-A Pass-Through Rate on the Notional Principal Balance
immediately prior to such Distribution Date and (ii) any Unpaid Class S-A
Interest Shortfall (as defined herein).
The "Class Principal Balance" as to any Class of certificates other
than the Class S-A Certificates and the Residual Certificates, and as to any
Distribution Date, is the sum of (i) the applicable initial Class Principal
Balance thereof and (ii) the aggregate of all Interest Shortfalls for such Class
for previous Distribution Date, less all amounts distributed as principal of
such Class on previous Distribution Dates. The Class S-A Certificates and the
Residual Certificates have no Class Principal Balance.
An "Outstanding Mortgage Loan" is, as to any Distribution Date, a
Mortgage Loan which was not the subject of prepayment in full prior to the end
of the preceding calendar month, which did not become a Liquidated Mortgage Loan
prior to the end of such preceding calendar month, which was not repurchased by
the Company as a Defective Mortgage Loan on or prior to such Distribution Date
or which was not paid in full through the receipt of a Balloon Payment on or
before the related Determination Date.
The "Unpaid Principal Balance" is, as to any Mortgage Loan as of any
Distribution Date, the Cut-Off Date Principal Balance thereof, less (i) all
unscheduled payments by or on behalf of the Mortgagor allocable to principal
which were received prior to the end of the preceding calendar month; (ii) any
Balloon Payment or portion thereof received on or before the Determination Date
next preceding such Distribution Date; (iii) any Insurance Proceeds (other than
Liquidation Proceeds) applied in reduction of the principal balance of such
Mortgage Loan prior to the end of such preceding calendar month; (iv) the
principal component of any Monthly Payment which was due on the related Due Date
and received on or before the related Determination Date or, if delinquent on
such Determination Date, was included in a Monthly Advance made by the Servicer
in respect of such Distribution Date; (v) the aggregate of all REO Principal
Amortization Amounts prior to the end of such preceding calendar month; and (vi)
all amounts deemed to have been distributed to Holders of Class A-1 Certificates
on previous Distribution Dates with respect to such Mortgage Loans pursuant to
the definition of Unpaid Delinquent Maturity Amount.
The "Unpaid Delinquent Maturity Amount" is, with respect to any
Distribution Date, the aggregate of the Unpaid Principal Balances of all
Outstanding Mortgage Loans which had Maturity Dates on or before the preceding
Due Date and were delinquent as of the close of business on the related
Determination Date. For purposes of clause (vi) of the definition of "Unpaid
Principal Balance" any amounts distributed to Class A-1 Certificateholders on
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account of an Unpaid Delinquent Maturity Amount will be allocated to particular
delinquent Outstanding Mortgage Loans in the chronological order of their
Maturity Dates, beginning with all such Outstanding Mortgage Loans with Maturity
Dates in the twenty-third preceding calendar month with any excess over the
Unpaid Principal Balances of such Outstanding Mortgage Loans being applied to
all such Outstanding Mortgage Loans with Maturity Dates in the __________
preceding calendar month and so forth.
An "Unpaid Principal Shortfall" is, as to any Distribution Date, the
amount, if any, by which the aggregate of the Principal Shortfalls for prior
Distribution Dates is in excess of the aggregate of the amounts distributed on
prior Distribution Dates pursuant to clause (iv) of the definition of Formula
Distribution Amount.
A Mortgage Loan becomes a "Liquidated Mortgage Loan" when the Servicer
determines that all amounts which it expects to recover from or on account of
such Mortgage Loan have been recovered.
Monthly Advances
In the event that a monthly payment on a Mortgage Loan has not been
received by the Servicer as of the close of business on the Determination Date
immediately preceding the related Distribution Date, the Servicer will be
obligated to advance, for deposit in the Certificate Account, the aggregate of
payments of principal (other than any Balloon Payment) and interest at the Loan
Rate (less the Servicing Fee Rate) on the Mortgage Loans that were due on the
related Due Date, less the aggregate amount of any such delinquent payments that
the Servicer has determined would constitute a nonrecoverable advance if made (a
"Monthly Advance"). If the Servicer determines that it is not obligated to make
the entire Monthly Advance because all or a lesser portion of such Monthly
Advance would not be recoverable from Insurance Proceeds, Liquidation Proceeds
or otherwise, the Servicer will deliver to the Trustee for the benefit of the
Certificateholders an officer's certificate setting forth the reasons for the
Servicer's determination. The Servicer will be entitled to be reimbursed from
the Certificate Account for all such Monthly Advances.
The obligation to make Monthly Advances with respect to any Mortgage
Loan shall continue until the earliest to occur of (i) payment thereof in full,
(ii) liquidation of the related Mortgaged Property and (iii) the purchase or
repurchase thereof from the Mortgage Trust pursuant to any applicable provision
of the Agreement.
If the rights and obligations of the Servicer under the Agreement are
terminated upon the occurrence of an event of default that remains uncured, the
Trustee will be the successor in all respects (with certain exceptions relating
to the repurchase of Mortgage Loans under certain circumstances) to the Servicer
in its capacity as servicer under the Agreement, including the obligation to
make all required Monthly Advances.
Subordination of the Subordinated Certificates
The rights of the Owners of the Subordinate Certificates to receive
distributions with respect to the Mortgage Loans will be subordinated to such
rights of the Owners of the Senior Certificates, in the case of the Class B
Certificates, and to the Owners of the Offered Certificates in the case of the
Class C Certificates. The subordination provided to the Senior Certificates by
the Class B Certificates and to the Class B Certificates by the Class C
Certificates is intended to enhance the likelihood of timely receipt by the
Owners of the respective Class of Certificates of the full amount of their
scheduled monthly payments and to afford such Owners protection against losses
resulting from Liquidated Mortgage Loans.
The protection afforded to the Owners of Senior Certificates by means
of the subordination of the Subordinate Certificates will be accomplished by the
preferential rights of such Owners to receive, prior to any distribution being
made on a Distribution Date in respect of the Subordinate Certificates, the
Class A-1 Monthly Interest and the Class S-A Monthly Interest, respectively, and
to the Class A-1 Certificateholders, the Class A Principal Distribution Amount.
The Class B Certificates will, however, receive the Class B Monthly Interest
before the Class A-1 Certificateholders receive any Unpaid Delinquent Maturity
Amount. The Class B Certificates will be entitled to the Class B Principal
Distribution Amount only after such time as the Class A-1 Principal Balance has
been reduced to zero through payment to the Class A-1 Certificateholders of the
Formula Principal Distribution Amount and then any Unpaid Delinquent Maturity
Amount.
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Loss realized on the Mortgage Loans will not be allocated to the Owners
of the Class A-1 Certificates until the principal balances of the Class C
Certificates and then the Class B Certificates have both been reduced to zero.
Any losses allocated to the Class A-1 Certificates will be allocated pro rata to
all Owners of the Class A-1 Certificates. Any losses allocated to the Class B
Certificates will be allocated pro rata to all Owners of the Class B
Certificates.
Reports to Holders of the Certificates
The Trustee is required to prepare and mail to the Servicer, to each
Owner of a Class A-1, Class S-A and Class B Certificate a statement (a "Monthly
Report") setting forth:
(i) the Available Funds for such Distribution Date, including,
stated separately, any Monthly Advance component thereof;
(ii) the aggregate of all Principal Prepayments received
during the previous calendar month together with, stated separately,
the aggregate of all REO Principal Amortization Amounts for such
preceding calendar month;
(iii) all previously undistributed Balloon Payments or
portions thereof received on or before the preceding Determination
Date;
(iv) the aggregate Unpaid Principal Balances of all Mortgage
Loans and Foreclosed Mortgage Loans which became Liquidated Mortgage
Loans during the previous calendar month;
(v) the aggregate Unpaid Principal Balances of all Mortgage
Loans which are required to be purchased by the Company prior to the
related Distribution Date pursuant to the Agreement;
(vi) the amount of all Prepayment Premiums received during the
previous calendar month;
(vii) the Formula Principal Distribution Amount for such
Distribution Date;
(viii) the Class A-1 Monthly Interest for such Distribution
Date;
(ix) the Class S-A Monthly Interest for such Distribution
Date;
(x) the Class B Monthly Interest for such Distribution Date;
(xi) the Class C Monthly Interest for such Distribution Date;
(xii) the Unpaid Delinquent Maturity Amount for such
Distribution Date;
(xiii) the Class A-1 Distribution Amount (exclusive of any
distribution from the Prepayment Premium Account) for such Distribution
Date;
(xiv) the Class B Distribution Amount for such Distribution
Date;
(xv) the Class S-A Distribution Amount for such Distribution
Date;
(xvi) the Class C Distribution Amount for such Distribution
Date;
(xvii) any Interest Shortfall for the Class A-1 or Class B
Certificates, dated separately;
(xviii) any Unpaid Class S-A Interest Shortfall immediately
following such Distribution Date together with the amount of any Class
S-A Interest Shortfall for such Distribution Date;
(xix) the Class A-1 Principal Balance immediately following
such Distribution Date;
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(xx) the Class B Principal Balance immediately following such
Distribution Date;
(xxi) the Class C Principal Balance immediately following such
Distribution Date;
(xxii) any Unpaid Principal Shortfall for such Distribution
Date and any remaining Unpaid Principal Shortfall after giving effect
to such distribution;
(xxiii) the amount and allocation of any distribution from the
Prepayment Premium Account on such Distribution Date; and
(xxiv) the Pool Principal Balance for the following
Distribution Date;
(xxv) the number, percentage and aggregate unpaid principal
balances of Mortgage Loans delinquent (a) 30 to 59 days and (b) 60 days
or more (including Foreclosed Mortgage Loans), respectively, as of the
end of the preceding calendar month (separately stating the aggregate
unpaid principal balances of Foreclosed Mortgage Loans);
(xxvi) with respect to any Mortgage Loan included in (xxv)
above, the number of each such Mortgage Loan as set forth in the
Agreement and the Unpaid Principal Balance of each such Mortgage Loan;
(xxvii) the number and aggregate principal balances of any REO
Properties;
(xxviii) with respect to each Mortgage Loan that has become an
REO Property included in (xxvii) above, the number of such Mortgage
Loan as set forth in the Agreement and the Unpaid Principal Balance of
each such REO Property;
(xxix) with respect to each Mortgage Loan that became a
Liquidated Mortgage Loan during the prior calendar month, the number of
such Mortgage Loan, as set forth in Exhibit [G] to the Agreement, the
Net Liquidation Proceeds with respect to each such Mortgage Loan and
the Unpaid Principal Balance of each such Mortgage Loan; and
(xxx) such other information as is required by the Code and
regulations thereunder to be made available to Owners of the Class A-1,
Class S-A, Class B Certificates and Class C Certificates.
The Trustee shall be under no duty to recalculate or verify the
information (set forth above in subclauses (i) through (vi) and (xxiv) through
(xxiii)) provided to it by the Servicer in each Servicing Certificate and shall
be protected in relying upon such information in connection with the calculation
of all amounts and preparation of all reports and statements required to be
prepared by it pursuant to this Agreement. The Servicer shall indemnify the
Trustee for any loss, expense or cost incurred by it as a result of any such
reliance which is caused by the Servicer's gross negligence, willful misconduct
or bad faith.
In the case of information furnished pursuant to subclauses (viii),
(x), (xiii), (xiv), (xii), (xxv) and (xxvi) above, the amounts shall be
expressed as a dollar amount per Class A-1 Certificate and Class B Certificate,
as applicable, with a $1,000 denomination. In the case of the information
furnished pursuant to subclauses (ix), (xv) and (xix) above, the amount shall be
expressed as a dollar amount per Class S-A Certificate with a 100 Percentage
Interest. Any such statement furnished to an Owner of a Class A-1 Certificate,
Class S-A Certificate or Class B Certificate may, if requested by the Trustee,
omit information pertinent only to Certificates of Classes not held by such
Owner.
Within 90 days after the end of each calendar year, the Trustee shall
prepare and mail to each Person who at any time during the calendar year was the
Owner of a Class A-1 Certificate, Class S-A Certificate, Class B Certificate or
Class C Certificate, a statement containing the information set forth in the
subclauses mentioned in the preceding paragraph, as applicable, aggregated for
such calendar year or, in the case of each Person who was an Owner of a
Certificate for a portion of such calendar year, setting forth such information
for each month thereof for the portion of the year during which such Person was
an Owner of a Certificate of such Class. Such obligation
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of the Trustee shall be deemed to have been satisfied to the extend that
substantially comparable information shall be provided by the Trustee pursuant
to any requirements of the Code.
YIELD, PREPAYMENT AND MATURITY CONSIDERATIONS
The yield to maturity on the Offered Certificates will be affected by
the rate of principal payments on the Mortgage Loans including, for this
purpose, prepayments, which may include amounts received by virtue of
repurchase, condemnation, insurance or foreclosure. The rate of principal
payments on the Offered Certificates will correspond to the rate of principal
payments (including prepayments) on the Mortgage Loans. Principal prepayments
may be influenced by a variety of economic, geographic, demographic, social,
tax, legal and other factors. In general, if prevailing interest rates fall
significantly below the interest rates on the Mortgage Loans, the Mortgage Loans
are likely to be subject to higher prepayments than if prevailing rates remain
at or above the interest rates on such Mortgage Loans. Conversely, if prevailing
interest rates rise above the interest rates on such Mortgage Loans, the rate of
prepayment would be expected to decrease. Other factors affecting prepayment of
the Mortgage Loans include the availability of mortgage financing, changes in
tax laws (including depreciation benefits), changes in Mortgagors' net equity in
the Mortgaged Properties, servicing decisions and prevailing general economic
conditions. The Mortgage Loans may be prepaid at any time subject to the payment
of a prepayment penalty. See "The Mortgage Trust--Prepayment Provisions" herein.
The effective yield to holders of the Offered Certificates will differ
from the yield otherwise produced by the applicable Pass-Through Rate and
purchase prices of such Offered Certificates because principal and interest
distributions will not be payable to such holders until at least the ___th day
of the month following the month of accrual (without any additional distribution
of interest or earnings thereon in respect of such delay).
If the purchaser of an Offered Certificate offered at a discount from
its initial principal amount calculates its anticipated yield to maturity based
on an assumed rate of payment of principal that is faster than that actually
experienced on the Mortgage Loans, the actual yield to maturity will be lower
than that so calculated. Conversely, if the purchaser of an Offered Certificate
offered at a premium calculates its anticipated yield to maturity based on an
assumed rate of payment of principal that is slower than that actually
experienced on the Mortgage Loans, the actual yield to maturity will be lower
than that so calculated.
The timing of changes in the rate of prepayments on the Mortgage Loans
may affect an investor's actual yield to maturity, even if the average rate of
principal payments is consistent with an investor's expectation. In general, the
earlier a prepayment of principal of the Mortgage Loans, the greater the effect
on an investor's yield to maturity. The effect on an investor's yield of
principal payments occurring at a rate higher (or lower) than the rate
anticipated by the investor during the period immediately following the issuance
of the Offered Certificates may not be offset by a subsequent like decrease (or
increase) in the rate of principal payments. An investor must make an
independent decision as to the appropriate prepayment scenario to be used in
deciding whether to purchase the Offered Certificates.
Voluntary prepayments of a Mortgage Loan can be made only upon the
payment by the Mortgagor of a prepayment penalty based on a [yield maintenance
formula/predetermined schedule]. See "The Mortgage Trust--Prepayment Provision"
for a description of such formula. The payment of such prepayment penalties by
Mortgagors should have the effect of reducing the risk of rapid rates of
voluntary prepayments. If, however, such penalties were to be uncollectible for
any reason, investors would have to bear the risk that prepayments on the
Mortgage Loans, and therefore of principal payments on the Offered Certificates,
could coincide with periods of low prevailing interest rates. In that event, the
effective interest rates on securities in which an investor might choose to
reinvest amounts received as principal payments on such investor's Certificate
might be lower than the applicable Pass-Through Rate.
Conversely, slow rates of prepayments on the Mortgage Loans, and
therefore of principal payments on the Offered Certificates, may coincide with
periods of high prevailing interest rates. During such periods, the amount of
principal payments available to an investor for reinvestment at such high
prevailing interest rates may be relatively low.
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Many of the Mortgage Loans contain "due-on-sale" provisions, and the
Agreement obligates the Servicer, with certain exceptions, to enforce such
"due-on-sale" provisions.
Because amounts distributable to Owners of the Class S-A Certificates
consist of interest payable on the Mortgage Loans, the yield to maturity of the
Class S-A Certificates will be sensitive to the repurchase and default
experience of the Mortgage 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
S-A Certificates should be aware that the Mortgage Loans may be required to be
repurchased in the event of certain breaches of representations and warranties
relating to certain events. [Other calamity calls] [With respect to voluntary
prepayments, however, Class S-A Certificateholders will be allocated a
percentage of the prepayment penalties discussed above. See also "Description of
the Certificates--Amounts of Distribution."]
Weighted Average Life of the Class A-1 and Class B Certificates
The following information is given solely to illustrate the effect of
prepayments of the Mortgage Loans on the weighted average lives of the Class A-1
and Class B Certificates under the stated assumptions and is not a prediction of
the prepayment rate that might actually be experienced by the Mortgage Loans.
"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 the
Class A-1 and Class B Certificates will be influenced by the rate at which
principal payments on the Mortgage Loans are paid, which may be in the form of
scheduled amortization or prepayments (for this purpose, the term "prepayment"
includes prepayments, condemnation, insurance and liquidations due to default).
Prepayments on mortgage loans are commonly measured relative to a prepayment
standard or model. In the model used in this Prospectus Supplement, the
"constant prepayment rate" ("CPR") represents an assumed annualized rate of
prepayment relative to the then outstanding principal balance of a pool of new
mortgage loans.
Based on the foregoing assumptions, the tables below indicate the
weighted average life of the Class A-1 and Class B Certificates, assuming that
the Mortgage Loans prepay according to the following CPR prepayment scenarios:
[CPR PREPAYMENT SCENARIOS
Scenario I Scenario II Scenario III Scenario IV Scenario V
---------- ----------- ------------ ----------- ----------
Neither the CPR nor any other prepayment model or assumption purports
to be an historical description of prepayment experience or a prediction of the
anticipated rate of prepayment of any pool of mortgage loans, including the
Mortgage Loans included in the Trust. Variations in the actual prepayment
experience and the balance of the Mortgage Loans that prepay may increase or
decrease each weighted average life shown in the following tables. Such
variations may occur even if the average prepayment experience of all such
Mortgage Loans equals any of the specified percentages of the CPR.]
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WEIGHTED AVERAGE LIVES
Class A-1
Weighted
CPR Average Life Earliest Retirement
Prepayment (years) Date(1)
- ---------- ------- -------
Class B
Weighted
CPR Average Life Earliest Retirement
Prepayment (years) Date(1)
- --------------------
(1) Assuming early termination or the Mortgage Loan Groups when the
aggregate Loan Balances decline to a level equal to 10% of the
aggregate principal balance of the Mortgage Loans as of the Cut-Off
Date.
There is no assuranc e that prepayments will occur, or, if they do
occur, that they will occur at any constant percentage of CPR or in accordance
with any of the aforementioned scenarios.
Payment Delay Feature of Class A-1 and Class B Certificates
The effective yield to the Owners of the Class A-1 and Class B
Certificates will be lower than the yield otherwise produced by the respective
Pass-Through Rate and the purchase price of such Certificates because principal
and interest distributions will not be payable to such Certificateholders until
at least the twenty-fifth day of the month following the month of accrual
(without any additional distributions of interest or earnings thereon in respect
of such delay).
Yield Sensitivity of the Class S-A Certificates
Because amounts distributable to Class S-A Certificateholders consist
entirely of interest, the yield to maturity of the Class S-A Certificates will
be extremely sensitive to the repurchase, prepayment and default experience of
the Mortgage 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 S-A Certificates
should be aware that Depositor may cause a termination of the Trust when the
aggregate outstanding principal balance of the Mortgage Loans has declined to
___% or less of the aggregate principal balance of the Mortgage Loans as of the
Cut-Off Date.
The following table indicates certain relationships between the assumed
purchase price and the yield to maturity on the Class S-A Certificates, stated
on a corporate bond equivalent basis. Such table also indicates such
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relationships on the assumption that (a) the Trust is not terminated by the
Depositor pursuant to its __% a "clean-up call", and (b) the Trust is so
terminated.
Sensitivity of the Class S-A Certificates to Prepayments
Pre-Tax Yield to Maturity
-------------------------
Prepayment 0% 22 47 50 55
Scenario CPR CPR CPR CPR CPR
-------- --- --- --- --- ---
I
II
III
IV
V
On the basis of approximately __% CPR, and a purchase price of ____%,
no termination of the Trust by the Depositor pursuant to its __% "clean-up call"
and the other assumptions described above, the pre-tax yield to maturity of the
Class S-A Certificates would be approximately __%. If the actual prepayment rate
were to exceed approximately __% CPR based on such assumptions, an investor in
the Class S-A Certificates as to which such percentage of CPR was exceeded would
not fully recover the initial purchase price thereof.
On the basis of approximately ___% CPR, a purchase price of _______%,
termination of the Trust by the Depositor pursuant to its ___% "clean-up call"
and the other assumptions described above, the pre-tax yield to maturity of the
Class S-A Certificates would be approximately ___%. If the actual prepayment
rate were to exceed approximately ___% CPR, on such assumptions, an investor in
the Class S-A Certificates as to which such percentage of CPR was exceeded would
not fully recover the initial purchase price thereof.
It is highly unlikely that the Mortgage Loans will prepay at a constant
rate until maturity or that all of the Mortgage Loans will prepay at the same
rate. In fact, Mortgage Loans are expected to prepay at different rates.
The yields set forth in the preceding tables were calculated by
determining the monthly discount rates which, when applied to the assumed stream
of cash flow to be paid on the Class S-A Certificates, would cause the
discounted present value of such assumed cash flows to equal the assumed
purchase price of such Class S-A Certificates 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 S-A
Certificates and consequently do not purport to reflect the return on any
investment in the Class S-A Certificates when such reinvestment rates are
considered.
The Mortgage Loans will not necessarily have the characteristics
assumed above, and there can be no assurance the (i) the Mortgage 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 the Class S-A
Certificates will correspond to any of the pre-tax yields shown above or (iii)
the aggregate purchase price of the Class S-A Certificates will be equal to the
purchase price assumed.
Scheduled Final Distribution Date. The Scheduled Final Distribution
Date for the Class S-A Certificates is ___________ __, 200_.
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DESCRIPTION OF THE POOLING AND SERVICING AGREEMENT
The Certificates will issued pursuant to the Pooling and Servicing
Agreement to be dated as of the Closing Date (the "Agreement"). The following
summaries describe certain provisions of the Agreement which are not otherwise
described elsewhere in this Prospectus Supplement. The summaries do not purport
to be complete and are subject to and qualified in their entirety by reference
to, the provisions of the Agreement. Wherever particular defined terms used in
the Agreement are referred to in this Prospectus Supplement, such defined terms
are hereby incorporated herein by reference.
The Mortgage Trust will consist of, to the extent provided in the
Agreement, (i) the Mortgage Loans that from time to time are subject to the
Agreement, and the Additional Collateral (as defined below), (ii) such assets as
shall from time to time be identified as deposited in the Certificate Account or
Prepayment Premium Account, in accordance with the Agreement, (iii) property
which secured a Mortgage Loan and which has been acquired by foreclosure or
deed-in-lieu of foreclosure.
Assignment of the Mortgage Loans
At the time of the initial issuance of the Certificates, the Depositor
will assign all its right, title and interest in and to the Mortgage Trust
(including the Mortgage Loans, [letters of credit with respect to certain
Mortgage Loans] and a collateral deposit account with respect to a certain
Mortgage Loan (such letters of credit and collateral deposit account are
referred to hereafter as the "Additional Collateral") to the Trustee, including
all principal and interest received by the Depositor on or with respect to the
Mortgage Loans after the Cut-Off Date (other than payments of interest and
principal due on the Mortgage Loans on or before the Cut-Off Date), together
with all its right, title and interest in and to the proceeds of any related
insurance policies. The Trustee, concurrently with such assignment, will declare
that it holds and will hold such rights and interest for the exclusive use and
benefit of the present and future Owners of the Certificates, other than the
Class RL Certificates. Each Mortgage Loan will be identified in the Mortgage
Loan Schedule to the Agreement. The Mortgage Loan Schedule includes information
as to the Cut-Off Date principal balance of each Mortgage Loan, the Loan Rate,
the stated maturity date of the Mortgage Loan and the name of the Mortgagor and
address of the Mortgaged Property.
The Depositor is obligated to deliver and assign to the Trustee at the
Closing Date, the Mortgage Notes, the Mortgages and certain other documents in
respect of the Mortgage Loans (collectively, the "Mortgage Files") and the
Additional Collateral. By the Closing Date, the Trustee will review the Mortgage
Files (or copies thereof) in accordance with the Agreement and if any document
required to be included in any Mortgage File is found to be defective in any
material respect and such defect is not corrected or cured by the Closing Date,
the affected Mortgage Loan will not be included in the Mortgage Trust.
If (i) a document constituting a part of any Mortgage File is
defective, (ii) an Assignment of Mortgage is not recorded as required or (iii)
any representation, warranty or covenant to a Mortgage Loan as made by the
Company to the Depositor in connection with the sale of the Mortgage Loans to
the Depositor is breached, thereby materially and adversely affecting the
interests of the Owners of the Certificates in such Mortgage Loan (any such
Mortgage Loan being a "Defective Mortgage Loan"), the Company will be required
to repurchase the related Mortgage Loan (including any property acquired in
respect thereof and any insurance policy or insurance proceeds with respect
thereto) from the Trustee at a price equal to the Unpaid Principal Balance of
the Mortgage Loan as of the Distribution Date upon which the proceeds of the
repurchase would be distributed to Certificateholders, together with accrued and
unpaid interest at the Mortgage Loan's Loan Rate (less the Servicing Fee Rate)
for the calendar month preceding the date of repurchase (the "Purchase Price").
Upon receipt by the Trustee of written notification of any such repurchase, the
Trustee will execute and deliver an instrument of transfer or assignment
necessary to vest in the legal and beneficial ownership of such Mortgage Loan
(including any property acquired in respect thereof or proceeds of any insurance
policy with respect thereto). The obligation of the Company to repurchase any
such Mortgage Loan shall be the sole remedy available to the Owners of the
Certificates or the Trustee, on behalf of the Owners, against the Company under
the Agreement.
Notwithstanding the foregoing, in the case of any repurchase of a
Mortgage Loan that would result in the realization of a gain by the Mortgage
Trust or Trust Fund, the Company will not be required to repurchase such
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Mortgage Loan unless the Trustee has received an opinion of counsel to the
effect that such repurchase will not be subject to tax as a result of being
deemed a "prohibited transaction" under Section 860F(a)(2) of the Code and a
certificate from the Company to the effect that such repurchase will not give
rise to net income taxable under Section 860F(a)(1) of the Code. The Company
will use its reasonable best efforts to obtain such opinion and deliver such
certificate. In the absence of such opinion or certificate, the Company will not
be required to so repurchase any Mortgage Loan unless there is an actual or
imminent default with respect thereto or unless such breach adversely affects
the enforceability of such Mortgage Loan.
Collection and Other Servicing Procedures
The Servicer is required to service the Mortgage Loans, subject to the
terms of the Mortgage Loans themselves, pursuant to the Agreement and the
requirements of applicable law, in the same manner in which it services mortgage
loans for its own portfolio that are comparable to the Mortgage Loans, giving
due consideration to customary and usual standards of practice of prudent
institutional multifamily mortgage lenders and loan services utilized with
respect to comparable mortgage loans (the "Servicing Standard"). The Servicer
will make reasonable efforts to collect all payments called for under the
Mortgage Loans and will, consistent with the Agreement, follow such collection
procedures as are customary to the servicing of mortgage loans in its servicing
portfolio which are comparable to the Mortgage Loans. Consistent with the above,
the Servicer may, in its discretion, waive any late payment charge in respect of
a late Mortgage Loan payment or any other administrative fee.
The Servicer may extend the Maturity Date of any Mortgage Loan without
the consent of the Trustee or the Owners of the Certificates, subject to the
following conditions: (i) a determination must be made that a Balloon Payment
default is imminent and that the extension of the Maturity date is reasonably
likely to produce a greater recovery than liquidation of the related Mortgage
Loan; (ii) any such extension will be for a period of not greater than [36]
months; and (iii) prior to granting such extension, the Servicer must determine:
(a) that no deferred maintenance exists; (b) the ratio of the net income from
the operation of the Mortgaged Property to debt service on the Mortgage Loan is
not less than to ; (c) no Mortgage Loan payment due during the preceding 12
months had been more than 30 days delinquent; and (d) the related mortgagor has
made a reasonable effort to obtain new financing in an amount sufficient to
enable payment of the Balloon Payment.
The Servicer will not permit the placement of a subsequent senior
mortgage on any Mortgaged Property.
In any case in which a Mortgaged Property has been or is about to be
conveyed by the Mortgagor, the Servicer may not permit an assumption of the
related Mortgage Loan. If the Servicer, however, is prevented from enforcing any
such clause or any such clause, by its terms, is not operable, the Servicer is
authorized to take or enter into an assumption and modification agreement with
the person to whom such Mortgaged Property has been or is about to be conveyed,
pursuant to which such person becomes liable under the Mortgage Note and the
Mortgagor remains liable thereon or, if the Servicer finds it appropriate, is
released from liability thereon. In respect of transfers or proposed transfers
not covered by the above guideline, the Servicer will exercise its right to
accelerate the maturity of the related Mortgage Loan and require that the
principal balance thereof be paid in full. Any fee collected by the Servicer for
entering into any such agreement will be retained by the Servicer as additional
servicing compensation.
In addition, if Mortgage Loans contain due-on-encumbrance clauses or
require the consent of the holder of the Mortgage Loan to the creation of any
subordinate lien or encumbrance on the Mortgaged Property, the Servicer, on
behalf of the Trustee, will exercise any right it may have to accelerate the
payment of such Mortgage Loans upon, or to withhold its consent to, the creation
of such liens or encumbrances.
[The Servicer is not required to establish any escrow account into
which it will deposit escrow payments from Mortgagors under the Mortgages for
the payment of taxes, insurance premiums, assessments or similar items.]
Payments on Mortgage Loans; Deposits to Certificate Account and
Prepayment Premium Account
The Trustee will establish and maintain in the name of the Trustee a
separate account (the "Certificate Account") for the benefit of the Owners of
the Certificates. The Certificate Account will be required to be an
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Eligible Account (described below). The Servicer shall be required to remit to
the Trustee for deposit into the Certificate Account, daily, within one Business
Day of receipt thereof:
(i) all payments of interest on the Mortgage Loans (net of the
related Monthly Servicing Fee with respect to each such Mortgage Loan
which was an Outstanding Mortgage Loan as of the preceding Distribution
Date);
(ii) all payments of principal received in respect of the
Mortgage Loans;
(iii) the aggregate of all purchase prices paid by the Company
for the purchase of any Defective Mortgage Loan:
(iv) all cash ("Liquidation Proceeds") received in connection
with the liquidation of a Liquidated Mortgage Loan net of expenses
("Liquidation Expenses") of the Servicer in connection with such
liquidation (such net liquidation proceeds being referred to herein as
"Net Liquidation Proceeds");
(v) the aggregate of any insurance proceeds received in
respect of a Mortgaged Property (net of amounts covering the related
reasonable expenses of the Servicer) that are not Liquidation Proceeds
and are applied to principal or interest on the related Mortgage Loan;
(vi) any amounts required to be deposited pursuant to the
Agreement in connection with any property ("REO Property") acquired by
the Mortgage Trust through foreclosure or deed in lieu of foreclosure;
(vii) any amounts required to be deposited pursuant to the
Agreement in connection with the application of co-insurance clauses,
flood damage to REO Properties and blanket policy deductibles; and
(viii) all advances made by the Servicer with respect to
payments of principal (other than Balloon Payments) and interest on the
Mortgage Loans that were due on the related Due Date and not received
as of the close of business on the Determination Date preceding the
related Distribution Date, less the aggregate amount of any such
delinquent payments that would constitute a Monthly Advance.
Payments and collections that do not constitute Available Funds (e.g.,
assumption fees, late fees or other administrative charges) will not be
deposited in the Certificate Account and will be retained by [the Servicer as
additional servicing compensation]. The Servicer may, from time to time, direct
the Trustee to make withdrawals from the Certificate Account referred to above,
to make reimbursement of certain expenses to the Servicer.
The Trustee will establish and maintain, on behalf of the
Certificateholders, a trust account (the "Prepayment Premium Account") in which
shall be deposited any premium or yield maintenance payment by a Mortgagor with
respect to a related Mortgage Loan in connection with a Principal Prepayment (a
"Prepayment Premium"). The Servicer shall remit to the Trustee for deposit into
the Prepayment Premium Account, daily, within one Business Day of receipt
thereof from subservicers, all Prepayment Premiums received by it.
Any funds on deposit in the Certificate Account and Prepayment Premium
Account may be invested in Permitted Investments. Permitted Investments are
specified in the Agreement as including certain federal government obligations
and other highly rated obligations. Any net investment income from such
Permitted Investments will be for the benefit of [the Servicer as part of its
servicing compensation].
Hazard Insurance
The Servicer is required to cause to be maintained for each Mortgaged
Property a fire insurance policy with extended perils coverage which contains a
standard mortgagee's clause in an amount at least equal to the lesser of (a) the
replacement cost of the improvements on such Mortgaged Property or (b) the
current principal balance of such Mortgage Loan. As set forth above, all amounts
collected by the Servicer under any hazard policy (except for amounts to be
applied to the restoration or repair of the Mortgaged Property or released to
the borrower in accordance with the Servicer's normal servicing procedures or
the terms of the Mortgage Loan), to the extent they
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constitute Net Liquidation Proceeds or insurance proceeds, will ultimately be
deposited in the Certificate Account. The ability of the Servicer to assure that
hazard insurance proceeds are appropriately applied may be dependent on its
being named as an additional insured under any hazard insurance policy, or upon
the extend to which information in this regard is furnished to the Servicer by a
borrower. The Agreement provides that the Servicer may satisfy its obligation to
cause hazard policies to be maintained by maintaining a blanket policy issued by
an insurer acceptable to the Rating Agency and fire insurance with extended
perils coverage on the Mortgage Loans. If such blanket policy contains a
deductible clause, the Servicer is obligated to deposit in the Certificate
Account the sums which would have been deposited therein but for such clause.
If the properties securing the Mortgage Loans have appreciated in value
and if the amount of hazard insurance maintained on the improvements securing
the Mortgage Loans were to decline as the principal balances owing thereon
decreased, hazard insurance proceeds could be insufficient to restore fully the
damaged property in the event of a partial loss. See "Description of the Offered
Certificates -- Subordination of the Subordinate Certificates" above for a
description of the protection afforded to holders of the Class A Certificates
and, to a lesser extent, the Class B Certificates against losses occasioned by
hazards which are otherwise uninsured against (including losses caused by the
application of the co-insurance clause described in the preceding paragraph).
If the protection afforded the Owners of the Class B Certificates by
the subordination of the Class C Certificates is exhausted, and if a borrower
defaults on his obligations to make payments on a Mortgage Loan, the Owners of
the Class B Certificates will bear all risk of loss resulting from hazard losses
not covered by hazard insurance. Once the Class Principal Balance is reduced to
zero, all such remaining losses will be by the Owners of the Class A
Certificates.
Realization Upon Defaulted Mortgage Loans
The Servicer will foreclose upon or otherwise comparably convert the
ownership of Mortgaged Properties securing such of the Mortgage Loans as come
into default when, in accordance with applicable servicing procedures under the
Agreement, no satisfactory arrangements can be made for the collection of
delinquent payments and the Servicer determines that such action is in the best
economic interest of the Certificateholders. In connection with such foreclosure
or other conversion, the Servicer will follow such practices as it deems
necessary or advisable and as are in keeping with the Servicer's multifamily
mortgage loan servicing activities and with the Servicing Standard, provided the
Servicer will not expend its own funds in connection foreclosure or other
conversion, correction of a default on a senior mortgage or restoration of any
property unless such foreclosure, correction or restoration is determined to be
in the best economic interest of the Trust. Any Mortgaged Property so acquired
by the Mortgage Trust is required to be disposed of in accordance with
applicable federal income tax law and regulations and consistent with the status
of the Trust Fund and the Mortgage Trust as REMICs, which regulations currently
require that such disposition occur within two years of the acquisition. The
Agreement will provide that the Servicer, acting on behalf of the Trust, may not
acquire title to a Mortgaged Property or take over its operation unless the
Servicer has previously determined, based on a report prepared by an independent
person who regularly conducts environmental audits, that the Mortgaged Property
is in compliance with applicable environmental laws or that it would be in the
best economic interest of the Trusts to take the actions necessary to comply
with such laws. [Special Servicer requirements.]
Servicing and Other Compensation and Payment of Expenses
The principal servicing compensation (the "Servicing Fee") to be paid
to the Servicer in respect of its servicing activities relating to the
Certificates will be paid to it with respect to each Distribution Date by
withholding from funds to be deposited into the Certificate Account out of
collections on the Mortgage Loans in an amount equal to, as to each Mortgage
Loan, one-twelfth of the product of (i) the rate set forth in the Mortgage Loan
Schedule (the "Servicing Fee Rate") and (ii) the Unpaid Principal Balance of
such Mortgage Loan as of such Distribution Date. All assumption fees, late
payment charges and extension and other administrative charges, to the extent
collected from borrowers, will be [retained by the Servicer]. The amounts of
late charges are limited by state law and range from __% to __% of the late
monthly payment. [Assumption fees range from __% to __% of the outstanding
amount of the Mortgage Loan.]
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The Servicer will pay certain ongoing expenses associated with the
Trust and incurred by it in connection with its responsibilities under the
Agreement, including, without limitation, payment of the fees and disbursements
of the Trustee, any custodian appointed by the Trustee and any paying agent. In
addition, as indicated in the preceding section, the Servicer will be entitled
to reimbursement for certain expenses incurred by it in connection with
defaulted Mortgage Loans and in connection with the restoration of Mortgaged
Properties, such right of reimbursement being prior to the rights of
Certificateholders to receive any related insurance proceeds or Liquidation
Proceeds.
Evidence as to Compliance
On or before __________ in each year, beginning with __________, 199__,
the Servicer at its expense is required to cause a firm of independent public
accountants to furnish a statement to the Trustee to the effect that such firm
has examined, for the preceding calendar year, certain documents and records
related to the servicing of mortgage loans under pooling and servicing
agreements (including the Agreement) substantially similar to the Agreement and
such examination, which as been conducted substantially in compliance with the
Uniform Single Audit Program for Mortgage Bankers, has disclosed no items of
noncompliance with the provisions of the Agreement which, in the opinion of the
firm, are material, except for such items as will be referred to in the report.
The Agreement will also provide for delivery (on or before __________
in each year, commencing with __________, 199__) to the Trustee of an annual
statement signed by an officer of the Servicer to the effect that the Servicer
has fulfilled its material obligations under the Agreement throughout the
preceding year.
Certain Matters Regarding the Servicer
The Agreement will provide that the Servicer may not resign from its
obligations and duties thereunder unless (i) its duties thereunder are no longer
permissible under applicable law or (ii) the Servicer no longer wishes to be
Servicer and has proposed a successor Servicer that (a) is reasonably acceptable
to the Trustee (b) whose appointment will not result in a reduction of the
rating assigned to the Offered Certificates or the Class C Certificates and (c)
is approved in writing by Owners of Percentages Interest aggregating not less
than 50% of each Class of Certificate then Outstanding.
The Agreement will also provide that neither the Servicer, nor any
director, officer, employee or agent of the Servicer will be under any liability
to the Trust Fund or the Owners of the Certificates for any action taken or for
refraining from the taking of any action in good faith pursuant to the
Agreement, or for errors in judgment; provided, however, that neither the
Servicer nor any such person will be protected against any liability which would
otherwise be imposed by reason of misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties thereunder. The Agreement will further provide that the Servicer and any
director, officer, employee or agent of the Servicer is entitled to
indemnification by the Trust Fund and will be held harmless against any loss,
liability or expense incurred in connection with any legal action relating to
the Agreement or the Owners of the Certificates, other than any loss, liability
or expense related to any specific Mortgage Loan or Mortgage Loans (except any
such loss, liability or expense otherwise reimbursable pursuant to the
Agreement) and any loss, liability or expense incurred by reason of reckless
disregard of obligations and duties thereunder. In addition, the Agreement will
provide that the Servicer will not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its duties under
the Agreement and which in its opinion may involve it in any expense or
liability. The Servicer may, however, in its discretion undertake any such
action which it may deem necessary or desirable with respect to the Agreement
and the rights and duties of the parties thereto and the interests of the Owners
of the Certificates thereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom will be expenses, costs and
liabilities of the Trust Fund and the Servicer will be entitled to be reimbursed
therefor from time to time on one or more Distribution Dates, only out of the
Available Funds for such Distribution Date that remain after the distributions
to the Certificateholders for such Distribution Date have been made. The
Servicer's right to such indemnity or reimbursement will survive any resignation
or termination of the Servicer (and will survive any termination of the
Agreement if the Servicer is still serving as the servicer at such termination)
with respect to any losses, expenses, costs or liabilities arising prior to such
resignation or termination (or arising from events that occurred prior to such
resignation or termination). Any such claims by or on behalf of the
Certificateholders or the Trust Fund will be
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made only against the Servicer, who will be liable with respect to its own acts
and omissions as well as the acts and omissions of its directors, officers,
employees and agents.
Any corporation into which the Servicer may be merged or consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Servicer will be a party, or any corporation succeeding to the
business of the Servicer, which executes an agreement of assumption to perform
every obligation of the Servicer under the Agreement, will be the successor of
the Servicer thereunder, without the execution or filing of any other paper or
any further act on the part of any of the parties thereto, anything therein to
the contrary notwithstanding.
Events of Default
Events of Default under the Agreement will consist of (i) a failure by
the Servicer to deposit in the Certificate Account any deposit required to be
made under the Agreement, which failure continues unremedied for five business
days after the giving of written notice of such failure to the Servicer by the
Trustee, or to the Servicer and the Trustee by holders of the Certificates of
any class evidencing, as to such Class, Percentage Interests aggregating not
less than 25%; (ii) any failure by the Servicer duly to observe or perform in
any material respect any of its other covenants or agreements in the Agreement
which materially affects the Certificateholders and continues, unremedied for 60
days after the giving of written notice of such failure to the Servicer by the
Trustee, or to the Servicer and the Trustee by holders of the Certificates of
any class evidencing, as to such Class, Percentage Interests aggregating not
less than 25%; and (iii) certain events of insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings regarding the
Servicer and certain actions by the Servicer indicating its insolvency or
inability to pay its obligations.
Rights Upon Event of Default
So long as an Event of Default remains unremedied by the Servicer, the
Depositor or the Trustee may, or at the written direction of the Owners of
Certificates evidencing not less than 51% of the Ownership Interests in the
Trust Fund (for the purposes of this percentage, the Class B, Class R and Class
RL Certificateholders shall be deemed to hold 0% of the Ownership Interests in
the Trust Fund) shall, terminate all the rights and obligations of the Servicer
under the Agreement in and to the Mortgage Loans, whereupon the Trustee will
succeed to all the responsibilities, duties and liabilities of the Servicer
under the Agreement and will be entitled to similar compensation arrangements;
provided, however, that the Trustee may waive any default by the Servicer in the
performance of its obligations under the Agreement and its consequences, except
that a default in the making of any required distribution on any of the
Certificates may only be waived with the consent of the Owners of Certificates
of each Class affected thereby, voting as a Class, evidencing, as to each such
Class, Percentage Interests aggregating not less than 66%]. Upon any such waiver
of a past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of the
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right contingent thereon except to the extent expressly so waived.
In the event that the Trustee would be obligated to succeed the
Servicer but is unwilling or unable so to act, it may appoint, or petition a
court of competent jurisdiction for the appointment of, any established housing
and home finance institution that is then servicing a multi-family mortgage loan
portfolio and with a net worth of at least $__________ to act as successor to
the Servicer under the Agreement. Pending such appointment, the Trustee is
obligated to act in such capacity, unless the Trustee is prohibited by law from
so acting. The Trustee and such successor may agree upon the servicing
compensation to be paid, which in no event may be greater than the compensation
to the initial Servicer under the Agreement.
No Certificateholder will have any right under the Agreement to
institute any proceeding with respect to the Agreement unless such holder
previously has given to the Trustee written notice of default and unless holders
of Certificates of any Class evidencing, as to such Class, Percentage Interests
aggregating not less than 25% have made written request upon the Trustee to
institute such proceeding in its own name as Trustee thereunder and have offered
to the Trustee reasonable indemnity and the Trustee for 60 days after the
receipt of such request and after the indemnity has neglected or refused to
institute any such proceeding. The Trustee will be 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
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direction of any of the Owners of the Certificates covered by the Agreement,
unless such Owners of the Certificates have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby.
Amendment
The Agreement may be amended from time to time by the Servicer, the
Depositor, the Company and the Trustee without the consent of any of the Owners
of the Certificates (a) to cure any error or any ambiguity or to correct or
supplement any provisions therein which may be inconsistent with any other
provisions therein, (b) to add to the duties or obligations of the Servicer
thereunder, (c) to maintain or improve the rating of the Class A Certificates or
the Class B Certificates then given by a Rating Agency (it being understood that
after obtaining the initial ratings of the Class A and Class B Certificates,
none of the Depositor, the Servicer or the Trustee is obligated to maintain or
improve such ratings), or (d) to add any other provisions with respect to
matters or questions arising under the Agreement; provided, however, that such
action will not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Owner of a Certificate. The Agreement may
also be amended from time to time by the Servicer, the Depositor, and the
Trustee, with the consent of the Owners of Certificates of each Class affected
thereby evidencing, as to such Class, Percentage Interests aggregating not less
than 51% for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Agreement or of modifying in any
manner the rights of Owners of the Certificates; provided, however, that no such
amendment will (a) reduce in any manner the amount of, or delay the timing of,
collections of payments on Mortgage Loans or distributions which are required to
be made on any Certificate without the consent of the Owner of such Certificate
or (b) reduce the aforesaid percentage required to consent to any such
amendment, without the consent of the Owners of all Certificates then
outstanding. The Agreement may also be amended from time to time, without the
consent of the Owners of the Certificates, with regard to certain REMIC matters.
Termination; Retirement of the Certificates
The obligations created by the Agreement will terminate upon the
payment to Owners of the Certificates of all amounts held in the Certificate
Account or by the Servicer and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation of
the last Mortgage Loan subject thereto or the disposition of all property
acquired upon foreclosure of any such Mortgage Loan and (ii) the repurchase by
the Servicer from the Mortgage Trust of all remaining Mortgage Loans and all
property acquired in respect of such Mortgage Loans, as described below. In no
event, however, will the trust created by the Agreement continue beyond the
expiration of 21 years from the death of the last to survive of certain persons
described in the Agreement. Written notice of termination of the Agreement will
be given to each Certificateholder, and the final distribution will be made only
upon surrender and cancellation of the Certificates at an office or agency
appointed by the Trustee which will be specified in the notice of termination.
At its option, the Depositor may repurchase from the Mortgage Trust all
remaining Mortgage Loans held by the Mortgage Trust at a price equal to the
greater of (a) the sum of (x) 100% of the Unpaid Principal Balance of each
Mortgage Loan (other than any Foreclosed Mortgage Loan represented by REO
Property whose fair market value is included pursuant to clause (y) below) as of
the Distribution Date upon which the proceeds of any repurchase are to be
distributed and (y) the fair market value of all Foreclosed Mortgage Loans
represented by REO Property. The right of the Depositor to make any such
purchase is conditioned upon the Pool Principal Balance being less than 10% of
the Cut-Off Date Pool Principal Balance. The termination of the Trusts is
required to be effected in a manner consistent with applicable federal income
tax regulations and their status as REMIC's.
The Trustee
____________________, a __________ banking association organized under
the laws of the United States, is the Trustee. Its Corporate Trust Office is
located at _________________________. The Depositor may also remove the Trustee
under certain circumstances, including, among others, failure of the Trustee to
continue to satisfy the eligibility requirements described in the Agreement or
adjudication of the Trustee as bankrupt or insolvent. Upon becoming aware of
such circumstances, the Depositor will be obligated to appoint a successor
Trustee. The Trustee may resign from its duties as Trustee under the Agreement.
Any resignation or removal of
S-37
<PAGE>
the Trustee and appointment of a successor Trustee will not become effective
until acceptance of the appointment by the successor Trustee.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is the opinion of Arter & Hadden, special counsel to the
Depositor as to certain of the material anticipated federal income tax
consequences of the purchase, ownership and disposition of the Offered
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
Offered Certificates.
REMIC Elections
The Trustee will cause an election to be made to treat the Trust as a
"real estate mortgage investment conduit" ("REMIC") for federal income tax
purposes. Arter & Hadden, special tax counsel, is of the opinion that, for
federal income tax purposes, assuming (i) the REMIC election is made and (ii)
compliance with the Agreement, the Trust will be treated as a REMIC, each Class
of Offered Certificates will be treated as "regular interests" in the REMIC and
the Class R Certificates will be treated as the sole class of "residual
interests" in the REMIC. 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 Offered Certificates that otherwise report income under a cash
method of accounting will be required to report income with respect to such
Offered Certificates under an accrual method. The Offered Certificates may be
issued with "original issue discount" for federal income tax purposes. The
prepayment assumption to be used in determining whether any Class of Offered
Certificates is issued with original issue discount and the rate of accrual of
original issue discount is ___%. No representation is made that any of the
Mortgage Loans will prepay at this rate or any other rate. See "Certain Federal
Income Tax Consequences--REMICS--Taxation of Holders of REMIC Regular
Securities--Original Issue Discount" in the Prospectus.
Although not free from doubt, it is anticipated that the Class S-A
Certificates will be treated as issued with original issue discount in an amount
equal to the excess of all payments thereon over their issue price (including
accrued interest), and the Trustee intends to report income in respect of such
Class of Certificates in this manner. Under this method, any "negative" amounts
of original issue discount attributable to rapid prepayments would not be
deductible currently, but would be offset against future positive accruals of
original issue discount, if any. Finally, a Class S-A Certificateholder may be
entitled to a loss deduction to the extent it becomes certain that such holder
will not recover a portion of its remaining basis in the Class S-A Certificate,
assuming no further prepayments.
ERISA CONSIDERATIONS
Any Plan fiduciary which proposes to cause a Plan to acquire any of the
Offered Certificates should consult with its counsel with respect to the
potential consequences under the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and the Code, of the Plan's acquisition and
ownership of such Certificates.
General
ERISA imposes certain restrictions on employee benefit plans subject to
ERISA ("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 Class A-1 and Class B
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
S-38
<PAGE>
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.
Prohibited Transactions
General. Section 406 of ERISA prohibits parties in interest with
respect to a Plan from engaging in certain transactions involving a Plan and its
assets unless a statutory or administrative exemption applies to the
transaction. Section 4975 of the Code (or, in some cases, Section 502(i) of
ERISA) imposes certain excise taxes 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. One such exception provides that if less than 25% of the value of the
Certificates outstanding is held by Plans, the assets of the Trusts would not be
deemed to include assets of Plans that are Certificateholders. However, there
can be no assurance that the 25% exception described in the regulations would be
satisfied with respect to the Trusts.
Under the terms of the regulation, the Trusts 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 Mortgage Loans and any other assets
held by the Trusts. In such an event, the Depositor, the Servicer, the Trustee
and other persons, in providing services with respect to the Mortgage Loans, 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 the Mortgage Loans unless such transactions are subject to a statutory
or administrative exemption.
[Availability of Administrative Exemption for Class A-1 and Class S-A
Certificates. The U.S. Department of Labor has granted to
___________________________ an administrative exemption (Prohibited Transaction
Exemption _______, ________________________________________ from certain of the
prohibited transaction rules of ERISA with respect to the initial purchase, the
holding and the subsequent resale by Plans of certificates representing
interests in asset-backed pass-through trusts that consist of certain
receivables, loans and other obligations that meet the conditions and
requirements of PTE ______. The receivables covered by the exemption include
mortgage loans such as the Mortgage Loans. The exemption will apply to the
acquisition, holding and resale of the Class A-1 and Class S-A Certificates by a
Plan, provided that certain conditions (certain of which are described below)
are met.
Among the conditions which must be satisfied for PTE ______ to apply to
the Class A-1 and Class S-A Certificates are the following:
(1) The acquisition of the Class A-1 and Class S-A Certificates by a
Plan is on terms (including the price for the Class A-1 and Class S-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;
(2) The rights and interests evidenced by the Class A-1 and Class S-A
Certificates acquired by the Plan are not subordinated to the rights and
interests evidenced by other certificates of the Trust Fund;
(3) The Class A-1 and Class S-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 S&P, Moody's, Duff & Phelps Credit
Rating Co. or Fitch Investors Service, Inc.;
(4) The Trustee is not an affiliate of any member of the Restricted
Group (as defined below);
S-39
<PAGE>
(5) The sum of all payments made in connection with the resale of the
Class A-1 and Class S-A Certificates represents not more than reasonable
compensation for reselling the Class A-1 and Class S-A Certificates. The sum of
all payments made to and retained by the Depositor pursuant to the sale of the
Mortgage Loans to the Mortgage Trust represents not more than the fair market
value of such Mortgage Loans. 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 Agreement and reimbursement of the Servicer's reasonable
expenses in connection therewith; and
(6) The Plan investing in the Class A-1 and Class S-A Certificates is
an "accredited investor" as defined in Rule 501(a)(1) of Regulation D of the
Securities and Exchange Commission under the 1933 Act.
Moreover, PTE _______ would provide relief from certain
self-dealing/conflict of interest prohibited transactions only if, among other
requirements, (i) in the case of the acquisition of Class A-1 and Class S-A
Certificates in connection with the initial issuance, at least fifty percent
(50%) of the Class A-1 and Class S-A Certificates are acquired by persons
independent of the Restricted Group (as defined below), (ii) the Plan's
investment in Class A-1 or Class S-A Certificates does not exceed twenty-five
percent (25%) of all of the Class A-1 and Class S-A Certificates outstanding at
the time of the acquisition and (iii) immediately after acquisition, no more
than twenty-five percent (25%) of the assets of the Plan are invested in
certificates representing an interest in one or more trusts containing assets
sold or serviced by the same entity. PTE ____ does not apply to Plans sponsored
by the Servicer, the Depositor, the Trustee, any obligor with respect to
Mortgage Loans included in the Mortgage Trust constituting more than five
percent of the aggregate unamortized principal balance of the assets in the
Mortgage Trust, or any affiliate of such parties (the "Restricted Group")
____ believes that the exemption will apply to the acquisition and
holding of the Class A-1 and Class S-A Certificates by Plans and that all
conditions of the exemption other than those within the control of the investors
have been met. [In addition, as of the date hereof, there is no single obligor
with respect to Mortgage Loans included in the Mortgage Trust that constitutes
more than five percent of the aggregate unamortized principal balance of the
assets of the Mortgage Trust.]
Under current law the purchase and holding of the Class B Certificates
by or on behalf of any Plan subject to the fiduciary responsibility provisions
of ERISA may result in "prohibited transactions" within the meaning of ERISA and
the Code. [No transfer of a Class B Certificate or any interest therein may be
made to any Plan or other retirement arrangement, including individual
retirement accounts and annuities, Keogh plans and collective investment and
separate accounts in which such plans, accounts or arrangements are invested
that is subject to ERISA or the Code unless the prospective transferee of the
Class B Certificate provides the Trustee with a representation letter and an
opinion of counsel, each in the form required under the Agreement. See "ERISA
Considerations" herein and in the Prospectus.]
Review By Plan Fiduciaries. Due to the complexity of these rules and
the penalties imposed upon persons involved in prohibited transactions, it is
especially important that any Plan fiduciary who proposes to cause a Plan to
purchase Class A-1 or Class S-A Certificates should consult with its own counsel
with respect to the potential consequences under ERISA and the Code of the
Plan's acquisition and ownership of Class A-1 or Class S-A Certificates. Assets
of a Plan or individual retirement account should not be invested in the Class
A-1 and Class S-A Certificates unless it is clear that the assets of the Trusts
will not be plan assets or unless it is clear that the PTE ______ or a
prohibited transaction class exemption will apply and exempt all potential
prohibited transactions.
LEGAL INVESTMENT CONSIDERATIONS
[As long as the Class A Certificates are rated in one of the two
highest rating categories by at least one nationally recognized statistical
rating organization, the Class A Certificates will constitute "mortgage related
securities" within the meaning of SMMEA and as such will be legal investments
for persons, trusts, corporations, partnerships, associations, business trusts
and business entities (including depository institutions, life insurance
companies and pension funds) created pursuant to or existing under the laws of
the United States or of any State whose authorized investments are subject to
state regulation to the same extent that,
S-40
<PAGE>
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, however, if a State
enacted legislation on or prior to October 3, 1991 specifically limiting the
legal investment authority of any such entities with respect to "mortgage
related securities," such securities will constitute legal investments for
entities subject to such legislation only to the extent provided therein.
Certain States have enacted legislation which overrides the preemption
provisions of SMMEA.
SMMEA has amended the legal investment authority of federally-chartered
depository institutions as follows: federal savings and loan associations and
federal savings banks may invest in, sell or otherwise deal with "mortgage
related securities" without limitation as to the percentage of their assets
represented thereby, federal credit unions may invest in such securities, and
national banks may purchase such securities for their own account without regard
to the limitations generally applicable to investment securities set forth in 12
U.S.C. 24 (seventh), subject in each case to such regulations as the applicable
federal regulatory authority may prescribe.]
The [Class B] Certificates will not be "mortgage securities" for
purposes of SMMEA. As a result, the appropriate characterization of the [Class
B] Certificates under various legal investment restrictions, and thus the
ability of investors subject to these restrictions to purchase the [Class B]
Certificates, is subject to significant interpretive uncertainties.
The Depositor makes no representation as to the ability of particular
investors to purchase the Offered Certificates under applicable legal investment
or restrictions. All institutions whose investment activities are subject to
legal investments and regulations, regulatory requirements or review by
regulatory authorities should consult with their own advisors in determining
whether and to what extent the Offered Certificates constitute legal investments
for or are subject to investment, capital or other restrictions.
RATINGS
It is a condition to the issuance of the Offered Certificates that the
Class A-1 and Class S-A Certificates each be rated no lower than "AAA" by S&P
and "Aaa" by Moody's and that the Class B Certificates be rated no lower than
"____" by _____. 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 rating agency. Each security rating should be evaluated independently
of any other security rating.
The ratings assigned by the Rating Agencies to mortgage pass-through
certificates address the likelihood of the receipt by certificateholders of all
distributions to which such certificateholders are entitled. The ratings
assigned to mortgage pass-through certificates do not constitute a statement
regarding the frequency or extent of principal prepayments. The ratings do not
address the possibility that certificateholders might receive a lower than
anticipated yield on their investment.
UNDERWRITING
Under the terms and subject to the conditions set forth in the
Underwriting Agreement for the sale of the Offered Certificates, the Depositor
has agreed to cause the Trust to sell and ___________________ (the
"Underwriters") have agreed to purchase the Offered Certificates.
In the Underwriting Agreement, the Underwriters have agreed, subject to
the terms and conditions set forth therein, to purchase, the entire principal
amount of each Class of Offered Certificates.
The Underwriters have advised the Depositor that they propose to offer
the Offered Certificates for sale from time to time in one or more registered
transactions or otherwise, at market prices prevailing at the time of sale, at
prices related to such market prices or at negotiated prices. The Underwriters
may effect such transactions by selling such Certificates to or through dealers,
and such dealers may receive compensation in the form of underwriting discounts,
concessions or commissions from the Underwriters or purchasers of the Offered
Certificates
S-41
<PAGE>
for whom they may act as agent. Any dealers that participate with the
Underwriters in the distribution of the Offered Certificates purchased by the
Underwriters may be deemed to be underwriters, and any discounts or commissions
received by them or the Underwriters and any profit on the resale of Offered
Certificates by them or the Underwriters may be deemed to be underwriting
discounts or commissions under the Securities Act.
The Company has agreed to indemnify the Underwriters against certain
liabilities including liabilities under the Securities Act of 1933.
The Depositor has been advised by the Underwriters that the
Underwriters presently intends to make a market in each Class of Offered
Certificates, as permitted by applicable laws and regulations. The Underwriters
are not obligated, however, to make a market in either Class of Offered
Certificates and such market-making may be discontinued at any time at the sole
discretion of the Underwriters. Accordingly, no assurance can be given as to the
liquidity of, or trading markets for, the Offered Certificates.
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 to the Company. 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
Certificates will be passed upon for the Underwriter by
________________________.
S-42
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
S-43
<PAGE>
APPENDIX A
NDEX TO LOCATION OF PRINCIPAL DEFINED TERMS
<TABLE>
<CAPTION>
Page Page
<S> <C> <C> <C>
accredited investor.......................S-40 Policies.................................S-20
Additional Collateral.....................S-31 Prepayment Premium.......................S-33
Agreement.................................S-31 Prepayment Premium Account...............S-33
Appraised Values..........................S-16 Prepayments...............................S-7
Balloon Payments..........................S-12 Purchase Price...........................S-31
Book Entry Termination....................S-22 Rating Agencies...........................S-7
CERCLA....................................S-10 Realized Losses...........................S-6
Certificate Account.......................S-32 Record Date...............................S-3
Certificate Registrar.....................S-21 REMIC.....................................S-7
Certificates...............................S-1 REO Property.............................S-33
Class A-1 Certificates.....................S-1 Residual Certificates.....................S-1
Class A-1 Pass-Through Restricted Group.........................S-40
Rate.......................................S-2 S&P.......................................S-7
Class B Certificates.......................S-1 Scheduled Final Distribution Date........S-30
Class B Principal Distribution Amount......S-4 Senior Certificates.......................S-1
Class C Certificates.......................S-1 Servicer..................................S-1
Class Principal Balance...................S-23 Servicing Fee............................S-34
Class R Certificates.......................S-1 Servicing Fee Rate........................S-6
Class RL Certificates......................S-1 Servicing Standard.......................S-32
Class S-A Certificates.....................S-1 SMMEA.....................................S-8
Class S-A Pass-Through Special Servicer..........................S-1
Rate.......................................S-2 SREA.....................................S-18
Class A-1 Principal Distribution Amount....S-3 SRPA.....................................S-18
Clearing Agency...........................S-21 superlien................................S-10
Clearing Agency Participants..............S-22 The Mortgage Trust-Underwriting
Closing Date...............................S-1 Standards...............................S-2
Code.......................................S-8 Trust.....................................S-1
Company....................................S-2 Trust Fund................................S-1
CPR.......................................S-28 Trustee...................................S-1
Cut-Off Date...............................S-1 Trusts....................................S-2
Default Rate..............................S-19 Underwriter..............................S-41
Defective Mortgage Loan...................S-31 Unpaid Delinquent Maturity Amount........S-23
Depositor..................................S-1 Unpaid Principal Balance.................S-23
DOL.......................................S-39 Weighted average life....................S-28
equity investment.........................S-39
ERISA......................................S-8
Events of Default.........................S-19
Final Scheduled Distribution Date..........S-6
Liquidated Mortgage Loan..................S-24
Liquidation Expenses......................S-33
Liquidation Proceeds......................S-33
Lower Tier REMIC...........................S-7
MAI.......................................S-18
Master Servicer............................S-1
Monthly Advance............................S-5
Monthly Interest..........................S-23
Monthly Report............................S-25
Moody's....................................S-7
Mortgage Files............................S-31
Mortgage Loan Schedule....................S-14
Mortgage Loans.............................S-2
Mortgage Note.............................S-19
mortgage related securities................S-8
Mortgage Trust.............................S-1
Mortgaged Properties.......................S-2
Net Liquidation Proceeds..................S-33
Net Losses................................S-15
Notional Principal Balance...................1
Offered Certificates.......................S-1
Original Class A-1 Principal Balance.......S-1
Originator.................................S-2
Outstanding Mortgage Loan.................S-23
Owners....................................S-21
parties in interest.......................S-38
Payment Date..............................S-21
Percentage Interest.......................S-21
Plan.......................................S-8
Plans.....................................S-38
</TABLE>
<PAGE>
Preliminary Prospectus dated __________, 199_
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, such Trust. The assets of a
Trust will include one or more of the following: (i) one-to-four family and/or
multifamily 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, one or more separate elections 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."
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 SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR 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 January__, 1997.
<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus and any Prospectus
Supplement with respect hereto and, if given or made, such information or
representations must not be relied upon. This Prospectus and any Prospectus
Supplement with respect hereto do not constitute an offer to sell or a
solicitation of an offer to buy any securities other than the Certificates
offered hereby and thereby or an offer of such Certificates to any person in any
state or other jurisdiction in which such offer would be unlawful. The delivery
of this Prospectus at any time does not imply that information herein is correct
as of any time subsequent to its date; however, if any material change occurs
while this Prospectus is required by law to be delivered, this Prospectus will
be amended or supplemented accordingly.
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page Page
<S> <C> <C> <C>
SUMMARY OF PROSPECTUS...................................... 1 THE DEPOSITOR............................................. 38
RISK FACTORS............................................... 7 CERTAIN LEGAL ASPECTS OF THE MORTGAGE
DESCRIPTION OF THE CERTIFICATES............................ 10 ASSETS............................................... 38
General............................................... 11 General.............................................. 38
Classes of Certificates............................... 11 Foreclosure.......................................... 39
Distributions of Principal and Interest............... 13 Soldiers' and Sailors' Civil Relief Act.............. 44
Book Entry Registration............................... 14 The Contracts........................................ 45
List of Owners of Certificates........................ 15 The Title I Program.................................. 47
THE TRUSTS................................................. 15 LEGAL INVESTMENT MATTERS.................................. 52
Mortgage Loans........................................ 15 ERISA CONSIDERATIONS...................................... 52
Contracts............................................. 18 CERTAIN FEDERAL INCOME TAX CONSEQUENCES................... 54
Mortgage-Backed Securities............................ 19 Federal Income Tax Consequences For REMIC
Other Mortgage Securities............................. 20 Certificates..................................... 54
CREDIT ENHANCEMENT......................................... 20 Taxation of Regular Certificates..................... 56
SERVICING OF MORTGAGE LOANS AND Taxation of Residual Certificates.................... 61
CONTRACTS............................................. 25 Treatment of Certain Items of REMIC Income and
Payments on Mortgage Loans............................ 25 Expense.......................................... 63
Advances.............................................. 26 Tax-Related Restrictions on Transfer of Residual
Collection and Other Servicing Procedures............. 26 Certificates..................................... 65
Primary Mortgage Insurance............................ 28 Sale or Exchange of a Residual Certificate........... 67
Standard Hazard Insurance............................. 28 Taxes That May Be Imposed on the REMIC Pool.......... 67
Title Insurance Policies.............................. 30 Liquidation of the REMIC Pool........................ 68
Claims Under Primary Mortgage Insurance Policies Administrative Matters............................... 68
and Standard Hazard Insurance Policies; Other Limitations on Deduction of Certain Expenses......... 69
Realization Upon Defaulted Loan................... 30 Taxation of Certain Foreign Investors................ 69
Realization Upon or Sale of Defaulted Multifamily Backup Withholding................................... 70
Loans............................................. 30 Reporting Requirements............................... 70
Servicing Compensation and Payment of Expenses........ 31 Federal Income Tax Consequences for Certificates as
Master Servicer....................................... 31 to Which No REMIC Election Is Made............... 71
ADMINISTRATION............................................. 32 Premium and Discount................................. 72
Assignment of Mortgage Assets......................... 32 Stripped Certificates................................ 74
Evidence as to Compliance............................. 34 Reporting Requirements and Backup Withholding........ 76
The Trustee........................................... 34 Taxation of Certain Foreign Investors................ 77
Administration of the Certificate Account............. 35 Taxation of Securities Classified as Partnership
Reports............................................... 36 Interests........................................ 77
Forward Commitments; Pre-Funding...................... 36 PLAN OF DISTRIBUTION...................................... 77
Servicer Events of Default............................ 37 LEGAL MATTERS............................................. 78
Rights Upon Servicer Event of Default................. 37 FINANCIAL INFORMATION..................................... 78
Amendment............................................. 37 INDEX TO LOCATION OF PRINCIPAL DEFINED
Termination........................................... 38 TERMS................................................A-1
USE OF PROCEEDS............................................ 38
</TABLE>
Until 90 days after the date of each Prospectus Supplement, all dealers
effecting transactions in the related Certificates, whether or not participating
in the distribution thereof, may be required to deliver this Prospectus and the
related Prospectus Supplement. This delivery requirement 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.
AVAILABLE INFORMATION
The Depositor is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and in accordance therewith
files reports and other information with the Securities and Exchange Commission
(the "Commission"). Such reports and other information filed by the Depositor
can be inspected and copied at the public reference facilities maintained by the
Commission at its Public Reference Section, 450 Fifth Street, N.W., Washington,
D.C. 20549, and its Regional Offices located as follows: Chicago Regional
Office, 500 West Madison, 14th Floor, Chicago, Illinois 60661; New York Regional
Office, Seven World Trade Center, New York, New York 10048. Copies of such
material can also be obtained at prescribed rates from the Public Reference
Section of the Commission, 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). The
Depositor does not intend to send any financial reports to Owners.
<PAGE>
This Prospectus does not contain all of the information set forth in the
Registration Statement (of which this Prospectus forms a part) and exhibits
thereto which the Depositor has filed with the Commission under the Securities
act of 1933 (the "Securities Act") and to which reference is hereby made.
REPORTS TO OWNERS
The Trustee or other designated person will be required to provide periodic
unaudited reports concerning the Certificates and the Trust to all registered
holders of Certificates of the related series. See "Administration-Reports."
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 Exchange Act 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. An index indicating where certain capitalized terms used herein are
defined appears in Appendix A hereto.
Securities...................... Asset Backed Certificates, issuable from time
to time 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").
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 a 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) conventional multifamily
mortgage loans ("Conventional Multifamily
Loans") or mortgages insured by the Federal
Housing Administration (the "FHA")
("FHA-Insured Multifamily Loans" and together
with the Conventional Multifamily Loans, the
"Multifamily Loans"); (iii) 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, (iv) Mortgage
Loans secured by junior liens on the related
mortgaged properties, including Title I Loans
and other types of home improvement retail
installment contracts. The
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Mortgage Loans may be located in any one of
the 50 states, the District of Columbia or
the Commonwealth of Puerto Rico. 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 (i.e., not insured or guaranteed
by any government agency) or insured by the
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,
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<PAGE>
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 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
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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.
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 overcollateralization,
cross support, mortgage pool insurance,
special hazard insurance, a bankruptcy bond,
reserve funds, other insurance, guaranties
and similar instruments and arrangements.
Credit Enhancement also may be provided in
the form of subordination of one or more
classes of Certificates in a series under
which losses are first allocated to any
Subordinated Certificates up to a specified
limit. The protection against losses afforded
by any such Credit Enhancement will be
limited as described in the related
Prospectus Supplement. 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
4
<PAGE>
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.
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 one or
more REMIC elections 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.
5
<PAGE>
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.
6
<PAGE>
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
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<PAGE>
breach of any such warranty that materially adversely affects any Contract would
create an obligation of the Seller 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.
Certain of the Mortgage Loans included in a Trust, particularly those
secured by Multifamily Properties, may not be fully amortizing (or may not
amortize at all) over their terms to maturity and, thus, will require
substantial payments of principal and interest (that is, balloon payments) at
their stated maturity. Mortgage Loans of this type involve a greater degree of
risk than self-amortizing loans because the ability of a Mortgagor to make a
balloon payment typically will depend upon its ability either to fully refinance
the loan or to sell the related Mortgaged Property at a price sufficient to
permit the Mortgagor to make the balloon payment. The ability of a Mortgagor to
accomplish either of these goals will be affected by a number of factors,
including the value of the related Mortgaged Property, the level of available
mortgage rates at the time of sale or refinancing, the Mortgagor's equity in the
related Mortgaged Property, prevailing general economic conditions, the
availability of credit for loans secured by comparable real properties and, in
the case of Multifamily Properties, the financial condition and operating
history of the Mortgagor and the related Mortgaged Property, tax laws and rent
control laws.
It is anticipated that some or all of the Mortgage Loans included in
any Trust, particularly Mortgage Loans secured by Multifamily Properties, will
be nonrecourse loans or loans for which recourse may be restricted or
unenforceable. As to those Mortgage Loans, recourse in the event of Mortgagor
default will be limited to the specific real property and other assets, if any,
that were pledged to secure the Mortgage Loan. However, even with respect to
those Mortgage Loans that provide for recourse against the Mortgagor and its
assets generally, there can be no assurance that enforcement of such recourse
provisions will be practicable, or that the other assets of the Mortgagor will
be sufficient to permit a recovery in respect of a defaulted Mortgage Loan in
excess of the liquidation value of the related Mortgaged Property.
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. See "Credit Enhancement" herein.
Regardless of the Credit Enhancement
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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 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
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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 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 similar to the form filed as an Exhibit to the
Registration Statement of which this Prospectus is a part. 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
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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 such other office or agency maintained for such purposes by the
Trustee. The 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 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 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 separate groups of assets included in the related Trust.
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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.
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.
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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 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.
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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.
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.
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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 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; (vi) certain rights of the Depositor or one of its affiliates under any
Mortgage Loan purchase agreement, including in respect of any representations
and warranties therein; and (vii) 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 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 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 classifications of single family mortgage loans, defined
generally as loans on residences containing one-to-four dwelling units or
multifamily loans. 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. The Mortgaged Property for such loans
may also consist of residential properties consisting of five or more rental or
cooperatively-owned dwelling units in high-rise, mid-rise or garden apartment
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buildings or projects ("Multifamily Properties"). 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. Mortgaged Properties
may be located in any one of the 50 states, the District of Columbia or the
Commonwealth of Puerto Rico.
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.
(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.
(e) Another type of mortgage loan described in the Prospectus
Supplement.
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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.
Multifamily Loans will consist of Multifamily Loans consisting of
either Conventional Multifamily Loans or FHA-Insured Multifamily Loans secured
by mortgages or deeds of trust or other similar security instruments creating a
lien on rental apartment buildings or projects containing five or more units,
including, but not limited to, high-rise, mid-rise and garden apartments or
secured by apartment buildings owned by cooperative housing corporations. The
Multifamily Properties may include mixed commercial and residential structures.
Unless otherwise specified in the related Prospectus Supplement, each Mortgage
Loan will create a first priority mortgage lien on a Mortgaged Property. A
Multifamily Loan may create a lien on a borrower's leasehold estate in a
property; however, unless otherwise specified in the related Prospectus
Supplement, the term of any such leasehold will exceed the term of the Mortgage
Loan by at least two years. [The Depositor expects that Mortgage Loans will have
been originated by mortgagees in the ordinary course of their real estate
lending activities.] Each Multifamily Loan will bear interest at an annual fixed
rate or adjustable rate of interest specified in the Prospectus Supplement.
Unless otherwise specified in the related Prospectus Supplement, all of
the Multifamily Loans will have had original terms to maturity of not more than
40 years and will provide for scheduled payments of principal, interest or both,
to be made on specified dates ("Due Dates") that occur monthly, quarterly or
semi-annually. A Multifamily Loan (i) may provide for accrual of interest
thereon at an interest rate (a "Mortgage Loan Rate") that is fixed over its term
of that adjusts from time to time, or that may be converted at the borrower's
election from an adjustable to a fixed Mortgage Loan Rate, or from a fixed to an
adjustable Mortgage Loan Rate, (ii) may provide for level payments to maturity
or for payments that adjust from time to time to accommodate changes in the
Mortgage Loan Rate or to reflect the occurrence of certain events, and may
permit negative amortization, (iii) may be fully amortizing over its term to
maturity, or may provide for little or no amortization over its term and thus
require a balloon payment on its stated maturity date, and (iv) may contain a
prohibition on prepayment (the period of such prohibition, a "Lock-out Period"
and its date of expiration, a "Lock-out Expiration Date") or require payment of
a premium or a yield maintenance penalty (a "Prepayment Premium") in connection
with a prepayment, in each case as described in the related Prospectus
Supplement. A Multifamily Loan may also contain a provision that entitles the
lender to a share of profits realized from the operation or disposition of the
Mortgaged Property
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(an "Equity Participation"), as described in the related Prospectus Supplement.
If holders of any class or classes of Certificates of a series will be entitled
to all or a portion of an Equity Participation, the related Prospectus
Supplement will describe the Equity Participation and the method or methods by
which distributions in respect thereof will be made to such holders.
Lenders typically look to the Debt Service Coverage Ratio of a loan
secured by income-producing property as an important measure of the risk of
default on such loan. Unless otherwise defined in the related Prospectus
Supplement, the "Debt Service Coverage Ratio" of a Multifamily Loan at any given
time is the ratio of (i) the Net Operating Income of the related Mortgaged
Property for a twelve-month period to (ii) the annualized scheduled payments on
the Multifamily Loan and on any other loan that is secured by a lien on the
Mortgaged Property prior to the lien of the related Mortgage. Unless otherwise
defined in the related Prospectus Supplement, "Net Operating Income" means, for
any given period, the total operating revenues derived from a Mortgaged Property
during such period, minus the total operating expenses incurred in respect of
such Mortgaged Property during such period other than (i) non-cash items such as
depreciation and amortization, (ii) capital expenditures and (iii) debt service
on loans (including the related Multifamily Loan) secured by liens on the
Mortgaged Property. The Net Operating Income of a Mortgage Property will
fluctuate over time and may or may not be sufficient to cover debt service on
the related Multifamily Loan at any given time. As the primary source of the
operating revenues of a non-owner occupied income-producing property, rental
income (and maintenance payments from tenant-stockholders of a Cooperative) may
be affected by the condition of the applicable real estate market and/or area
economy.
Increases in operating expenses due to the general economic climate or
economic conditions in a locality or industry segment, such as increases in
interest rates, real estate tax rates, energy costs, labor costs and other
operating expenses and/or to changes in governmental rules, regulations and
fiscal policies, may also affect the risk of default on a Multifamily Loan. As
may be further described in the related Prospectus Supplement, in some cases
leases of Mortgaged Properties may provide that the lessee, rather than the
borrower/landlord, is responsible for payment of operating expenses ("Net
Leases"). However, the existence of such "net of expense" provisions will result
in stable Net Operating Income to the borrower/landlord only to the extent that
the lessee is able to absorb operating expense increases while continuing to
make rent payments.
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 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
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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
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.
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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.
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.
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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 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.
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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.
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
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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
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or the Seller to advance delinquent installments in respect of the Mortgage
Loans. See "Servicing of Mortgage Loans and Contracts - Advances" herein.
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.
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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 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
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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.
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.
In the case of Multifamily Loans, a Mortgagor's failure to make
required Mortgage Loan payments may mean that operating income is insufficient
to service the mortgage debt, or may reflect the diversion of that income from
the servicing of the mortgage debt. In addition, a Mortgagor under a Multifamily
Loan that is unable to make Mortgage Loan payments may also be unable to make
timely payment of taxes and otherwise to maintain and insure the related
Mortgaged Property. In general, the Servicer will be required to monitor any
Multifamily Loan that is
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in default, evaluate whether the causes of the default can be corrected over a
reasonable period without significant impairment of the value of the related
Mortgaged Property, initiate corrective action in cooperation with the Mortgagor
if cure is likely, inspect the related Mortgaged Property and take such other
actions as are consistent with the Agreement. A significant period of time may
elapse before the Servicer is able to assess the success of any such corrective
action or the need for additional in initiatives. The time within which the
Servicer can make the initial determination of appropriate action, evaluate the
success of corrective action, develop additional initiatives, institute
foreclosure proceedings and actually foreclose (or accept a deed to a Mortgaged
Property in lieu of foreclosure) on behalf of the Owners of the related series
may vary considerably depending on the particular Multifamily Loan, the
Mortgaged Property, the Mortgagor, the presence of an acceptable party to assume
the Multifamily Loan and the laws of the jurisdiction in which the Mortgaged
Property is located. If a Mortgagor files a bankruptcy petition, the Servicer
may not be permitted to accelerate the maturity of the related Multifamily Loan
or to foreclose on the Mortgaged Property for a considerable period of time. See
"Certain Legal Aspects of Mortgage Loans."
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.
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
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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".
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.
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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.
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.
Realization Upon or Sale of Defaulted Multifamily Loans
Unless otherwise specified in the related Prospectus Supplement, the
Servicer may not acquire title to any Multifamily Property securing a Mortgage
Loan or take any other action that would cause the related Trustee, for the
benefit of Owners of the related series, or any other specified person to be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or an "operator" of such Mortgaged Property within the
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meaning of certain federal environmental laws, unless the Servicer has
previously determined, based on a report prepared by a person who regularly
conducts environmental audits, that either:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions
are necessary to bring the Mortgaged Property into compliance therewith
is reasonably likely to produce a greater recovery on a present value
basis than not taking such actions; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property that have resulted in any contamination for which
investigation, testing, monitoring, containment, clean-up or
remediation could be required under any applicable environmental laws
and regulations or, if such circumstances or conditions are present for
which any such action could be required, taking such actions with
respect to the Mortgaged Property is reasonably likely to produce a
greater recovery on a present value basis than not taking such actions.
See "Certain Legal Aspects of Mortgage Loans-Foreclosure- Environmental
Legislation."
In addition, unless otherwise specified in the related Prospectus
Supplement, the Servicer will not be obligated to foreclose upon or otherwise
convert the ownership of any Mortgaged Property securing a single family
Mortgage Loan if it has received notice or has actual knowledge that such
property may be contaminated with or affected by hazardous wastes or hazardous
substances; however, no environmental testing will generally be required. The
Servicer will not be liable to the Owners of the related series if, based on its
belief that no such contamination or affect exists, the Servicer forecloses on a
Mortgaged Property and takes title to such Mortgaged Property, and thereafter
such Mortgaged Property is determined to be so contaminated or affected.
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
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delinquent tax or assessment liens against the property covered by the related
Mortgage; (vi) at the date of initial 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
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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
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.
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
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(ix) all other amounts required to be deposited in the
Certificate Account pursuant to the related Agreement.
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.
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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 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.
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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 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
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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 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
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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 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
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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 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
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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.
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,
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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. 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
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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 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.
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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 repay the loan evidenced thereby, and (b) the grant
of a security interest in the Manufactured Home to secure repayment of such
loans. 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.
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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 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.
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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.
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.
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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 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
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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 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.
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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 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
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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.
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.
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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 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
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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 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.
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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.
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, as well as final regulations concerning
REMICs (the "REMIC Regulations") and final regulations under Sections 1271
through 1273 and 1275 of the Code concerning debt instruments (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. 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.
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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 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
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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, 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
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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.
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
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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.
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 and is based on objective
financial information or economic information; however, an objective rate does
not include a rate based on information that is in the control of the issuer or
that is unique to the circumstances of a related
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party. 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 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.
The application of the OID Regulations to variable rate debt
instruments is limited and may not apply to some Regular Certificates having
variable rates. In that event, the provisions of regulations issued on June 11,
1996, applicable to instruments having contingent payments, may apply to those
Regular Certificates. The application of those provisions to instruments such as
variable rate Regular Certificates is subject to varying interpretations.
Prospective purchasers of variable rate Regular Certificates are advised to
consult their tax advisers concerning the tax treatment of such Regular
Certificates.
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
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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 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. On June 27, 1996, the
IRS published proposed regulations (the "Proposed Premium Regulations") covering
the amortization of bond premiums. The Proposed Premium Regulations describe the
constant yield method for amortizing premium and provide the Regular
Certificateholder may offset the premium against corresponding interest income
only as that interest income is taken into account under the Regular
Certificateholder's method of accounting. For instruments that may be called or
prepaid prior to maturity, a Regular Certificateholder will be deemed to
exercise its option and an issuer will be deemed to exercise its redemption
right in a manner that maximizes the Regular Certificateholder's yield. The
Proposed Premium Regulations are proposed to be effective for debt instruments
acquired on or after the date 60 days after final regulations are issued. A
Regular Certificateholder may elect to amortize bond premium under the Proposed
Premium Regulations for the taxable year containing the effective date, with the
election applying to all the Regular Certificateholder's debt instruments held
on the first day of that taxable year. The Proposed Premium Regulations are
subject to further administrative action before becoming effective, if at all,
and may be modified before their becoming effective. 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.
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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%.
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
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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.
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 24, 1996, the Internal Revenue Service issued final regulations (the
"Mark to Market Regulations") relating to the requirement that a
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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 Mark to Market Regulations provide that for purposes of this
mark-to-market requirement, a Residual Certificate acquired after January 4,
1995, is not treated as a security and thus may not be marked to market.
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.
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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 to excess inclusions from Residual Certificates without
"significant value." Members of an affiliated group are treated as one
corporation for purposes of applying the limitation on offset of excess
inclusion income. The Small Business Protection Act of 1996 (the "1996 Act")
eliminated a special rule that permitted thrift institutions to use net
operating losses and other allowable deductions to offset their excess inclusion
income from Residual Certificates with significant value for taxable years
beginning after December 31, 1995 (subject to exceptions for certain
certificates held continuously since November 1, 1995). The 1996 Act also
provides new rules affecting the determination of alternative maximum taxable
income ("AMTI") of a Residual Certificateholder. First, AMTI is calculated
without regard to the special rule that taxable income cannot be less than
excess inclusion income for the year. Second, AMTI cannot be less than excess
inclusion income for the year. Finally, any AMTI net operating loss deduction is
computed without regard to excess inclusion income. These new rules are
effective for tax years beginning after December 31, 1986, unless a Residual
Certificateholder elects to have the rules apply only to tax years ending after
August 20, 1996.
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
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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.
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
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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 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
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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
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
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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.
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
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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 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,
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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 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."
On April 22, 1996, the IRS issued proposed regulations which, if
adopted in final form, could have an effect on the United States' taxation of
foreign investors in Regular Certificates or Residual Certificates. The proposed
regulations would apply to payments after December 31, 1997. 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.
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.
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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.
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
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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.
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
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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 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
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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.
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
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<PAGE>
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 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.
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<PAGE>
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. 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
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<PAGE>
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.
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."
Certificateholders should be aware that the IRS issued proposed
regulations on April 22, 1996 which, if adopted in final form, could affect the
United States' taxation of foreign investors in Certificates. The proposed
regulations would apply to payments after December 31, 1997. Investors who are
non-U.S. Persons should consult their own tax advisors regarding the specific
tax consequences to them of owning 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
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<PAGE>
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 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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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<TABLE>
<CAPTION>
APPENDIX A
INDEX TO LOCATION OF PRINCIPAL DEFINED TERMS
Page Page
<C> <C> <C> <C>
1986 Act..............................56 Mortgage Notes........................15
1996 Act..............................64 Mortgage Pool Insurance Policy........22
Agreement..............................1 Mortgage Rates........................17
AMTI..................................64 Mortgage-Backed Securities.............2
Annual Reduction......................50 Mortgaged Properties..................15
Applicable Accounting Standards.......34 Mortgages.............................15
Balloon Loans..........................7 Mortgagors............................25
Beneficial Owners......................4 Multifamily Loans......................1
BIF...................................35 Multifamily Properties................16
Book Entry Certificates................4 NCUA..................................25
Certificate Account...................13 Net Leases............................18
Certificate Interest Rate.............12 Net Operating Income..................18
Certificate Principal Balance.........11 Non-Priority Certificates.............12
Certificate Register..................11 Non-U.S. Person.......................69
Certificate Registrar.................11 Noneconomic Residual Interest.........66
Certificateholder.....................71 Nonrecoverable Advance................26
Certificates...........................1 Notional Principal Balance............13
Clearing Agency........................4 OID Regulations.......................54
Clearing Agency Participants...........4 Original Value........................17
Code...................................5 OTS...................................43
Companion Certificates................12 Owners................................13
Compound Interest Certificates........12 Partnership Interests.................77
Contract Loan Schedule................33 Pass-Through Entity...................65
Contract Pool.........................18 Pass-Through Rate......................3
Contracts.............................18 Plans.................................52
Conventional Multifamily Loans.........1 Policy Statement......................52
Cooperative Loans.....................15 Pool Insurer..........................22
Cooperatives...........................1 Pre-Funding Account....................3
Credit Enhancement.....................4 Pre-Funding Agreement..................3
Credit Enhancer.......................10 Prepayment Assumption.................57
Custodial Account.....................25 Prepayment Premium....................17
Cut-Off Date..........................12 Principal Balance.....................17
Debt Service Coverage Ratio...........18 Principal Prepayments.................14
Defective Mortgage Loan...............34 Priority Certificates.................12
Delivery Date.........................10 Property Improvement Loans............47
Deposit Date..........................34 Proposed Premium Regulations..........60
Depositor..............................1 PTE 83-1..............................53
Disqualified Organization.............65 Record Date...........................13
Distribution Date.....................13 Regular Certificateholder.............56
DOL...................................53 Regular Certificates..................54
Due Dates.............................17 REIT..................................55
Eligible Investments..................35 Relief Act............................10
Equity Participation..................18 REMIC..................................5
ERISA..................................5 REMIC Certificates....................54
Events of Default.....................37 REMIC Pool............................54
FDIC..................................25 REMIC Regulations.....................54
FHA....................................1 Remittance Date.......................26
FHA-Insured Multifamily Loans..........1 Remittance Rate.......................26
FHLMC..................................2 Reserve Fund..........................24
Financial Guaranty Insurance Policy...20 Residual Certificateholders...........61
Financial Guaranty Insurer............20 Residual Certificates.................54
FNMA...................................2 Retail Class Certificate..............56
Garn-St. Germain Act..................43 SAIF..................................35
GNMA...................................2 Scheduled Amortization Certificates...12
HUD...................................48 Seller.................................1
Insurance Paying Agent................20 Senior Certificates...................21
Insurance Proceeds....................25 Servicer...............................1
Insured Payment.......................20 SMMEA..................................5
Interest Accrual Period...............13 Special Allocation Certificates.......12
Liquidation Proceeds..................25 Special Hazard Insurance Policy.......23
Loan-to-Value Ratio...................17 Special Hazard Insurer................23
Lock-out Expiration Date..............17 Standard Certificate..................71
Lock-out Period.......................17 Stripped Certificateholder............74
Manufactured Home.....................18 Stripped Certificates.................74
Manufactured Home Loans...............47 Subordinated Certificates.............21
Manufacturer's Invoice Price..........19 Thrift Institution....................55
Mark to Market Regulations............62 Title I Contracts.....................47
Master Servicer........................1 Title I Loans.........................47
MBS....................................2 Title I Program.......................47
MBS Agreement.........................19 TMP...................................55
MBS Issuer............................19 Trust..................................1
MBS Servicer..........................19 Trustee................................1
MBS Trustee...........................19 U.S. Person...........................67
Monthly Advance.......................26 UCC...................................41
Mortgage Assets........................1 Underwriters..........................77
Mortgage Loan Rate....................17 VA.....................................2
Mortgage Loans.........................1
</TABLE>
A-1
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses in connection
with the issuance and distribution of the Certificates, other than underwriting
discounts and commissions.*
Filing Fee for Registration Statement......................... $303.03
Legal Fees and Expenses*...................................... **
Accounting Fees and Expenses*................................. **
Trustee's Fees and Expenses (including counsel fees)*......... **
Printing and Engraving Fees*.................................. **
Blue Sky Fees and Expenses*................................... **
Rating Agency Fees*........................................... **
Miscellaneous*................................................ **
Total................................................... $303.03
- ---------------------
* Estimated in accordance with Item 511 of Regulation S-K.
** To be filed by Amendment.
Item 15. Indemnification of Directors and Officers.
The form of Underwriting Agreement filed as Exhibit 1.1 to this
Registration Statement on Form S-3 provides for indemnification by each
Underwriter of any officer, director or controlling person of the Registrant who
becomes subject to liability arising out of an untrue or alleged untrue
statement of a material fact contained in this Registration Statement, the
Prospectus filed herewith or any Preliminary Prospectus, related Prospectus
Supplement or related Preliminary Prospectus Supplement, or omission or alleged
omission, that was made in reliance on written information provided to the
Registrant by such Underwriter.
The Certificate of Incorporation and Bylaws for the Registrant filed as
Exhibits 3.1 and 3.2 to this Registration Statement on Form S-3 provide for
indemnification of directors and officers to the full extent permitted by
Delaware law. Section 145 of the Delaware General Corporation Law provides, in
substance, that Delaware corporations shall have the power, under specified
circumstances, to indemnify their directors, officers, employees and agents in
connection with actions, suits or proceedings brought against them by a third
party or in the right of the corporation, by reason of the fact that they were
or are such directors, officers, employees or agents, against expenses incurred
in any such action, suit or proceeding.
The Bylaws also provide that the Registrant may, to the full extent
permitted by law, purchase and maintain insurance on behalf of any corporate
agent against any liability which may be asserted against him.
II-1
<PAGE>
Item 16. Exhibits.
<TABLE>
<S> <C>
1.1 * -- Form of Underwriting Agreement.
3.1 ** -- Certificate of Incorporation of ContiSecurities Asset Funding Corp.
3.2 ** -- Bylaws of ContiSecurities Asset Funding Corp.
4.1 * -- Form of Pooling and Servicing Agreement.
5.1 * -- Opinion of Arter & Hadden regarding the legality of the Certificates.
8.1 * -- Opinion of Arter & Hadden regarding tax matters.
23.1 * -- Consent of Arter & Hadden (included as part of Exhibit 5.1 and 8.1)
23.2 ** -- Consent of Independent Auditor of Certificate Insurer.
24.1 * -- Powers of Attorney.
</TABLE>
- -----------------
* Filed herewith.
** To be filed by amendment.
Item 17. Undertakings
A. Undertaking in Respect of Indemnification. Insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
B. Undertaking pursuant to Rule 415.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the more recent
post-effective amendment thereof) which, individually or in the
aggregate, represents a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar volume of securities offered would not exceed that which is
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to
the
II-2
<PAGE>
Commission by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
C. Undertaking pursuant to Rule 430A.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(l) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bond fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant hereby certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on the 8th day of
January, 1997.
CONTISECURITIES ASSET FUNDING CORP.
By: /s/ James E. Moore
--------------------------------
James E. Moore
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Each person whose signature appears below hereby authorizes Susan E.
O'Donovan, Alan L. Langus or James E. Moore and each of them, to file one or
more amendments (including post-effective amendments) to this Registration
Statement, which amendments may make such changes as any of such persons deems
appropriate, and each such person individually and in the capacity stated below,
hereby appoints each of such persons as attorney-in-fact to execute in his name
and on his behalf any such amendments to the Registration Statement.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ James E. Moore President (Principal Executive January 8, 1997
- ------------------------- Officer) and Director
James E. Moore
/s/ Susan E. O'Donovan Vice President (Principal January 8, 1997
- ------------------------- Financial and Accounting
Susan E. O'Donovan Officer)
/s/ James J. Bigham Director January 8, 1997
- ----------------------
James J. Bigham
</TABLE>
EXHIBIT 1.1
$----------
____________________ HOME EQUITY LOAN TRUST 199_-_
Home Equity Loan Asset-Backed Certificates,
Series 199_-_
UNDERWRITING AGREEMENT
__________ __, 199_
- ------------------------------
As Representative of the Several Underwriters
==============================
Dear Ladies and Gentlemen:
ContiSecurities Asset Funding Corp. (the "Depositor"), a Delaware
corporation, has authorized the issuance and sale of Home Equity Loan
Asset-Backed Certificates, Series 199_-_, Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class A-6, Class A-7IO and Class A- 8IO (the "Offered
Certificates") and the Class B-IO and the Class R Certificates (the
"Subordinated Certificates," and collectively with the Offered Certificates, the
"Certificates"), evidencing interests in two pools of fixed and adjustable rate
home equity loans (the "Home Equity Loans"). The Home Equity Loans are secured
primarily by first and second deeds of trust or mortgages on one- to four-family
residential properties.
Only the Offered Certificates are being purchased by the Underwriters
named in Schedule A hereto, and the Underwriters are purchasing, severally, only
the Offered Certificates set forth opposite their names in Schedule A, except
that the amounts purchased by the Underwriters may change in accordance with
Section X of this Agreement. ____________________ ("__________") is acting as
representative of the Several Underwriters and in such capacity is hereinafter
referred to as the "Representative."
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement"), dated as of __________ __, 199_ among
the Depositor, ______________________________, as the servicer (the "Servicer"),
______________________________, as a seller (a "Seller," and collectively with
____________________, the "Sellers") and ______________________________, as the
trustee (the "Trustee"). The Certificates will evidence fractional undivided
interests in the trust (the "Trust") formed pursuant to the Pooling and
Servicing Agreement. The assets of the Trust will initially include, among other
things, a pool of fixed and adjustable rate home equity loans having a Cut-Off
Date (as defined herein) of __________ __, 199_ (the "Home Equity Loans"), and
such amounts as may be held by the Trustee in any accounts held by the Trustee
for the Trust. The pool of Home Equity Loans will be divided into two groups
(each, a "Group"), with all fixed rate Home Equity Loans assigned to the "Fixed
Rate Group" and all adjustable rate Home Equity Loans assigned to the
"Adjustable Rate Group." The Offered Certificates will also have the benefit of
two Certificate Insurance Policies (the "Certificate Insurance Policies") issued
<PAGE>
by ______________________________, a ____________________ insurance company (the
"Certificate Insurer"). The Certificate Insurance Policies will be issued
pursuant to the insurance agreement (the "Insurance Agreement") dated as of
__________ __, 199_ among the Certificate Insurer, the Depositor, __________,
__________ and the Trustee. A form of the Pooling and Servicing Agreement has
been filed as an exhibit to the Registration Statement (hereinafter defined).
The Certificates are more fully described in a Registration Statement
which the Depositor has furnished to the Underwriters. Capitalized terms used
but not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
Pursuant to Section 3.05 of the Pooling and Servicing Agreement and
concurrently with the execution thereof, the Sellers will transfer to the
Depositor all of their right, title and interest in and to the unpaid principal
balances of the Home Equity Loans as of the Cut-Off Date and the collateral
securing each Home Equity Loan.
SECTION I. Representations and Warranties of the Depositor. The
Depositor represents and warrants to, and agrees with the Underwriters that:
A. A Registration Statement on Form S-3 (No. __________), has (i) been
prepared by the Depositor in conformity with the requirements of the Securities
Act of 1933 (the "Securities Act") and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective and is still effective as of the date
hereof under the Securities Act. Copies of such Registration Statement have been
delivered by the Depositor to the Underwriters. As used in this Agreement,
"Effective Time" means the date and the time as of which such Registration
Statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission; "Effective Date" means the date of the
Effective Time; "Registration Statement" means such registration statement, at
the Effective Time, including any documents incorporated by reference therein at
such time; "Basic Prospectus" means such final prospectus dated __________ __,
199_; and "Prospectus Supplement" means the final prospectus supplement relating
to the Offered Certificates, to be filed with the Commission pursuant to
paragraphs (2), (3) or (5) of Rule 424(b) of the Rules and Regulations.
"Prospectus" means the Basic Prospectus together with the Prospectus Supplement.
Reference made herein to the Prospectus shall be deemed to refer to and include
any documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, as of the date of the Prospectus and any reference to
any amendment or supplement to the Prospectus shall be deemed to refer to and
include any document filed under the Securities Exchange Act of 1934 (the
"Exchange Act") after the date of the Prospectus, and incorporated by reference
in the Prospectus and any reference to any amendment to the Registration
Statement shall be deemed to include any report of the Depositor filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the
Effective Time that is incorporated by reference in the Registration Statement.
The Commission has not issued any order preventing or suspending the use of the
Prospectus. There are no contracts or documents of the Depositor which are
required to be filed as exhibits to the Registration Statement pursuant to the
Securities Act or the Rules and Regulations which have not been so filed or
incorporated by reference therein on or prior to the Effective Date of the
Registration Statement other than such documents
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or materials, if any, as any Underwriter delivers to the Depositor pursuant to
Section VIII D hereof for filing on Form 8-K. The conditions for use of Form
S-3, as set forth in the General Instructions thereto, have been satisfied.
To the extent that any Underwriter has provided to the Depositor
Computational Materials that such Underwriter has provided to a prospective
investor, the Depositor will file or cause to be filed with the Commission a
report on Form 8-K containing such Computational Materials, as soon as
reasonably practicable after the date of this Agreement, but in any event, not
later than 11:00 a.m. New York time the date on which the Prospectus is made
available to the Underwriter and is filed with the Commission pursuant to Rule
424 of the Rules and Regulations.
B. The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, when they become effective or are filed with the
Commission, as the case may be, in all respects to the requirements of the
Securities Act and the Rules and Regulations. The Registration Statement, as of
the Effective Date thereof and of any amendment thereto, did not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
The Prospectus as of its date, and as amended or supplemented as of the Closing
Date does not and will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to information contained
in or omitted from the Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the Depositor in writing
by the Underwriters expressly for use therein.
C. The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, when such
documents become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided that no representation
is made as to documents deemed to be incorporated by reference in the Prospectus
as the result of filing a Form 8-K at the request of the Underwriters except to
the extent such documents reflect information furnished by the Depositor to the
Underwriters for the purpose of preparing such documents.
D. Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the general
affairs, management, financial condition, or results of operations of the
Depositor, otherwise than as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
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E. The Depositor has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the conduct of its
business so requires such standing. The Depositor has all power and authority
necessary to own or hold its properties, to conduct the business in which it is
engaged and to enter into and perform its obligations under this Agreement, the
Pooling and Servicing Agreement and the Insurance Agreement and to cause the
Certificates to be issued.
F. There are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process before or
threatened by any court, administrative agency or other tribunal to which the
Depositor is a party or of which any of its properties is the subject (a) which
if determined adversely to the Depositor would have a material adverse effect on
the business or financial condition of the Depositor, (b) asserting the
invalidity of this Agreement, the Pooling and Servicing Agreement, the Insurance
Agreement or the Certificates (c) seeking to prevent the issuance of the
Certificates or the consummation by the Depositor of any of the transactions
contemplated by the Pooling and Servicing Agreement, the Insurance Agreement or
this Agreement, as the case may be, or (d) which might materially and adversely
affect the performance by the Depositor of its obligations under, or the
validity or enforceability of, the Pooling and Servicing Agreement, this
Agreement, and the Insurance Agreement or the Certificates.
G. This Agreement has been, and the Pooling and Servicing Agreement and
the Insurance Agreement when executed and delivered as contemplated hereby and
thereby will have been, duly authorized, executed and delivered by the
Depositor, and this Agreement constitutes, and the Pooling and Servicing
Agreement and the Insurance Agreement when executed and delivered as
contemplated herein will constitute, legal, valid and binding instruments
enforceable against the Depositor in accordance with their respective terms,
subject as to enforceability to (x) applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors' rights
generally, (y) general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law), and (z) with respect to rights
of indemnity under this Agreement and the Insurance Agreement, limitations of
public policy under applicable securities laws.
H. The execution, delivery and performance of this Agreement, the
Pooling and Servicing Agreement and the Insurance Agreement by the Depositor and
the consummation of the transactions contemplated hereby and thereby, and the
issuance and delivery of the Certificates do not and will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor is a party, by
which the Depositor is bound or to which any of the properties or assets of the
Depositor or any of its subsidiaries is subject, which breach or violation would
have a material adverse effect on the business, operations or financial
condition of the Depositor or its ability to perform its obligations under this
Agreement, the Pooling and Servicing Agreement and the Insurance Agreement, nor
will such actions result in any violation of the provisions of the articles of
incorporation or by-laws of the Depositor or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Depositor or any of its properties or assets, which breach or violation
would have a material adverse effect on the
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business, operations or financial condition of the Depositor or its ability to
perform its obligations under this Agreement, the Pooling and Servicing
Agreement and the Insurance Agreement.
I. The Depositor has no reason to know that ____________________ are
not independent public accountants with respect to the Depositor as required by
the Securities Act and the Rules and Regulations.
J. The execution of the Certificates by the Depositor and the direction
by the Depositor to the Trustee to authenticate, issue and deliver the
Certificates have been duly authorized by the Depositor, and, assuming the
Trustee has been duly authorized to do so, when executed by the Depositor, and
authenticated, issued and delivered by the Trustee in accordance with the
Pooling and Servicing Agreement, the Certificates will be validly issued and
outstanding and the holders of the Certificates will be entitled to the rights
and benefits of the Certificates as provided by the Pooling and Servicing
Agreement.
K. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States is required for the issuance of the Certificates and the sale of the
Offered Certificates to the Underwriters, or the consummation by the Depositor
of the other transactions contemplated by this Agreement, the Pooling and
Servicing Agreement and the Insurance Agreement, except such consents,
approvals, authorizations, registrations or qualifications as may be required
under State securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Certificates by the Underwriters or as have been
obtained.
L. The Depositor possesses all material licenses, certificates,
authorities or permits issued by the appropriate State, Federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Prospectus, and the Depositor has not received notice
of any proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which if decided adversely to the
Depositor would, singly or in the aggregate, materially and adversely affect the
conduct of its business, operations or financial condition.
M. At the time of execution and delivery of the Pooling and Servicing
Agreement, the Depositor will: (i) have good title to the Home Equity Loans
conveyed by the Sellers, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively, "Liens");
(ii) not have assigned to any person any of its right or title in the Home
Equity Loans contemplated in the Pooling and Servicing Agreement or in the
Certificates being issued pursuant thereto; and (iii) have the power and
authority to sell its interest in the Home Equity Loans to the Trustee and to
sell the Offered Certificates to the Underwriters. Upon execution and delivery
of the Pooling and Servicing Agreement by the Trustee, the Trustee will have
acquired beneficial ownership of all of the Depositor's right, title and
interest in and to the Home Equity Loans. Upon delivery to the Underwriters of
the Offered Certificates, the Underwriters will have good title to the Offered
Certificates, free of any Liens.
N. Reserved.
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O. As of the Cut-Off Date, each of the Home Equity Loans will meet the
eligibility criteria described in the Prospectus and will conform to the
descriptions thereof contained in the Prospectus.
P. Reserved.
Q. Neither the Depositor nor the Trust created by the Pooling and
Servicing Agreement is an "investment company" within the meaning of such term
under the Investment Company Act of 1940 (the "1940 Act") and the rules and
regulations of the Commission thereunder.
R. At the Closing Date, the Offered Certificates and the Pooling and
Servicing Agreement will conform in all material respects to the descriptions
thereof contained in the Prospectus.
S. At the Closing Date, the Offered Certificates shall have been rated
in the highest rating category by at least two nationally recognized rating
agencies.
T. Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement and the Certificates have been paid
or will be paid at or prior to the Closing Date.
U. At the Closing Date, each of the representations and warranties of
the Depositor set forth in the Pooling and Servicing Agreement and the Insurance
Agreement will be true and correct in all material respects.
Any certificate signed by an officer of the Depositor and delivered to
the Representative or counsel for the Representative in connection with an
offering of the Offered Certificates shall be deemed, and shall state that it
is, a representation and warranty as to the matters covered thereby to each
person to whom the representations and warranties in this Section I are made.
SECTION II. Purchase and Sale. The commitment of the Underwriters to
purchase the Offered Certificates pursuant to this Agreement shall be deemed to
have been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set forth. The
Depositor agrees to instruct the Trustee to issue the Offered Certificates and
agrees to sell to the Underwriters, and the Underwriters agree (except as
provided in Sections X and XI hereof) to purchase from the Depositor, the
aggregate initial principal amounts or percentage interests of the Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7IO and Class
A-8IO Certificates set forth opposite their names on Schedule A, at the purchase
price or prices set forth on Schedule A[; provided, that in no event shall any
Underwriter other than ______________________________ be obligated to purchase
any Class A-7IO or Class A-8IO Certificates].
SECTION III. Delivery and Payment. Delivery of and payment for the
Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7IO
and Class A-8IO Certificates shall be made at the offices of
________________________________________, ______________________________, or at
such other place as shall be agreed upon by the
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Representative and the Depositor at 10:00 A.M. New York City time on __________
__, 199_ or at such other time or date as shall be agreed upon in writing by the
Representative and the Depositor (such date being referred to as the "Closing
Date"). Payment shall be made to the Depositor by wire transfer of same day
funds payable to the account of the Depositor. Delivery of the Offered
Certificates shall be made to the Representative for the accounts of the
Underwriters against payment of the purchase price thereof. The Certificates
shall be in such authorized denominations and registered in such names as the
Representative may request in writing at least two business days prior to the
Closing Date. The Offered Certificates will be made available for examination by
the Representative no later than 2:00 p.m. New York City time on the first
business day prior to the Closing Date.
SECTION IV. Offering by the Underwriters. It is understood that,
subject to the terms and conditions hereof, the Underwriters propose to offer
the Offered Certificates for sale to the public as set forth in the Prospectus.
SECTION V. Covenants of the Depositor. The Depositor and, to the extent
the provisions of Sections H. and I. below relate to __________ and __________,
respectively, __________ and __________ agree as follows:
A. To prepare the Prospectus in a form approved by the Underwriters and
to file such Prospectus pursuant to Rule 424(b) under the Securities Act not
later than the Commission's close of business on the second business day
following the availability of the Prospectus to the Underwriters; to make no
further amendment or any supplement to the Registration Statement or to the
Prospectus prior to the Closing Date except as permitted herein; to advise the
Underwriters, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective
prior to the Closing Date or any supplement to the Prospectus or any amended
Prospectus has been filed prior to the Closing Date and to furnish the
Underwriters with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the Depositor
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and, for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Offered Certificates; to promptly advise the Underwriters of its receipt of
notice of the issuance by the Commission of any stop order or of: (i) any order
preventing or suspending the use of the Prospectus; (ii) the suspension of the
qualification of the Offered Certificates for offering or sale in any
jurisdiction; (iii) the initiation of or threat of any proceeding for any such
purpose; or (iv) any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus or for additional information.
In the event of the issuance of any stop order or of any order preventing or
suspending the use of the Prospectus or suspending any such qualification, the
Depositor promptly shall use its best efforts to obtain the withdrawal of such
order by the Commission.
B. To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, and of each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
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C. To deliver promptly to the Underwriters such number of the following
documents as the Underwriters shall reasonably request: (i) conformed copies of
the Registration Statement as originally filed with the Commission and each
amendment thereto (in each case including exhibits); (ii) the Prospectus and any
amended or supplemented Prospectus; and (iii) any document incorporated by
reference in the Prospectus (including exhibits thereto). If the delivery of a
prospectus is required at any time prior to the expiration of nine months after
the Effective Time in connection with the offering or sale of the Offered
Certificates, and if at such time any events shall have occurred as a result of
which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, the Depositor shall notify the Underwriters
and, upon any Underwriters' request, shall file such document and prepare and
furnish without charge to the Underwriters and to any dealer in securities as
many copies as the Underwriters may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which corrects such
statement or omission or effects such compliance, and in case the Underwriters
are required to deliver a Prospectus in connection with sales of any of the
Offered Certificates at any time nine months or more after the Effective Time,
upon the request of the Underwriters but at their expense, the Depositor shall
prepare and deliver to the Underwriters as many copies as the Underwriters may
reasonably request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Securities Act.
D. To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Depositor or the Underwriters, be required by
the Securities Act or requested by the Commission. Neither the Underwriters'
consent to nor their distribution of any amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section VI.
E. To furnish the Underwriters and counsel for the Underwriters, prior
to filing with the Commission, and to obtain the consent of the Underwriters for
the filing of the following documents relating to the Certificates: (i) any
Post-Effective Amendment to the Registration Statement or supplement to the
Prospectus, or document incorporated by reference in the Prospectus, or (ii)
Prospectus pursuant to Rule 424 of the Rules and Regulations.
F. To make generally available to holders of the Offered Certificates
as soon as practicable, but in any event not later than 90 days after the close
of the period covered thereby, a statement of earnings of the Trust (which need
not be audited) complying with Section 11(a) of the Securities Act and the Rules
and Regulations (including, at the option of the Depositor, Rule 158) and
covering a period of at least twelve consecutive months beginning not later than
the first day of the first fiscal quarter following the Closing Date.
G. To use its best efforts, in cooperation with the Underwriters, to
qualify the Offered Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States or
elsewhere as the Underwriters may designate, and maintain or cause to be
maintained such qualifications in effect for as long as may be required
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for the distribution of the Offered Certificates. The Depositor will file or
cause the filing of such statements and reports as may be required by the laws
of each jurisdiction in which the Offered Certificates have been so qualified.
H. Unless the Underwriters shall otherwise have given their written
consent, no collateralized mortgage obligations or other similar securities
representing interests in or secured by other mortgage-related assets originated
or owned by __________ shall be publicly offered or sold, nor shall __________
enter into any contractual arrangements that contemplate the public offering or
sale of such securities, until the earlier to occur of the termination of the
syndicate or the Closing Date.
I. Unless the Underwriters shall otherwise have given their written
consent (such consent not to be unreasonably withheld), no collateralized
mortgage obligations or other similar securities representing interests in or
secured by other mortgage-related assets that are similar to the Home Equity
Loans originated or owned by the Depositor shall be publicly offered or sold
until the earlier to occur of the termination of the syndicate or the Closing
Date.
J. So long as the Offered Certificates shall be outstanding the
Depositor shall cause the Trustee, pursuant to the Pooling and Servicing
Agreement, to deliver to the Underwriters as soon as such statements are
furnished to the Trustee: (i) the annual statement as to compliance delivered to
the Trustee pursuant to Section 8.16 of the Pooling and Servicing Agreement;
(ii) the annual statement of a firm of independent public accountants furnished
to the Trustee pursuant to Section 8.17 of the Pooling and Servicing Agreement;
(iii) the monthly servicing report furnished to the Trustee pursuant to Section
7.08 of the Pooling and Servicing Agreement; and (iv) the monthly reports
furnished to the Certificateholders pursuant to Section 7.09 of the Pooling and
Servicing Agreement.
K. To apply the net proceeds from the sale of the Offered Certificates
in the manner set forth in the Prospectus.
SECTION VI. Conditions to the Underwriters' Obligations. The
obligations of the Underwriters hereunder to purchase the Offered Certificates
pursuant to the Agreement are subject to: (i) the accuracy on and as of the
Closing Date of the representations and warranties on the part of the Depositor
herein contained; (ii) the performance by the Depositor of all of its
obligations hereunder; and (iii) the following conditions as of the Closing
Date:
A. The Underwriters shall have received confirmation of the
effectiveness of the Registration Statement. No stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission. Any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus shall
have been complied with.
B. The Underwriters shall not have discovered and disclosed to the
Depositor on or prior to the Closing Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue statement
of a fact or omits to state a fact which, in
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the opinion of ____________________, counsel for the Underwriters, is material
and is required to be stated therein or is necessary to make the statements
therein not misleading.
C. All corporate proceedings and other legal matters relating to the
authorization, form and validity of this Agreement, the Pooling and Servicing
Agreement, the Insurance Agreement, the Certificates, the Registration Statement
and the Prospectus, and all other legal matters relating to this Agreement and
the transactions contemplated hereby shall be satisfactory in all respects to
counsel for the Underwriters, and the Depositor shall have furnished to such
counsel all documents and information that they may reasonably request to enable
them to pass upon such matters.
D. Arter & Hadden shall have furnished to the Underwriters their
written opinion, as counsel to the Depositor, addressed to the Underwriters and
dated the Closing Date, in form and substance satisfactory to the Underwriters,
to the effect that:
1. The conditions to the use by the Depositor of a registration
statement on Form S-3 under the Securities Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the Registration
Statement and the Prospectus.
2. The Registration Statement and any amendments thereto have become
effective under the 1933 Act; to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has been issued
and not withdrawn and no proceedings for that purpose have been instituted or
threatened and not terminated; and the Registration Statement, the Prospectus
and each amendment or supplement thereto, as of their respective effective or
issue dates (other than the financial and statistical information contained
therein, as to which such counsel need express no opinion), complied as to form
in all material respects with the applicable requirements of the 1933 Act and
the rules and regulations thereunder.
3. To the best of such counsel's knowledge, there are no material
contracts, indentures or other documents of a character required to be described
or referred to in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto.
4. The statements set forth in the Basic Prospectus under the captions
"Summary of Prospectus," "Description of The Certificates," "The Trusts" and
"The Pooling and Servicing Agreement" and in the Prospectus Supplement under the
captions "Description of The Class A Certificates" and "The Pooling and
Servicing Agreement," to the extent such statements purport to summarize certain
provisions of the Certificates or of the Pooling and Servicing Agreement, are
fair and accurate in all material respects.
5. The statements set forth in the Prospectus and the Prospectus
Supplement under the captions "ERISA Considerations," "Certain Legal Aspects of
the Mortgage Assets" and "Certain Federal Income Tax Considerations" to the
extent that they constitute matters of federal law, provide a fair and accurate
summary of such law or conclusions.
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6. The Pooling and Servicing Agreement conforms in all material
respects to the description thereof contained in the Prospectus and is not
required to be qualified under the Trust Indenture Act of 1939, as amended, and
the Trust is not required to be registered under the Investment Company Act of
1940, as amended.
7. Neither the Depositor nor the Trust is an "investment company" or
under the "control" of an "investment company" as such terms are defined in the
1940 Act.
8. Assuming that (a) the Trustee causes certain assets of the Trust
Estate, as the Trustee has covenanted to do in the Pooling and Servicing
Agreement, to be treated as a "real estate mortgage investment conduit"
("REMIC"), as such term is defined in the Internal Revenue Code of 1986, as
amended (the "Code"), and (b) the parties to the Pooling and Servicing Agreement
comply with the terms thereof, the Lower-Tier REMIC and the Upper-Tier REMIC
will each be treated as a REMIC, the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7IO, Class A-8IO and the Class B-IO Certificates
will be treated as "regular interests" in the Upper-Tier REMIC and the
Upper-Tier REMIC Residual Class will be treated as the sole "residual interest"
in the Upper-Tier REMIC. The Lower-Tier Interests A-1, A-2, A-3, A-4, A-5, A-6,
will be treated as the "regular interests" in the Lower-Tier REMIC and the Class
R Certificates will be treated as the sole "residual interest" in the Lower-Tier
REMIC. The Trust is not subject to tax upon its income or assets by any taxing
authority of the State of New York.
9. Assuming that the Class A-6 Certificates and the Class A-8IO
Certificates are rated at the time of issuance in one of the two highest rating
categories by a nationally recognized statistical rating organization, each such
Class A-6 Certificate and Class A-8IO Certificate at such time will be a
"mortgage related security" as such term is defined in Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended.
10. To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending that would adversely affect the status of
the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC.
11. As a consequence of the qualification of the Lower-Tier REMIC and
the Upper- Tier REMIC as a REMIC, the Offered Certificates will be treated as
"qualifying real property loans" under Section 593(d) of the Code, "regular . .
. interest(s) in a REMIC" under Section 7701(a)(19)(C) of the Code and "real
estate assets" under Section 856(c) of the Code in the same proportion that the
assets in the Trust consist of qualifying assets under such Sections. In
addition, as a consequence of the qualification of the Lower-Tier REMIC and the
Upper-Tier REMIC as a REMIC, interest on the Offered 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 Offered Certificates are
treated as "real estate assets" under Section 856(c) of the Code.
12. The Certificates will, when issued, conform to the description
thereof contained in the Prospectus.
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Such counsel shall also have furnished to the Underwriters a written statement,
addressed to the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters to the effect that nothing has come to the
attention of such counsel which lead them to believe that: (a) the Registration
Statement, at the time such Registration Statement became effective, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading (except as to financial or statistical data contained in the
Registration Statement); (b) the Prospectus, as of its date and as of the
Closing Date, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except as to
statements set forth in the Prospectus Supplement under the Captions "Credit
Enhancement" and "The Certificate Insurer"); or (c) any document incorporated by
reference in the Prospectus or any further amendment or supplement to any such
incorporated document made by the Depositor prior to the Closing Date (other
than any document filed at the request of an Underwriter to the extent such
document relates to Computational Materials) contained, as of the time it became
effective or was filed with the Commission, as the case may be, an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
E. The Underwriters shall have received the favorable opinion, dated
the Closing Date, of Arter & Hadden, special counsel to the Depositor, addressed
to the Depositor and satisfactory to the Certificate Insurer, Standard & Poor's
Ratings Services, Moody's Investors Service, Fitch Investors Service, L.P. and
the Underwriters, with respect to certain matters relating to the transfer of
the Home Equity Loans to the Depositor and from the Depositor to the Trust, and
such counsel shall have consented to reliance on such opinion by the Certificate
Insurer, Standard & Poor's Ratings Services, Moody's Investors Service, Fitch
Investors Service, L.P. and the Underwriters as though such opinion had been
addressed to each such party.
F. Arter & Hadden, counsel for __________ in its capacity as both a
Seller and the Servicer and __________ in its capacity as a Seller, shall have
furnished to the Underwriters their written opinion, as counsel to __________
and __________, addressed to the Underwriters and the Depositor and dated the
Closing Date, in form and substance satisfactory to the Underwriters, to the
effect that:
1. The Seller is validly existing in good standing as a corporation
under the laws of the State of __________.
2. The Seller has full corporate power and authority to serve in the
capacity of a seller and the servicer of the Home Equity Loans as contemplated
in the Pooling and Servicing Agreement and to transfer the Home Equity Loans to
the Depositor as contemplated in the Pooling and Servicing Agreement.
3. The Pooling and Servicing Agreement and the Insurance Agreement have
been duly authorized, executed and delivered by the Seller, and, assuming the
due authorization, execution and delivery of such agreements by the other
parties thereto, constitute the legal, valid
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and binding agreements of the Seller, enforceable against the Seller in
accordance with their terms, subject as to enforceability to (x) bankruptcy,
insolvency, reorganization, moratorium, receivership or other similar laws now
or hereafter in effect relating to creditors' rights generally and (y) the
qualification that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion, with respect to such remedies, of the court before which any
proceedings with respect thereto may be brought.
4. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body having
jurisdiction over the Seller is required for the consummation by the Seller of
the transactions contemplated by the Pooling and Servicing Agreement and the
Insurance Agreement, except such consents, approvals, authorizations,
registrations and qualifications as have been obtained.
5. Neither the sale and transfer of the Home Equity Loans by the Seller
to the Depositor, nor the execution, delivery or performance by the Seller of
the Pooling and Servicing Agreement or the Insurance Agreement and the
transactions contemplated thereby (A) conflict with or result in a breach of, or
constitute a default under, (i) any term or provision of the Certificate of
Incorporation or By-Laws of the Seller; (ii) any term or provision of any
material agreement, deed of trust, mortgage loan agreement, contract, instrument
or indenture, or other agreement to which the Seller is a party or is bound or
to which any of the property or assets of the Seller or any of its subsidiaries
is subject; (iii) to the best of such firm's knowledge without independent
investigation any order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller; or (iv) any law,
rule or regulation, applicable to the Seller; or (B) to the best of such firm's
knowledge without independent investigation, results in the creation or
imposition of any lien, charge or encumbrance upon the Trust Estate or upon the
Certificates.
6. The execution of the Pooling and Servicing Agreement is sufficient
to convey all of the Seller's right, title and interest in their respective Home
Equity Loans to the Depositor and following the consummation of the transaction
contemplated by Section 3.05 of the Pooling and Servicing Agreement, the
transfers of the respective Home Equity Loans by the Seller to the Depositor are
both a sale thereof.
7. There are, to the best of such counsel's knowledge without
independent investigation, no actions, proceedings or investigations pending
with respect to which the Seller has received service of process or threatened
against the Seller before any court, administrative agency or other tribunal (a)
asserting the invalidity of the Pooling and Servicing Agreement, the
Underwriting Agreement, the Insurance Agreement or the Certificates, (b) seeking
to prevent the consummation of any of the transactions contemplated by the
Pooling and Servicing Agreement or (c) which would materially and adversely
affect the performance by the Seller of its obligations under, or the validity
or enforceability of, the Pooling and Servicing Agreement, the Underwriting
Agreement, or the Insurance Agreement.
G. ______________________________, Chief Counsel for the Depositor,
shall have furnished to the Underwriters his written opinion, addressed to the
Underwriters and dated the Closing Date, in form and substance satisfactory to
the Underwriters, to the effect that:
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1. The Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and is in
good standing as a foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its business so requires such
standing. The Depositor has all power and authority necessary to own or hold its
properties and to conduct the business in which it is engaged and to enter into
and perform its obligations under this Agreement, the Pooling and Servicing
Agreement and the Insurance Agreement, and to cause the Certificates to be
issued.
2. The Depositor is not in violation of its articles of incorporation
or by-laws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Depositor is a party or by which it or its properties may be bound, which
default might result in any material adverse changes in the financial condition,
earnings, affairs or business of the Depositor or which might materially and
adversely affect the properties or assets, taken as a whole, of the Depositor.
3. This Agreement, the Pooling and Servicing Agreement, the
Indemnification Agreement and the Insurance Agreement have been duly authorized,
executed and delivered by the Depositor and, assuming the due authorization,
execution and delivery of such agreements by the other parties thereto, such
agreements constitute valid and binding obligations, enforceable against the
Depositor in accordance with their respective terms, subject as to
enforceability to (x) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, (y) general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law) and (z) with respect to rights of
indemnity under this Agreement and the Insurance Agreement, limitations of
public policy under applicable securities laws.
4. The execution, delivery and performance of this Agreement, the
Pooling and Servicing Agreement and the Insurance Agreement by the Depositor,
the consummation of the transactions contemplated hereby and thereby, and the
issuance and delivery of the Certificates do not and will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor is a party or
by which the Depositor is bound or to which any of the property or assets of the
Depositor or any of its subsidiaries is subject, which breach or violation would
have a material adverse effect on the business, operations or financial
condition of the Depositor or its ability to perform its obligations under this
Agreement, the Pooling and Servicing Agreement and the Insurance Agreement, nor
will such actions result in a violation of the provisions of the articles of
incorporation or by-laws of the Depositor or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Depositor or any of its properties or assets, which breach or violation
would have a material adverse effect on the business, operations or financial
condition of the Depositor or its ability to perform its obligations under this
Agreement, the Pooling and Servicing Agreement and the Insurance Agreement.
5. The execution of the Certificates by the Depositor and the direction
by the Depositor to the Trustee to issue, authenticate and deliver the
Certificates has been duly
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authorized by the Depositor and, assuming that the Trustee has been duly
authorized to do so, when executed by the Depositor and authenticated and
delivered by the Trustee in accordance with the Pooling and Servicing Agreement,
the Certificates will be validly issued and outstanding and will be entitled to
the benefits of the Pooling and Servicing Agreement.
6. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States is required for the issuance of the Certificates, and the sale of the
Offered Certificates to the Underwriters, or the consummation by the Depositor
of the other transactions contemplated by this Agreement, the Pooling and
Servicing Agreement and the Insurance Agreement, except such consents,
approvals, authorizations, registrations or qualifications as may be required
under the 1933 Act or State securities or Blue Sky laws in connection with the
purchase and distribution of the Offered Certificates by the Underwriters or as
have been previously obtained.
7. There are not, to the best of his knowledge without independent
investigation, any actions, proceedings or investigations pending with respect
to which the Depositor has received service of process before or threatened by
any court, administrative agency or other tribunal to which the Depositor is a
party or of which any of its properties is the subject: (a) which if determined
adversely to the Depositor would have a material adverse effect on the business,
results of operations or financial condition of the Depositor; (b) asserting the
invalidity of the Pooling and Servicing Agreement, the Insurance Agreement or
the Certificates; (c) seeking to prevent the issuance of the Certificates or the
consummation by the Depositor of any of the transactions contemplated by the
Pooling and Servicing Agreement, the Insurance Agreement or this Agreement, as
the case may be; or (d) which might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of, the Pooling and Servicing Agreement, the Insurance Agreement,
this Agreement or the Certificates.
8. The Certificates have been duly and validly authorized and issued
and, immediately prior to the sale of the Offered Certificates to the
Underwriters, such Certificates are owned by the Depositor, free and clear of
all Liens.
H. The Underwriters shall have received the favorable opinion of
counsel to the Trustee, dated the Closing Date, addressed to the Underwriters
and in form and scope satisfactory to counsel to the Underwriters, to the effect
that:
1. The Trustee is a banking corporation duly incorporated and validly
existing under the law of the State of __________.
2. The Trustee has the full corporate trust power to execute, deliver
and perform its obligations under the Pooling and Servicing Agreement.
3. The execution and delivery by the Trustee of the Pooling and
Servicing Agreement and the performance by the Trustee of its obligations under
the Pooling and Servicing Agreement have been duly authorized by all necessary
corporate action of the Trustee.
4. The Pooling and Servicing Agreement is a valid and legally binding
obligation of the Trustee enforceable against the Trustee.
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5. The execution and delivery by the Trustee of the Pooling and
Servicing Agreement do not (a) violate the Organization Certificate of the
Trustee or the By-laws of the Trustee, (b) to such counsel's knowledge, violate
any judgment, decree or order of any New York or United States federal court or
other New York or United States federal governmental authority by which the
Trustee is bound or (c) assuming the non-existence of any judgment, decree or
order of any court or other governmental authority that would be violated by
such execution and delivery, violate any New York or United States federal
statute, rule or regulation or require any consent, approval or authorization of
any New York or United States federal court or other New York or United States
federal governmental authority.
6. The Certificates have been duly authenticated, executed and
delivered by the Trustee.
7. If the Trustee were acting as Servicer under the Pooling and
Servicing Agreement as of the date of such opinion, the Trustee would have the
full corporate trust power to perform the obligations of the Servicer under the
Pooling and Servicing Agreement; and
8. To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened against or affecting the
Trustee before or by any court, arbitrator, administrative agency or other
governmental authority which, if decided adversely to the Trustee, would
materially and adversely affect the ability of the Trustee to carry out the
transactions contemplated in the Pooling and Servicing Agreement.
I. The Underwriters shall have received the favorable opinion or
opinions, dated the Closing Date, of counsel for the Underwriters, with respect
to the issue and sale of the Offered Certificates, the Registration Statement,
this Agreement, the Prospectus and such other related matters as the
Underwriters may reasonably require.
J. The Underwriters shall have received the favorable opinion dated the
Closing Date, of ____________________, counsel for the Certificate Insurer, in
form and scope satisfactory to counsel for the Underwriters, substantially to
the effect that:
1. The Certificate Insurer is an insurance corporation duly
incorporated, validly existing, and in good standing under the laws of the State
of __________. The Certificate Insurer is validly licensed and authorized to
issue the Certificate Insurance Policies and perform its obligations under the
Insurance Agreement in accordance with the terms thereof, under the laws of the
State of New York;
2. The Certificate Insurer has the corporate power to execute and
deliver, and to take all action required of it under, the Insurance Agreement
and the Certificate Insurance Policies;
3. The execution, delivery and performance by the Certificate Insurer
of the Certificate Insurance Policies and Insurance Agreement do not require the
consent or approval of, the giving of notice to, the prior registration with, or
the taking of any other action in respect of any state or other governmental
agency or authority which has not previously been obtained or effected;
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4. The Certificate Insurance Policies and Insurance Agreement have been
duly authorized, executed and delivered by the Certificate Insurer and
constitute the legal, valid and binding agreement of the Certificate Insurer,
enforceable against the Certificate Insurer in accordance with their terms
subject, as to enforcement, to (x) bankruptcy, reorganization, insolvency,
moratorium and other similar laws relating to or affecting the enforcement of
creditors' rights generally, including, without limitation, laws relating to
fraudulent transfers or conveyances, preferential transfers and equitable
subordination, presently or from time to time in effect and general principles
of equity (regardless of whether such enforcement is considered in a proceeding
in equity or at law), as such laws may be applied in any such proceeding with
respect to the Certificate Insurer and (y) the qualification that the remedy of
specific performance and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceedings with respect thereto may be brought;
5. To the extent the Certificate Insurance Policies constitutes a
security within the meaning of Section 2(1) of the Securities Act, it is a
security that is exempt from the registration requirements of the Act.
6. The information set forth under the caption "THE CERTIFICATE
INSURER" in the Prospectus Supplement, insofar as such information constitutes a
description of the Certificate Insurance Policies, accurately summarizes the
Certificate Insurance Policies.
K. The Depositor and the Seller shall each have furnished to the
Underwriters a certificate, dated the Closing Date and signed by the Chairman of
the Board, the President or a Vice President of the Depositor and the Seller,
respectively, stating as it relates to each:
1. The representations and warranties of the Depositor in this
Agreement are true and correct as of the Closing Date; and the Depositor has
complied with all agreements contained herein which are to have been complied
with on or prior to the Closing Date;
2. The information contained in the Prospectus relating to the Seller
and the Mortgage Loans is true and accurate in all material respects and nothing
has come to his or her attention that would lead such officer to believe that
the Registration Statement or the Prospectus includes any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein not misleading;
3. There has been no amendment or other document filed affecting the
Certificate of Incorporation or bylaws of the Depositor since __________ __,
199_ or the Certificate of Incorporation or bylaws of __________ since
__________ __, 199_ and no such amendment has been authorized. No event has
occurred since __________ __, 199_ which has affected the good standing of the
Depositor or the Seller under the laws of the States of __________ and
__________, as applicable; and
4. There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Depositor or the Seller from __________ __, 199_.
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L. The Trustee shall have furnished to the Underwriters a certificate
of the Trustee, signed by one or more duly authorized officers of the Trustee,
dated the Closing Date, as to the due authorization, execution and delivery of
the Pooling and Servicing Agreement by the Trustee and the acceptance by the
Trustee of the trusts created thereby and the due execution, authentication and
delivery of the Certificates by the Trustee thereunder and such other matters as
the Representative shall reasonably request.
M. The Certificate Insurance Policies and the Insurance Agreement shall
have been issued by the Certificate Insurer and shall have been duly
authenticated by an authorized agent of the Certificate Insurer, if so required
under applicable state law or regulations.
N. The Offered Certificates (other than the Class A-7IO and Class A-8IO
Certificates) shall have been rated "AAA" by Standard & Poor's, "Aaa" by Moody's
Investors Service and "AAA" by Fitch Investors Service, L.P. The Class A-7IO and
Class A-8IO Certificates shall have been rated "AAAr" by Standard & Poor's,
"Aaa" by Moody's Investors Service and "AAA" by Fitch Investors Service, L.P.
O. The Depositor shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may reasonably have
requested not less than three full business days prior to the Closing Date.
P. Prior to the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Certificates as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained, and
all proceedings taken by the Depositor in connection with the issuance and sale
of the Certificates as herein contemplated shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
Q. Subsequent to the execution and delivery of this Agreement none of
the following shall have occurred: (i) trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the over-the counter
market shall have been suspended or minimum prices shall have been established
on either of such exchanges or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority having jurisdiction;
(ii) a banking moratorium shall have been declared by Federal or state
authorities; (iii) the United States shall have become engaged in hostilities,
there shall have been an escalation of hostilities involving the United States
or there shall have been a declaration of a national emergency or war by the
United States; or (iv) there shall have occurred such a material adverse change
in general economic, political or financial conditions (or the effect of
international conditions on the financial markets of the United States shall be
such) as to make it in each of the instances set forth in clauses (i), (ii),
(iii) and (iv) herein, in the reasonable judgment of the Underwriters,
impractical or inadvisable to proceed with the public offering or delivery of
the Certificates on the terms and in the manner contemplated in the Prospectus.
R. The Representative shall have received letters, including bring-down
letters, from ____________________, dated on or before the Closing Date, in form
and substance satisfactory
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to the Representative and counsel for the Underwriters, to the effect that they
have performed certain specified procedures requested by the Representative with
respect to the information set forth in the Prospectus and certain matters
relating to the Seller.
If any condition specified in this Section VI shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Depositor at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Section VII.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
SECTION VII. Payment of Expenses. The Depositor agrees to pay: (a) the
costs incident to the authorization, issuance, sale and delivery of the
Certificates and any taxes payable in connection therewith; (b) the costs
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), the Prospectus and any amendment or supplement to the Prospectus or
any document incorporated by reference therein, all as provided in this
Agreement; (d) the costs of reproducing and distributing this Agreement; (e) the
fees and expenses of qualifying the Certificates under the securities laws of
the several jurisdictions as provided in Section V(G) hereof and of preparing,
printing and distributing a Blue Sky Memorandum and a Legal Investment Survey
(including related fees and expenses of counsel to the Representative); (f) any
fees charged by securities rating services for rating the Offered Certificates;
(g) the cost of the accountants comfort letter relating to the Prospectus; and
(h) all other costs and expenses incidental to the performance of the
obligations of the Depositor (including costs and expenses of counsel to the
Depositor); provided that, except as provided in this Section VII, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Offered Certificates which
they may sell and the expenses of advertising any offering of the Offered
Certificates made by the Underwriters, and the Underwriters shall pay the cost
of any accountant's comfort letters relating to any Computational Materials (as
defined herein).
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section VI or Section XI, the Depositor shall cause the
Underwriters to be reimbursed for all reasonable out-of-pocket expenses,
including fees and disbursements of ____________________, counsel for the
Underwriters.
SECTION VIII. Indemnification and Contribution. A. The Depositor agrees
to indemnify and hold harmless each Underwriter, each Underwriter's respective
officers and directors and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Securities Act from and against any and
all loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of the Offered Certificates), to which
such Underwriter or any such controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any
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untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus, or any amendment thereof or supplement thereto, or (iv) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and shall reimburse
such Underwriter and each such controlling person promptly upon demand for any
legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Depositor shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Prospectus, or any
amendment thereof or supplement thereto, or the Registration Statement, or any
amendment thereof or supplement thereto, in reliance upon and in conformity with
written information furnished to the Depositor by or on behalf of such
Underwriter specifically for inclusion therein. The foregoing indemnity
agreement is in addition to any liability which the Depositor may otherwise have
to any Underwriter or any such officer or director or any controlling person of
any such Underwriter.
B. Each Underwriter severally agrees to indemnify and hold harmless the
Depositor, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Depositor
within the meaning of Section 15 of the Securities Act against any and all loss,
claim, damage or liability, or any action in respect thereof, to which the
Depositor or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus, or any amendment thereof or supplement thereto, or (iv) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Depositor by or on behalf of such Underwriter
specifically for inclusion therein, and shall reimburse the Depositor and any
such director, officer or controlling person for any legal or other expenses
reasonably incurred by the Depositor or any director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Depositor or any such director,
officer or controlling person.
C. Promptly after receipt by any indemnified party under this Section
VIII of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in
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respect thereof is to be made against any indemnifying party under this Section
VIII, notify the indemnifying party in writing of the claim or the commencement
of that action; provided, however, that the failure to notify an indemnifying
party shall not relieve it from any liability which it may have under this
Section VIII except to the extent it has been materially prejudiced by such
failure and, provided further, that the failure to notify any indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section VIII.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, except to the extent
provided in the next following paragraph, the indemnifying party shall not be
liable to the indemnified party under this Section VIII for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to one local counsel per jurisdiction) at any time for all such
indemnified parties, which firm shall be designated in writing by the related
Underwriter, if the indemnified parties under this Section VIII consist of one
or more Underwriters or any of its or their controlling persons, or the
Depositor, if the indemnified parties under this Section VIII consist of the
Depositor or any of the Depositor's directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section VIII(A) and (B), shall use its best efforts to cooperate
with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
21
<PAGE>
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject of such action.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
D. Each Underwriter agrees to provide the Depositor no later than two
Business Days prior to the day on which the Prospectus Supplement is required to
be filed pursuant to Section I.A. hereof with a copy of any Computational
Materials (defined below) produced by such Underwriter for filing with the
Commission on Form 8-K.
E. Each Underwriter severally agrees, to the extent that all Seller
Provided Information is accurate and complete in all material respects, to
indemnify and hold harmless the Depositor, each of the Depositor's officers and
directors and each person who controls the Depositor within the meaning of
Section 15 of the Securities Act against any and all losses, claims, damages or
liabilities, to which they may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement of a
material fact contained in the Computational Materials provided by such
Underwriter, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading when
read in conjunction with the Prospectus, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by him,
her or it in connection with investigating or defending or preparing to defend
any such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that in no event shall an Underwriter be liable to the
Depositor under this paragraph E in an amount in excess of the fees received by
such Underwriter in connection with the offering of the Offered Certificates.
The obligations of an Underwriter under this Section VIII (E) shall be in
addition to any liability which such Underwriter may otherwise have.
The procedures set forth in Section VIII (C) shall be equally
applicable to this Section VIII (E).
F. If the indemnification provided for in this Section VIII shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section VIII (A), (B) or (E) in respect of any loss, claim, damage
or liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Depositor on the one hand and the
22
<PAGE>
Underwriters on the other from the offering of the relevant class of Offered
Certificates or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or if the indemnified party failed to give the
notice required under Section VIII (C), in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Depositor on the one hand and the related Underwriter
on the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations.
The relative benefits of an Underwriter and the Depositor shall be
deemed to be in such proportion as the total net proceeds from the offering
(before deducting expenses) received by the Depositor bear to the total
underwriting discounts and commissions received by the related Underwriter from
time to time in negotiated sales of the related Offered Certificates.
The relative fault of an Underwriter and the Depositor shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Depositor or by such Underwriter, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission and other equitable
considerations.
The Depositor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section VIII (F) were to be
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purposes) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
VIII (F) shall be deemed to include, for purposes of this Section VIII (F), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
For purposes of this Section VIII, in no case shall any Underwriter
(except with respect to any document (other than the Computational Materials)
incorporated by reference into the Registration Statement or Prospectus at the
request of such Underwriter and except as may be provided in any agreement among
the Underwriters relating to the offering of the Offered Certificates) be
responsible for any amount in excess of the amount by which (x) the amount
received by such Underwriter in connection with its sale of the Offered
Certificates exceeds (y) the amount paid by such Underwriter to the Depositor
for the Offered Certificates hereunder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of
fraudulent misrepresentation.
G. For purposes of this Section VIII, as to each Underwriter the term
"Computational Materials" means such portion, if any, of the information
delivered to the Depositor by such Underwriter pursuant to Section VIII(D) for
filing with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference; and
23
<PAGE>
(ii) does not constitute Seller Provided Information.
"Seller Provided Information" means any computer tape (or other information)
furnished to any Underwriter by the Sellers concerning the assets comprising the
Trust.
H. The Underwriters confirm that the information set forth in the last
paragraph on the cover page of the Prospectus Supplement and the Computational
Materials are correct and constitute the only information furnished in writing
to the Depositor by or on behalf of any Underwriter specifically for inclusion
in the Registration Statement and the Prospectus.
SECTION IX. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Depositor submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriters or controlling
persons thereof, or by or on behalf of the Depositor, and shall survive delivery
of any Offered Certificates to the Underwriters.
SECTION X. Default by One or More of the Underwriters. If one or more
of the Underwriters participating in the public offering of the Offered
Certificates shall fail at the Closing Date to purchase the Offered Certificates
which it is (or they are) obligated to purchase hereunder (the "Defaulted
Certificates"), then the non-defaulting Underwriters shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Certificates in such amounts as may be agreed
upon and upon the terms herein set forth[; provided, however, that in no event
shall any Underwriter other than ____________________ be obligated to purchase
any Class A-7IO or Class A-8IO Certificates]. If, however, the Underwriters have
not completed such arrangements within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Certificates does
not exceed 10% of the aggregate principal amount of the Offered Certificates to
be purchased pursuant to this Agreement, the non-defaulting Underwriters named
in this Agreement shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all such non-defaulting Underwriters, or
(ii) if the aggregate principal amount of Defaulted Certificates
exceeds 10% of the aggregate principal amount of the Offered Certificates to be
purchased pursuant to this Agreement, this Agreement shall terminate, without
any liability on the part of any non-defaulting Underwriters.
No action taken pursuant to this Section X shall relieve any defaulting
Underwriter from the liability with respect to any default of such Underwriter
under this Agreement.
In the event of a default by any Underwriter as set forth in this
Section X, each of the Underwriters and the Depositors shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in order
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
24
<PAGE>
SECTION XI. Termination of Agreement. The Underwriters may terminate
this Agreement immediately upon notice to the Depositor, at any time at or prior
to the Closing Date if any of the events or conditions described in Section VI
(R) of this Agreement shall occur and be continuing. In the event of any such
termination, the covenant set forth in Section V (G), the provisions of Section
VII, the indemnity agreement set forth in Section VIII, and the provisions of
Sections IX and XIV shall remain in effect.
SECTION XII. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
A. if to the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission to
_________________________________________________________________
__________________________________________________________________________; and
B. if to the Depositor, shall be delivered or sent by mail, telex or
facsimile transmission to care of ContiSecurities Asset Funding Corp., 277 Park
Avenue, New York, New York 10172, Attention: Chief Counsel (Fax: 212-207-2937).
SECTION XIII. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters and
the Depositor, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any of the Underwriters within the meaning of Section 15 of
the Securities Act, and for the benefit of each Underwriter's respective
officers and directors and for the benefit of directors of the Depositor,
officers of the Depositor who have signed the Registration Statement and any
person controlling the Depositor within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section XIII, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
SECTION XIV. Survival. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Agreement, or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Certificates and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
SECTION XV. Definition of the Term "Business Day". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
SECTION XVI. Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to the principles of
conflicts of law thereof.
The parties hereto hereby submit to the jurisdiction of the United
States District Court for the Southern District of New York and any court in the
State of New York located in the
25
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City and County of New York, and appellate court from any thereof, in any
action, suit or proceeding brought against it or in connection with this
Agreement or any of the related documents or the transactions contemplated
hereunder or for recognition or enforcement of any judgment, and the parties
hereto hereby agree that all claims in respect of any such action or proceeding
may be heard or determined in New York State court or, to the extent permitted
by law, in such federal court.
The parties hereto hereby irrevocably waive, to the fullest extent
permitted by law, any and all rights to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
SECTION XVII. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION XVIII. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
26
<PAGE>
If the foregoing correctly sets forth the agreement between the
Depositor and the Underwriters, please indicate your acceptance in the space
provided for the purpose below.
Very truly yours,
CONTISECURITIES ASSET FUNDING
CORP.
By:
Name:
Title:
By:
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
- -------------------------------------------
Acting on its own behalf and as
Representative of the Several Underwriters
referred to in the foregoing Agreement
By:
--------------------------------------
Name:
Title:
<PAGE>
SCHEDULE A
Class of Certificates Initial Principal Dollar Amount
Name of Purchased by the of Certificates Purchased by Price to
Underwriter Underwriters Underwriters Public
- ----------- ------------ ------------ ------
EXHIBIT 4.1
POOLING AND SERVICING AGREEMENT
Relating to
__________ HOME EQUITY LOAN TRUST 199_-_
Among
CONTISECURITIES ASSET FUNDING CORP.,
as the Depositor
------------------------------,
as the Servicer,
------------------------------,
as the Seller
and
------------------------------,
as the Trustee
Dated as of __________ 1, 199_
<PAGE>
<TABLE>
<CAPTION>
CONTENTS
Page
<S> <C>
CONVEYANCE...................................................................................................... 1
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION...................................... 2
Section 1.01 Definitions.......................................................................... 2
Section 1.02 Use of Words and Phrases............................................................. 29
Section 1.03 Captions; Table of Contents.......................................................... 29
Section 1.04 Opinions............................................................................. 29
ARTICLE II
ESTABLISHMENT AND ORGANIZATION OF THE TRUST................................. 30
Section 2.01 Establishment of the Trust........................................................... 30
Section 2.02 Office............................................................................... 30
Section 2.03 Purposes and Powers.................................................................. 30
Section 2.04 Appointment of the Trustee; Declaration of Trust..................................... 30
Section 2.05 Expenses of the Trust................................................................ 30
Section 2.06 Ownership of the Trust............................................................... 31
Section 2.07 Situs of the Trust................................................................... 31
Section 2.08 Miscellaneous REMIC Provisions....................................................... 31
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE DEPOSITOR, THE SERVICER AND THE SELLERS;
COVENANT OF SELLERS TO CONVEY HOME EQUITY LOANS............................. 33
Section 3.01 Representations and Warranties of the Depositor...................................... 33
Section 3.02 Representations and Warranties of the Servicer....................................... 35
Section 3.03 Representations and Warranties of the Sellers........................................ 37
Section 3.04 Covenants of the Sellers to Take Certain Actions with Respect to the
Home Equity Loans In Certain Situations.............................................. 39
Section 3.05 Conveyance of the Home Equity Loans and Qualified Replacement
Mortgages............................................................................ 47
Section 3.06 Acceptance by Trustee; Certain Substitutions of Home Equity Loans;
Certification by Trustee............................................................. 50
ARTICLE IV
ISSUANCE AND SALE OF CERTIFICATES...................................... 52
Section 4.01 Issuance of Certificates............................................................. 52
Section 4.02 Sale of Certificates................................................................. 52
ARTICLE V
CERTIFICATES AND TRANSFER OF INTERESTS.................................... 53
Section 5.01 Terms................................................................................ 53
Section 5.02 Forms................................................................................ 53
Section 5.03 Execution, Authentication and Delivery............................................... 53
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Page
Section 5.04 Registration and Transfer of Certificates............................................ 54
Section 5.05 Mutilated, Destroyed, Lost or Stolen Certificates.................................... 56
Section 5.06 Persons Deemed Owners................................................................ 56
Section 5.07 Cancellation......................................................................... 57
Section 5.08 Limitation on Transfer of Ownership Rights........................................... 57
Section 5.09 Assignment of Rights................................................................. 58
ARTICLE VI
COVENANTS.................................................. 59
Section 6.01 Distributions........................................................................ 59
Section 6.02 Money for Distributions to be Held in Trust; Withholding............................. 59
Section 6.03 Protection of Trust Estate........................................................... 60
Section 6.04 Performance of Obligations........................................................... 61
Section 6.05 Negative Covenants................................................................... 61
Section 6.06 No Other Powers...................................................................... 61
Section 6.07 Limitation of Suits.................................................................. 61
Section 6.08 Unconditional Rights of Owners to Receive Distributions.............................. 62
Section 6.09 Rights and Remedies Cumulative....................................................... 62
Section 6.10 Delay or Omission Not Waiver......................................................... 63
Section 6.11 Control by Owners.................................................................... 63
Section 6.12 Indemnification...................................................................... 63
Section 6.13 Access to Owners of Certificates' Names and Addresses................................ 64
ARTICLE VII
ACCOUNTS, DISBURSEMENTS AND RELEASES..................................... 65
Section 7.01 Collection of Money.................................................................. 65
Section 7.02 Establishment of Accounts Total Available Funds;..................................... 65
Section 7.03 Flow of Funds........................................................................ 66
Section 7.04 Reserved............................................................................. 70
Section 7.05 Investment of Accounts............................................................... 70
Section 7.06 Payment of Trust Expenses............................................................ 71
Section 7.07 Eligible Investments................................................................. 71
Section 7.08 Accounting and Directions by Trustee................................................. 73
Section 7.09 Reports by Trustee to Owners and Certificate Insurer................................. 73
Section 7.10 Reports by Trustee. ................................................................ 76
Section 7.11 Preference Payments.................................................................. 76
ARTICLE VIII
SERVICING AND ADMINISTRATION
OF HOME EQUITY LOANS............................................. 77
Section 8.01 Servicer and Sub-Servicers........................................................... 77
Section 8.02 Collection of Certain Home Equity Loan Payments...................................... 78
Section 8.03 Sub-Servicing Agreements Between Servicer and Sub-Servicers.......................... 78
Section 8.04 Successor Sub-Servicers.............................................................. 78
Section 8.05 Liability of Servicer; Indemnification .............................................. 78
Section 8.06 No Contractual Relationship Between Sub-Servicer, Trustee or the
Owners............................................................................... 79
Section 8.07 Assumption or Termination of Sub-Servicing Agreement by Trustee...................... 79
ii
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Page
Section 8.08 Principal and Interest Account....................................................... 79
Section 8.09 Delinquency Advances and Servicing Advances.......................................... 81
Section 8.10 Compensating Interest; Repurchase of Home Equity Loans............................... 82
Section 8.11 Maintenance of Insurance............................................................. 83
Section 8.12 Due-on-Sale Clauses; Assumption and Substitution Agreements.......................... 83
Section 8.13 Realization Upon Defaulted Home Equity Loans; Inspection............................. 84
Section 8.14 Trustee to Cooperate; Release of Files............................................... 85
Section 8.15 Servicing Compensation............................................................... 86
Section 8.16 Annual Statement as to Compliance.................................................... 86
Section 8.17 Annual Independent Certified Public Accountants' Reports............................. 86
Section 8.18 Access to Certain Documentation and Information Regarding the Home
Equity Loans......................................................................... 87
Section 8.19 Assignment of Agreement.............................................................. 87
Section 8.20 Removal of Servicer; Resignation of Servicer......................................... 87
Section 8.21 Inspections by Certificate Insurer; Errors and Omissions Insurance................... 91
ARTICLE IX
TERMINATION OF TRUST............................................. 92
Section 9.01 Termination of Trust................................................................. 92
Section 9.02 Termination Upon Option of Owners of Class R Certificates............................ 92
Section 9.03 Termination Upon Loss of REMIC Status................................................ 93
Section 9.04 Disposition of Proceeds.............................................................. 94
ARTICLE X
THE TRUSTEE................................................. 95
Section 10.01 Certain Duties and Responsibilities.................................................. 95
Section 10.02 Removal of Trustee for Cause......................................................... 96
Section 10.03 Certain Rights of the Trustee........................................................ 97
Section 10.04 Not Responsible for Recitals or Issuance of Certificates............................. 98
Section 10.05 May Hold Certificates................................................................ 99
Section 10.06 Money Held in Trust.................................................................. 99
Section 10.07 Compensation and Reimbursement; No Lien for Fees..................................... 99
Section 10.08 Corporate Trustee Required; Eligibility.............................................. 99
Section 10.09 Resignation and Removal; Appointment of Successor....................................100
Section 10.10 Acceptance of Appointment by Successor Trustee.......................................101
Section 10.11 Merger, Conversion, Consolidation or Succession to Business of the
Trustee..............................................................................101
Section 10.12 Reporting; Withholding...............................................................102
Section 10.13 Liability of the Trustee.............................................................102
Section 10.14 Appointment of Co-Trustee or Separate Trustee........................................103
ARTICLE XI
MISCELLANEOUS................................................105
Section 11.01 Compliance Certificates and Opinions.................................................105
Section 11.02 Form of Documents Delivered to the Trustee...........................................105
Section 11.03 Acts of Owners.......................................................................106
iii
<PAGE>
Page
Section 11.04 Notices, etc. to Trustee.............................................................106
Section 11.05 Notices and Reports to Owners; Waiver of Notices.....................................106
Section 11.06 Rules by Trustee.....................................................................107
Section 11.07 Successors and Assigns...............................................................107
Section 11.08 Severability.........................................................................107
Section 11.09 Benefits of Agreement................................................................107
Section 11.10 Legal Holidays.......................................................................107
Section 11.11 Governing Law; Submission to Jurisdiction............................................108
Section 11.12 Counterparts.........................................................................108
Section 11.13 Usury................................................................................109
Section 11.14 Amendment............................................................................109
Section 11.15 Paying Agent; Appointment and Acceptance of Duties...................................110
Section 11.16 REMIC Status.........................................................................110
Section 11.17 Additional Limitation on Action and Imposition of Tax................................112
Section 11.18 Appointment of Tax Matters Person....................................................112
Section 11.19 The Certificate Insurer..............................................................112
Section 11.20 Reserved.............................................................................112
Section 11.21 Third Party Rights...................................................................113
Section 11.22 Notices..............................................................................113
SCHEDULE I-A SCHEDULE OF FIXED RATE GROUP HOME EQUITY LOANS
SCHEDULE I-B SCHEDULE OF ADJUSTABLE RATE GROUP HOME EQUITY LOANS
SCHEDULE II RESERVED
SCHEDULE III HOME EQUITY LOANS WITH DELINQUENCY CHARACTERISTICS
SCHEDULE IV HOME EQUITY LOANS WITH 15-YEAR "BALLOON" PAYMENTS
SCHEDULE V HOME EQUITY LOANS WITH 5-YEAR "BALLOON" PAYMENTS
EXHIBIT A-1 FORM OF CLASS A-1 CERTIFICATE
EXHIBIT A-2 FORM OF CLASS A-2 CERTIFICATE
EXHIBIT A-3 FORM OF CLASS A-3 CERTIFICATE
EXHIBIT A-4 FORM OF CLASS A-4 CERTIFICATE
EXHIBIT A-5 FORM OF CLASS A-5 CERTIFICATE
EXHIBIT A-6 FORM OF CLASS A-6 CERTIFICATE
EXHIBIT A-7IO FORM OF CLASS A-7IO CERTIFICATE
EXHIBIT A-8IO FORM OF CLASS A-8IO CERTIFICATE
EXHIBIT B FORM OF CLASS R CERTIFICATE
EXHIBIT B-IO FORM OF CLASS B-IO CERTIFICATE
EXHIBIT C RESERVED
EXHIBIT D FORM OF CERTIFICATE RE: HOME EQUITY LOANS
PREPAID IN FULL AFTER CUT-OFF DATE
EXHIBIT E FORM OF TRUSTEE'S RECEIPT
EXHIBIT F FORM OF POOL CERTIFICATION
EXHIBIT G FORM OF DELIVERY ORDER
EXHIBIT H [RESERVED]
EXHIBIT I FORM OF CLASS R TAX MATTERS TRANSFER CERTIFICATE
</TABLE>
iv
<PAGE>
POOLING AND SERVICING AGREEMENT, relating to CONTIMORTGAGE HOME EQUITY
LOAN TRUST 199_-_, dated as of __________ __, 199_ by and among CONTISECURITIES
ASSET FUNDING CORP., a Delaware corporation, in its capacity as Depositor (the
"Depositor"), ______________________________, a __________ corporation in its
capacities as a Seller (in such capacity, a "Seller") and as Servicer (in such
capacity, the "Servicer"), ______________________________, a __________
corporation, in its capacity as a Seller (a "Seller" and together with
____________________, the "Sellers") and ______________________________, a
__________ banking corporation, in its capacity as the trustee (the "Trustee").
WHEREAS, the Depositor wishes to establish the Trust with two subtrusts
and provide for the allocation and sale of the beneficial interests therein and
the maintenance and distribution thereof;
WHEREAS, the Servicer has agreed to service the Home Equity Loans,
which constitute the principal assets of the Trust Estate;
WHEREAS, all things necessary to make the Certificates, when executed
by the Depositor and authenticated by the Trustee, valid instruments, and to
make this Agreement a valid agreement, in accordance with their and its terms,
have been done;
WHEREAS, ____________________ is willing to serve in the capacity of
Trustee hereunder; and
WHEREAS, ____________________ is intended to be a third-party
beneficiary of this Agreement and is hereby recognized by the parties hereto to
be a third-party beneficiary of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Sellers, the Servicer, and the Trustee hereby
agree as follows:
CONVEYANCE
To provide for the distribution of the interest on and/or principal of
the Class A Certificates, the Class B-IO Certificates and the Class R
Certificates in accordance with their terms, all of the sums distributable under
this Agreement with respect to the Certificates and the performance of the
covenants contained in this Agreement, each Seller hereby bargains, sells,
conveys, assigns and transfers to the Depositor and the Depositor hereby
bargains, sells, conveys, assigns and transfers to the Trust, without recourse
and for the exclusive benefit of the Owners of the Certificates, all of its
respective right, title and interest in and to any and all benefits accruing to
it from (a) the Home Equity Loans (other than any principal and interest
payments received thereon on or prior to the Cut-Off Date) listed in Schedules
I-A and I-B to this Agreement which the Sellers are causing to be delivered to
the Depositor and the Depositor is causing to be delivered to the Trustee
herewith (and all substitutions therefor as provided by Sections 3.03, 3.04 and
3.06), together with the related Home Equity Loan documents and each Seller's
interest in any Property which secured a Home Equity Loan but which has been
acquired by foreclosure or deed in lieu of foreclosure, 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 Fixed Rate Group Distribution Account and the Upper-Tier Adjustable
Rate Group Distribution Account 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 herein), whether in the form of cash, instruments,
securities or other properties (including any Eligible Investments held by the
Servicer); (c) the Insurance Agreement; (d) the Certificate Insurance Policies
issued thereunder and (e) proceeds of all the foregoing (including, but not by
way of limitation, all proceeds of any mortgage insurance, hazard insurance and
title insurance policy 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
1
<PAGE>
of or are included in the proceeds of any of the foregoing) to pay the
Certificates as specified herein ((a)-(e) above shall be collectively referred
to herein as the "Trust Estate").
The Trustee acknowledges such sale, accepts the Trust hereunder in
accordance with the provisions hereof and agrees to perform the duties herein to
the best of its ability to the end that the interests of the Owners may be
adequately and effectively protected.
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
Section 1.01 Definitions.
For all purposes of this Agreement, the following terms shall have the
meanings set forth below, unless the context clearly indicates otherwise:
"Account": Any account established in accordance with Section 7.02 or
8.08 hereof.
"Accrual Period": With respect to the Class A Certificates (other than
the Class A-6 Certificates) and any Payment Date, the calendar month immediately
preceding the month in which the Payment Date occurs; provided, that in the case
of the first Payment Date, the Accrual Period shall be the period from
__________ __, 199_ through and including __________ __, 199_. A "calendar
month" shall be deemed to be 30 days. With respect to the Class A-6 Certificates
and any Payment Date, the period commencing on the immediately preceding Payment
Date (or the Closing Date in the case of the first Payment Date) to and
including the day prior to the current Payment Date. All calculations of
interest on the Class A Certificates (other than the Class A-6 Certificates)
will be made on the basis of a 360-day year assumed to consist of twelve 30-day
months and calculations of interest on the Class A-6 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.
"Adjustable Rate Group": The pool of Home Equity Loans identified in
the related Schedule of Home Equity Loans as having been assigned to the
Adjustable Rate Group in Schedule I-B hereto, including any Qualified
Replacement Mortgages delivered in replacement thereof.
"Adjustable Rate Group Available Funds": As defined in Section 7.02(d)
hereof.
"Adjustable Rate Group Available Funds Shortfall": As defined in
Section 7.03(c)(i)(A) hereof.
"Adjustable Rate Group Certificate Insurance Policy": The certificate
guaranty insurance policy (number _____) dated __________ __, 199_ issued by the
Certificate Insurer for the benefit of the Owners of the Class A-6 Certificates
and the Class A-8IO Certificates pursuant to which the Certificate Insurer
guarantees Insured Payments.
"Adjustable Rate Group Initial Specified Subordinated Amount": As
defined in the Insurance Agreement.
"Adjustable Rate Group Interest Remittance Amount": As of any Monthly
Remittance Date, the sum, without duplication, of (i) all interest due during
the related Remittance Period with respect to the Home Equity Loans in the
Adjustable Rate Group (less the Servicing Fee on such Home Equity Loans), (ii)
all Compensating Interest paid by the Servicer on such Monthly Remittance Date
with respect to the Adjustable Rate Group and (iii) the portion of the
Substitution Amount relating to interest on the Home Equity Loans in the
Adjustable Rate Group.
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"Adjustable Rate Group Monthly Remittance Amount": As of any Monthly
Remittance Date, the sum of (i) the Adjustable Rate Group Interest Remittance
Amount and (ii) the Adjustable Rate Group Principal Remittance Amount for such
Monthly Remittance Date.
"Adjustable Rate Group Net Weighted Average Coupon Rate": With respect
to any Payment Date, the weighted average of the Coupon Rates of the Home Equity
Loans in the Adjustable Rate Group (weighted by the Loan Balances of such Home
Equity Loans), less the Expense Rate.
"Adjustable Rate Group Principal Distribution Amount": With respect to
the Class A-6 Certificates for any Payment Date, the lesser of:
(a) the Adjustable Rate Group Total Available Funds plus any Insured
Payment with respect to the Class A-6 Certificates minus the Class A-6 Current
Interest and Class A-8IO Current Interest; and
(b) the excess, if any, of (i) the sum of:
(A) the Preference Amount owed to the Owners of the
Class A-6 Certificates as such amounts relate to principal
previously distributed on the Class A-6 Certificates,
(B) the principal actually collected by the Servicer
with respect to Home Equity Loans in the Adjustable Rate Group
during the related Remittance Period,
(C) the Loan Balance of each Home Equity Loan in the
Adjustable Rate Group that was repurchased by either 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 delivered by either
Seller on the related Monthly Remittance Date in connection
with a substitution of a Home Equity Loan in the Adjustable
Rate Group (to the extent such Substitution Amounts relate to
principal), 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 Home Equity Loans in the
Adjustable Rate Group during the related Remittance Period (to
the extent such Net Liquidation Proceeds relate 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 Adjustable Rate Group for such Payment Date,
(G) the portion of the proceeds received by the
Trustee with respect to the Adjustable Rate Group from any
termination of the Trust (to the extent such proceeds related
to principal),
(H) the amount of any Subordination Increase Amount
with respect to the Adjustable Rate Group for such Payment
Date, to the extent of any Net Monthly Excess Cashflow
available for such purpose, and
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(I) the portion of any Carry-Forward Amount relating
to principal with respect to the Adjustable Rate Group for
such Payment Date.
over
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(ii) the amount of any Subordination Reduction Amount with
respect to the Adjustable Rate Group for such Payment Date.
"Adjustable Rate Group Principal Remittance Amount": As of any Monthly
Remittance Date, the sum, without duplication, of (i) the principal actually
collected by the Servicer with respect to Home Equity Loans in the Adjustable
Rate Group during the related Remittance Period, (ii) the Loan Balance of each
Home Equity Loan in the Adjustable Rate Group that was purchased from the
Trustee on or prior to such Monthly Remittance Date, to the extent such Loan
Balance was actually deposited in the Principal and Interest Account, (iii) any
Substitution Amounts relating to principal delivered by either Seller in
connection with a substitution of a Home Equity Loan in the Adjustable Rate
Group, to the extent such Substitution Amounts were actually deposited in the
Principal and Interest Account on or prior to such Monthly Remittance Date, and
(iv) all Net Liquidation Proceeds actually collected by the Servicer with
respect to the Home Equity Loans in the Adjustable Rate Group during the related
Remittance Period (to the extent such Net Liquidation Proceeds related to
principal).
"Adjustable Rate Group Specified Subordinated Amount": As defined in
the Insurance Agreement.
"Adjustable Rate Group Subordinated Amount": As of any Payment Date,
the excess, if any, of (x) the aggregate Loan Balances of the Home Equity Loans
in the Adjustable Rate Group as of the close of business on the last day of the
related Remittance Period over (y) the Class A-6 Certificate Principal Balance
as of such Payment Date (after taking into account the payment of the Class A-6
Distribution Amount thereon (except for any Subordination Deficit with respect
to the Adjustable Rate Group and Subordination Increase Amount with respect to
the Adjustable Rate Group) on such Payment Date).
"Adjustable Rate Group Total Available Funds: As defined in Section
7.02(d) hereof.
"Adjustable Rate Group Total Monthly Excess Spread": With respect to
the Adjustable Rate Group and any Payment Date, the excess, if any, of (i) the
sum of (x) the interest which is collected on the Home Equity Loans in such
Group during the related Remittance Period less the Servicing Fee with respect
to Home Equity Loans in the Adjustable Rate Group, (y) any Delinquency Advances
and (z) Compensating Interest paid by the Servicer with respect to the
Adjustable Rate Group for such Remittance Period over (ii) the interest due on
the Class A-6 Certificates and the Class A-8IO Certificates on such Payment
Date.
"Adjusted Pass-Through Rate": A rate equal to the sum of (a) the
Weighted Average Pass- Through Rate, (b) the Class A-7IO Pass-Through Rate, (c)
the Class A-8IO Pass-Through Rate, and (d) any portion of the Premium Amount and
the Trustee Fee (calculated as a percentage of the outstanding principal amount
of the Certificates) then accrued and outstanding.
"Agreement": This Pooling and Servicing Agreement, as it may be amended
from time to time, including the Exhibits and Schedules hereto.
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"Appraised Value": The appraised value of any Property based upon the
appraisal or other valuation made at the time of the origination of the related
Home Equity Loan, or, in the case of a Home Equity Loan which is a purchase
money mortgage, the sales price of the Property at such time of origination, if
such sales price is less than such appraised value.
"Authorized Officer": With respect to any Person, any officer of such
Person who is authorized to act for such Person in matters relating to the
Agreement, and whose action is binding upon such Person; with respect to the
Depositor, the Sellers and the Servicer, initially including those individuals
whose names appear on the lists of Authorized Officers delivered at the Closing;
with respect to the Trustee, any Vice President, Assistant Vice President, Trust
Officer or any Officer of the Trustee located at the Corporate Trust Office.
"Available Funds": The Fixed Rate Group Available Funds or the
Adjustable Rate Group Available Funds, as the case may be.
"Available Funds Shortfall": A Fixed Rate Group Available Funds
Shortfall or Adjustable Rate Group Available Funds Shortfall, as the case may
be.
"Business Day": Any day that is not a Saturday, Sunday or other day on
which commercial banking institutions in The City of New York, or in the city in
which the principal corporate trust office of either the Trustee or the
Certificate Insurer is located, are authorized or obligated by law or executive
order to be closed.
"Carry-Forward Amount": With respect to any Class of the Class A
Certificates (other than either Class of the Class A-IO Certificates) for any
Payment Date, the sum of (x) the amount, if any, by which (i) the portion of the
Class A Distribution Amount related 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 the Class A Certificates on such immediately
preceding Payment Date and (y) 30 days' interest on such amount at the
Pass-Through Rate in effect with respect to such Class of Class A Certificates.
"Certificate": Any one of the Class A Certificates, Class B-IO
Certificates or Class R Certificates, each representing the interests and the
rights described in this Agreement.
"Certificate Account": The certificate account established in
accordance with Section 7.02(a) hereof and maintained in the corporate trust
department of the Trustee; provided that the funds in such account shall not be
commingled with other funds held by the Trustee.
"Certificate Insurance Policies": The Adjustable Rate Group Certificate
Insurance Policy and the Fixed Rate Group Certificate Insurance Policy.
"Certificate Insurer": ____________________, a New York insurance
company, or any successor thereto, as issuer of the Certificate Insurance
Policies.
"Certificate Insurer Default": The existence and continuance of any of
the following:
(a) the Certificate Insurer fails to make a payment required under the
Certificate Insurance Policies in accordance with its terms; or
(b)(i) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Certificate
Insurer in an involuntary case or proceeding under any applicable
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United States federal or state bankruptcy, insolvency, rehabilitation,
reorganization or other similar law or (B) a decree or order adjudging the
Certificate Insurer as bankrupt or insolvent, or approving as properly filed a
petition seeking reorganizing, rehabilitation, arrangement, adjustment or
composition of or in respect of the Certificate Insurer under any applicable
United States federal or state law, or appointing a custodian, receiver,
liquidator, rehabilitator, assignee, trustee, sequestrator or other similar
official of the Certificate Insurer or of any substantial part of its property,
or ordering the winding-up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(ii) the commencement by the Certificate Insurer of a
voluntary case or proceeding under any applicable United States federal or state
bankruptcy, insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated as bankrupt or insolvent, or the consent of the
Certificate Insurer to the entry of a decree or order for relief in respect of
the Certificate Insurer in an involuntary case or proceeding under any
applicable United States federal or state bankruptcy, insolvency case or
proceeding against the Certificate Insurer, or the acquiescence by the
Certificate Insurer to the filing of such petition or to the appointment of or
the taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Certificate Insurer or of any
substantial part of its property, or the failure of the Certificate Insurer to
pay debts generally as they become due, or the admission by the Certificate
Insurer in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Certificate Insurer in furtherance
of any such action.
"Certificate Principal Balance": As of the Startup Day as to each of
the following Classes of Class A Certificates, the Certificate Principal
Balances thereof, as follows:
Class A-1 Certificates - $
Class A-2 Certificates - $
Class A-3 Certificates - $
Class A-4 Certificates - $
Class A-5 Certificates - $
Class A-6 Certificates - $
The Class A-IO Certificates, Class B-IO Certificates and the
Class R Certificates do not have a Certificate Principal Balance.
"Class": Any Class of the Class A Certificates, the B-IO Certificates
or the Class R Certificates.
"Class A Certificate": Any one of 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-7IO Certificates or Class
A-8IO Certificates.
"Class A Certificate Principal Balance": As of any time of
determination, the Certificate Principal Balance as of the Startup Day of all
Class A Certificates (other than the Class A-IO Certificates) less any amounts
actually distributed on such Class A Certificates with respect to the Class A
Distribution Amount pursuant to Section 7.03(c)(iii)(D) and (H) hereof with
respect to principal thereon on all prior Payment Dates (except, for purposes of
effecting the Certificate Insurer's subrogation rights, that portion of Insured
Payments made in respect of principal).
"Class A Distribution Amount": The sum of the Class A-1 Distribution
Amount, the Class A-2 Distribution Amount, the Class A-3 Distribution Amount,
the Class A-4 Distribution Amount,
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the Class A-5 Distribution Amount, the Class A-6 Distribution Amount, the Class
A-7IO Current Interest and the Class A-8IO Current Interest.
"Class A-IO Certificate": Any one of the Class A-7IO Certificates or
Class A-8IO Certificates.
"Class A-1 Certificate": Any one of the Certificates
designated on the face thereof as a Class A-1 Certificate, substantially in the
form annexed hereto as Exhibit A-1, authenticated and delivered by the Trustee,
representing the right to distributions as set forth herein.
"Class A-1 Certificate Principal Balance": As of any time of
determination, the Certificate Principal Balance as of the Startup Day of all
Class A-1 Certificates less any amounts actually distributed with respect to the
Class A-1 Distribution Amount pursuant to Section 7.03(c)(iii)(D)(1) hereof with
respect to principal thereon on all prior Payment Dates (except, for purposes of
effecting the Certificate Insurer's subrogation rights, that portion of Insured
Payments made in respect of principal).
"Class A-1 Certificate Termination Date": The Payment Date on which the
Class A-1 Certificate Principal Balance is reduced to zero.
"Class A-1 Current Interest": With respect to any Payment
Date, the amount of interest accrued on the Class A-1 Certificate Principal
Balance immediately prior to such Payment Date during the related Accrual Period
at the Class A-1 Pass-Through Rate plus the Preference Amount owed to the Owners
of the Class A-1 Certificates as it relates to interest previously paid on the
Class A-1 Certificates plus the interest portion of the Carry-Forward Amount, if
any, with respect to the Class A-1 Certificates.
"Class A-1 Distribution Amount": The sum of (x) Class A-1 Current
Interest and (y) the Fixed Rate Group Principal Distribution Amount payable to
the Class A-1 Distribution Account pursuant to Section 7.03(c)(iii)(D)(1)
hereof.
"Class A-1 Pass-Through Rate": _____% per annum.
"Class A-2 Certificate": Any one of the Certificates
designated on the face thereof as a Class A-2 Certificate, substantially in the
form annexed hereto as Exhibit A-2, authenticated and delivered by the Trustee,
representing the right to distributions as set forth herein.
"Class A-2 Certificate Principal Balance": As of any time of
determination, the Certificate Principal Balance as of the Startup Day of all
Class A-2 Certificates less any amounts actually distributed with respect to the
Class A-2 Distribution Amount pursuant to Section 7.03(c)(iii)(D)(2) hereof with
respect to principal thereon on all prior Payment Dates (except, for purposes of
effecting the Certificate Insurer's subrogation rights, that portion of Insured
Payments made in respect of principal).
"Class A-2 Certificate Termination Date": The Payment Date on which the
Class A-2 Certificate Principal Balance is reduced to zero.
"Class A-2 Current Interest": With respect to any Payment
Date, the amount of interest accrued on the Class A-2 Certificate Principal
Balance immediately prior to such Payment Date during the related Accrual Period
at the Class A-2 Pass-Through Rate plus the Preference Amount owed to the Owners
of the Class A-2 Certificates as it relates to interest previously paid on the
Class A-2 Certificates plus the interest portion of the Carry-Forward Amount, if
any, with respect to the Class A-2 Certificates.
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"Class A-2 Distribution Amount": The sum of (x) Class A-2 Current
Interest and (y) the Fixed Rate Group Principal Distribution Amount payable to
the Owners of Class A-2 Certificates pursuant to Section 7.03(c)(iii)(D)(2)
hereof.
"Class A-2 Pass-Through Rate": _____% per annum.
"Class A-3 Certificate": Any one of the Certificates
designated on the face thereof as a Class A-3 Certificate, substantially in the
form annexed hereto as Exhibit A-3, authenticated and delivered by the Trustee,
representing the right to distributions as set forth herein.
"Class A-3 Certificate Principal Balance": As of any time of
determination, the Certificate Principal Balance as of the Startup Day of all
Class A-3 Certificates less any amounts actually distributed with respect to the
Class A-3 Distribution Amount pursuant to Section 7.03(c)(iii)(D)(3) hereof with
respect to principal thereon on all prior Payment Dates (except, for purposes of
effecting the Certificate Insurer's subrogation rights, that portion of Insured
Payments made in respect of principal).
"Class A-3 Certificate Termination Date": The Payment Date on which the
Class A-3 Certificate Principal Balance is reduced to zero.
"Class A-3 Current Interest": With respect to any Payment Date, the
amount of interest accrued on the Class A-3 Certificate Principal Balance
immediately prior to such Payment Date during the related Accrual Period at the
Class A-3 Pass-Through Rate plus the Preference Amount owed to the Owners of the
Class A-3 Certificates as it relates to interest previously paid on the Class
A-3 Certificates plus the interest portion of the Carry-Forward Amount, if any,
with respect to the Class A-3 Certificates.
"Class A-3 Distribution Amount": The sum of (x) Class A-3
Current Interest and (y) the Fixed Rate Group Principal Distribution Amount
payable to the Owners of the Class A-3 Certificates pursuant to Section
7.03(c)(iii)(D)(3) hereof.
"Class A-3 Pass-Through Rate": _____% per annum.
"Class A-4 Certificate": Any one of the Certificates
designated on the face thereof as a Class A-4 Certificate, substantially in the
form annexed hereto as Exhibit A-4, authenticated and delivered by the Trustee,
representing the right to distributions as set forth herein.
"Class A-4 Certificate Principal Balance": As of any time of
determination, the Certificate Principal Balance as of the Startup Day of all
Class A-4 Certificates less any amounts actually distributed with respect to the
Class A-4 Distribution Amount pursuant to Section 7.03(c)(iii)(D)(4) hereof with
respect to principal thereon on all prior Payment Dates (except, for purposes of
effecting the Certificate Insurer's subrogation rights, that portion of Insured
Payments made in respect of principal).
"Class A-4 Certificate Termination Date": The Payment Date on which the
Class A-4 Certificate Principal Balance is reduced to zero.
"Class A-4 Current Interest": With respect to any Payment
Date, the amount of interest accrued on the Class A-4 Certificate Principal
Balance immediately prior to such Payment Date during the related Accrual Period
at the Class A-4 Pass-Through Rate plus the Preference Amount owed to the Owners
of the Class A-4 Certificates as it relates to interest previously paid on the
Class A-4 Certificates plus the interest portion of the Carry-Forward Amount, if
any, with respect to the Class A-4 Certificates.
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"Class A-4 Distribution Amount": The sum of (x) Class A-4
Current Interest and (y) the Fixed Rate Group Principal Distribution Amount
payable to the Owners of the Class A-4 Certificates pursuant to Section
7.03(c)(iii)(D)(4) hereof.
"Class A-4 Pass-Through Rate": _____% per annum.
"Class A-5 Certificate": Any one of the Certificates
designated on the face thereof as a Class A-5 Certificate, substantially in the
form annexed hereto as Exhibit A-5, authenticated and delivered by the Trustee,
representing the right to distributions as set forth herein.
"Class A-5 Certificate Principal Balance": As of any time of
determination, the Certificate Principal Balance as of the Startup Day of all
Class A-5 Certificates less any amounts actually distributed with respect to the
Class A-5 Distribution Amount pursuant to Section 7.03(c)(iii)(D)(5) hereof with
respect to principal thereon on all prior Payment Dates (except, for purposes of
effecting the Certificate Insurer's subrogation rights, that portion of Insured
Payments made in respect of principal).
"Class A-5 Certificate Termination Date": The Payment Date on which the
Class A-5 Certificate Principal Balance is reduced to zero.
"Class A-5 Current Interest": With respect to any Payment
Date, the amount of interest accrued on the Class A-5 Certificate Principal
Balance immediately prior to such Payment Date during the related Accrual Period
at the Class A-5 Pass-Through Rate plus the Preference Amount owed to the Owners
of the Class A-5 Certificates as it relates to interest previously paid on the
Class A-5 Certificates plus the interest portion of the Carry-Forward Amount, if
any, with respect to the Class A-5 Certificates.
"Class A-5 Distribution Amount": The sum of (x) Class A-5
Current Interest and (y) the Fixed Rate Group Principal Distribution Amount
payable to the Owners of the Class A-5 Certificates pursuant to Section
7.03(c)(iii)(D)(5) hereof.
"Class A-5 Pass-Through Rate": _____% per annum.
"Class A-6 Available Funds Cap Rate": On any Payment Date on
or prior to the Payment Date in __________ 199_, the weighted average of the
Coupon Rates of the Home Equity Loans in the Adjustable Rate Group less the sum
of (x) the Expense Rate and (y) _____% and on any Payment Date thereafter, the
weighted average of the Coupon Rates of the Home Equity Loans in the Adjustable
Rate Group less the sum of (x) the Expense Rate and (y) _____% per annum.
"Class A-6 Certificate": Any one of the Certificates
designated on the face thereof as a Class A-6 Certificate, substantially in the
form annexed hereto as Exhibit A-6, authenticated and delivered by the Trustee,
representing the right to distributions as set forth herein.
"Class A-6 Certificate Principal Balance": As of any time of
determination, the Certificate Principal Balance as of the Startup Day of all
Class A-6 Certificates less any amounts actually distributed with respect to the
Class A-6 Distribution Amount pursuant to Section 7.03(c)(iii)(H) hereof with
respect to principal thereon on all prior Payment Dates (except, for purposes of
effecting the Certificate Insurer's subrogation rights, that portion of Insured
Payments made in respect of principal).
"Class A-6 Certificate Termination Date": The Payment Date on which the
Class A-6 Certificate Principal Balance is reduced to zero.
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"Class A-6 Current Interest": With respect to any Payment
Date, the amount of interest accrued on the Class A-6 Certificate Principal
Balance immediately prior to such Payment Date during the related Accrual Period
at the Class A-6 Pass-Through Rate plus the Preference Amount owed to the Owners
of the Class A-6 Certificates as it relates to interest previously paid on the
Class A-6 Certificates plus the interest portion of the Carry-Forward Amount, if
any, with respect to the Class A-6 Certificates.
"Class A-6 Distribution Amount": The sum of (x) Class A-6
Current Interest and (y) the Adjustable Rate Group Principal Distribution Amount
payable to the Owners of the Class A-6 Certificates pursuant to Section
7.03(c)(iii)(H) hereof.
"Class A-6 Pass-Through Rate": For any Payment Date, in any
month up to and including the month in which the Clean-Up Call Date occurs, the
lesser of (i) LIBOR plus _____% per annum and (ii) the Class A-6 Available Funds
Cap Rate for such Payment Date and for any month following the month in which
the Clean-Up Call Date occurs, the lesser of (i) LIBOR plus _____% per annum and
(ii) the Class A-6 Available Funds Cap Rate for such Payment Date.
"Class A-7IO Available Funds Cap Rate": As of any Payment
Date, the excess of (i) the weighted average Coupon Rate of the Home Equity
Loans in the Fixed Rate Group over (ii) the Fixed Rate Group Weighted Average
Pass-Through Rate plus the Expense Rate.
"Class A-7IO Carry-Forward Amount": With respect to any
Payment Date, the sum of (x) the amount, if any, by which (i) the Class A-7IO
Current Interest as of the immediately preceding Payment Date exceeds (ii) the
amount of the actual distribution made to Owners of the Class A-7IO Certificates
on such immediately preceding Payment Date and (y) 30 days' interest on such
amount at the Class A-7IO Pass-Through Rate.
"Class A-7IO Certificate": Any one of the Certificates
designated on the face thereof as a Class A-7IO Certificate, substantially in
the form annexed hereto as Exhibit A-7IO, authenticated and delivered by the
Trustee, representing the right to distributions as set forth herein.
"Class A-7IO Certificate Termination Date": The Payment Date on which
the Class A- 7IO Notional Principal Amount is reduced to zero.
"Class A-7IO Current Interest": With respect to any Payment
Date, the amount of interest accrued on the Class A-7IO Notional Principal
Amount immediately prior to such Payment Date during the related Accrual Period
at the Class A-7IO Pass-Through Rate plus the Preference Amount owed to the
Owners of the Class A-7IO Certificates as it relates to interest previously paid
on the Class A-7IO Certificates plus the Class A-7IO Carry-Forward Amount.
"Class A-7IO Notional Principal Amount": As of any date of
determination, the aggregate outstanding Certificate Principal Balance of the
Fixed Rate Group Certificates.
"Class A-7IO Pass-Through Rate: The lesser of (x) _____% per annum and
(y) the Class A-7IO Available Funds Cap Rate.
"Class A-8IO Carry Forward Amount": With respect to any
Payment Date, the sum of (x) the amount, if any, by which (i) the Class A-8IO
Current Interest as of the immediately preceding Payment Date exceeded (ii) the
amount of the actual distribution made to Owners of the Class A-8IO Certificates
on such immediately preceding Payment Date and (y) 30 days' interest on such
amount at the Class A-8IO Pass-Through Rate.
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"Class A-8IO Certificate": Any one of the Certificates
designated on the face thereof as a Class A-8IO Certificate, substantially in
the form annexed hereto as Exhibit A-8IO, authenticated and delivered by the
Trustee representing the right to distributions as set forth herein.
"Class A-8IO Certificate Termination Date": The Payment Date on which
the Class A- 8IO Notional Principal Amount is reduced to zero.
"Class A-8IO Current Interest": With respect to any Payment
Date, the amount of interest accrued on the Class A-8IO Notional Principal
Amount immediately prior to such Payment Date at the Class A-8IO Pass-Through
Rate plus the Preference Amount owed to the Owners of the Class A-8IO
Certificates as it relates to interest previously paid on the Class A-8IO
Certificates plus the Class A-8IO Carry-Forward Amount.
"Class A-8IO Notional Principal Amount": As of any time of
determination, the aggregate outstanding Class A-6 Certificate Principal
Balance.
"Class A-8IO Pass-Through Rate": _____% per annum.
"Class B-IO Certificate": Any one of the Certificates
designated on the face thereof as a Class B-IO Certificate, substantially in the
form annexed hereto as Exhibit B-IO, authenticated and delivered by the Trustee,
representing the right to distributions as set forth herein. The Class B-IO
Certificates represent a class of "regular interests" in the Upper-Tier REMIC.
"Class B-IO Distribution Amount": With respect to any Payment Date, the
sum of:
(a) the excess of (x) the interest payable at the Fixed Rate
Group Net Weighted Average Coupon Rate on the Class A-1
Certificate Principal Balance over (y) interest payable at the
Class A-1 Pass-Through Rate, plus _____% on the Class A-1
Certificate Principal Balance; and
(b) the excess of (x) the interest payable at the Fixed Rate
Group Net Weighted Average Coupon Rate on the Class A-2
Certificate Principal Balance over (y) the Class A-2 Pass-
Through Rate, subject to a cap of _____%; and
(c) the excess of (x) the interest payable at the Fixed Rate
Group Net Weighted Average Coupon Rate on the Class A-3
Certificate Principal Balance over (y) the Class A-3 Pass-
Through Rate, subject to a cap of _____%; and
(d) the excess of (x) the interest payable at the Fixed Rate
Group Net Weighted Average Coupon Rate on the Class A-4
Certificate Principal Balance over (y) the Class A-4 Pass-
Through Rate, subject to a cap of _____%; and
(e) the excess of (x) the interest payable at the Fixed Rate
Group Net Weighted Average Coupon Rate on the Class A-5
Certificate Principal Balance over (y) the Class A-5 Pass-
Through Rate, subject to a cap of _____%; and
(f) the excess of (x) the interest payable at the Adjustable
Rate Group Net Weighted Average Coupon Rate on Class A-6
Certificate Principal Balance over (y) the Class A-6
Pass-Through Rate, subject to a cap equal to the Class A-6
Available Funds Cap Rate.
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"Class R Certificate": Any one of the Certificates designated
on the face thereof as a Class R Certificate, substantially in the form annexed
hereto as Exhibit B, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein, and evidencing an interest
designated as the "residual interest" in the Lower-Tier REMIC for the purposes
of the REMIC Provisions.
"Clean-Up Call Date": The first Monthly Remittance Date on
which the aggregate Loan Balances of the Home Equity Loans has declined to
$__________ or less.
"Closing": As defined in Section 4.02 hereof.
"Code": The Internal Revenue Code of 1986, as amended.
"Compensating Interest": As defined in Section 8.10(a) hereof.
"Corporate Trust Office": The principal office of the Trustee
at ____________________, New York, New York _____.
"Coupon Rate": The rate of interest borne by each Note.
"Cumulative Realized Losses": As of any date of determination,
the aggregate amount of Realized Losses with respect to the Home Equity Loans
since the Cut-Off Date.
"Current Interest": With respect to any Payment Date, the sum
of the Class A-1 Current Interest, the Class A-2 Current Interest, the Class A-3
Current Interest, the Class A-4 Current Interest, the Class A-5 Current
Interest, the Class A-6 Current Interest, the Class A-7IO Current Interest and
the Class A-8IO Current Interest.
"Cut-Off Date": As of the close of business on __________ __,
199_.
"Daily Collections": As defined in Section 8.08(c) hereof.
"Date-of-Payment Loans": Any Home Equity Loan as to which,
pursuant to the Note relating thereto, interest is computed and charged to the
Mortgagor at the Coupon Rate on the outstanding principal balance of such Note
based on the number of days elapsed between receipt of the Mortgagor's last
payment through receipt of the Mortgagor's most current payment.
"Delinquency Advance": As defined in Section 8.09(a) hereof.
"Delinquent": A Home Equity Loan is "Delinquent" if any
payment due thereon is not made by the close of business on the day such payment
is scheduled to be due. A Home Equity Loan is "30 days Delinquent" if such
payment has not been received by the close of business on the corresponding day
of the month immediately succeeding the month in which such payment was due, or,
if there is no such corresponding day (e.g., as when a 30-day month follows a
31-day month in which a payment was due on the 31st day of such month) then on
the last day of such immediately succeeding month. Similarly for "60 days
Delinquent," "90 days Delinquent" and so on.
"Delivery Order": Each delivery order in the form set forth as
Exhibit G hereto and delivered by each Seller to the Trustee on the Startup Day
pursuant to Section 4.01 hereof.
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"Depositor": ContiSecurities Asset Funding Corp., a Delaware
corporation, or any successor thereto.
"Depository": The Depository Trust Company, 7 Hanover Square,
New York, New York 10004, and any successor Depository hereafter named.
"Designated Depository Institution": With respect to the
Principal and Interest Account, a trust account maintained by the trust
department of a federal or state chartered depository institution acceptable to
the Certificate Insurer, acting in its fiduciary capacity, having combined
capital and surplus of at least $50,000,000; provided, however, that if the
Principal and Interest Account is not maintained with the Trustee, (i) such
institution shall have a long-term debt rating of at least "A" by Standard &
Poor's and "A2" by Moody's and (ii) if such Principal and Interest Account is
moved to a new institution, the Servicer shall provide the Trustee, the
Certificate Insurer and the Owners with a statement identifying the location of
the Principal and Interest Account.
"Determination Date": As to each Payment Date, the third
Business Day next preceding such Payment Date.
"Direct Participant" or "DTC Participant": Any broker-dealer,
bank or other financial institution for which the Depository holds Class A
Certificates from time to time as a securities depository.
"Disqualified Organization": Shall have the meaning set forth
from time to time in the definition thereof at Section 860E(e)(5) of the Code
(or any successor statute thereto) and applicable to the Trust.
"Eligible Investments": Those investments so designated
pursuant to Section 7.07 hereof.
"Excess Subordinated Amount": With respect to any Home Equity
Loan Group and Payment Date, the excess, if any, of (x) the Subordinated Amount
that would apply to the related Home Equity Loan Group on such Payment Date
after taking into account the payment of the related Class A Distribution
Amounts on such Payment Date (except for any distributions of related
Subordination Reduction Amounts on such Payment Date), over (y) the related
Specified Subordinated Amount for such Payment Date.
"Expense Rate": For any Payment Date, the sum of the rates at
which the Servicing Fee, the Premium Amount and the Trustee Fee are calculated.
"FDIC": The Federal Deposit Insurance Corporation, a corporate
instrumentality of the United States, or any successor thereto.
"FHLMC": The Federal Home Loan Mortgage Corporation, a
corporate instrumentality of the United States created pursuant to the Emergency
Home Finance Act of 1970, as amended, or any successor thereof.
"File": The documents delivered to the Trustee pursuant to
Section 3.05 hereof pertaining to a particular Home Equity Loan and any
additional documents required to be added to the File pursuant to this
Agreement.
"Final Determination": As defined in Section 9.03(a) hereof.
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"Final Scheduled Payment Date": For each Class of Class A
Certificates, as set out in Section 2.08(k).
"First Mortgage Loan": A Home Equity Loan which constitutes a
first priority mortgage lien with respect to the related Property.
"Fiscal Agent": ______________________________, as Fiscal
Agent for the Certificate Insurer under the Certificate Insurance Policies or
any successor fiscal agent appointed by the Certificate Insurer.
"Fitch": Fitch Investors Service, L.P.
"Fixed Rate Group": The pool of Home Equity Loans identified
in the related Schedule of Home Equity Loans as having been assigned to the
Fixed Rate Group in Schedule I-A hereto, including any Qualified Replacement
Mortgages delivered in replacement thereof.
"Fixed Rate Group Available Funds": As defined in Section
7.02(c) hereof.
"Fixed Rate Group Available Funds Shortfall": As defined in
Section 7.03(c)(i)(A) hereof.
"Fixed Rate Group Certificate Insurance Policy": The
certificate guaranty insurance policy (number _____) dated __________ __, 199_
issued by the Certificate Insurer for the benefit of the owners of the Fixed
Rate Group Certificates and the Class A-7IO Certificate pursuant to which the
Certificate Insurer guarantees Insured Payments.
"Fixed Rate Group Certificates": Collectively, the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the Class
A-4 Certificates, the Class A-5 Certificates and the Class A-6 Certificates.
"Fixed Rate Group Initial Specified Subordinated Amount": As
defined in the Insurance Agreement.
"Fixed Rate Group Interest Remittance Amount": As of any
Monthly Remittance Date, the sum, without duplication, of (i) all interest due
during the related Remittance Period with respect to the Home Equity Loans in
the Fixed Rate Group (less the Servicing Fee with respect to such Home Equity
Loans), (ii) all Compensating Interest paid by the Servicer on such Monthly
Remittance Date with respect to the Fixed Rate Group and (iii) the portion of
the Substitution Amount relating to interest on the Home Equity Loans in the
Fixed Rate Group.
"Fixed Rate Group Monthly Remittance Amount": As of any
Monthly Remittance Date, the sum of (i) the Fixed Rate Group Interest Remittance
Amount and (ii) the Fixed Rate Group Principal Remittance Amount for such
Monthly Remittance Date.
"Fixed Rate Group Net Weighted Average Coupon Rate": With
respect to any Payment Date, the weighted average of the Coupon Rates of the
Home Equity Loans in the Fixed Rate Group (weighted by the Loan Balances of such
Home Equity Loans), less the Expense Rate.
"Fixed Rate Group Principal Distribution Amount": With respect
to the Fixed Rate Group Certificates for any Payment Date, the lesser of:
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(a) the Fixed Rate Group Total Available Funds plus any Insured Payment
with respect to the Fixed Rate Group Certificates minus the Current Interest
with respect to the Fixed Rate Group Certificates and the Class A-7IO
Certificates; and
(b) the excess, if any, of (i) the sum of:
(A) the Preference Amount owed to the Owners of the
Fixed Rate Group Certificates as such amounts relate to
principal previously distributed on the Fixed Rate Group
Certificates,
(B) the principal actually collected by the Servicer
with respect to Home Equity Loans in the Fixed Rate Group
during the related Remittance Period,
(C) the Loan Balance of each Home Equity Loan in the
Fixed Rate Group that was repurchased by either 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 delivered by either
Seller on the related Monthly Remittance Date in connection
with a substitution of a Home Equity Loan in the Fixed Rate
Group (to the extent such Substitution Amounts relate to
principal), 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 Home Equity Loans in the Fixed
Rate Group during the related Remittance Period (to the extent
such Net Liquidation Proceeds relate 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 Fixed Rate Group for such Payment Date,
(G) the portion of the proceeds received by the
Trustee with respect to the Fixed Rate Group from any
termination of the Trust (to the extent such proceeds related
to principal),
(H) the amount of any Subordination Increase Amount
with respect to the Fixed Rate Group for such Payment Date, to
the extent of any Net Monthly Excess Cashflow available for
such purpose; and
(I) the portion of any Carry-Forward Amount relating
to principal with respect to the Fixed Rate Group for such
Payment Date,
over
----
(ii) the amount of any Subordination Reduction Amount with
respect to the Fixed Rate Group for such Payment Date.
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"Fixed Rate Group Principal Remittance Amount": As of any Monthly
Remittance Date, the sum, without duplication, of (i) the principal actually
collected by the Servicer with respect to Home Equity Loans in the Fixed Rate
Group during the related Remittance Period, (ii) the Loan Balance of each Home
Equity Loan in the Fixed Rate Group that was purchased from the Trustee on or
prior to such Monthly Remittance Date, to the extent such Loan Balance was
actually deposited in the Principal and Interest Account, (iii) any Substitution
Amounts relating to principal delivered by the Seller in connection with a
substitution of a Home Equity Loan in the Fixed Rate Group, to the extent such
Substitution Amounts were actually deposited in the Principal and Interest
Account on or prior to such Monthly Remittance Date, and (iv) all Net
Liquidation Proceeds actually collected by the Servicer with respect to the Home
Equity Loans in the Fixed Rate Group during the related Remittance Period (to
the extent such Net Liquidation Proceeds related to principal).
"Fixed Rate Group Specified Subordinated Amount": As defined in the
Insurance Agreement.
"Fixed Rate Group Subordinated Amount": As of any Payment Date, the
excess, if any, of (x) the aggregate Loan Balances of the Home Equity Loans in
the Fixed Rate Group as of the close of business on the last day of the related
Remittance Period over (y) the Certificate Principal Balance of the Fixed Rate
Group Certificates as of such Payment Date (after taking into account the
payment of the Fixed Rate Group Principal Distribution Amount thereon (except
for any Subordination Deficit with respect to the Fixed Rate Group and
Subordination Increase Amount with respect to the Fixed Rate Group) on such
Payment Date).
"Fixed Rate Group Total Available Funds": As defined in Section 7.02(c)
hereof.
"Fixed Rate Group Total Monthly Excess Spread": With respect to the
Fixed Rate Group and any Payment Date, the excess, if any, of (i) the sum of (x)
the interest which is collected on the Home Equity Loans in such Group during
the related Remittance Period less the Servicing Fee with respect to Home Equity
Loans in the Fixed Rate Group, (y) any Delinquency Advances and (z) Compensating
Interest paid by the Servicer with respect to the Fixed Rate Group for such
Remittance Period over (ii) the sum of the interest due on the Fixed Rate Group
Certificates and the Class A-7IO Certificates on such Payment Date.
"Fixed Rate Group Weighted Average Pass-Through Rate": As to the Fixed
Rate Group Certificates and any Payment Date, the weighted average of the Class
A-1 Pass-Through Rate, the Class A-2 Pass-Through Rate, the Class A-3
Pass-Through Rate, the Class A-4 Pass-Through Rate and the Class A-5
Pass-Through Rate weighted by the respective Certificate Principal Balance of
the related Class as of such Payment Date before taking into account any
distributions to be made on such Payment Date.
"FNMA": The Federal National Mortgage Association, a
federally-chartered and privately-owned corporation existing under the Federal
National Mortgage Association Charter Act, as amended, or any successor thereof.
"FNMA Guide": FNMA's Servicing Guide, as the same may be amended by
FNMA from time to time, and the Servicer shall elect to apply such amendments in
accordance with Section 8.01 hereof.
"Highest Lawful Rate": As defined in Section 11.13.
"Home Equity Loan Group" or "Group": The Fixed Rate Group or the
Adjustable Rate Group, as the case may be. References herein to the related
Class(es) of Class A Certificates, when used with respect to a Home Equity Loan
Group, shall mean (A) in the case of the Fixed Rate Group, the Fixed
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Rate Group Certificates and the Class A-7IO Certificates and (B) in the case of
the Adjustable Rate Group, the Class A-6 Certificates and the Class A-8IO
Certificates.
"Home Equity Loans": Such of the home equity loans transferred and
assigned to the Trust pursuant to Section 3.05(a) hereof, together with any
Qualified Replacement Mortgages substituted therefor in accordance with this
Agreement, as from time to time are held as a part of the Trust Estate, the Home
Equity Loans originally so held being identified in the Schedules of Home Equity
Loans. The term "Home Equity Loan" includes the terms "First Mortgage Loan" and
"Second Mortgage Loan". The term "Home Equity Loan" includes any Home Equity
Loan which is Delinquent, which relates to a foreclosure or which relates to a
Property which is REO Property prior to such Property's disposition by the
Trust. Any home equity loan which, although intended by the parties hereto to
have been, and which purportedly was, transferred and assigned to the Trust by
the Depositor, in fact was not transferred and assigned to the Trust for any
reason whatsoever, including, without limitation, the incorrectness of the
statement set forth in Section 3.04(b)(x) hereof with respect to such home
equity loan, shall nevertheless be considered a "Home Equity Loan" for all
purposes of this Agreement.
"Indemnification Agreement": The Indemnification Agreement dated as of
__________ __, 199_ among the Certificate Insurer, the Depositor and the
Underwriters.
"Indirect Participant": Any financial institution for whom any Direct
Participant holds an interest in a Class A Certificate.
"Insurance Agreement": The Insurance Agreement dated as of __________
__, 199_, among the Depositor, the Sellers, the Servicer, the Certificate
Insurer and the Trustee, as it may be amended from time to time.
"Insurance Policy": Any hazard, flood, title or primary mortgage
insurance policy relating to a Home Equity Loan plus any amount remitted under
Section 8.11 hereof.
"Insured Payment": With respect to either Home Equity Loan Group and as
to any Payment Date, without duplication, (A) the excess, if any, of (i) the sum
of the related Current Interest and the then existing related Subordination
Deficit for the related Home Equity Loan Group, if any, over (ii) the Total
Available Funds with respect to such Group (net of the Premium Amount allocable
to such Group) after taking into account (x) the portion of any Fixed Rate Group
Principal Distribution Amount or Adjustable Rate Group Principal Distribution
Amount, as the case may be, to be actually distributed on such Payment Date
without regard to any related Insured Payment to be made with respect to such
Payment Date and (y) the crosscollateralization provisions of Sections
7.03(c)(i)(A) and (B) and 7.03(c)(ii)(A) and (B) hereof plus (B) an amount equal
to the Preference Amount with respect to the related Class of Class A
Certificates.
"Interest Remittance Amount": The sum of the Fixed Rate Group Interest
Remittance Amount and the Adjustable Rate Group Interest Remittance Amount.
"Late Payment Rate": For any Payment Date, the fluctuating rate of
interest, as it is published from time to time in the New York, New York edition
of The Wall Street Journal under the caption "Money Rates" as the "prime rate,"
to change when and as such published prime rate changes plus 2%. The Late
Payment Rate shall be computed on the basis of a year of 360 days calculating
the actual number of days elapsed. In no event shall the Late Payment Rate
exceed the maximum rate permissible under any applicable law limiting interest
rates.
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"LIBOR": With respect to any Accrual Period for the Class A-6
Certificates, the rate determined by the Trustee on the related LIBOR
Determination Date on the basis of the offered rate for one-month U.S. dollar
deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on such date; provided that if such rate does not appear on Telerate Page
3750, the rate for such date will be determined on the basis of the rates at
which one-month U.S. dollar deposits are offered by the Reference Banks at
approximately 11:00 a.m. (London time) on such date to prime banks in the London
interbank market. In such event, 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 date will be the
arithmetic mean of the quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16%). If fewer than two quotations are provided as
requested, the rate for that date 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 such date for one-month U.S.
dollar loan to leading European banks.
"LIBOR Determination Date": With respect to any Accrual Period for the
Class A-6 Certificates, the second London Business Day preceding the
commencement of such Accrual Period.
"Liquidated Loan": As defined in Section 8.13(b) hereof.
"Liquidation Expenses": Expenses, not to exceed Liquidation Proceeds,
which are incurred by the Servicer in connection with the liquidation of any
defaulted Home Equity Loan, such expenses including, without limitation, legal
fees and expenses, and any unreimbursed Servicing Advances expended by the
Servicer pursuant to Section 8.09(b) with respect to the related Home Equity
Loan.
"Liquidation Proceeds": With respect to any Liquidated Loan, any
amounts (including the proceeds of any Insurance Policy) recovered by the
Servicer in connection with such Liquidated Loan, whether through trustee's
sale, foreclosure sale or otherwise.
"Loan Balance": With respect to each Home Equity Loan and as of any
date of determination, the outstanding principal balance thereof on the Cut-Off
Date, less any principal payments relating to such Home Equity Loan included in
previous Monthly Remittance Amounts, provided, however, that the Loan Balance
for any Home Equity Loan that has become a Liquidated Loan shall be zero as of
the first day of the Remittance Period following the Remittance Period in which
such Home Equity Loan becomes a Liquidated Loan, and at all times thereafter.
"Loan Purchase Price": With respect to any Home Equity Loan purchased
from the Trust on a Monthly Remittance Date pursuant to Section 3.03, 3.04,
3.06(b), 8.10(b) or 8.13(a) hereof, an amount equal to the Loan Balance of such
Home Equity Loan as of the date of purchase (assuming that the Monthly
Remittance Amount remitted by the Servicer on such Monthly Remittance Date has
already been remitted), plus one month's interest on the outstanding Loan
Balance thereof as of the beginning of the related Remittance Period computed at
the then applicable Coupon Rate, together with (without duplication) the
aggregate amounts of (i) all unreimbursed Delinquency Advances and Servicing
Advances theretofore made with respect to such Home Equity Loan, (ii) all
Delinquency Advances and Servicing Advances which the Servicer has theretofore
failed to remit with respect to such Home Equity Loan and (iii) 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.
"Loan-to-Value Ratio": As of any particular date (i) with respect to
any First Mortgage Loan, the percentage obtained by dividing the Appraised Value
into the original principal balance of the Note relating to such First Mortgage
Loan and (ii) with respect to any Second Mortgage Loan, the percentage
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obtained by dividing the Appraised Value as of the date of origination of such
Second Mortgage Loan into an amount equal to the sum of (a) the remaining
principal balance of the Senior Lien note relating to such First Mortgage Loan
as of the date of origination of the related Second Mortgage Loan and (b) the
original principal balance of the Note relating to such Second Mortgage Loan.
"London Business Day": Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
"Lower-Tier A-1 Monthly Interest": With respect to any Payment Date,
the amount of interest accrued on the Lower-Tier Balance of the Lower-Tier
Interest A-1 immediately prior to such Payment Date during the related Accrual
Period at the Lower-Tier A-1 Pass-Through Rate.
"Lower-Tier A-1 Pass-Through Rate": For any Payment Date, the Fixed
Rate Group Net Weighted Average Coupon Rate.
"Lower-Tier A-2 Monthly Interest": With respect to any Payment Date,
the amount of interest accrued on the Lower-Tier Balance of the Lower-Tier
Interest A-2 immediately prior to such Payment Date during the related Accrual
Period at the Lower-Tier A-2 Pass-Through Rate.
"Lower-Tier A-2 Pass-Through Rate": For any Payment Date, the Fixed
Rate Group Net Weighted Average Coupon Rate.
"Lower-Tier A-3 Monthly Interest": With respect to any Payment Date,
the amount of interest accrued on the Lower-Tier Balance of the Lower-Tier
Interest A-3 immediately prior to such Payment Date during the related Accrual
Period at the Lower-Tier A-3 Pass-Through Rate.
"Lower-Tier A-3 Pass-Through Rate": For any Payment Date, the Fixed
Rate Group Net Weighted Average Coupon Rate.
"Lower-Tier A-4 Monthly Interest": With respect to any Payment Date,
the amount of interest accrued on the Lower-Tier Balance of the Lower-Tier
Interest A-4 immediately prior to such Payment Date during the related Accrual
Period at the Lower-Tier A-4 Pass-Through Rate.
"Lower-Tier A-4 Pass-Through Rate": For any Payment Date, the Fixed
Rate Group Net Weighted Average Coupon Rate.
"Lower-Tier A-5 Monthly Interest": With respect to any Payment Date,
the amount of interest accrued on the Lower-Tier Balance of the Lower-Tier
Interest A-5 immediately prior to such Payment Date during the related Accrual
Period at the Lower-Tier A-5 Pass-Through Rate.
"Lower-Tier A-5 Pass-Through Rate": For any Payment Date, the Fixed
Rate Group Net Weighted Average Coupon Rate.
"Lower-Tier A-6 Monthly Interest": With respect to any Payment Date,
the amount of interest accrued on the Lower-Tier Balance of the Lower-Tier
Interest A-6 immediately prior to such Payment Date during the related Accrual
Period at the Lower-Tier A-6 Pass-Through Rate.
"Lower-Tier A-6 Pass-Through Rate": For any Payment Date, the
Adjustable Rate Group Net Weighted Average Coupon Rate.
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"Lower-Tier Adjustable Rate Group Distribution Amount": With respect to
any Payment Date, the sum of the Lower-Tier A-6 Monthly Interest and the
Adjustable Rate Group Principal Distribution Amount, as a distribution on the
Lower-Tier Interest A-6 until the Lower-Tier Interest A-6 Termination Date;
provided that Insured Payments shall be deemed to be paid in respect of the
Lower-Tier Interests to the extent such Insured Payments relate to Class A-6
Certificates.
"Lower-Tier Balance": As to each Class of Lower-Tier Interests and any
Payment Date, the Initial Lower-Tier Balance as set forth in Section 2.08(a)
minus all amounts distributed as principal of such Class on previous Payments
Dates pursuant to Section 7.03(c)(iii)(D) and (H).
"Lower-Tier Fixed Rate Group Distribution Amount": With respect to any
Payment Date, the sum of the Lower-Tier A-1 Monthly Interest, the Lower-Tier A-2
Monthly Interest, the Lower-Tier A-3 Monthly Interest, the Lower-Tier A-4
Monthly Interest, the Lower-Tier A-5 Monthly Interest, the Lower- Tier A-6
Monthly Interest and the Fixed Rate Group Principal Distribution Amount, which
such Fixed Rate Group Principal Distribution Amount is allocated as follows: as
a distribution on the Lower-Tier Interest A-1 until the Lower-Tier Interest A-1
Termination Date, the Class A-1 Distribution Amount; as a distribution on the
Lower-Tier Interest A-2 until the Lower-Tier Interest A-2 Termination Date, the
Class A-2 Distribution Amount; as a distribution on the Lower-Tier Interest A-3
until the Lower-Tier Interest A-3 Termination Date, the Class A-3 Distribution
Amount; as a distribution on the Lower-Tier Interest A-4 until the Lower-Tier
Interest A-4 Termination Date, the Class A-4 Distribution Amount; as a
distribution on the Lower-Tier Interest A-5 until the Lower-Tier Interest A-5
Termination Date, the Class A-5 Distribution Amount; provided, that Insured
Payments shall be deemed to be paid in respect of the Lower-Tier Interests to
the extent such Insured Payments relate to the related Class A Certificates.
"Lower-Tier Interest A-1": The interest of that name established
pursuant to Section 2.08(a) hereof.
"Lower-Tier Interest A-2": The interest of that name established
pursuant to Section 2.08(a) hereof.
"Lower-Tier Interest A-3": The interest of that name established
pursuant to Section 2.08(a) hereof.
"Lower-Tier Interest A-4": The interest of that name established
pursuant to Section 2.08(a) hereof.
"Lower-Tier Interest A-5": The interest of that name established
pursuant to Section 2.08(a) hereof.
"Lower-Tier Interest A-6": The interest of that name established
pursuant to Section 2.08(a) hereof.
"Lower-Tier Interest A-1 Termination Date": The Payment Date on which
the Lower-Tier Balance of Lower-Tier Interest A-1 is reduced to zero through the
distribution made in respect of Lower- Tier Interest A-1 on such Payment Date.
"Lower-Tier Interest A-2 Termination Date": The Payment Date on which
the Lower-Tier Balance of Lower-Tier Interest A-2 is reduced to zero through the
distribution made in respect of Lower- Tier Interest A-2 on such Payment Date.
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"Lower-Tier Interest A-3 Termination Date": The Payment Date on which
the Lower-Tier Balance of Lower-Tier Interest A-3 is reduced to zero through the
distribution made in respect of Lower- Tier Interest A-3 on such Payment Date.
"Lower-Tier Interest A-4 Termination Date": The Payment Date on which
the Lower-Tier Balance of Lower-Tier Interest A-4 is reduced to zero through the
distribution made in respect of Lower- Tier Interest A-4 on such Payment Date.
"Lower-Tier Interest A-5 Termination Date": The Payment Date on which
the Lower-Tier Balance of Lower-Tier Interest A-5 is reduced to zero through the
distribution made in respect of Lower- Tier Interest A-5 on such Payment Date.
"Lower-Tier Interest A-6 Termination Date": The Payment Date on which
the Lower-Tier Balance of Lower-Tier Interest A-6 is reduced to zero through the
distribution made in respect of Lower- Tier Interest A-6 on such Payment Date.
"Lower-Tier Pass-Through Rate": As to each of the respective Lower-Tier
Interests, the applicable "Lower-Tier Pass-Through Rate" set forth in Section
2.08 hereof.
"Lower-Tier REMIC": The segregated pool of assets referred to as the
Trust Estate, other than the Upper-Tier Fixed Rate Group Distribution Account
and the Upper-Tier Adjustable Rate Group Distribution Account which are assets
of the Upper-Tier REMIC.
"Monthly Remittance Amount": The sum of the Fixed Rate Group Monthly
Remittance Amount and the Adjustable Rate Group Monthly Remittance Amount.
"Monthly Remittance Date": The 10th day of each month or, if such day
is not a Business Day, the Business Day succeeding such day, commencing in the
month following the Startup Day.
"Moody's": Moody's Investors Service, Inc.
"Mortgage": The mortgage, deed of trust or other instrument creating a
first or second lien on an estate in fee simple interest in real property
securing a Note.
"Mortgagor": The obligor on a Note.
"Net Liquidation Proceeds": As to any Liquidated Loan, Liquidation
Proceeds net of Liquidation Expenses and unreimbursed Delinquency Advances
relating to such Home Equity Loan. In no event shall Net Liquidation Proceeds
with respect to any Liquidated Loan be less than zero.
"Net Monthly Excess Cashflow": As defined in Section 7.03(c)(ii)
hereof.
"Note": The note or other evidence of indebtedness evidencing the
indebtedness of a Mortgagor under a Home Equity Loan.
"Notional Principal Amount": As of the Startup Day, as to the Class
A-7IO Certificates, $__________ and as to the Class A-8IO Certificates,
$__________.
"Officer's Certificate": A certificate signed by any Authorized Officer
of any Person delivering such certificate and delivered to the Trustee.
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"Operative Documents": Collectively, this Agreement, the Certificate
Insurance Policies, the Certificates, the Indemnification Agreement and the
Insurance Agreement.
"Original Aggregate Loan Balance": The aggregate Loan Balances
of all Home Equity Loans as of the Cut-Off Date, i.e., $__________.
"Outstanding": With respect to all Certificates of a Class, as of any
date of determination, all such Certificates theretofore executed and delivered
hereunder except:
(i) Certificates theretofore cancelled by the Registrar or
delivered to the Registrar for cancellation;
(ii) Certificates or portions thereof for which full and final
payment of money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent in trust for the Owners of such
Certificates;
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to this
Agreement, unless proof satisfactory to the Trustee is presented that
any such Certificates are held by a bona fide purchaser;
(iv) Certificates alleged to have been destroyed, lost or
stolen for which replacement Certificates have been issued as provided
for in Section 5.05 hereof; and
(v) Certificates as to which the Trustee has made the final
distribution thereon, whether or not such Certificate is ever returned
to the Trustee.
"Owner": The Person in whose name a Certificate is registered in the
Register, and the Certificate Insurer, to the extent described in Section 5.06
and Section 7.03(g) hereof, respectively; provided that solely for the purposes
of determining the exercise of any voting rights hereunder, if Class A
Certificates are beneficially owned by a Seller or any affiliate thereof, such
Seller or such affiliate shall not be considered an Owner hereunder.
"Paying Agent": Initially, the Trustee, and thereafter, the Trustee or
any other Person that meets the eligibility standards for the Paying Agent
specified in Section 11.15 hereof and is authorized by the Trustee and the
Depositor to make payments on the Certificates on behalf of the Trustee.
"Payment Date": Any date on which the Trustee is required to make
distributions to the Owners, which shall be the 15th day of each month or if
such day is not a Business Day, the next Business Day thereafter, commencing in
the month following the Startup Day.
"Percentage Interest": With respect to a Class of the Class A
Certificates (other than the Class A-IO Certificates) a fraction, expressed as a
percentage, the numerator of which is the initial Class A Certificate Principal
Balance represented by such Class A Certificate and the denominator of which is
the aggregate initial Class A Certificate Principal Balance represented by all
the Class A Certificates in such Class. With respect to a Class of the Class
A-IO Certificates a fraction, expressed as a percentage, the numerator of which
is the initial Notional Principal Amount represented by such Class A-IO
Certificate and the denominator of which is the aggregate initial Notional
Principal Amount represented by all of the Class A-IO Certificates of such
Class. With respect to a Class B-IO Certificate or a Class R Certificate, the
portion of the Class evidenced thereby, expressed as a percentage, as stated on
the face of such Certificate, all of which shall total 100% with respect to the
related Class.
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"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Preference Amount": With respect to the Class A Certificates, any
amounts of Current Interest and principal included in previous distributions of
any Class A Distribution Amounts to the Owners of the Class A Certificates which
are recovered from such Owners as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code in accordance with a
final, nonappealable order of a court having competent jurisdiction and which
have not theretofore been repaid to such Owners and for which there has been
full compliance with the provisions of Section 7.11 (including the receipt of
payment therefor from the Certificate Insurer).
"Premium Amount": As defined in the Insurance Agreement.
"Prepaid Installment": With respect to any Home Equity Loan, any
installment of principal thereof and interest thereon received by the Servicer
prior to the scheduled due date for such installment, intended by the Mortgagor
as an early payment thereof and not as a Prepayment with respect to such Home
Equity Loan.
"Prepayment": Any payment of principal of a Home Equity Loan which is
received by the Servicer in advance of the scheduled due date for the payment of
such principal (other than the principal portion of any Prepaid Installment),
Substitution Amounts, the portion of the purchase price of any Home Equity Loan
purchased from the Trust pursuant to Section 3.03, 3.04, 3.06(b), 8.10(b) or
8.13(a) hereof representing principal and the proceeds of any Insurance Policy
which are to be applied as a payment of principal on the related Home Equity
Loan shall be deemed to be Prepayments for all purposes of this Agreement.
"Preservation Expenses": Expenditures made by the Servicer 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.
"Principal and Interest Account": The principal and interest account
created by the Servicer pursuant to Section 8.08(a) hereof.
"Principal Remittance Amount": The sum of the Fixed Rate Group
Principal Remittance Amount and the Adjustable Rate Group Principal Remittance
Amount.
"Prohibited Transaction": The meaning set forth from time to time in
the definition thereof at Section 860F(a)(2) of the Code (or any successor
statute thereto) and applicable to the Trust.
"Property": The underlying property (including all building thereon)
securing a Home Equity Loan.
"Prospectus": The Prospectus dated __________ __, 199_ constituting
part of the Registration Statement.
"Prospectus Supplement": The ____________________ Home Equity Loan
Trust 199_-_ Prospectus Supplement dated __________ __, 199_ to the Prospectus.
"Purchase Option Period": As defined in Section 9.03(a) hereof.
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"Qualified Liquidation": The meaning set forth from time to time in the
definition thereof at Section 860F(a)(4) of the Code (or any successor statute
thereto) and applicable to the Trust.
"Qualified Mortgage": The meaning set forth from time to time in the
definition thereof at Section 860G(a)(3) of the Code (or any successor statute
thereto) and applicable to the Trust.
"Qualified Replacement Mortgage": A Home Equity Loan substituted for
another pursuant to Section 3.03, 3.04 or 3.06(b) hereof, which (i) has a Coupon
Rate at least equal to the Coupon Rate of the Home Equity Loan being replaced,
(ii) is of the same property type or is a single family dwelling and the same
occupancy status or is a primary residence as the replaced Home Equity Loan,
(iii) shall mature no later than __________ __, 199_, (iv) has a Loan-to-Value
Ratio as of the Replacement Cut-Off Date no higher than the Loan-to-Value Ratio
of the replaced Home Equity Loan at such time, (v) shall be of the same or
higher credit quality classification (determined in accordance with
____________________ credit underwriting guidelines set forth in
____________________ underwriting manual) as the Home Equity Loan which such
Qualified Replacement Mortgage replaces, (vi) has a Loan Balance as of the
related Replacement Cut-Off Date equal to or less than the Loan Balance of the
replaced Home Equity Loan as of such Replacement Cut-Off Date, (vii) shall not
provide for a "balloon" payment if the related Home Equity Loan did not provide
for a "balloon" payment (and if such related Home Equity Loan provided for a
"balloon" payment, such Qualified Replacement Mortgage shall have an original
maturity of not less than the original maturity of such related Home Equity
Loan), (viii) shall be a fixed rate Home Equity Loan if the Home Equity Loan
being replaced is in the Fixed Rate Group and shall be a first lien adjustable
rate Home Equity Loan if the Home Equity Loan being replaced is in the
Adjustable Rate Group and (ix) satisfies the criteria set forth from time to
time in the definition thereof at Section 860G(a)(3) of the Code (or any
successor statute thereto) and applicable to the Trust.
"Rating Agencies": Collectively, Moody's, Standard & Poor's and Fitch
or any successors thereto.
"Realized Loss": As to any Liquidated Loan, the amount, if any, by
which the Loan Balance thereof as of the date of liquidation is in excess of Net
Liquidation Proceeds realized thereon applied in reduction of such Loan Balance.
"Record Date": With respect to the Fixed Rate Group Certificates and
Class A-IO Certificates and each Payment Date, the last day of the calendar
month immediately preceding the calendar month in which such Payment Date occurs
and with respect to the Class A-10 Certificates, the day immediately preceding
such Payment Date.
"Reference Banks": Bankers Trust Company, Barclays Bank PLC, The Bank
of Tokyo and National Westminster Bank PLC, provided that if any of the
foregoing banks are not suitable to serve as a Reference Bank, then any leading
banks selected by the Trustee which are engaged in transactions in Eurodollar
deposits in the international Eurocurrency market (i) with an established place
of business in London, (ii) not controlling, under the control of or under
common control with either Seller or any affiliate thereof, (iii) whose
quotations appear on Telerate Page 3750 on the relevant LIBOR Determination Date
and (iv) which have been designated as such by the Trustee.
"Register": The register maintained by the Registrar in accordance with
Section 5.04 hereof, in which the names of the Owners are set forth.
"Registrar": The Trustee, acting in its capacity as Registrar appointed
pursuant to Section 5.04 hereof, or any duly appointed and eligible successor
thereto.
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"Registration Statement": The Registration Statement filed by the
Depositor with the Securities and Exchange Commission (Registration Number
__________), including all amendments thereto and including the Prospectus
relating to the Class A Certificates constituting a part thereof.
"Reimbursement Amount": As of any Payment Date, the sum of (x)(i) all
Insured Payments previously paid to the Trustee by the Certificate Insurer and
not previously repaid to the Certificate Insurer pursuant to Section
7.03(c)(i)(C) and (D) hereof plus (ii) interest accrued on each such Insured
Payment not previously repaid calculated at the Reimbursement Late Payment Rate
and (y)(i) any amounts then due and owing to the Certificate Insurer under the
Insurance Agreement plus (ii) interest on such amounts at the Late Payment Rate.
The Certificate Insurer shall notify the Trustee, the Depositor and the Seller
of the amount of any Reimbursement Amount.
"Reimbursement Late Payment Rate": Means for any Payment Date, the rate
of interest as it is publicly announced by Citibank, N.A. at its principal
office in New York, New York as its prime rate (any change in such prime rate of
interest to be effective on the date such change is announced by Citibank, N.A.)
plus 2%. The Late Payment Rate shall be computed on the basis of a year of 365
days elapsed. In no event shall the Late Payment Rate exceed the maximum rate
permissible under any applicable law limiting interest rates.
"REMIC": A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
"REMIC Opinion": As defined in Section 3.03 hereof.
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations and revenue rulings promulgated thereunder, as the foregoing may
be in effect from time to time.
"Remittance Period": The calendar month immediately preceding the month
in which a Monthly Remittance Date occurs; provided that the initial Remittance
Period shall be the period from __________ __, 199_ through __________ __, 199_.
"REO Property": A Property acquired by the Servicer on behalf of the
Trust through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Home Equity Loan.
"Replacement Cut-Off Date": With respect to any Qualified Replacement
Mortgage, the first day of the calendar month in which such Qualified
Replacement Mortgage is conveyed to the Trust.
"Representation Letter": Letters to, or agreements with, the Depository
to effectuate a book entry system with respect to the Class A Certificates
registered in the Register under the nominee name of the Depository.
"Residual Net Monthly Excess Cashflow": With respect to any Payment
Date, the aggregate Net Monthly Excess Cashflow, if any, remaining after the
making of all applications, transfers and disbursements described in Sections
7.03(c)(i), 7.03(c)(ii), 7.03(c)(iii) and 7.03(c)(iv) hereof.
"Schedule of Home Equity Loans": The schedules of Home Equity Loans,
separated by Home Equity Loan Group listing each Home Equity Loan in the related
Group to be conveyed on the Startup Day. Such Schedules of Home Equity Loans
shall identify each Home Equity Loan by the Servicer's
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loan number and the borrower's name and address (including the state) of the
Property and shall set forth as to each Home Equity Loan the lien status
thereof, the Loan-to-Value Ratio and the Loan Balance as of the Cut-Off Date or
Subsequent Cut-Off Date, the Coupon Rate thereof (and with respect to the Home
Equity Loans in the Adjustable Rate Group the margin), the current scheduled
monthly payment of principal and interest and the maturity of the related Note,
the property type, occupancy status, Appraised Value and original
term-to-maturity thereof, whether or not such Home Equity Loan (including
related Note) has been modified and the aggregate Loan Balances of all Home
Equity Loans set forth on such Schedule of Home Equity Loans. Such Schedules
shall also identify the Seller of each Home Equity Loan.
"Scheduled Payment": As of any date of calculation, with respect to a
Home Equity Loan, the then stated scheduled monthly installment of principal and
interest payable thereunder which, if timely paid, would result in the full
amortization of principal over the term thereof (or, in the case of a "balloon"
Note, the term to the nominal maturity date for amortization purposes, without
regard to the actual maturity date).
"Second Mortgage Loan": A Home Equity Loan which constitutes a second
priority mortgage lien with respect to the related Property.
"Securities Act": The Securities Act of 1933, as amended.
"Sellers": ____________________ and ____________________.
"Senior Lien": With respect to any Second Mortgage Loan, the mortgage
loan relating to the corresponding Property having a first priority lien.
"Servicer": ____________________, a __________ corporation, and its
permitted successors and assigns.
"Servicer Affiliate": A Person (i) controlling, controlled by or under
common control with the Servicer and (ii) which is qualified to service
residential mortgage loans.
"Servicing Advance": As defined in Section 8.09(b) and Section 8.13(a)
hereof.
"Servicing Fee": With respect to any Home Equity Loan, an amount
retained by the Servicer as compensation for servicing and administration duties
relating to such Home Equity Loan pursuant to Section 8.15 and equal to 0.50%
per annum of the then outstanding principal amount of such Home Equity Loan as
of the first day of each calendar month payable on a monthly basis.
"Specified Subordinated Amount": As applicable, the Fixed Rate Group
Specified Subordinated Amount or the Adjustable Rate Group Specified
Subordinated Amount.
"Standard & Poor's": Standard & Poor's Rating Services, a division of
The McGraw-Hill Companies, Inc.
"Startup Day": __________ __, 199_.
"Subordinate Certificates": Collectively, the Class R Certificates and
the Class B-IO Certificates.
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"Subordinated Amount": The Fixed Rate Group Subordinated Amount or the
Adjustable Rate Group Subordinated Amount, as the case may be.
"Subordination Deficiency Amount": With respect to any Home Equity Loan
Group and Payment Date, the excess, if any, of (i) the Specified Subordinated
Amount applicable to such Home Equity Loan Group and Payment Date over (ii) the
Subordinated Amount applicable to such Home Equity Loan Group and Payment Date
prior to taking into account the payment of any related Subordination Increase
Amounts on such Payment Date.
"Subordination Deficit": With respect to any Home Equity Loan Group and
Payment Date, the amount, if any, by which (x) the aggregate of the related
Class A Certificate Principal Balances, after taking into account the payment of
the Class A Distribution Amount with respect to such Home Equity Loan Group on
such Payment Date (except for any Subordination Deficit with respect to such
Home Equity Loan Group and Subordination Increase Amount with respect to such
Home Equity Loan Group), 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.
"Subordination Increase Amount": With respect to any Home Equity Loan
Group and Payment Date, the lesser of (i) the related Subordination Deficiency
Amount as of such Payment Date (after taking into account the payment of the
related Class A Distribution Amounts on such Payment Date (except for any
Subordination Increase Amount with respect to such Home Equity Loan Group)) and
(ii) the aggregate amount of Net Monthly Excess Cashflow allocated to such Home
Equity Loan Group pursuant to Sections 7.03(c)(ii)(A) and (B) on such Payment
Date.
"Subordination Reduction Amount": With respect to any Home Equity Loan
Group and Payment Date, an amount equal to the lesser of (x) the Excess
Subordinated Amount for such Home Equity Loan Group and Payment Date and (y) the
Principal Remittance Amount with respect to such Home Equity Loan Group for the
related Remittance Period.
"Sub-Servicer": Any Person with whom the Servicer has entered into a
Sub-Servicing Agreement and who satisfies any requirements set forth in Section
8.03 hereof in respect of the qualification of a Sub-Servicer.
"Sub-Servicing Agreement": The written contract between the Servicer
and any Sub-Servicer relating to servicing and/or administration of certain Home
Equity Loans as permitted by Section 8.03.
"Substitution Amount": As defined in Section 3.03 hereof.
"Tax Matters Certificate": The Class R Certificate initially issued to
ContiFunding Corporation as the initial Tax Matters Person.
"Tax Matters Person": The Person appointed for the Trust pursuant to
Section 11.18 hereof to act as the Tax Matters Person under the Code.
"Tax Matters Person Residual Interest": The 0.001% interest in the
Class R Certificates and the Upper-Tier Residual Class, each of which shall be
issued to and held by ContiFunding Corporation throughout the term hereof unless
another Person shall accept an assignment of such interest and the designation
of Tax Matters Person pursuant to Section 11.18 hereof.
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"Telerate Page 3750": The display designated as page "3750" on the Dow
Jones Telerate Capital Markets Report (or such other page as may replace page
3750 on that report for the purpose of displaying London interbank offered rates
of major banks).
"Termination Notice": As defined in Section 9.03(a) hereof.
"Total Available Funds": As defined in Section 7.02(d) hereof.
"Total Monthly Excess Cashflow": As defined in Section 7.03(c)(i)
hereof.
"Total Monthly Excess Spread": The Fixed Rate Group Total Monthly
Excess Spread or the Adjustable Rate Group Total Monthly Excess Spread, as the
case may be.
"Trust": __________ Home Equity Loan Trust 199_-_, one of the trusts
created under this Agreement.
"Trust Estate": As defined in the conveyance clause under this
Agreement.
"Trustee": ______________________________, a ___________ banking
corporation, the Corporate Trust Department of which is located on the date of
execution of this Agreement at _____________________________________________,
not in its individual capacity but solely as Trustee under this Agreement, and
any successor hereunder.
"Trustee Fee": The fee payable monthly on each Payment Date in an
amount equal to one-twelfth of the sum of (i) _____% multiplied by the
then-outstanding Class A Certificate Principal Balance and (ii) $__________.
"Underwriters": ______________________________ and
______________________________.
"Upper-Tier Adjustable Rate Group Distribution Account": The Upper-Tier
Adjustable Rate Group Distribution Account established pursuant to Section
7.02(a) hereof.
"Upper-Tier Fixed Rate Group Distribution Account": The Upper-Tier
Fixed Rate Group Distribution Account established pursuant to Section 7.02(a)
hereof.
"Upper-Tier REMIC": The REMIC established pursuant to Section 2.08
hereof with respect to the Class A Certificates. The assets of the Upper-Tier
REMIC shall include the Upper-Tier Fixed Rate Group Distribution Account, the
Upper-Tier Adjustable Rate Group Distribution Account and the right to receive
the distributions deposited therein with respect to each Lower-Tier Interest.
"Upper-Tier REMIC Residual Class": With respect to the Upper-Tier
REMIC, the interest therein designated as the "residual interest" therein for
the purposes of the REMIC Provisions. The Upper-Tier REMIC Residual Class shall
be uncertificated, and shall be issuable only in Percentage Interests of 99.999%
to ____________________ and 0.001% to ____________________, as Tax Matters
Person. Such interests shall be non-transferrable, except that [ContiFunding
Corporation] may assign such interest to another person who accepts such
assignment and the designation as Tax Matters Person pursuant to Section 11.18
hereof. The Upper-Tier REMIC Residual Class is entitled only to any amounts at
any time held in the Upper-Tier Fixed Rate Group Distribution Account and the
Upper-Tier Adjustable Rate Group Distribution Account and not required to be
paid to the Owners of the Class A Certificates, which is expected to be zero at
all times during the term of this Agreement.
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"Weighted Average Pass-Through Rate": As to the Class A Certificates
and any Payment Date, the weighted average of the Class A-1 Pass-Through Rate,
the Class A-2 Pass-Through Rate, the Class A-3 Pass-Through Rate, the Class A-4
Pass-Through Rate, the Class A-5 Pass-Through Rate and the Class A-6
Pass-Through Rate (such rate calculated for this purpose on the basis of a
360-day year assumed to consist of twelve 30 day months) weighted by the
respective Certificate Principal Balances of the related Class, as of such
Payment Date prior to taking into account any distributions to be made on such
Payment Date.
Section 1.02 Use of Words and Phrases.
"Herein", "hereby", "hereunder", "hereof", "hereinbefore",
"hereinafter" and other equivalent words refer to this Agreement as a whole and
not solely to the particular section of this Agreement in which any such word is
used. The definitions set forth in Section 1.01 hereof include both the singular
and the plural. Whenever used in this Agreement, any pronoun shall be deemed to
include both singular and plural and to cover all genders.
Section 1.03 Captions; Table of Contents.
The captions or headings in this Agreement and the Table of Contents
are for convenience only and in no way define, limit or describe the scope and
intent of any provisions of this Agreement.
Section 1.04 Opinions.
Each opinion with respect to the validity, binding nature and
enforceability of documents or Certificates may be qualified to the extent that
the same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity (whether considered in a
proceeding or action in equity or at law) and may state that no opinion is
expressed on the availability of the remedy of specific enforcement, injunctive
relief or any other equitable remedy. Any opinion required to be furnished by
any Person hereunder must be delivered by counsel upon whose opinion the
addressee of such opinion may reasonably rely, and such opinion may state that
it is given in reasonable reliance upon an opinion of another, a copy of which
must be attached, concerning the laws of a foreign jurisdiction.
END OF ARTICLE I
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ARTICLE II
ESTABLISHMENT AND ORGANIZATION OF THE TRUST
Section 2.01 Establishment of the Trust.
The parties hereto do hereby create and establish, pursuant to the laws
of the State of New York and this Agreement, the Trust, which, for convenience,
shall be known as "__________ Home Equity Loan Trust 199_-_," which shall
contain two subtrusts.
Section 2.02 Office.
The office of the Trust shall be in care of the Trustee, addressed to
____________________ ______________________________, Attention Corporate Trust
Department, or at such other address as the Trustee may designate by notice to
the Depositor, the Seller, the Servicer, the Owners and the Certificate Insurer.
Section 2.03 Purposes and Powers.
The purpose of the Trust is to engage in the following activities and
only such activities: (i) the issuance of the Certificates and the acquiring,
owning and holding of Home Equity Loans and the Trust Estate in connection
therewith; (ii) activities that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected therewith,
including the investment of moneys in accordance with this Agreement; and (iii)
such other activities as may be required in connection with conservation of the
Trust Estate and distributions to the Owners; provided, however, that nothing
contained herein shall permit the Trustee to take any action which would
adversely affect either the Lower-Tier REMIC's or the Upper-Tier REMIC's status
as a REMIC.
Section 2.04 Appointment of the Trustee; Declaration of Trust.
The Depositor hereby appoints the Trustee as trustee of the Trust
effective as of the Startup Day, to have all the rights, powers and duties set
forth herein. The Trustee hereby acknowledges and accepts such appointment,
represents and warrants its eligibility as of the Startup Day to serve as
Trustee pursuant to Section 10.08 hereof and declares that it will hold the
Trust Estate in trust upon and subject to the conditions set forth herein for
the benefit of the Owners.
Section 2.05 Expenses of the Trust.
The expenses of the Trust, including (i) the fees of the Trustee
(including any portion of the Trustee Fee not paid pursuant to Section
7.03(c)(iv)(A) hereof), (ii) any reasonable expenses of the Trustee, and (iii)
any other expenses of the Trust that have been reviewed by
_____________________, which review shall not be required in connection with the
enforcement of a remedy by the Trustee resulting from a default under this
Agreement, shall be paid directly by _____________________.
_____________________ shall pay directly the reasonable fees and expenses of
counsel to the Trustee. The reasonable fees and expenses of the Trustee's
counsel in connection with the review and delivery of this Agreement and related
documentation shall be paid by _____________________ on the Startup Day.
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Section 2.06 Ownership of the Trust.
On the Startup Day the ownership interests in the Trust shall be
transferred as set forth in Section 4.02 hereof, such transfer to be evidenced
by sale of the Certificates as described therein. Thereafter, transfer of any
ownership interest shall be governed by Sections 5.04 and 5.08 hereof.
Section 2.07 Situs of the Trust.
It is the intention of the parties hereto that the Trust constitute a
trust under the laws of the State of New York. The Trust will be created and
administered in, and all Accounts maintained by the Trustee on behalf of the
Trust will be located in, the State of New York. The Trust will not have any
employees and will not have any real or personal property (other than property
acquired pursuant to Section 8.13 hereof) located in any state other than in the
State of New York and payments will be received by the Trustee only in the State
of New York and payments from the Trustee will be made only from the State of
New York. The Trust's only office will be at the office of the Trustee as set
forth in Section 2.02 hereof.
Section 2.08 Miscellaneous REMIC Provisions.
(a) The beneficial ownership interest in the Lower-Tier REMIC shall be
evidenced by the interests having the characteristics and terms as follows:
Initial Lower- Lower-Tier Final Scheduled
Class Designation Tier Balance Pass-Through Rate Payment Dates
----------------- ------------ ----------------- -------------
Lower-Tier Interest A-1 $ (1)
Lower-Tier Interest A-2 $ (1)
Lower-Tier Interest A-3 $ (1)
Lower-Tier Interest A-4 $ (1)
Lower-Tier Interest A-5 $ (1)
Lower-Tier Interest A-6 $ (2)
Class R Certificates (3)
- -------------------
(1) On any Payment Date, the Fixed Rate Group Net Weighted Average Coupon
Rate.
(2) For any Payment Date, the Adjustable Rate Group Net Weighted Average
Coupon Rate.
(3) The Class R Certificates are not issued with a Lower-Tier Balance or a
Lower-Tier Pass-Through Rate.
(b) The Lower-Tier Interest A-1, A-2, A-3, A-4, A-5 and A-6
Certificates shall be issued as non-certificated interests. The Class R
Certificates shall be issued from the Lower-Tier REMIC in fully registered
certificated form.
(c) The Depositor hereby designates Lower-Tier Interest A-1, Lower-Tier
Interest A-2, Lower-Tier Interest A-3, Lower-Tier Interest A-4, Lower-Tier
Interest A-5, Lower-Tier Interest A-6, as "regular interests" and the Class R
Certificates as the single class of "residual interests" in the Lower- Tier
REMIC for purposes of the REMIC Provisions.
(d) The Depositor hereby designates the Class A-2, Class A-3, Class
A-4, Class A-5, Class A-6, Class A-7IO, Class A-8IO, Class B-IO and the
uncertificated right of the Class A-1 Distribution Account to receive the Class
A-1 Internal Interest Distribution Amount as "regular interests," and the
Upper-Tier REMIC Residual Class as the single class of "residual interests" in
the Upper-Tier REMIC for purposes of the REMIC Provisions. The Depositor hereby
designates the Lower-Tier Interest A-1,
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the Lower-Tier Interest A-2, the Lower-Tier Interest A-3, the Lower-Tier
Interest A-4, the Lower-Tier Interest A-5, the Lower-Tier Interest A-6, the
Upper-Tier Fixed Rate Group Distribution Account and the Upper-Tier Adjustable
Rate Group Distribution Account as the only assets of the Upper-Tier REMIC.
(e) The Startup Day is hereby designated as the "startup day" of the
Upper-Tier REMIC and the Lower-Tier REMIC within the meaning of Section
860G(a)(9) of the Code.
(f) The Owner of the Tax Matters Person Residual Interests in the
Upper-Tier REMIC and the Lower-Tier REMIC is hereby designated as "tax matters
person" as defined in the REMIC Provisions with respect to each such REMIC.
(g) The Trust and each REMIC shall, for federal income tax purposes,
maintain books on a calendar year basis and report income on an accrual basis.
(h) The Trustee shall cause the Upper-Tier REMIC and the Lower-Tier
REMIC each to elect to be treated as a REMIC under Section 860D of the Code. Any
inconsistencies or ambiguities in this Agreement or in the administration of the
Trust shall be resolved in a manner that preserves the validity of such election
to be treated as a REMIC. The Trustee shall report all expenses of the Trust
Estate to the Lower-Tier REMIC.
(i) For all Federal tax law purposes amounts transferred by the Trustee
to the Owners of the Class R Certificates shall be treated as distributions by
the Lower-Tier REMIC and amounts distributed on the Upper-Tier Residual Class,
if any, shall be treated as distributions by the Upper-Tier REMIC.
(j) The Trustee shall provide to the Internal Revenue Service and to
the person described in Section 860(E)(e)(3) and (6) of the Code the information
described in Treasury Regulation Section 1.860D-1(b)(5)(ii), or any successor
regulation thereto with respect to both the Lower-Tier REMIC and the Upper-Tier
REMIC. Such information will be provided in the manner described in Treasury
Regulation Section 1.860E-2(a)(5), or any successor regulation thereto.
(k) For federal income tax purposes, the Final Scheduled Payment Date
for each Class of the Class A Certificates is hereby set to be the Payment Date
indicated below:
Final Scheduled
Class Payment Date
----- ------------
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-7IO Certificates
Class A-8IO Certificates
END OF ARTICLE II
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ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE DEPOSITOR, THE SERVICER AND THE SELLERS;
COVENANT OF SELLERS TO CONVEY HOME EQUITY LOANS
Section 3.01 Representations and Warranties of the Depositor.
The Depositor hereby represents, warrants and covenants to the Trustee,
the Certificate Insurer and the Owners that as of the Startup Day:
(a) The Depositor is a corporation duly organized, validly existing and
in good standing under the laws governing its creation and existence and is in
good standing as a foreign corporation in each jurisdiction in which the nature
of its business, or the properties owned or leased by it make such qualification
necessary. The Depositor has all requisite corporate power and authority to own
and operate its properties, to carry out its business as presently conducted and
as proposed to be conducted and to enter into and discharge its obligations
under this Agreement and the other Operative Documents to which it is a party.
(b) The execution and delivery of this Agreement by the Depositor and
its performance and compliance with the terms of this Agreement and the other
Operative Documents to which it is a party have been duly authorized by all
necessary corporate action on the part of the Depositor and will not violate the
Depositor's Certificate of Incorporation or Bylaws or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in a breach of, any material contract, agreement or
other instrument to which the Depositor is a party or by which the Depositor is
bound or violate any statute or any order, rule or regulation of any court,
governmental agency or body or other tribunal having jurisdiction over the
Depositor or any of its properties.
(c) This Agreement and the other Operative Documents to which the
Depositor is a party, assuming due authorization, execution and delivery by the
other parties hereto and thereto, each constitutes a valid, legal and binding
obligation of the Depositor, enforceable against it in accordance with the terms
hereof and thereof, except as the enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law).
(d) The Depositor is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state, municipal
or governmental agency, which default would materially and adversely affect the
condition (financial or other) or operations of the Depositor or its properties
or the consequences of which would materially and adversely affect its
performance hereunder or under the other Operative Documents to which the
Depositor is a party.
(e) No litigation is pending with respect to which the Depositor has
received service of process or, to the best of the Depositor's knowledge,
threatened against the Depositor which litigation might have consequences that
would prohibit its entering into this Agreement or any other Operative Documents
to which it is a party or that would materially and adversely affect the
condition (financial or otherwise) or operations of the Depositor or its
properties or might have consequences that would materially and adversely affect
its performance hereunder and under the other Operative Documents to which the
Depositor is a party.
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(f) No certificate of an officer, statement furnished in writing or
report delivered pursuant to the terms hereof by the Depositor contains any
untrue statement of a material fact or omits to state any material fact
necessary to make the certificate, statement or report not misleading.
(g) The statements contained in the Registration Statement which
describe the Depositor or matters or activities for which the Depositor is
responsible in accordance with the Operative Documents or which are attributable
to the Depositor therein are true and correct in all material respects, and the
Registration Statement does not contain any untrue statement of a material fact
with respect to the Depositor required to be stated therein or necessary to make
the statements contained therein with respect to the Depositor, in light of the
circumstances under which they were made, not misleading. The Registration
Statement does not contain any untrue statement of a material fact required to
be stated therein or omit to state any material fact necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading. There is no fact known to the Depositor that
materially adversely affects or in the future may (so far as the Depositor can
now reasonably foresee) materially adversely affect the Depositor or the Home
Equity Loans or the ownership interests therein represented by the Certificates
that has not been set forth in the Registration Statement.
(h) All actions, approvals, consents, waivers, exemptions, variances,
franchises, orders, permits, authorizations, rights and licenses required to be
taken, given or obtained, as the case may be, by or from any federal, state or
other governmental authority or agency (other than any such actions, approvals,
etc. under any state securities laws, real estate syndication or "Blue Sky"
statutes, as to which the Depositor makes no such representation or warranty),
that are necessary or advisable in connection with the purchase and sale of the
Certificates and the execution and delivery by the Depositor of the Operative
Documents to which it is a party, have been duly taken, given or obtained, as
the case may be, are in full force and effect on the date hereof, are not
subject to any pending proceedings or appeals (administrative, judicial or
otherwise) and either the time within which any appeal therefrom may be taken or
review thereof may be obtained has expired or no review thereof may be obtained
or appeal therefrom taken, and are adequate to authorize the consummation of the
transactions contemplated by this Agreement and the other Operative Documents on
the part of the Depositor and the performance by the Depositor of its
obligations under this Agreement and such of the other Operative Documents to
which it is a party.
(i) The transactions contemplated by this Agreement are in the ordinary
course of business of the Depositor.
(j) The Depositor is not insolvent, nor will it be made insolvent by
the transfer of the Home Equity Loans, nor is the Depositor aware of any pending
insolvency.
(k) The transfer, assignment and conveyance of the Notes and the
Mortgages by the Depositor hereunder are not subject to the bulk transfer laws
or any similar statutory provisions in effect in any applicable jurisdiction.
(l) The Depositor is not transferring the Home Equity Loans to the
Trustee with any intent to hinder, delay or defraud its creditors.
It is understood and agreed that the representations and warranties set
forth in this Section 3.01 shall survive delivery of the respective Home Equity
Loans to the Trustee.
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Section 3.02 Representations and Warranties of the Servicer.
----------------------------------------------
The Servicer hereby represents, warrants and covenants to the Trustee,
the Certificate Insurer and the Owners that as of the Startup Day:
(a) The Servicer is a corporation duly organized, validly existing and
in good standing under the laws of the State of __________, is, and each
Sub-Servicer is, in compliance with the laws of each state in which any Property
is located to the extent necessary to enable it to perform its obligations
hereunder and is in good standing as a foreign corporation in each jurisdiction
in which the nature of its business, or the properties owned or leased by it
make such qualification necessary. The Servicer and each Sub-Servicer has all
requisite corporate power and authority to own and operate its properties, to
carry out its business as presently conducted and as proposed to be conducted
and to enter into and discharge its obligations under this Agreement and the
other Operative Documents to which it is a party. The Servicer is designated as
an approved seller-servicer by FNMA for first and second mortgage loans and has
combined equity and subordinated debt of at least $1,500,000, as determined in
accordance with generally accepted accounting principles.
(b) The execution and delivery of this Agreement by the Servicer and
its performance and compliance with the terms of this Agreement have been duly
authorized by all necessary corporate action on the part of the Servicer and
will not violate the Servicer's Certificate of Incorporation or Bylaws or
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any material
contract, agreement or other instrument to which the Servicer is a party or by
which the Servicer is bound or violate any statute or any order, rule or
regulation of any court, governmental agency or body or other tribunal having
jurisdiction over the Servicer or any of its properties.
(c) This Agreement and the Operative Documents to which the Servicer is
a party, assuming due authorization, execution and delivery by the other parties
hereto and thereto, each constitutes a valid, legal and binding obligation of
the Servicer, enforceable against it in accordance with the terms hereof and
thereof, except as the enforcement hereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law).
(d) The Servicer is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state, municipal
or governmental agency, which default might have consequences that would
materially and adversely affect the condition (financial or otherwise) or
operations of the Servicer or its properties or might have consequences that
would materially and adversely affect its performance hereunder or under the
other Operative Documents to which the Servicer is a party.
(e) No litigation is pending with respect to which the Servicer has
received service of process or, to the best of the Servicer's knowledge,
threatened against the Servicer which litigation might have consequences that
would prohibit its entering into this Agreement or any other Operative Documents
to which the Servicer is a party or that would materially and adversely affect
the condition (financial or otherwise) or operations of the Servicer or its
properties or might have consequences that would materially and adversely affect
its performance hereunder and the other Operative Documents to which the
Servicer is a party.
(f) No certificate of an officer, statement furnished in writing or
report delivered pursuant to the terms hereof by the Servicer contains any
untrue statement of a material fact or omits to state any material fact
necessary to make the certificate, statement or report not misleading.
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(g) The statements contained in the Registration Statement which
describe the Servicer or matters or activities for which the Servicer is
responsible in accordance with the Operative Document or which are attributed to
the Servicer therein are true and correct in all material respects, and the
Registration Statement does not contain any untrue statement of a material fact
with respect to the Servicer or omit to state a material fact required to be
stated therein or necessary to make the statements contained therein with
respect to the Servicer, in light of the circumstances under which they were
made, not misleading.
(h) The Servicing Fee is a "current (normal) servicing fee rate" as
that term is used in Statement of Financial Accounting Standards No. 65 issued
by the Financial Accounting Standards Board. Neither the Servicer nor any
affiliate thereof will report on any financial statements any part of the
Servicing Fee as an adjustment to the sales price of the Home Equity Loans.
(i) All actions, approvals, consents, waivers, exemptions, variances,
franchises, orders, permits, authorizations, rights and licenses required to be
taken, given or obtained, as the case may be, by or from any federal, state or
other governmental authority or agency (other than any such actions, approvals,
etc. under any state securities laws, real estate syndication or "Blue Sky"
statutes, as to which the Servicer makes no such representation or warranty),
that are necessary or advisable in connection with the execution and delivery by
the Servicer of the Operative Documents to which it is a party, have been duly
taken, given or obtained, as the case may be, are in full force and effect on
the date hereof, are not subject to any pending proceedings or appeals
(administrative, judicial or otherwise) and either the time within which any
appeal therefrom may be taken or review thereof may be obtained has expired or
no review thereof may be obtained or appeal therefrom taken, and are adequate to
authorize the consummation of the transactions contemplated by this Agreement
and the other Operative Documents on the part of the Servicer and the
performance by the Servicer of its obligations under this Agreement and such of
the other Operative Documents to which it is a party.
(j) The collection practices used by the Servicer with respect to the
Home Equity Loans have been, in all material respects, legal, proper, prudent
and customary in the mortgage servicing business and in conformity with relevant
FNMA guidelines.
(k) The transactions contemplated by this Agreement are in the ordinary
course of business of the Servicer.
It is understood and agreed that the representations and warranties set
forth in this Section 3.02 shall survive delivery of the Home Equity Loans to
the Trustee.
Upon discovery by any of either Seller, the Servicer, any Sub-Servicer,
the Certificate Insurer, any Owner or the Trustee (each, for purposes of this
paragraph, a party) of a breach of any of the representations and warranties set
forth in this Section 3.02 which materially and adversely affects the interests
of the Owners or of the Certificate Insurer, the party discovering such breach
shall give prompt written notice to the other parties. Within 60 days of its
discovery or its receipt of notice of breach, the Servicer shall cure such
breach in all material respects and, upon the Servicer's continued failure to
cure such breach, may thereafter be removed by the Trustee pursuant to Section
8.20 hereof; provided, however, that if any party can establish to the
reasonable satisfaction of the Certificate Insurer that it is diligently
pursuing remedial action, then the cure period may be extended with the written
approval of the Certificate Insurer.
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Section 3.03 Representations and Warranties of the Seller.
--------------------------------------------
(1) The Seller hereby represents, warrants and covenants to the
Trustee, the Certificate Insurer and the Owners that as of the Startup Day:
(a) The Seller is a corporation duly organized, validly
existing and in good standing under the laws governing its creation and
existence and is in good standing as a foreign corporation in each jurisdiction
in which the nature of its business, or the properties owned or leased by it,
make such qualification necessary. The Seller has all requisite corporate power
and authority to own and operate its properties, to carry out its business as
presently conducted and as proposed to be conducted and to enter into and
discharge its obligations under this Agreement and the other Operative Documents
to which it is a party.
(b) The execution and delivery of this Agreement by the Seller
and its performance and compliance with the terms of this Agreement and the
other Operative Documents to which it is a party have been duly authorized by
all necessary corporate action on the part of the Seller and will not violate
the Seller's Certificate of Incorporation or Bylaws or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in a breach of, any material contract, agreement or
other instrument to which the Seller is a party or by which the Seller is bound
or violate any statute or any order, rule or regulation of any court,
governmental agency or body or other tribunal having jurisdiction over the
Seller or any of its properties.
(c) This Agreement and the other Operative Documents to which
the Seller is a party, assuming due authorization, execution and delivery by the
other parties hereto and thereto, each constitutes a valid, legal and binding
obligation of the Seller, enforceable against it in accordance with the terms
hereof and thereof, except as the enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law).
(d) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default would materially and adversely
affect the condition (financial or other) or operations of the Seller or its
properties or the consequences of which would materially and adversely affect
its performance hereunder and under the other Operative Documents to which the
Seller is a party.
(e) No litigation is pending with respect to which the Seller
has received service of process or, to the best of the Seller's knowledge,
threatened against the Seller which litigation might have consequences that
would prohibit its entering into this Agreement or any other Operative Documents
to which it is a party or that would materially and adversely affect the
condition (financial or otherwise) or operations of the Seller or its properties
or might have consequences that would materially and adversely affect its
performance hereunder and under the other Operative Documents to which the
Seller is a party.
(f) No certificate of an officer, statement furnished in
writing or report delivered pursuant to the terms hereof by the Seller contains
any untrue statement of a material fact or omits to state any material fact
necessary to make the certificate, statement or report not misleading.
(g) The statements contained in the Registration Statement
which describe the Seller or matters or activities for which the Seller is
responsible in accordance with the Operative Documents or which are attributable
to the Seller therein are true and correct in all material respects, and the
Registration Statement does not contain any untrue statement of a material fact
with respect to the Seller required to be stated therein or necessary to make
the statements contained therein with respect to the
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Seller, in light of the circumstances under which they were made, not
misleading. The Registration Statement does not contain any untrue statement of
a material fact required to be stated therein or omit to state any material fact
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. There is no fact known
to the Seller that materially adversely affects or in the future may (so far as
the Seller can now reasonably foresee) materially adversely affect the Seller or
the Home Equity Loans or the ownership interests therein represented by the
Certificates that has not been set forth in the Registration Statement.
(h) Upon the receipt of each Home Equity Loan (including the
related Note) and other items of the Trust Estate delivered by the Seller to the
Depositor and by the Depositor to the Trustee under this Agreement, the Trust
will have good title to such Home Equity Loan (including the related Note) and
such other items of the Trust Estate free and clear of any lien, charge,
mortgage, encumbrance or rights of others, except as set forth in Section 3.04
(b) (ix) (other than liens which will be simultaneously released).
(i) Neither the Seller nor any affiliate thereof will report
on any financial statement any part of the Servicing Fee as an adjustment to the
sales price of the Home Equity Loans.
(j) All actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and licenses
required to be taken, given or obtained, as the case may be, by or from any
federal, state or other governmental authority or agency (other than any such
actions, approvals, etc. under any state securities laws, real estate
syndication or "Blue Sky" statutes, as to which the Seller makes no such
representation or warranty), that are necessary or advisable in connection with
the purchase and sale of the Certificates and the execution and delivery by the
Seller of the Operative Documents to which it is a party, have been duly taken,
given or obtained, as the case may be, are in full force and effect on the date
hereof, are not subject to any pending proceedings or appeals (administrative,
judicial or otherwise) and either the time within which any appeal therefrom may
be taken or review thereof may be obtained has expired or no review thereof may
be obtained or appeal therefrom taken, and are adequate to authorize the
consummation of the transactions contemplated by this Agreement and the other
Operative Documents on the part of the Seller and the performance by the Seller
of its obligations under this Agreement and such of the other Operative
Documents to which it is a party.
(k) The origination practices used by the Seller with respect
to the Home Equity Loans have been, in all material respects, legal, proper,
prudent and customary in the mortgage lending business.
(l) The transactions contemplated by this Agreement are in the
ordinary course of business of the Seller.
(m) The Seller is not insolvent, nor will it be made insolvent
by the transfer of the Home Equity Loans, nor is the Seller aware of any pending
insolvency.
(n) The transfer, assignment and conveyance of the Notes and
the Mortgages by the Seller hereunder are not subject to the bulk transfer laws
or any similar statutory provisions in effect in any applicable jurisdiction.
(o) The Seller is not transferring the Home Equity Loans to
the Depositor with any intent to hinder, delay or defraud its creditors.
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It is understood and agreed that the representations and warranties set
forth in this Section 3.03(1) shall survive delivery of the respective Home
Equity Loans to the Trustee.
Upon discovery by any of the Servicer, any Sub-Servicer, either Seller,
the Certificate Insurer or the Trustee (each, for purposes of this paragraph, a
"party") of a breach of any of the representations and warranties set forth in
this Section 3.03 which materially and adversely affects the interests of the
Owners or the Certificate Insurer, the party discovering such breach shall give
prompt written notice to the other parties. The Seller hereby covenants and
agrees that within 60 days of its discovery or its receipt of notice of breach,
it shall cure such breach in all material respects or, with respect to a breach
of clause (h) above, the Seller may (or may cause an affiliate of the Seller to)
on the Monthly Remittance Date next succeeding such discovery or receipt of
notice (i) substitute in lieu of any Home Equity Loan not in compliance with
clause (h) a Qualified Replacement Mortgage and, if the outstanding principal
amount of such Qualified Replacement Mortgage as of the applicable Replacement
Cut-Off Date is less than the Loan Balance of such Home Equity Loan as of such
Replacement Cut-Off Date, deliver an amount equal to such difference together
with the aggregate amount of (A) all Delinquency Advances and Servicing Advances
theretofore made with respect to such Home Equity Loan and (B) all Delinquency
Advances and Servicing Advances which the Servicer has theretofore failed to
remit with respect to such Home Equity Loan (a "Substitution Amount") to the
Servicer for deposit in the Principal and Interest Account or (ii) purchase such
Home Equity Loan from the Trust at the Loan Purchase Price, which purchase price
shall be delivered to the Servicer for deposit in the Principal and Interest
Account. Notwithstanding any provision of this 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 repurchase or substitution pursuant to Section 3.03,
3.04 or 3.06 shall be made unless the Seller obtains for the Trustee and the
Certificate Insurer an opinion of counsel experienced in federal income tax
matters to the effect that such a repurchase or substitution would not
constitute a Prohibited Transaction for the Trust or any REMIC therein or
otherwise subject the Trust or any REMIC therein to tax and would not jeopardize
the status of either of the Lower-Tier REMIC or Upper-Tier REMIC as a REMIC (a
"REMIC Opinion") addressed to the Trustee and the Certificate Insurer and
acceptable to the Certificate Insurer and the Trustee. Any Home Equity Loan as
to which repurchase or substitution was delayed pursuant to this Section shall
be repurchased or substituted for (subject to compliance with Sections 3.03,
3.04 or 3.06, as the case may be) 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.
Section 3.04 Covenants of the Sellers to Take Certain Actions
with Respect to the Home Equity Loans In Certain
Situations.
(a) Upon the discovery by either Seller, the Servicer, the Certificate
Insurer, any Sub-Servicer or the Trustee (i) that any of the statements set
forth in subsection (b) below were untrue as of the Startup Day with the result
that the interests of the Owners or the Certificate Insurer are materially and
adversely affected or (ii) that statements set forth in Clauses (ix), (x),
(xiii), (xxxvi), (xl), or (xli) of subsection (b) below were untrue in any
material respect as of the Startup Day, the party discovering such breach shall
give prompt written notice to the other parties. Upon the earliest to occur of
such Seller's discovery, its receipt of notice of breach from any one 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
of the Certificate Insurer, such Seller hereby covenants and warrants that it
shall promptly cure such breach in all material respects or subject to the last
two sentences of Section 3.03 it shall on the second Monthly Remittance Date
next succeeding such discovery, receipt of notice or such time (i) substitute in
lieu of each Home Equity Loan which has given rise to the requirement for action
by such Seller a Qualified Replacement Mortgage and deliver the Substitution
Amount to the Servicer for deposit in the Principal and Interest Account or (ii)
purchase such Home Equity Loan from the Trust at a purchase price equal
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<PAGE>
to the Loan Purchase Price thereof, which purchase price shall be delivered to
the Servicer for deposit in the Principal and Interest Account. Other than as
specified in Section 6.12 hereof, it is understood and agreed that the
obligation of a Seller 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 shall constitute the sole remedy respecting a discovery of any
such statement which is untrue in any material respect in this Section 3.04
available to the Owners, the Trustee and the Certificate Insurer.
(b) Unless otherwise specified, the information set out below specifies
as of the Startup Day:
(i) The information with respect to each Home Equity Loan and
the aggregate Loan Balance of all Home Equity Loans set forth in the
related Schedule of Home Equity Loans is true and correct as of the
Cut-Off Date;
(ii) All the original or certified documentation set forth in
Section 3.05 (including all material documents related thereto) with
respect to each Home Equity Loan has been or will be delivered to
the Trustee on the Startup Day or as otherwise provided in Section
3.05;
(iii) Each Home Equity Loan being transferred to the Trust is
a Qualified Mortgage;
(iv) Each Property is improved by a single (one-to-four)
family residential dwelling, which may include condominiums and
townhouses, manufactured housing or small multifamily or mixed-use
property but shall not include co-operatives or mobile homes;
provided, however, that not more than _____% and _____% of the
aggregate Loan Balance of the Home Equity Loans in the Fixed Rate
Group and Adjustable Rate Group, respectively, are secured by
condominiums with more than 4 stories and no more than _____% and
_____% are secured by condominiums of less than 4 stories;
(v) No Home Equity Loan in the Fixed Rate Group has a
Loan-to-Value Ratio in excess of _____%, except _____% of such Home
Equity Loans which have a Loan-to-Value Ratio not greater than
_____%; no Home Equity Loan in the Fixed Rate Group has a Loan-to-
Value Ratio greater than _____%; no Home Equity Loan in the
Adjustable Rate Group has a Loan-to-Value Ratio in excess of _____%,
except _____% of such Home Equity Loans which have a Loan-to-Value
Ratio not greater than _____%; no Home Equity Loan in the Adjustable
Rate Group has a Loan-to-Value Ratio greater than _____%;
(vi) Each Home Equity Loan is being serviced by the Servicer;
(vii) The Note related to each Home Equity Loan in the Fixed
Rate Group bears a fixed Coupon Rate of at least _____% per annum,
and the Note related to each Home Equity Loan in the Adjustable Rate
Group bears a current Coupon Rate of at least _____% per annum. The
weighted average Coupon Rate of the Home Equity Loans in the Fixed
Rate Group is at least _____% and the weighted average Coupon Rate
of the Home Equity Loans in the Adjustable Rate Group is at least
_____%;
(viii) Each Note with respect to the Home Equity Loans will
provide for a schedule of substantially level and equal monthly
Scheduled Payments which are sufficient to amortize fully the
principal balance of such Note on or before its maturity date (other
than Notes representing not more than _____% and _____% of the
aggregate Loan Balance of the Initial Home Equity Loans in the Fixed
Rate Group and the Adjustable Rate Group, respectively,
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which may provide for a "balloon" payment due at the end of the 5th,
14th or 15th year, which maturity date is not more than 15 years
from the date of origination);
(ix) As of the Startup Day, each Mortgage is a valid and
subsisting first or second lien of record on the Property subject in
the case of any Second Mortgage Loan only to a Senior Lien on such
Property and subject in all cases to the exceptions to title set
forth in the title insurance policy or attorney's opinion of title
with respect to the related Home Equity Loan, which exceptions are
generally acceptable to banking institutions in connection with
their regular mortgage lending activities, and such other exceptions
to which similar properties are commonly subject and which do not
individually, or in the aggregate, materially and adversely affect
the benefits of the security intended to be provided by such
Mortgage;
(x) Immediately prior to the transfer and assignment of the
Home Equity Loans by the related Seller to the Depositor and by the
Depositor to the Trust herein contemplated, such Seller and the
Depositor, as the case may be, held good and indefeasible title to,
and was the sole owner of, each Home Equity Loan (including the
related Note) conveyed by such Seller subject to no liens, charges,
mortgages, encumbrances or rights of others except as set forth in
clause (ix) or other liens which will be released simultaneously
with such transfer and assignment; and immediately upon the transfer
and assignment herein contemplated, the Trustee will hold good and
indefeasible title to, and be the sole owner of, each Home Equity
Loan subject to no liens, charges, mortgages, encumbrances or rights
of others except as set forth in paragraph (ix) or other liens which
will be released simultaneously with such transfer and assignment;
(xi) As of the Startup Day, (a) no more than _____% and _____%
of the Home Equity Loans in the Fixed Rate Group and the Adjustable
Rate Group, respectively, as a percentage of the outstanding
aggregate Loan Balance of the Home Equity Loans in such Group, are
30-59 days Delinquent, (b) no more than _____% of the Home Equity
Loans in the Fixed Rate Group and the Adjustable Rate Group,
respectively, as a percentage of the outstanding aggregate Loan
Balance of the Home Equity Loans in such Group, are 60-89 days
Delinquent, (c) none of the Home Equity Loans in the Fixed Rate
Group, is 60 or more days Delinquent, (d) none of the Home Equity
Loans in the Adjustable Rate Group are 90 or more days Delinquent,
(e) no Mortgagor of any Home Equity Loan has been 30 days or more
Delinquent more than once during the 12 months immediately preceding
the Startup Day except as indicated on Schedule III attached hereto
and (f) no Mortgagor of any Home Equity Loan has been 90 or more
days Delinquent during the 12 months immediately preceding the
Startup Day except as indicated on Schedule III attached hereto.
(xii) There is no delinquent tax or assessment lien on any
Property, and each Property is free of substantial damage and is in
good repair;
(xiii) There is no valid and enforceable offset, defense or
counterclaim to any Note or Mortgage, including the obligation of
the related Mortgagor to pay the unpaid principal of or interest on
such Note;
(xiv) There is no mechanics' lien or claim for work, labor or
material affecting any Property which is or may be a lien prior to,
or equal with, the lien of the related Mortgage except those which
are insured against by any title insurance policy referred to in
paragraph (xvi) below;
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(xv) Each Home Equity Loan at the time it was made complied in
all material respects with applicable state and federal laws and
regulations, including, without limitation, the federal
Truth-in-Lending Act and other consumer protection laws, usury,
equal credit opportunity, disclosure and recording laws;
(xvi) With respect to each Home Equity Loan either (a) an
attorney's opinion of title has been obtained but no title policy
has been obtained (provided that no title policy has been obtained
with respect to not more than _____% of the Original Aggregate Loan
Balance of the Home Equity Loans), or (b) a lender's title insurance
policy, issued in standard American Land Title Association form by a
title insurance company authorized to transact business in the state
in which the related Property is situated, in an amount at least
equal to the original balance of such Home Equity Loan together, in
the case of a Second Mortgage Loan, with the then-current principal
balance of the mortgage note relating to the Senior Lien, insuring
the mortgagee's interest under the related Home Equity Loan as the
holder of a valid first or second mortgage lien of record on the
real property described in the related Mortgage, as the case may be,
subject only to exceptions of the character referred to in paragraph
(ix) above, was effective on the date of the origination of such
Home Equity Loan, and, as of the Startup Day, such policy is valid
and thereafter such policy shall continue in full force and effect;
(xvii) Each Sub-Servicer, if any, is a qualified servicer as
defined in Section 8.03 with respect to the Home Equity Loans
serviced by it;
(xviii) The improvements upon each Property are covered by a
valid and existing hazard insurance policy with a generally
acceptable carrier that provides for fire and extended coverage
representing coverage not less than the least of (A) the outstanding
principal balance of the related Home Equity Loan (together, in the
case of a Second Mortgage Loan, with the outstanding principal
balance of the Senior Lien), (B) the minimum amount required to
compensate for damage or loss on a replacement cost basis or (C) the
full insurable value of the Property;
(xix) If any Property is in an area identified in the Federal
Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy in a form meeting
the requirements of the current guidelines of the Flood Insurance
Administration is in effect with respect to such Property with a
generally acceptable carrier in an amount representing coverage not
less than the least of (A) the outstanding principal balance of the
related Home Equity Loan (together, in the case of a Second Mortgage
Loan, with the outstanding principal balance of the Senior Lien),
(B) the minimum amount required to compensate for damage or loss on
a replacement cost basis or (C) the maximum amount of insurance that
is available under the Flood Disaster Protection Act of 1973;
(xx) Each Mortgage and Note is the legal, valid and binding
obligation of the maker thereof and is enforceable in accordance
with its terms, except only as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by
general principles of equity (whether considered in a proceeding or
action in equity or at law), and all parties to each Home Equity
Loan had full legal capacity to execute all documents relating to
such Home Equity Loan and convey the estate therein purported to be
conveyed;
(xxi) Each Seller has caused and will cause to be performed
any and all acts required to be performed to preserve the rights and
remedies of the Trustee in any Insurance Policies
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applicable to any Home Equity Loans delivered by such Seller
including, without limitation, any necessary notifications of
insurers, assignments of policies or interests therein, and
establishments of co-insured, joint loss payee and mortgagee rights
in favor of the Trustee;
(xxii) As of the Startup Day, no more than _____% and _____%
of the aggregate Loan Balance of the Home Equity Loans in the Fixed
Rate Group and the Adjustable Rate Group, respectively, will be
secured by Properties located within any single zip code area;
(xxiii) Each original Mortgage was recorded or is in the
process of being recorded, and all subsequent assignments of the
original Mortgage have been delivered for recordation or have been
recorded in the appropriate jurisdictions wherein such recordation
is necessary to perfect the lien thereof as against creditors of or
purchasers from the Seller delivering the related Home Equity Loan
(or, subject to Section 3.05 hereof, are in the process of being
recorded);
(xxiv) The terms of each Note and each Mortgage have not been
impaired, altered or modified in any respect, except by a written
instrument which has been recorded, if necessary, to protect the
interest of the Owners and the Certificate Insurer and which has
been delivered to the Trustee. The substance of any such alteration
or modification is reflected on the related Schedule of Home Equity
Loans;
(xxv) The proceeds of each Home Equity Loan have been fully
disbursed, and there is no obligation on the part of the mortgagee
to make future advances thereunder. Any and all requirements as to
completion of any on-site or off-site improvements and as to
disbursements of any escrow funds therefor have been complied with.
All costs, fees and expenses incurred in making or closing or
recording such Home Equity Loans were paid;
(xxvi) The related Note is not and has not been secured by any
collateral, pledged account or other security except the lien of the
corresponding Mortgage;
(xxvii) No Home Equity Loan was originated under a buydown
plan;
(xxviii) No Home Equity Loan has a shared appreciation
feature, or other contingent interest feature;
(xxix) Each Property is located in the state identified in the
respective Schedule of Home Equity Loans and consists of one or more
parcels of real property with a residential dwelling erected
thereon;
(xxx) Each Mortgage contains a provision for the acceleration
of the payment of the unpaid principal balance of the related Home
Equity Loan in the event the related Property is sold without the
prior consent of the mortgagee thereunder;
(xxxi) Any advances made after the date of origination of a
Home Equity Loan but prior to the Cut-Off Date have been
consolidated with the outstanding principal amount secured by the
related Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term reflected on
the respective Schedule of Home Equity Loans. The consolidated
principal amount does not exceed the original principal amount of
the related Home Equity Loan. No Note permits or obligates the
Servicer to make future advances to the related Mortgagor at the
option of the Mortgagor;
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(xxxii) There is no proceeding pending or threatened for the
total or partial condemnation of any Property, nor is such a
proceeding currently occurring, and each Property is undamaged by
waste, fire, water, flood, earthquake or earth movement.
(xxxiii) All of the improvements which were included for the
purposes of determining the Appraised Value of any Property lie
wholly within the boundaries and building restriction lines of such
Property, and no improvements on adjoining properties encroach upon
such Property, and are stated in the title insurance policy and
affirmatively insured;
(xxxiv) No improvement located on or being part of any
Property is in violation of any applicable zoning law or regulation.
All inspections, licenses and certificates required to be made or
issued with respect to all occupied portions of each Property and,
with respect to the use and occupancy of the same, including but not
limited to certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate
authorities and such Property is lawfully occupied under the
applicable law;
(xxxv) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is
named in such Mortgage, and no fees or expenses are or will become
payable by the Owners or the Trust to the trustee under the deed of
trust, except in connection with a trustee's sale after default by
the related Mortgagor;
(xxxvi) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder
thereof adequate for the realization against the related Property of
the benefits of the security, including (A) in the case of a
Mortgage designated as a deed of trust, by trustee's sale and (B)
otherwise by judicial foreclosure. There is no homestead or other
exemption available to the related Mortgagor which would materially
interfere with the right to sell the related Property at a trustee's
sale or the right to foreclose the related Mortgage;
(xxxvii) There is no default, breach, violation or event of
acceleration existing under any Mortgage or the related Note and no
event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default,
breach, violation or event of acceleration; and neither the Servicer
nor the related Seller has waived any default, breach, violation or
event of acceleration;
(xxxviii) No instrument of release or waiver has been executed
in connection with any Home Equity Loan, and no Mortgagor has been
released, in whole or in part, except in connection with an
assumption agreement which has been approved by the primary mortgage
guaranty insurer, if any, and which has been delivered to the
Trustee;
(xxxix) The maturity date of each Home Equity Loan is at least
twelve months prior to the maturity date of the related first
mortgage loan if such first mortgage loan provides for a balloon
payment;
(xl) Each Home Equity Loan conforms, and all such Home Equity
Loans in the aggregate conform, in all material respects to the
description thereof set forth in the Prospectus Supplement;
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(xli) The credit underwriting guidelines applicable to each
Home Equity Loan conform in all material respects to the description
thereof set forth in the Prospectus Supplement;
(xlii) Each Home Equity Loan was originated based upon a full
appraisal, which included an interior inspection of the subject
property;
(xliii) The Home Equity Loans were not selected for inclusion
in the Trust by the Sellers on any basis intended to adversely
affect the Trust;
(xliv) No more than _____% and _____% of the aggregate Loan
Balance of the Home Equity Loans in the Fixed Rate Group and the
Adjustable Rate Group, respectively, are secured by Properties that
are non-owner occupied Properties (i.e., investor-owned and
vacation);
(xlv) No more than _____% and _____% of the aggregate Loan
Balance of the Home Equity Loans in the Fixed Rate Group and the
Adjustable Rate Group, respectively, are secured by Home Equity
Loans which were originated under the Seller's non-income
verification program;
(xlvi) Neither Seller has any actual knowledge that there
exist any hazardous substances, hazardous wastes or solid wastes, as
such terms are defined in the Comprehensive Environmental Response
Compensation and Liability Act, the Resource Conservation and
Recovery Act of 1976, or other federal, state or local environmental
legislation on any Property;
(xlvii) Both Sellers were properly licensed or otherwise
authorized, to the extent required by applicable law, to originate
or purchase each Home Equity Loan; and the consummation of the
transactions herein contemplated, including, without limitation, the
receipt of interest by the Owners and the ownership of the Home
Equity Loans by the Trustee as trustee of the Trust will not involve
the violation of such laws;
(xlviii) With respect to each Property subject to a ground
lease (i) the current ground lessor has been identified and all
ground rents which have previously become due and owing have been
paid; (ii) the ground lease term extends, or is automatically
renewable, for at least five years beyond the maturity date of the
related Initial Home Equity Loan; (iii) the ground lease has been
duly executed and recorded; (iv) the amount of the ground rent and
any increases therein are clearly identified in the lease and are
for predetermined amounts at predetermined times; (v) the ground
rent payment is included in the borrower's monthly payment as an
expense item; (vi) the Trust has the right to cure defaults on the
ground lease; and (vii) the terms and conditions of the leasehold do
not prevent the free and absolute marketability of the Property. As
of the Cut-Off Date, the Loan Balance of the Home Equity Loans with
related Properties subject to ground leases does not exceed 1% of
the Original Aggregate Loan Balance;
(xlix) All taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or
ground rents which previously became due and owing have been paid,
or an escrow of funds has been established in an amount sufficient
to pay for every such item which remains unpaid and which has been
assessed but is not yet due and payable;
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(l) As of the Startup Day, neither Seller has received a
notice of default of any first mortgage loan secured by any Property
which has not been cured by a party other than such Seller; and
(li) All of the Home Equity Loans in the Adjustable Rate Group
are in a first lien position;
(lii) As of the Cut-off Date, each Home Equity Loan has an
outstanding balance of less than $___________;
(liii) Each Home Equity Loan is secured by a mortgage on
property which, at the time of origination of each Home Equity Loan,
has an appraised value of not more than
$----------;
(liv) No more than _____% of the Fixed Rate Group Home Equity
Loans are in a second priority position and none of the Adjustable
Rate Group Home Equity Loans are in a second priority position; and
(lv) The weighted average margin of the Adjustable Rate Group
Home Equity Loans is _____%.
(c) In the event that any such repurchase results in a prohibited
transaction tax, the Trustee shall immediately notify the related Seller in
writing thereof and such Seller will, within 10 days of receiving notice thereof
from the Trustee, deposit the amount due from the Trust with the Trustee for the
payment thereof, including any interest and penalties, in immediately available
funds. In the event that any Qualified Replacement Mortgage is delivered by
either Seller to the Trust pursuant to Section 3.03, Section 3.04 or Section
3.06 hereof, such Seller shall be obligated to take the actions described in
Section 3.04(a) with respect to such Qualified Replacement Mortgage upon the
discovery by any of the Owners, the other Seller, the Servicer, the Certificate
Insurer, any Sub-Servicer or the Trustee that the statements set forth in clause
(ix), (x), (xiii), (xxxvi), (xl) or (xli) of subsection (b) above are untrue in
any material respect on the date such Qualified Replacement Mortgage is conveyed
to the Trust or that any of the other statements set forth in subsection (b)
above are untrue on the date such Qualified Replacement Mortgage is conveyed to
the Trust such that the interests of the Owners or the Certificate Insurer in
the related Qualified Replacement Mortgage are materially and adversely
affected; provided, however, that for the purposes of this subsection (c) the
statements in subsection (b) above referring to items "as of the Cut-Off Date"
or "as of the Startup Day" shall be deemed to refer to such items as of the date
such Qualified Replacement Mortgage is conveyed to the Trust. Notwithstanding
the fact that a representation contained in subsection (b) above may be limited
to a Seller's knowledge, such limitation shall not relieve a Seller of its
repurchase obligation under this Section and Section 3.05 hereof.
(d) It is understood and agreed that the covenants set forth in this
Section 3.04 shall survive delivery of the respective Home Equity Loans
(including Qualified Replacement Mortgages) to the Trustee.
(e) The Trustee shall have no duty to conduct any affirmative
investigation other than as specifically set forth in this Agreement as to the
occurrence of any condition requiring the repurchase or substitution of any Home
Equity Loan pursuant to this Article III or the eligibility of any Home Equity
Loan for the purpose of this Agreement.
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Section 3.05 Conveyance of the Home Equity Loans and Qualified
Replacement Mortgages.
(a) On the Startup Day each Seller, concurrently with the execution and
delivery hereof, hereby transfers, assigns, sets over and otherwise conveys to
the Depositor and the Depositor, concurrently with the execution and delivery
hereof, transfers, assigns, sets over and otherwise conveys, without recourse,
to the Trust all of their respective right, title and interest in and to the
Trust Estate; provided, however, that each Seller reserves and retains all of
its right, title and interest in and to principal (including Prepayments)
collected and interest accrued on each Home Equity Loan on or prior to the
Cut-Off Date. The transfer by the Depositor of the Home Equity Loans set forth
on the Schedule of Home Equity Loans to the Trustee is absolute and is intended
by the Owners and all parties hereto to be treated as a sale by the Depositor.
It is intended that the sale, transfer, assignment and conveyance
herein contemplated constitute a sale of the Home Equity Loans conveying good
title thereto free and clear of any liens and encumbrances from each Seller to
the Depositor and from the Depositor to the Trust and that the Home Equity Loans
not be part of the Depositor's or either Seller's estate in the event of
insolvency. In the event that such conveyance is deemed to be a loan, the
parties intend that each Seller shall be deemed to have granted to the Depositor
and the Depositor shall be deemed to have granted to the Trustee a first
priority perfected security interest in the Trust Estate and that this Agreement
shall constitute a security agreement under applicable law.
In connection with such sale, transfer, assignment, and conveyance from
the Sellers to the Depositor, each Seller has filed, in the appropriate office
or offices in the States of __________, ___________ and __________, as the case
may be, a UCC-1 financing statement executed by such Seller as debtor, naming
the Depositor as secured party and listing the Home Equity Loans and the other
property described above as collateral. The characterization of a Seller as
debtor and the Depositor as secured party on such financing statements is solely
for protective purposes and shall in no way be construed as being contrary to
the intent of the parties that this transaction be treated as a sale of such
Seller's entire right, title and interest in and to the Trust Estate. In
connection with such filing, each Seller agrees that it shall cause to be filed
all necessary continuation statements thereof and to take or cause to be taken
such actions and execute such documents as are necessary to perfect and protect
the Trustee's, the Owners' and the Certificate Insurer's interest in the Trust
Estate.
In connection with such sale, transfer, assignment, and conveyance from
the Depositor to the Trustee, the Depositor has filed, in the appropriate office
or offices in the States of New York and Delaware, a UCC-1 financing statement
executed by the Depositor as debtor, naming the Trustee as secured party and
listing the Home Equity Loans and the other property described above as
collateral. The characterization of the Depositor as debtor and the Trustee as
secured party in such financing statements is solely for protective purposes and
shall in no way be construed as being contrary to the intent of the parties that
this transaction be treated as a sale of the Depositor's entire right, title and
interest in and to the Trust Estate. In connection with such filing, the
Depositor agrees that it shall cause to be filed all necessary continuation
statements thereof and to take or cause to be taken such actions and execute
such documents as are necessary to perfect and protect the Trustee's, the
Owners' and the Certificate Insurer's interest in the Trust Estate.
(b) In connection with the transfer and assignment of the Home Equity
Loans, the Depositor agrees to:
(i) deliver without recourse to the Trustee on the Startup Day
with respect to each Home Equity Loan (A) the original Notes endorsed
in blank or to the order of the Trustee, (B)
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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 the related
Seller from the applicable recording office or a certified copy thereof
if such original Mortgage has not been returned to the related 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 Startup Day,
assignments of the Mortgages to "[Name of Trustee], as Trustee of
__________ Home Equity Loan Trust under the Pooling and Servicing
Agreement dated as of __________ 1, 199_" to be submitted for recording
in the appropriate jurisdictions; provided, however, that the Depositor
shall not be required to record an assignment of a Mortgage if the
Depositor furnishes to the Trustee and the Certificate Insurer, on or
before the Startup Day, at the Depositor's expense an opinion of
counsel with respect to the relevant jurisdiction that such recording
is not necessary to perfect the Trustee's interest in the related Home
Equity Loans (in form and substance and from counsel satisfactory to
the Certificate Insurer and to the Rating Agencies); notwithstanding
the furnishing of such opinion of counsel, however, the Certificate
Insurer may, in its reasonable discretion after consultation with the
Depositor prior to the date on which all assignments of Mortgages are
required to be filed hereunder, require the filing of assignments of
Mortgages in any state that is the subject of such opinions; and
(iii) deliver the title insurance policy or title searches,
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 Depositor (but in
any event, with respect to any Mortgage as to which original recording
information has been made available to the Depositor, within one year
after the Startup Day).
Notwithstanding anything to the contrary contained in this Section
3.05, in those instances where the public recording office retains the original
Mortgage, the assignment of a Mortgage or the intervening assignments of the
Mortgage after it has been recorded, the Depositor shall be deemed to have
satisfied its obligations hereunder upon delivery to the Trustee of a copy of
such Mortgage, such assignment or assignments of Mortgage certified by the
public recording office to be a true copy of the recorded original thereof.
Not later than ten days following the end of the 60-day period referred
in clause (ii) of the second preceding paragraph, each Seller shall deliver to
the Trustee a list of all Mortgages with respect to Home Equity Loans delivered
by such Seller for which no Mortgage assignment has yet been submitted for
recording by such Seller, which list shall state the reason why such Seller has
not yet submitted such Mortgage assignments for recording. With respect to any
Mortgage assignment disclosed on such list as not yet submitted for recording
for a reason other than a lack of original recording information, the Trustee
shall make an immediate demand on such Seller to prepare such Mortgage
assignments, and shall inform the Certificate Insurer of such Seller's failure
to prepare such Mortgage assignments. Thereafter, the Trustee shall cooperate in
executing any documents prepared by the Certificate Insurer and submitted to the
Trustee in connection with this provision. Following the expiration of the
60-day period referred to in clause (ii) of the second preceding paragraph, each
Seller shall promptly prepare a Mortgage assignment for any Mortgage with
respect to Home Equity Loans delivered by such Seller for which original
recording information is subsequently received by such Seller, and shall
promptly deliver a copy
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of such Mortgage assignment to the Trustee. Each Seller agrees that it will
follow its normal servicing procedures and attempt to obtain the original
recording information necessary to complete a Mortgage assignment with respect
to Home Equity Loans delivered by such Seller. In the event that a Seller is
unable to obtain such recording information with respect to any Mortgage prior
to the end of the 18th calendar month following the Startup Day and has not
provided to the Trustee a Mortgage assignment with evidence of recording thereon
relating to the assignment of such Mortgage to the Trustee, the Trustee shall
notify such Seller of such Seller's obligation to provide a completed assignment
(with evidence of recording thereon) on or before the end of the 20th calendar
month following the Startup Day with respect to the Home Equity Loans. A copy of
such notice shall be sent by the Trustee to the Certificate Insurer. If no such
completed assignment (with evidence of recording thereon) is provided before the
end of such 20th calendar month, the related Home Equity Loan shall be deemed to
have breached the representation contained in clause (xxiii) of Section 3.04(b)
hereof; provided, however, that if as of the end of such 20th calendar month
either Seller then required to deliver such a completed assignment demonstrates
to the satisfaction of the Certificate Insurer that it is exercising its best
efforts to obtain such completed assignment and, during each month thereafter
until such completed assignment is delivered to the Trustee, such Seller
continues to demonstrate to the satisfaction of the Certificate Insurer that it
is exercising its best efforts to obtain such completed assignment, the related
Home Equity Loan will not be deemed to have breached such representation. The
requirement to deliver a completed assignment with evidence of recording thereon
will be deemed satisfied upon delivery of a copy of the completed assignment
certified by the applicable public recording office.
Copies of all Mortgage assignments received by the Trustee shall be
retained in the related File.
All recording required pursuant to this Section 3.05 with respect to
one or more Home Equity Loans shall be accomplished at the expense of the Seller
delivering such Home Equity Loan.
(c) In the case of Home Equity Loans which have been prepaid in full
after the Cut-Off Date and prior to the Startup Day, the Depositor, in lieu of
the foregoing, will deliver within six (6) days after the Startup Day to the
Trustee a certification of an Authorized Officer in the form set forth in
Exhibit D.
(d) Each Seller shall transfer, assign, set over and otherwise convey,
without recourse, to the Trustee all right, title and interest of such Seller in
and to any Qualified Replacement Mortgage delivered to the Trustee on behalf of
the Trust by such Seller pursuant to Section 3.03, 3.04 or 3.06 hereof and all
its right, title and interest to principal and interest due on such Qualified
Replacement Mortgage after the applicable Replacement Cut-Off Date; provided,
however, that such Seller shall reserve and retain all right, title and interest
in and to payments of principal and interest due on such Qualified Replacement
Mortgage on or prior to the applicable Replacement Cut-Off Date.
(e) As to each Home Equity Loan released from the Trust in connection
with the conveyance of a Qualified Replacement Mortgage therefor, the Trustee
will transfer, assign, set over and otherwise convey without recourse or
representation, on the order of the Seller delivering such Home Equity Loan, all
of its right, title and interest in and to such released Home Equity Loan and
all the Trust's right, title and interest to principal and interest due on such
released Home Equity Loan after the applicable Replacement Cut-Off Date;
provided, however, that the Trust shall reserve and retain all right, title and
interest in and to payments of principal and interest due on such released Home
Equity Loan on or prior to the applicable Replacement Cut-Off Date.
(f) In connection with any transfer and assignment of a Qualified
Replacement Mortgage to the Trustee on behalf of the Trust, each Seller agrees
to (i) deliver without recourse to the Trustee on the date of delivery of such
Qualified Replacement Mortgage the original Note relating thereto, endorsed in
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blank or to the order of the Trustee, (ii) cause promptly to be recorded an
assignment in the appropriate jurisdictions, (iii) deliver the original
Qualified Replacement Mortgage and such recorded assignment, together with
original or duly certified copies of any and all prior assignments, to the
Trustee within 15 days of receipt thereof by such Seller (but in any event
within 120 days after the date of conveyance of such Qualified Replacement
Mortgage) and (iv) deliver the title insurance policy, or where no such policy
is required to be provided under Section 3.05(b)(i)(B), the other evidence of
title in the same manner required in Section 3.05(b)(i)(B).
(g) As to each Home Equity Loan released from the Trust in connection
with the conveyance of a Qualified Replacement Mortgage the Trustee shall
deliver on the date of conveyance of such Qualified Replacement Mortgage and on
the order of the Seller delivering such Qualified Replacement Mortgage (i) the
original Note relating thereto, endorsed without recourse or representation, to
such Seller, (ii) the original Mortgage so released and all assignments relating
thereto and (iii) such other documents as constituted the File with respect
thereto.
(h) If a Mortgage assignment is lost during the process of recording,
or is returned from the recorder's office unrecorded due to a defect therein,
the Seller that delivered the corresponding Home Equity Loan shall prepare a
substitute assignment or cure such defect, as the case may be, and thereafter
cause each such assignment to be duly recorded.
Section 3.06 Acceptance by Trustee; Certain Substitutions of
Home Equity Loans; Certification by Trustee.
(a) The Trustee agrees to execute and deliver on the Startup Day an
acknowledgment of receipt of the items delivered by each of the Sellers and the
Depositor in the form attached as Exhibit E hereto, and declares that it will
hold such documents and any amendments, replacement or supplements thereto, as
well as any other assets included in the definitions of Trust Estate and the
Corpus and delivered to the Trustee, as Trustee in trust upon and subject to the
conditions set forth herein for the benefit of the Owners. The Trustee agrees,
for the benefit of the Owners, to review such items within 45 days after the
Startup Day (or, with respect to any document delivered after the Startup Day,
within 45 days of receipt and with respect to any Qualified Replacement
Mortgage, within 45 days after the assignment thereof) and to deliver to the
Depositor, each of the Sellers, the Servicer and the Certificate Insurer a
certification in the form attached hereto as Exhibit F (a "Pool Certification")
to the effect that, as to each Home Equity Loan listed in the Schedule of Home
Equity Loans (other than any Home Equity Loan paid in full or any Home Equity
Loan specifically identified in such Pool Certification as not covered by such
Pool Certification), (i) all documents required to be delivered to it pursuant
to Section 3.05(b)(i) of this Agreement are in its possession, (ii) such
documents have been reviewed by it and have not been mutilated, damaged or torn
and relate to such Home Equity Loan and (iii) based on its examination and only
as to the foregoing documents, the information set forth on the Schedule of Home
Equity Loans accurately reflects the information set forth in the File. The
Trustee shall have no responsibility for reviewing any File except as expressly
provided in this subsection 3.06(a). Without limiting the effect of the
preceding sentence, in reviewing any File, the Trustee shall have no
responsibility for determining whether any document is valid and binding,
whether the text of any assignment is in proper form (except to determine if the
Trustee is the assignee), whether any document has been recorded in accordance
with the requirements of any applicable jurisdiction or whether a blanket
assignment is permitted in any applicable jurisdiction, but shall only be
required to determine whether a document has been executed, that it appears to
be what it purports to be, and, where applicable, that it purports to be
recorded. The Trustee shall be under no duty or obligation to inspect, review or
examine any such documents, instruments, certificates or other papers to
determine that they are genuine, enforceable, or appropriate for the represented
purpose or that they are other than what they purport to
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be on their face, nor shall the Trustee be under any duty to determine
independently whether there are any intervening assignments or assumption or
modification agreements with respect to any Home Equity Loan.
(b) If the Trustee during such 45-day period finds any document
constituting a part of a File which is not executed, has not been received, or
is unrelated to the Home Equity Loans identified in the Schedule of Home Equity
Loans, or that any Home Equity Loan does not conform to the description thereof
as set forth in the Schedule of Home Equity Loans, the Trustee shall promptly so
notify the Depositor, each of the Sellers, the Certificate Insurer and the
Owners. In performing any such review, the Trustee may conclusively rely as to
the purported genuineness of any such document and any signature thereon. It is
understood that the scope of the Trustee's review of the items delivered by each
of the Sellers pursuant to Section 3.05(b)(i) is limited solely to confirming
that the documents listed in Section 3.05(b)(i) have been executed and received,
relate to the Files identified in the Schedule of Home Equity Loans and conform
to the description thereof in the Schedule of Home Equity Loans. Each Seller
agrees to use reasonable efforts to remedy a material defect in a document
constituting part of a File delivered by such Seller 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 related Seller has not remedied the defect and the
defect materially and adversely affects the interest of the Owners or of the
Certificate Insurer in the related Home Equity Loan such Seller will (or will
cause an affiliate of such Seller to) on the next succeeding Monthly Remittance
Date (i) substitute in lieu of such Home Equity Loan a Qualified Replacement
Mortgage and deliver the Substitution Amount to the Servicer for deposit in the
Principal and Interest Account 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 Servicer for deposit in the Principal and Interest
Account.
(c) In addition to the foregoing, the Trustee also agrees to make a
review during the 12th month after the Startup Day indicating the current status
of the exceptions previously indicated on the Pool Certification (the "Final
Certification"). After delivery of the Final Certification, the Trustee and the
Servicer shall provide to the Certificate Insurer no less frequently than
monthly updated certifications indicating the then current status of exceptions,
until all such exceptions have been eliminated.
END OF ARTICLE III
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ARTICLE IV
ISSUANCE AND SALE OF CERTIFICATES
Section 4.01 Issuance of Certificates
On the Startup Day, upon the Trustee's receipt from the Depositor of an
executed Delivery Order in the form set forth as Exhibit G hereto, the Trustee
shall authenticate and deliver the Certificates on behalf of the Trust.
Section 4.02 Sale of Certificates.
At 11 a.m. New York City time on the Startup Day (the "Closing"), at
the offices of __________ ____________________________________ (or at such other
location acceptable to the Seller), the Sellers will sell and convey the Home
Equity Loans and the money, instruments and other property related thereto to
the Depositor and the Depositor will sell and convey the Home Equity Loans and
the money, instruments and other property related thereto to the Trustee, and
the Trustee will deliver (i) to the Underwriters the Class A Certificates with
an aggregate Percentage Interest in each Class equal to 100%, registered in the
name of Cede & Co., or in such other names as the Underwriters shall direct,
against payment of the purchase price thereof by wire transfer of immediately
available funds to the Trustee, and (ii) to the respective registered owners
thereof, a Class B-IO Certificate with a Percentage Interest equal to 100%,
registered in the name of ____________________, a Class R Certificate with a
Percentage Interest equal to 99.999%, registered in the name of
____________________ and a Class R Certificate with a Percentage Interest equal
to .001%, registered in the name of ____________________.
Upon the Trustee's receipt of the entire net proceeds of the sale of
the Class A Certificates, the Trustee shall remit the entire balance of such net
proceeds to the Depositor in accordance with instructions delivered by the
Depositor.
END OF ARTICLE IV
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ARTICLE V
CERTIFICATES AND TRANSFER OF INTERESTS
Section 5.01 Terms.
-----
(a) The Certificates are pass-through securities having the rights
described therein and herein. Notwithstanding references herein or therein with
respect to the Certificates to "principal" and "interest" no debt of any Person
is represented thereby, nor are the Certificates or the underlying Notes
guaranteed by any Person (except that the Notes may be recourse to the
Mortgagors thereof to the extent permitted by law and except for the rights of
the Trustee on behalf of the Owners of the Class A Certificates with respect to
the Certificate Insurance Policy). The Class A Certificates are payable solely
from payments received on or with respect to the Home Equity Loans (other than
the Servicing Fees), moneys in the Principal and Interest Account, earnings on
moneys and the proceeds of property held as a part of the Trust Estate and the
Corpus and, with respect to the Class A Certificates upon the occurrence of
certain events, from Insured Payments. Each Certificate entitles the Owner
thereof to receive monthly on each Payment Date, in order of priority of
distributions with respect to such Class of Certificates as set forth in Section
7.03, a specified portion of such payments with respect to the Home Equity Loans
(and, with respect to the Owners of the Class A Certificates, Insured Payments
deposited in the Certificate Account), pro rata in accordance with such Owner's
Percentage Interest.
(b) Each Owner is required, and hereby agrees, to return to the Trustee
any Certificate with respect to which the Trustee has made the final
distribution due thereon. Any such Certificate as to which the Trustee has made
the final distribution thereon shall be deemed cancelled and shall no longer be
Outstanding for any purpose of this Agreement, whether or not such Certificate
is ever returned to the Trustee.
Section 5.02 Forms.
-----
The Class A-1 Certificates, the Class A-2 Certificates, the Class A-3
Certificates, the Class A-4 Certificates, the Class A-5 Certificates, the Class
A-6 Certificates, the Class A-7IO Certificates, the Class A-8IO Certificates,
the Class R Certificates and the Class B-IO Certificates shall be in
substantially the forms set forth in Exhibits A-1, A-2, A-3, A-4, A-5, A-6,
A-7IO, A-8IO, B and B-IO hereof, respectively, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement or as may in the Depositor's judgment be necessary, appropriate
or convenient to comply, or facilitate compliance, with applicable laws, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
applicable securities laws or as may, consistently herewith, be determined by
the Authorized Officer of the Depositor executing such Certificates, as
evidenced by his execution thereof.
Section 5.03 Execution, Authentication and Delivery.
--------------------------------------
Each Certificate shall be executed on behalf of the Trust, by the
manual or facsimile signature of one of the Depositor's Authorized Officers and
shall be authenticated by the manual or facsimile signature of one of the
Trustee's Authorized Officers.
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Certificates bearing the manual signature of individuals who were at
any time the proper officers of the Depositor shall, upon proper authentication
by the Trustee, bind the Trust, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the execution and delivery of
such Certificates or did not hold such offices at the date of authentication of
such Certificates.
The initial Certificates shall be dated as of the Startup Day and
delivered at the Closing to the parties specified in Section 4.02 hereof.
Subsequently issued Certificates will be dated as of the issuance of the
Certificate.
No Certificate shall be valid until executed and authenticated as set
forth above.
Section 5.04 Registration and Transfer of Certificates.
-----------------------------------------
(a) The Trustee shall cause to be kept a register (the "Register") in
which, subject to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and the registration of
transfer of Certificates. The Trustee is hereby initially appointed Registrar
for the purpose of registering Certificates and transfers of Certificates as
herein provided. The Certificate Insurer, the Owners and the Trustee shall have
the right to inspect the Register during the Trustee's normal hours and to
obtain copies thereof, and the Trustee shall have the right to rely upon a
certificate executed on behalf of the Registrar by an Authorized Officer thereof
as to the names and addresses of the Owners of the Certificates and the
principal amounts and numbers of such Certificates.
If a Person other than the Trustee is appointed as Registrar by the
Owners of a majority of the aggregate Percentage Interests represented by the
Class A Certificates then Outstanding with the consent of the Certificate
Insurer, or if there are no longer any Class A Certificates then outstanding, by
such majority of the Percentage Interests represented by the Class R
Certificates, the Trustee will give the Certificate Insurer and the Owners
prompt written notice of the appointment of such Registrar and of the location,
and any change in the location, of the Register. In connection with any such
appointment the annual fees of the bank then serving as Trustee and Registrar
shall thenceforth be reduced by the amount to be agreed upon by the Trustee and
the Depositor at such time and the reasonable fees of the Registrar shall be
paid, as expenses of the Trust, pursuant to Section 7.05 hereof.
(b) Subject to the provisions of Section 5.08 hereof, upon surrender
for registration of transfer of any Certificate at the office designated as the
location of the Register, upon the direction of the Registrar the Depositor
shall execute and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of a like
Class and in the aggregate principal amount or percentage interest of the
Certificate so surrendered.
(c) At the option of any Owner, Certificates of any Class owned by such
Owner may be exchanged for other Certificates authorized of like Class and tenor
and a like aggregate original principal amount or percentage interest and
bearing numbers not contemporaneously outstanding, upon surrender of the
Certificates to be exchanged at the office designated as the location of the
Register. Whenever any Certificate is so surrendered for exchange, upon the
direction of the Registrar, the Depositor and the Trustee shall execute,
authenticate and deliver the Certificate or Certificates which the Owner making
the exchange is entitled to receive.
(d) All Certificates issued upon any registration of transfer or
exchange of Certificates shall be valid evidence of the same ownership interests
in the Trust and entitled to the same benefits under this Agreement as the
Certificates surrendered upon such registration of transfer or exchange.
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(e) Every Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Registrar duly executed by
the Owner thereof or his attorney duly authorized in writing.
(f) No service charge shall be made to an Owner for any registration of
transfer or exchange of Certificates, but the Registrar or Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Certificates; any other expenses in connection with such transfer or exchange
shall be an expense of the Trust.
(g) It is intended that the Class A Certificates be registered so as to
participate in a global book-entry system with the Depository, as set forth
herein. Each Class of Class A Certificates shall, except as otherwise provided
in Subsection (h), be initially issued in the form of a single fully registered
Class A Certificate of such Class. Upon initial issuance, the ownership of each
such Class A Certificate shall be registered in the Register in the name of Cede
& Co., or any successor thereto, as nominee for the Depository.
On the Startup Day, the Class A Certificates (other than the Class A-IO
Certificates) shall be issued in denominations of no less than $1,000 and
integral multiples thereof. On the Startup Day, the Class A-IO Certificates
shall be issued in denominations of no less than $1,000 (based on the related
Class A-7IO or Class A-8IO Notional Principal Amount thereof) and integral
multiple thereof.
The Depositor and the Trustee are hereby authorized to execute and
deliver the Representation Letter with the Depository.
With respect to the Class A Certificates registered in the Register in
the name of Cede & Co., as nominee of the Depository, the Depositor, the
Servicer, the Sellers, the Certificate Insurer and the Trustee shall have no
responsibility or obligation to Direct or Indirect Participants or beneficial
owners for which the Depository holds Class A Certificates from time to time as
a Depository. Without limiting the immediately preceding sentence, the
Depositor, the Servicer, the Sellers, the Certificate Insurer and the Trustee
shall have no responsibility or obligation with respect to (i) the accuracy of
the records of the Depository, Cede & Co., or any Direct or Indirect Participant
with respect to the ownership interest in the Class A Certificates, (ii) the
delivery to any Direct or Indirect Participant or any other Person, other than a
registered Owner of a Class A Certificate as shown in the Register, of any
notice with respect to the Class A Certificates or (iii) the payment to any
Direct or Indirect Participant or any other Person, other than a registered
Owner of a Class A Certificate as shown in the Register, of any amount with
respect to any distribution of principal or interest on the Class A
Certificates. No Person other than a registered Owner of a Class A Certificate
as shown in the Register shall receive a certificate evidencing such Class A
Certificate.
Upon delivery by the Depository to the Trustee of written notice to the
effect that the Depository has determined to substitute a new nominee in place
of Cede & Co., and subject to the provisions hereof with respect to the payment
of interest by the mailing of checks or drafts to the registered Owners of Class
A Certificates appearing as registered Owners in the registration books
maintained by the Trustee at the close of business on a Record Date, the name
"Cede & Co." in this Agreement shall refer to such new nominee of the
Depository.
(h) In the event that (i) the Depository or the Depositor advises the
Trustee in writing that the Depository is no longer willing or able to discharge
properly its responsibilities as nominee and depository with respect to the
Class A Certificates and the Depositor or the Trustee is unable to locate
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a qualified successor or (ii) the Depositor at its sole option elects to
terminate the book-entry system through the Depository, the Class A Certificates
shall no longer be restricted to being registered in the Register in the name of
Cede & Co. (or a successor nominee) as nominee of the Depository. At that time,
the Depositor may determine that the Class A Certificates shall be registered in
the name of and deposited with a successor depository operating a global
book-entry system, as may be acceptable to the Depositor and at the Depositor's
expense, or such depository's agent or designee but, if the Depositor does not
select such alternative global book-entry system, then the Class A Certificates
may be registered in whatever name or names registered Owners of Class A
Certificates transferring Class A Certificates shall designate, in accordance
with the provisions hereof.
(i) Notwithstanding any other provision of this Agreement to the
contrary, so long as any Class A Certificate is registered in the name of Cede &
Co., as nominee of the Depository, all distributions of principal or interest on
such Class A Certificates and all notices with respect to such Class A
Certificates shall be made and given, respectively, in the manner provided in
the Representation Letter.
Section 5.05 Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If (i) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate, and (ii) in the case of any mutilated Certificate, such
mutilated Certificate shall first be surrendered to the Trustee, and in the case
of any destroyed, lost or stolen Certificate, there shall be first delivered to
the Trustee such security or indemnity as may be reasonably required by it to
hold the Trustee and the Certificate Insurer harmless, then, in the absence of
notice to the Trustee or the Registrar that such Certificate has been acquired
by a bona fide purchaser, the Depositor shall execute and the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and aggregate principal amount, bearing a number not contemporaneously
outstanding.
Upon the issuance of any new Certificate under this Section, the
Registrar or Trustee may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto; any
other expenses in connection with such issuance shall be an expense of the
Trust.
Every new Certificate issued pursuant to this Section in exchange for
or in lieu of any mutilated, destroyed, lost or stolen Certificate shall
constitute evidence of a substitute interest in the Trust, and shall be entitled
to all the benefits of this Agreement equally and proportionately with any and
all other Certificates of the same Class duly issued hereunder and such
mutilated, destroyed, lost or stolen Certificate shall not be valid for any
purpose.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates.
Section 5.06 Persons Deemed Owners.
---------------------
The Certificate Insurer, the Trustee and any agent of the Trustee may
treat the Person in whose name any Certificate is registered as the Owner of
such Certificate for the purpose of receiving distributions with respect to such
Certificate and for all other purposes whatsoever, and neither the Certificate
Insurer, the Trustee nor any agent of the Trustee shall be affected by notice to
the contrary.
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Section 5.07 Cancellation.
------------
All Certificates surrendered for registration of transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by it. No Certificate shall be
authenticated in lieu of or in exchange for any Certificate cancelled as
provided in this Section, except as expressly permitted by this Agreement. All
cancelled Certificates may be held by the Trustee in accordance with its
standard retention policy.
Section 5.08 Limitation on Transfer of Ownership Rights.
------------------------------------------
(a) No sale or other transfer of record or beneficial ownership of a
Class R Certificate or assignment of an interest in the Upper-Tier REMIC
Residual Class (whether pursuant to a purchase, a transfer resulting from a
default under a secured lending agreement or otherwise) shall be made to a
Disqualified Organization or an agent of a Disqualified Organization. The
transfer, sale or other disposition of a Class R Certificate or assignment of an
interest in the Upper-Tier REMIC Residual Class (whether pursuant to a purchase,
a transfer resulting from a default under a secured lending agreement or
otherwise) to a Disqualified Organization shall be deemed to be of no legal
force or effect whatsoever and such transferee shall not be deemed to be an
Owner for any purpose hereunder, including, but not limited to, the receipt of
distributions on such Class R Certificate or Upper-Tier REMIC Residual Class.
Furthermore, in no event shall the Trustee accept surrender for transfer,
registration of transfer, or register the transfer, of any Class R Certificate
nor authenticate and make available any new Class R Certificate unless the
Trustee has received an affidavit from the proposed transferee in the form
attached hereto as Exhibit I. Each holder of a Class R Certificate by his
acceptance thereof, shall be deemed for all purposes to have consented to the
provisions of this Section 5.08(a). The Upper-Tier REMIC Residual Class is not
transferable except that the Owner of the Tax Matters Person Residual Interest
in the Upper-Tier REMIC may assign its interest to another Person who accepts
such assignment and the designation as Tax Matters Person pursuant to Section
11.18 hereof.
(b) No other sale or other transfer of record or beneficial ownership
of a Class B-IO Certificate or a Class R Certificate shall be made unless such
transfer is exempt from the registration requirements of the Securities Act and
any applicable state securities laws or is made in accordance with said Act and
laws. In the event such a transfer is to be made within three years from the
Startup Day, (i) the Trustee or the Depositor shall require a written opinion of
counsel acceptable to and in form and substance satisfactory to the Depositor
and the Certificate Insurer in the event that such transfer may be made pursuant
to an exemption, describing the applicable exemption and the basis therefor,
from said Act and laws or is being made pursuant to said Act and laws, which
opinion of counsel shall not be an expense of the Trustee, the Trust Estate or
the Certificate Insurer, and (ii) the Trustee shall require the Transferee to
execute an investment letter acceptable to and in form and substance
satisfactory to each of the Sellers and the Certificate Insurer certifying to
the Trustee, the Certificate Insurer and each of the Sellers the facts
surrounding such transfer, which investment letter shall not be an expense of
the Trustee, the Trust Estate, the Certificate Insurer or either of the Sellers.
The Owner of a Class B-IO Certificate or a Class R Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee, the
Certificate Insurer, the Depositor and each of the Sellers against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
(c) No transfer of a Class B-IO or Class R Certificate shall be made
unless the Trustee shall have received a representation letter from the
transferee of such Class B-IO or Class R Certificate, acceptable to and in form
and substance satisfactory to the Trustee, to the effect that such transferee is
not an employee benefit plan subject to Section 406 of ERISA nor a plan or other
arrangement subject to Section 406 of ERISA nor a plan or other arrangement
subject to Section 4975 of the Code
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(collectively, a "Plan"), nor is acting on behalf of any Plan nor using the
assets of any Plan to effect such transfer. Notwithstanding anything else to the
contrary herein, any purported transfer of a Certificate to or on behalf of any
Plan without the delivery to the Trustee a representation letter as described
above shall be null and void and of no effect.
(d) No sale or other transfer of any Class A Certificate may be made to
the Depositor, the Sellers or the Servicer. No sale or other transfer of any
Class A Certificate may be made to an affiliate of either Seller unless the
Trustee and the Certificate Insurer shall have been furnished with an opinion of
counsel acceptable to the Certificate Insurer and the Trustee experienced in
federal bankruptcy matters to the effect that such sale or transfer would not
adversely affect the character of the conveyance of the Home Equity Loans to the
Trust as a sale. To the extent any payment to an Owner of a Class A Certificate
constitutes an Insured Payment, such payment will not be made to either of the
Sellers, the Depositor or the Servicer or any Subservicer. No sale or other
transfer of the Class R Certificate issued to ContiFunding Corporation on the
Startup Day may be transferred or sold to any Person, except to a person who
accepts the appointment of Tax Matters Person pursuant to Section 11.18 hereof.
Section 5.09 Assignment of Rights.
--------------------
An Owner may pledge, encumber, hypothecate or assign all or any part of
its right to receive distributions hereunder, 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 Section 5.04 and Section 5.08 hereof.
END OF ARTICLE V
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ARTICLE VI
COVENANTS
Section 6.01 Distributions.
-------------
On each Payment Date, the Trustee will withdraw amounts from the
related Account(s) and make the distributions with respect to the Certificates
in accordance with the terms of the Certificates and this Agreement. Such
distributions shall be made (i) by check or draft mailed on each Payment Date or
(ii) if requested by any Owner of (A) a Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5 or Class A-6 Certificate having an original principal balance of
not less than $1,000,000, (B) a Class A-IO Certificate having an original
Notional Principal Amount of not less than $1,000,000 or (C) a Class B-IO
Certificate or Class R Certificate having a Percentage Interest of not less than
10% in writing not later than one Business Day prior to the applicable Record
Date (which request does not have to be repeated unless it has been withdrawn),
to such Owner by wire transfer to an account within the United States designated
no later than five Business Days prior to the related Record Date, made on each
Payment Date, in each case to each Owner of record on the immediately preceding
Record Date.
Section 6.02 Money for Distributions to be Held in Trust;
Withholding.
(a) All payments of amounts due and payable with respect to any
Certificate that are to be made from amounts withdrawn from the Certificate
Account or from Insured Payments shall be made by and on behalf of the Trustee,
and no amounts so withdrawn from the Certificate Account or the Class A-1
Distribution Account for payments of Certificates and no Insured Payment shall
be paid over to the Trustee except as provided in this Section.
(b) Whenever the Depositor has appointed one or more Paying Agents
pursuant to Section 11.15 hereof, the Trustee will, on the Business Day
immediately preceding each Payment Date, deposit with such Paying Agents in
immediately available funds an aggregate sum sufficient to pay the amounts then
becoming due (to the extent funds are then available for such purpose in the
Certificate Account for the Class to which such amounts are due) such sum to be
held in trust for the benefit of the Owners entitled thereto.
(c) The Depositor may at any time direct any Paying Agent to pay to the
Trustee all sums held in trust by such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
(d) The Depositor shall require each Paying Agent, including the
Trustee on behalf of the Trust to comply with all requirements of the Code and
applicable state and local law with respect to the withholding from any
distributions made by it to any Owner of any applicable withholding taxes
imposed thereon and with respect to any applicable reporting requirements in
connection therewith.
(e) Any money held by the Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Class A Certificate and remaining
unclaimed by the Owner of such Class A Certificate for the period then specified
in the escheat laws of the State of New York after such amount has become due
and payable shall be discharged from such trust and be paid to the Owners of the
Class R Certificates; and the Owner of such Class A Certificate shall
thereafter, as an unsecured general creditor, look only to the Owners of the
Class R Certificates for payment thereof (but only to the extent of the amounts
so paid to the Owners of the Class R Certificates) and all liability of the
Trustee or such Paying Agent with respect to such trust money shall thereupon
cease; provided, however, that the Trustee
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or such Paying Agent before being required to make any such payment, may, at the
expense of the Trust, cause to be published once, in the eastern edition of The
Wall Street Journal, notice that such money remains unclaimed and that, after a
date specified therein, which shall be not fewer than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
paid to the Owners of the Class R Certificates. The Trustee shall, at the
direction of the Depositor, also adopt and employ, at the expense of the Trust,
any other reasonable means of notification of such payment (including but not
limited to mailing notice of such payment to Owners whose right to or interest
in moneys due and payable but not claimed is determinable from the records of
the Registrar, the Trustee or any Paying Agent, at the last address of record
for each such Owner).
Section 6.03 Protection of Trust Estate.
--------------------------
(a) The Trustee will hold the Trust Estate in trust for the benefit of
the Owners and the Certificate Insurer and, upon request of the Certificate
Insurer or, with the consent of the Certificate Insurer, at the request of the
Depositor, will from time to time execute and deliver all such supplements and
amendments hereto pursuant to Section 11.14 hereof and all instruments of
further assurance and other instruments, and will take such other action upon
such request from the Depositor or the Certificate Insurer, to:
(i) more effectively hold in trust all or any portion of the
Trust Estate;
(ii) perfect, publish notice of, or protect the validity of
any grant made or to be made by this Agreement;
(iii) enforce any of the Home Equity Loans; or
(iv) preserve and defend title to the Trust Estate and the
rights of the Trustee, and the ownership interests of the Owners
represented thereby, in such Trust Estate against the claims of all
Persons and parties.
The Trustee shall send copies of any request received from the
Certificate Insurer or the Depositor to take any action pursuant to this Section
6.03 to the other parties hereto.
(b) The Trustee shall have the power to enforce, and shall enforce the
obligations and rights of the other parties to this Agreement, and of the
Certificate Insurer or the Owners, by action, suit or proceeding at law or
equity, and shall also have the power to enjoin, by action or suit in equity,
any acts or occurrences which may be unlawful or in violation of the rights of
the Certificate Insurer as such rights are set forth in this Agreement;
provided, however, that nothing in this Section shall require any action by the
Trustee unless the Trustee shall first (i) have been furnished indemnity
satisfactory to it and (ii) when required by this Agreement, have been requested
by the Certificate Insurer or the Owners of a majority of the Percentage
Interests represented by the Class A Certificates then Outstanding with the
consent of the Certificate Insurer or, if there are no longer any Class A
Certificates then outstanding, by such majority of the Percentage Interests
represented by the Class R Certificates; provided, further, however, that if
there is a dispute with respect to payments under a Certificate Insurance Policy
the Trustee's sole responsibility is to the Owners.
(c) The Trustee shall execute any instrument required pursuant to this
Section so long as such instrument does not conflict with this Agreement or with
the Trustee's fiduciary duties, or adversely affect its rights and immunities
hereunder.
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Section 6.04 Performance of Obligations.
--------------------------
The Trustee will not take any action that would release any Person from
any of such Person's covenants or obligations under any instrument or document
relating to the Certificates or which would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or document, except as
expressly provided in this Agreement or such other instrument or document.
The Trustee may contract with other Persons to assist it in performing
its duties hereunder pursuant to Section 10.03(g).
Section 6.05 Negative Covenants.
------------------
The Trustee will not permit the Trust to:
(i) sell, transfer, exchange or otherwise dispose of any of
the Trust Estate except as expressly permitted by this Agreement;
(ii) claim any credit on or make any deduction from the
distributions payable in respect of, the Certificates (other than
amounts properly withheld from such payments under the Code) or assert
any claim against any present or former Owner by reason of the payment
of any taxes levied or assessed upon any of the Trust Estate;
(iii) incur, assume or guaranty any indebtedness of any
Person except pursuant to this Agreement;
(iv) dissolve or liquidate in whole or in part, except
pursuant to Article IX hereof; or
(v) (A) permit the validity or effectiveness of this
Agreement to be impaired, or permit any Person to be released from any
covenants or obligations with respect to the Trust or to the
Certificates under this Agreement, except as may be expressly permitted
hereby or (B) permit any lien, charge, adverse claim, security
interest, mortgage or other encumbrance to be created on or extend to
or otherwise arise upon or burden the Trust Estate or any part thereof
or any interest therein or the proceeds thereof.
Section 6.06 No Other Powers.
---------------
The Trustee will not permit the Trust to engage in any business
activity or transaction other than those activities permitted by Section 2.03
hereof.
Section 6.07 Limitation of Suits.
-------------------
No Owner shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Agreement, the Insurance Agreement, the
Indemnification Agreement or the Certificate Insurance Policies, or for the
appointment of a receiver or trustee of the Trust, or for any other remedy with
respect to an event of default hereunder, unless:
(1) such Owner has previously given written notice to the
Depositor, the Certificate Insurer and the Trustee of such
Owner's intention to institute such proceeding;
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(2) the Owners of not less than 25% of the Percentage Interests
represented by the Class A Certificates then Outstanding or,
if there are no Class A Certificates then Outstanding, by such
percentage of the Percentage Interests represented by the
Class B-IO Certificates and the Class R Certificates, shall
have made written request to the Trustee to institute such
proceeding in its own name as Trustee establishing the Trust;
(3) such Owner or Owners have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute such
proceeding;
(5) as long as any Class A Certificates are Outstanding or any
Reimbursement Amount remains unpaid, the Certificate Insurer
consented in writing thereto (unless the Certificate Insurer
is the party against whom the proceeding is directed); and
(6) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by 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 such majority of the Percentage Interests
represented by the Class B-IO Certificates and the Class R
Certificates;
it being understood and intended that no one or more Owners shall have any right
in any manner whatever by virtue of, or by availing themselves of, any provision
of this Agreement to affect, disturb or prejudice the rights of any other Owner
of the same Class or to obtain or to seek to obtain priority or preference over
any other Owner of the same Class or to enforce any right under this Agreement,
except in the manner herein provided and for the equal and ratable benefit of
all the Owners of the same Class.
In the event the Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Owners, each representing less
than a majority of the applicable Class of Certificates and each conforming to
paragraphs (1)-(6) of this Section 6.07, the Certificate Insurer in its sole
discretion may determine what action, if any, shall be taken, notwithstanding
any other provision of this Agreement (unless the Certificate Insurer is the
party against whom the proceeding is directed).
Section 6.08 Unconditional Rights of Owners to Receive
Distributions.
Notwithstanding any other provision in this Agreement, the Owner of any
Certificate shall have the right, which is absolute and unconditional, to
receive distributions to the extent provided herein and therein with respect to
such Certificate or to institute suit for the enforcement of any such
distribution, and such right shall not be impaired without the consent of such
Owner.
Section 6.09 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided herein, no right or remedy herein
conferred upon or reserved to the Trustee, the Certificate Insurer or the Owners
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. Except as otherwise provided herein, the assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
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Section 6.10 Delay or Omission Not Waiver.
----------------------------
No delay of the Trustee, the Certificate Insurer or any Owner of any
Certificate to exercise any right or remedy under this Agreement with respect to
any event described in Section 8.20(a) or (b) shall impair any such right or
remedy or constitute a waiver of any such event or an acquiescence therein.
Every right and remedy given by this Article VI or by law to the Trustee, the
Certificate Insurer or the Owners may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee, the Certificate Insurer, or
the Owners, as the case may be.
Section 6.11 Control by Owners.
-----------------
The Certificate Insurer or the Owners of a majority of the Percentage
Interests represented by the Class A Certificates then Outstanding with the
consent of the Certificate Insurer or, if there are no longer any Class A
Certificates then Outstanding, by such majority of the Percentage Interests
represented by the Class B-IO Certificates and the Class R Certificates then
Outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee with respect to the Certificates or
exercising any trust or power conferred on the Trustee with respect to the
Certificates or the Trust Estate, including, but not limited to, those powers
set forth in Section 6.03 and Section 8.20 hereof, provided that:
(1) such direction shall not be in conflict with any rule of law
or with this Agreement;
(2) the Trustee shall have been provided with indemnity
satisfactory to it; and
(3) the Trustee may take any other action deemed proper by the
Trustee, as the case may be, which is not inconsistent with
such direction; provided, however, that neither of the Sellers
nor the Trustee, as the case may be, need take any action
which it determines might involve it in liability or may be
unjustly prejudicial to the Owners not so directing.
Section 6.12 Indemnification.
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 and any Owner
may sustain in any way related to the failure of the Depositor to perform its
duties in compliance with the terms of this Agreement. The Depositor shall
immediately notify the Trustee, the Certificate Insurer and each Owner if such a
claim is made by a third party with respect to this Agreement, and the Depositor
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, either of the Sellers, the Trustee, the Certificate
Insurer and/or any Owner in respect of such claim. The Trustee may, if
necessary, reimburse the Depositor from amounts otherwise distributable on the
Class B-IO or Class R Certificates for all amounts advanced by it pursuant to
the preceding sentence, except when the claim relates directly to the failure of
the Depositor to perform its duties in compliance with the terms of this
Agreement. The provisions of this Section 6.12 shall survive the termination of
this Agreement and the payment of the outstanding Certificates.
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Section 6.13 Access to Owners of Certificates' Names and Addresses. (a)
If any Owner (for purposes of this Section 6.13, an "Applicant") applies in
writing to the Trustee, and such application states that the Applicant desires
to communicate with other Owners with respect to their rights under this
Agreement or under the Certificates and is accompanied by a copy of the
communication which such Applicant proposes to transmit, then the Trustee shall,
at the expense of such Applicant, within ten (10) Business Days after the
receipt of such application, furnish or cause to be furnished to such Applicant
a list of the names and addresses of the Owners of record as of the most recent
Payment Date.
(b) Every Owner, by receiving and holding such list, agrees with the
Trustee that the Trustee shall not be held accountable in any way by reason of
the disclosure of any information as to the names and addresses of the Owners
hereunder, regardless of the source from which such information was derived.
END OF ARTICLE VI
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ARTICLE VII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 7.01 Collection of Money.
-------------------
Except as otherwise expressly provided herein, the Trustee shall demand
payment or delivery of all money and other property payable to or receivable by
the Trustee pursuant to this Agreement or the Certificate Insurance Policies,
including (a) all payments due on the Home Equity Loans in accordance with the
respective terms and conditions of such Home Equity Loans and required to be
paid over to the Trustee by the Servicer or by any Sub-Servicer and (b) Insured
Payments. The Trustee shall hold all such money and property received by it,
other than pursuant to or as contemplated by Section 6.02(e) hereof, as part of
the Trust Estate and shall apply it as provided in this Agreement.
Section 7.02 Establishment of Accounts Total Available Funds;
-----------------------------------------------
(a) The Depositor shall cause to be established on the Startup Day, and
the Trustee shall maintain, at the Corporate Trust Office, the Certificate
Account, the Upper-Tier Fixed Rate Group Distribution Account, and the
Upper-Tier Adjustable Rate Group Distribution Account, each of which is to be
held by the Trustee on behalf of the Owners of the Certificates, the Trustee and
the Certificate Insurer, as their interests may appear.
(b) Reserved.
--------
(c) On the Business Day after each Monthly Remittance Date the Trustee
shall determine (subject to the terms of Section 10.03(j) hereof, based solely
on information provided to it by the Servicer) with respect to the immediately
following Payment Date: the amount that is expected to be on deposit in the
Certificate Account as of such Payment Date for the Fixed Rate Group
(disregarding the amount of any Insured Payments), which amount will be equal to
the sum of (x) the amount on deposit therein with respect to such Group
excluding the amount of any Total Monthly Excess Cashflow from the Fixed Rate
Group included in such amount plus (y) any amount of Total Monthly Excess
Cashflow from the Adjustable Rate Group to be applied on such Payment Date to
the Fixed Rate Group Certificates. The amount described in clause (x) of the
preceding sentence with respect to each Payment Date is the "Fixed Rate Group
Available Funds"; the sum of the amounts described in clauses (x) and (y) of the
preceding sentence with respect to each Payment Date is the "Fixed Rate Group
Total Available Funds".
(d) On the Business Day after each Monthly Remittance Date the Trustee
shall determine (subject to the terms of Section 10.03(j) hereof, based solely
on information provided to it by the Servicer) with respect to the immediately
following Payment Date, the amount that is expected to be on deposit in the
Certificate Account as of such Payment Date for the Adjustable Rate Group
(disregarding the amount of any Insured Payments), which amount will be equal to
the sum of (x) the amount on deposit therein with respect to such Group
excluding the amount of any Total Monthly Excess Cashflow from the Adjustable
Rate Group included in such amount plus (y) any amount of Total Monthly Excess
Cashflow from the Fixed Rate Group to be applied on such Payment Date to the
Class A-6 Certificates. The amount described in clause (x) of the preceding
sentence with respect to each Payment Date is the "Adjustable Rate Group
Available Funds"; the sum of the amounts described in clauses (x) and (y) of the
preceding sentence with respect to each Payment Date is the "Adjustable Rate
Group Total Available Funds." Collectively, the Fixed Rate Group Total Available
Funds and the Adjustable Rate Group Total Available Funds is the "Total
Available Funds."
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Section 7.03 Flow of Funds.
(a) With respect to the Fixed Rate Group, the Trustee shall deposit to
the Certificate Account, without duplication, upon receipt, any Insured Payments
relating to such Group, the proceeds of any liquidation of the assets of the
Trust insofar as such assets relate to the Fixed Rate Group, all remittances
made to the Trustee pursuant to Section 8.08(d)(ii) insofar as such assets
relate to the Fixed Rate Group, and the Fixed Rate Group Monthly Remittance
Amount remitted by the Servicer.
(b) With respect to the Adjustable Rate Group, the Trustee shall
deposit to the Certificate Account without duplication upon receipt, any Insured
Payments relating to such Group, the proceeds of any liquidation of the assets
of the Trust insofar as such assets relate to the Adjustable Rate Group, all
remittances made to the Trustee pursuant to Section 8.08(d)(ii) insofar as such
assets relate to the Adjustable Rate Group and the Adjustable Rate Group Monthly
Remittance Amount remitted by the Servicer.
(c) With respect to the Certificate Account, on each Payment Date, the
Trustee shall make the following allocations, disbursements and transfers for
each Home Equity Loan Group from amounts deposited therein pursuant to
subsections (a) and (b), respectively, in the following order of priority, and
each such allocation, transfer and disbursement shall be treated as having
occurred only after all preceding allocations, transfers and disbursements have
occurred:
(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 such
Home Equity Loan Group and Payment Date (net of the related Premium Amount paid
pursuant to clause (iii)(C) or (G) below, as applicable, and the Trustee Fee
allocable to such Group then payable under clause (iv)(A) below) plus (y) any
Subordination Reduction Amount with respect to such Home Equity Loan Group and
Payment Date (such sum being the "Total Monthly Excess Cashflow" with respect to
such Home Equity Loan Group and Payment Date) with respect to such Home Equity
Loan Group in the following order of priority:
(A) first, such Total Monthly Excess Cashflow with
respect to each Group shall be allocated to the
payment of the related Class A Distribution Amount
pursuant to clauses (iii)(D) or (iii)(H), as
applicable, 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 related
Class A Distribution Amount (calculated for this
purpose only by reference to clause (b) of the
definition of the Fixed Rate Group Principal
Distribution Amount or Adjustable Rate Group
Principal Distribution Amount, as the case may be,
and without any Subordination Increase Amount with
respect to the related Group) 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 being the "Fixed Rate Group
Available Funds Shortfall" with respect to the Fixed
Rate Group, and the "Adjustable Rate Group Available
Funds Shortfall" with respect to the Adjustable Rate
Group);
(B) second, any portion of the Total Monthly Excess
Cashflow with respect to such Home Equity Loan Group
remaining after the allocation described in clause
(A) above shall be allocated against any Available
Funds Shortfall with respect to the other Home Equity
Loan Group and to the payment of the related Class A
Distribution Amount with respect to the other Home
Equity Loan Groups pursuant to clause (iii) below;
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(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 disbursed to the
Certificate Insurer in respect of amounts owed on
account of any Reimbursement Amount 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 disbursed to the
Certificate Insurer in respect of any Reimbursement
Amount with respect to the other Home Equity Loan
Group.
(ii) second, the amount, if any, of the Total Monthly Excess
Cashflow with respect to a Home Equity Loan Group on a Payment
Date remaining after the allocations described in clause (i)
above (the "Net Monthly Excess Cashflow" for such Home Equity
Loan Group and Payment Date) is required to be allocated in
the following order of 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
related Class A Distribution Amount pursuant to
clause (iii) below, any Subordination Deficiency
Amount with respect to the related 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 to the
payment of the related Class A Distribution Amount
pursuant to clause (iii) below, 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 applications 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 under this
subsection (c) from amounts (including any related Insured
Payment) then on deposit in the Certificate Account with
respect to the related Home Equity Loan Group, the Trustee
shall distribute:
(A) with respect to the Fixed Rate Group, the Lower-Tier
Fixed Rate Group Distribution Amount (including the
proceeds of any Insured Payments made by the
Certificate Insurer) as a distribution on the related
Lower-Tier Interests to the Upper-Tier Fixed Rate
Group Distribution Account;
(B) from the Upper-Tier Fixed Rate Group Distribution
Account to the Owners of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5 and Class A-7IO
Certificates, the related Current Interest thereon
until the related Class A Certificate Termination
Date on a pro rata basis without any priority among
such Certificates;
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(C) from Total Monthly Excess Spread, the Premium Amount
allocable to the Fixed Rate Group for such Payment
Date to the Certificate Insurer;
(D) from the Upper-Tier Fixed Rate Group Distribution
Account as a distribution of principal to the Owners
of the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5 Certificates, the Fixed Rate Group
Principal Distribution Amount shall be distributed as
follows:
(1) first, to the Owners of the Class A-1
Certificates until the Class A-1 Certificate
Termination Date;
(2) second, to the Owners of the Class A-2
Certificates until the Class A-2 Certificate
Termination Date;
(3) third, to the Owners of the Class A-3
Certificates until the Class A-3 Certificate
Termination Date;
(4) fourth, to the Owners of the Class A-4
Certificates until the Class A-4 Certificate
Termination Date;
(5) fifth, to the Owners of the Class A-5
Certificates until the Class A-5 Certificate
Termination Date;
(E) with respect to the Adjustable Rate Group, the
Lower-Tier Adjustable Rate Group Distribution Amount
(including the proceeds of any Insured Payments made
by the Certificate Insurer) as a distribution of the
Lower-Tier A-6 Interest to the Upper-Tier Adjustable
Rate Group Distribution Account;
(F) from the Upper-Tier Adjustable Rate Group
Distribution Account to the Owners of the Class A-6
Certificates and the Class A-8IO Certificates, the
related Current Interest thereon on a pro rata basis
without any priority among the Class A-6 Certificates
and Class A-8IO Certificates; and
(G) from Total Monthly Excess Spread, the Premium Amount
allocable to the Adjustable Rate Group for such
Payment Date to the Certificate Insurer;
(H) from the Upper-Tier Adjustable Rate Group
Distribution Account as a distribution of principal
to the Owners of the Class A-6 Certificates, the
Adjustable Rate Group Principal Distribution Amount;
(iv) fourth, following the making by the Trustee of all
allocations, transfers and disbursements described above under
this subsection (c), from amounts then on deposit in the
Certificate Account, Upper-Tier Fixed Rate Group Distribution
Account or the Upper-Tier Adjustable Rate Group Distribution
Account, the Trustee shall distribute in the following order
of priority;
(A) to the Trustee from the Certificate Account, the
Trustee Fees then due (plus any expenses owing to the
Trustee pursuant to Section 3.02(e) of the Insurance
Agreement);
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(B) to the Owners of the Class B-IO Certificates, the
Class B-IO Distribution Amount.
(v) fifth, following the making by the Trustee of all allocations,
transfers and disbursements described above under this
subsection (c), from amounts then on deposit in the
Certificate Account, the Trustee shall distribute to the
Owners of the Class R Certificates, the Residual Net Monthly
Excess Cashflow, if any, for such Payment Date.
(d) On any Payment Date during the continuance of any Certificate
Insurer Default:
(i) Any amounts otherwise payable to the Certificate
Insurer as Premium Amounts or Reimbursement Amounts
shall be retained in the Certificate Account as Total
Available Funds; and
(ii) If there is a Subordination Deficit, then the Class A
Principal Distribution Amount for such Payment Date
shall be distributed pro rata to the Owners of any
Outstanding Class A Certificates (other than the
Class A-IO Certificates) on such Payment Date.
(e) Notwithstanding clause (c)(iii) above, the aggregate amounts
distributed on all Payment Dates to the Owners of the Class A Certificates on
account of principal pursuant to clauses (c)(iii)(D) and (c)(iii)(H) shall not
exceed the original Certificate Principal Balance of the related Certificates.
(f) Upon receipt of Insured Payments from the Certificate Insurer on
behalf of the Owners of the Class A Certificates, the Trustee shall deposit such
Insured Payments in the Certificate Account and shall distribute such Insured
Payments, or the proceeds thereof, (i) in the case of the Fixed Rate Group
Certificates and the Class A-IO Certificates, through the Upper-Tier Fixed Rate
Group Distribution Account to the Owners of such Certificates and (ii) in the
case of the Class A-6 Certificates and Class A-8IO Certificates, through the
Upper-Tier Adjustable Rate Group Distribution Account, to the Owners of such
Certificates.
(g) Anything herein to the contrary notwithstanding, any payment with
respect to principal of or interest on any of the Class A Certificates which is
made with moneys received pursuant to the terms of the Certificate Insurance
Policy shall not be considered payment of such Certificates from the Trust and
shall not result in the payment of or the provision for the payment of the
principal of or interest on such Certificates within the meaning of Section
7.03. The Depositor, the Servicer and the Trustee acknowledge, and each Owner by
its acceptance of a Certificate agrees, that without the need for any further
action on the part of the Certificate Insurer, the Depositor, the Servicer, the
Trustee or the Registrar (a) to the extent the Certificate Insurer makes
payments, directly or indirectly, on account of principal of or interest on any
Class A Certificates to the Owners of such Certificates, the Certificate Insurer
will be fully subrogated to the rights of such Owners to receive such principal
and interest together with any interest thereon of the applicable Pass-Through
Rate from the Trust and (b) the Certificate Insurer shall be paid such principal
and interest only from the sources and in the manner provided herein for the
payment of such principal and interest.
It is understood and agreed that the intention of the parties is that
the Certificate Insurer shall not be entitled to reimbursement on any Payment
Date for amounts previously paid by it unless on such Payment Date the Owners of
the Class A Certificates shall also have received the full amount of the
Distribution Amount for such Payment Date.
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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 the Owners of the related Class A
Certificates as set forth in Section 7.03(c)(iii). Insured Payments disbursed by
the Trustee or Paying Agent from proceeds of a Certificate Insurance Policy
shall not be considered payment by the Trust, nor shall such payments discharge
the obligation of the Trust with respect to such Class A Certificates and the
Certificate Insurer shall be entitled to receive the related Reimbursement
Amount pursuant to Section 7.03(c)(i) hereof.
The rights of the Owners to receive distributions from the proceeds of
the Trust Estate and all ownership interests of the Owners in such
distributions, shall be as set forth in this Agreement. In this regard, all
rights of the Owners of the Class B-IO Certificates and the Class R Certificates
to receive distributions in respect of the Class B-IO Certificates and the Class
R Certificates, and all ownership interests of the Owners of the Class B-IO
Certificates and the Class R Certificates in and to such distributions, shall be
subject and subordinate to the preferential rights of the holders of the Class A
Certificates to receive distributions thereon and the ownership interests of
such Owners in such distributions, as described herein. In accordance with the
foregoing, the ownership interests of the Owners of the Class B-IO Certificates
and the Class R Certificates in amounts deposited in the Accounts from time to
time shall not vest unless and until such amounts are distributed in respect of
the Class B-IO Certificates and the Class R Certificates in accordance with the
terms of this Agreement. Notwithstanding anything contained in this Agreement to
the contrary, the Owners of the Class B-IO Certificates and the Class R
Certificates shall not be required to refund any amount properly distributed on
the Class B-IO Certificates and the Class R Certificates pursuant to this
Section 7.03.
Section 7.04 Reserved.
Section 7.05 Investment of Accounts.
(a) Consistent with any requirements of the Code, all or a portion of
any Account held by the Trustee for the benefit of the Owners shall be invested
and reinvested by the Trustee in the name of the Trustee for the benefit of the
Owners, as directed in writing by the Depositor, in one or more Eligible
Investments bearing interest or sold at a discount. The bank serving as Trustee
or any affiliate thereof may be the obligor on any investment which otherwise
qualifies as an Eligible Investment. No investment in any Account shall mature
later than the Business Day immediately preceding the next Payment Date.
(b) If any amounts are needed for disbursement from any Account held by
the Trustee and sufficient uninvested funds are not available to make such
disbursement, the Trustee shall cause to be sold or otherwise converted to cash
a sufficient amount of the investments in such Account. No investments will be
liquidated prior to maturity unless the proceeds thereof are needed for
disbursement.
(c) Subject to Section 10.01 hereof, the Trustee shall not in any way
be held liable by reason of any insufficiency in any Account held by the Trustee
resulting from any loss on any Eligible Investment included therein (except to
the extent that the bank serving as Trustee is the obligor thereon).
(d) The Trustee shall invest and reinvest funds in the Accounts held by
the Trustee, in accordance with the written instructions delivered to the
Trustee on the Startup Day, but only in one or more Eligible Investments bearing
interest or sold at a discount.
If the Depositor shall have failed to give investment directions to the
Trustee then the Trustee shall invest in money market funds described in Section
7.07(i); to be redeemable without penalty no later than the Business Day
immediately preceding the next Payment Date.
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(e) All income or other gain from investments in any Account held by
the Trustee shall be deposited in such Account immediately on receipt, and any
loss resulting from such investments shall be charged to such Account, as
appropriate, subject to the requirement of Section 8.08(b) that the Servicer
contribute funds in an amount equal to such loss in the case of the Principal
and Interest Account.
Section 7.06 Payment of Trust Expenses.
(a) The Trustee shall make demand on __________ to pay the amount of
the expenses of the Trust (other than payments of premiums to the Certificate
Insurer) (including Trustee's fees and expenses not covered by Section
7.03(c)(iv)(A)) and __________ shall promptly pay such expenses directly to the
Persons to whom such amounts are due.
(b) The Depositor shall pay directly the reasonable fees and expenses
of counsel to the Trustee.
Section 7.07 Eligible Investments.
The following are Eligible Investments:
(a) direct general obligations of, or obligations fully and
unconditionally guaranteed as to the timely payment of principal and interest
by, the United States or any agency or instrumentality thereof, provided such
obligations are backed by the full faith and credit of the United States;
(b) Federal Housing Administration debentures; FHLMC senior debt
obligations, and FNMA senior debt obligations, but excluding any of such
securities whose terms do not provide for payment of a fixed dollar amount upon
maturity or call for redemption; and consolidated senior debt obligations of any
Federal Home Loan Banks; provided, that any such investment shall be rated in
one of the two highest ratings categories by Moody's and S&P;
(c) Federal funds, certificates of deposit, time deposits, and bankers'
acceptances (having original maturities of not more than 365 days) of any
domestic bank, the short-term debt obligations of which have been rated A-1+ or
better by Standard & Poor's and P-1 by Moody's;
(d) Deposits of any bank or savings and loan association (the long-term
deposit rating of which is Baa3 or better by Moody's and BBB by Standard &
Poor's) which has combined capital, surplus and undivided profits of at least
$50,000,000 which deposits are insured by the FDIC and held up to the limits
insured by the FDIC;
(e) Investment agreements approved by the Certificate Insurer provided:
1. The agreement is with a bank or insurance company which has
unsecured, uninsured and unguaranteed senior debt obligations rated Aa2
or better by Moody's and AA or better by Standard & Poor's, and
2. Moneys invested thereunder may be withdrawn without any
penalty, premium or charge upon not more than one day's notice
(provided such notice may be amended or canceled at any time prior to
the withdrawal date), and
3. The agreement is not subordinated to any other obligations
of such insurance company or bank, and
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4. The same guaranteed interest rate will be paid on any
future deposits made pursuant to such agreement, and
5. The Trustee receives an opinion of counsel that such
agreement is an enforceable obligation of such insurance company or
bank;
(f) Repurchase agreements collateralized by securities described in (a)
above with any registered broker/dealer subject to the Securities Investors
Protection Corporation's jurisdiction and subject to applicable limits therein
promulgated by Securities Investors Protection Corporation or any commercial
bank, if such broker/dealer or bank has an uninsured, unsecured and unguaranteed
short-term or long-term obligation rated P-1 or Aa2, respectively, or better by
Moody's and A-1+ or AA, respectively, or better by Standard & Poor's, provided:
a. A master repurchase agreement or specific written
repurchase agreement governs the transaction, and
b. The securities are held free and clear of any lien by the
Trustee or an independent third party acting solely as agent for the
Trustee, and such third party is (a) a Federal Reserve Bank, (b) a bank
which is a member of the FDIC and which has combined capital, surplus
and undivided profits of not less than $125 million, or (c) a bank
approved in writing for such purpose by the Certificate Insurer, and
the Trustee shall have received written confirmation from such third
party that it holds such securities, free and clear of any lien, as
agent for the Trustee, and
c. A perfected first security interest under the Uniform
Commercial Code, or book entry procedures prescribed at 31 CFR 306.1 et
seq. or 31 CFR 350.0 et seq., in such securities is created for the
benefit of the Trustee, and
d. The repurchase agreement has a term of thirty days or less
and the Trustee will value the collateral securities no less frequently
than weekly and will liquidate the collateral securities if any
deficiency in the required collateral percentage is not restored within
two business days of such valuation, and
e. The fair market value of the collateral securities in
relation to the amount of the repurchase obligation, including
principal and interest, is equal to at least 106% and such collateral
securities must be valued weekly and market-to-market at current market
price plus accrued interest.
(g) Commercial paper (having original maturities of not more than 270
days) rated in the highest short-term rating categories of Standard & Poor's and
Moody's; and
(h) Investments in no load money market funds registered under the
Investment Company Act of 1940 whose shares are registered under the Securities
Act and rated AAAm or AAAm-G by Standard & Poor's and Aaa by Moody's;
provided that no instrument described above shall evidence either the right to
receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provided a yield to maturity at par greater than 120% of the
yield to maturity at par of the underlying obligations; and provided, further,
that all instruments described hereunder shall mature
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at par on or prior to the next succeeding Payment Date unless otherwise provided
in this Agreement and that no instrument described hereunder may be purchased at
a price greater than par if such instrument may be prepaid or called at a price
less than its purchase price prior to stated maturity.
Section 7.08 Accounting and Directions by Trustee.
(a) On the Business Day after each Monthly Remittance Date occurring on
or prior to the last to occur of the Class A-5 Certificate Termination Date and
the Class A-6 Certificate Termination Date, the Trustee shall determine, no
later than 12:00 noon on such Determination Date, whether an Insured Payment
will be required to be made by the Certificate Insurer on the following Payment
Date. If the Trustee determines that an Insured Payment will be required to be
made by the Certificate Insurer on the following Payment Date then no later than
12:00 noon on the second Business Day immediately preceding the related Payment
Date the Trustee shall furnish the Certificate Insurer and the Depositor with a
completed Notice in the form set forth as Exhibit A to the Insurance Agreement.
The Notice shall specify the amount of Insured Payment and shall constitute a
claim for an Insured Payment pursuant to the Certificate Insurance Policy.
(b) By 12:00 noon New York time, on the Business Day preceding each
Payment Date (or such earlier period as shall be agreed by the Depositor and the
Trustee), the Trustee shall notify (subject to the terms of Section 10.03(j)
hereof, based solely on information provided to the Trustee by the Servicer) the
Depositor, each of the Sellers, the Certificate Insurer and each Owner of the
following information with respect to the next Payment Date (which notification
may be given by facsimile or by telephone promptly confirmed in writing):
(1) The aggregate amount then on deposit in the Certificate
Account;
(2) The Class A Distribution Amount, with respect to each
Class individually, and all Classes in the aggregate, on the next
Payment Date;
(3) The amount of any Subordination Increase Amount;
(4) The amount of any Insured Payment to be made by the
Certificate Insurer on such Payment Date;
(5) The application of the amounts described in clauses (1),
(3) and (4) preceding to the allocation and distribution of the related
Class A Distribution Amounts on such Payment Date in accordance with
Section 7.03 hereof;
(6) The Certificate Principal Balance of each Class of the
Fixed Rate Group Certificates and the Class A-6 Certificates, the Class
A-7IO Notional Principal Amount and the Class A-8IO Notional Principal
Amount, the aggregate amount of the principal of each Class of Class A
Certificates to be paid on such Payment Date and the remaining
Certificate Principal Balance of each Class of Class A Certificates
following any such payment;
(7) The amount, if any, of any Realized Losses for the related
Remittance Period; and
(8) The amount of any Subordination Reduction Amount.
Section 7.09 Reports by Trustee to Owners and Certificate Insurer.
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(a) On each Payment Date the Trustee shall report in writing to the
Depositor, each Owner, the Certificate Insurer, the Underwriters and the Rating
Agencies:
(i) the amount of the distribution with respect to such
Owners' Certificates (based on a Certificate in the original principal
amount of $1,000);
(ii) the amount of such Owner's distributions allocable to
principal, separately identifying the aggregate amount of any
Prepayments or other recoveries of principal included therein, and any
Subordination Increase Amount with respect to the related Home Equity
Loan Group;
(iii) the amount of such Owner's distributions allocable to
interest (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 related 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 Class A Certificates on such Payment Date;
(vi) the principal amount (or notional principal amount) of
each Class of Class A Certificate (based on a Certificate in the
original principal amount of $1,000) which will be Outstanding and the
aggregate Loan Balance of each Group, in each case 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, in
each case 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 Depositor, 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 and any 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) such other information as the Certificate Insurer may
reasonably request with respect to Delinquent Home Equity Loans; and
(xiii) the largest Home Equity Loan balance outstanding in
each Group.
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The Servicer shall provide to the Trustee the information described in
Section 8.08(d)(iii) and in clause (b) below to enable the Trustee to perform
its reporting obligations under this Section, and such obligations of the
Trustee under this Section are conditioned upon such information being received
and the information provided in clauses (ii), (ix) and (x) shall be based solely
upon information contained in the monthly servicing report provided by the
Servicer to the Trustee pursuant to Section 8.01 hereof.
(b) In addition, on each Payment Date the Trustee will distribute to
the Depositor, each Owner, the Certificate Insurer, the Underwriters and the
Rating Agencies, together with the information described in Subsection (a)
preceding, the following information with respect to each Home Equity Loan Group
which is hereby required to be prepared by the Servicer and furnished to the
Trustee for such purpose on or prior to the related Monthly Remittance Date:
(i) the related Class A Certificate Principal
Balance, as of such Payment Date;
(ii) the number and aggregate principal balances of
Home Equity Loans in each Group (a) 30-59 days Delinquent, (b) 60-89
days Delinquent and (c) 90 or more days Delinquent, as of the close of
business on the last Business Day of the calendar month next preceding
such Payment Date,
(iii) the numbers and aggregate Loan Balances of all
Home Equity Loans in each Group as of such Payment Date and the
percentage that each of the amounts represented by clauses (a), (b) and
(c) of paragraph (ii) above represent as a percentage of the respective
amounts in this paragraph (iii);
(iv) the status and the number and dollar amounts of
all Home Equity Loans in each Group in foreclosure proceedings as of
the close of business on the last Business Day of the calendar month
next preceding such Payment Date, separately stating, for this purpose,
all Home Equity Loans in each Group with respect to which foreclosure
proceedings were commenced in the immediately preceding calendar month;
(v) the number of Mortgagors and the Loan Balances of
Home Equity Loans in each Group of (a) 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 and
(b) Home Equity Loans in each Group that are "balloon" loans;
(vi) the existence and status of any REO Properties
in each Group, as of the close of business of the last Business Day of
the month next preceding the Payment Date;
(vii) the book value of any REO Property in each
Group as of the close of business on the last Business Day of the
calendar month next preceding the Payment Date; and
(viii) the amount of Cumulative Realized Losses for
each Group.
(c) The Servicer shall furnish to the Trustee and to the Certificate
Insurer, during the term of this Agreement, such periodic, special, or other
reports or information not specifically provided for herein, as may be
necessary, reasonable, or appropriate with respect to the Trustee or the
Certificate Insurer, as the case may be, or otherwise with respect to the
purposes of this Agreement, all such reports or information to be provided by
and in accordance with such applicable instructions and directions as the
Trustee or the Certificate Insurer may reasonably require; provided, that the
Servicer shall be entitled
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to be reimbursed by the requesting party for the fees and actual expenses
associated with providing such reports, if such reports are not generally
produced in the ordinary course of business.
Section 7.10 Reports by Trustee.
(a) The Trustee shall report to the Depositor, each of the Sellers, the
Underwriters, the Certificate Insurer and each Owner, with respect to the amount
on deposit in the Certificate Account, the amount therein relating to each Group
and the identity of the investments included therein, as the Depositor, the
Seller or the Certificate Insurer may from time to time request. Without
limiting the generality of the foregoing, the Trustee shall, at the request of
the Depositor, either of the Sellers or the Certificate Insurer transmit
promptly to the Depositor, each of the Sellers and the Certificate Insurer
copies of all accountings of receipts in respect of the Home Equity Loans
furnished to it by the Servicer and shall notify each of the Sellers and the
Certificate Insurer if any Monthly Remittance Amount has not been received by
the Trustee when due.
(b) The Trustee shall report to the Certificate Insurer and each Owner
with respect to any written notices it may from time to time receive which
provide an Authorized Officer with actual knowledge that any of the statements
set forth in Section 3.04(b) hereof are inaccurate.
Section 7.11 Preference Payments
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 of (i) a certified copy of the order requiring the return of such
Preference Amount, (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 Owners
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 payment shall be disbursed to the receiver
or trustee in bankruptcy named in the final court 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 payment will be disbursed
to the Owner.
Each Owner of a Class A Certificate, by its purchase of Class A
Certificates, the Servicer and the Trustee hereby agree that the Certificate
Insurer may at any time during the continuation of any proceeding relating to a
preference claim direct all matters relating to such preference claim,
including, without limitation, the direction of any appeal of any order relating
to such preference claim and the posting of any surety or performance bond
pending any such appeal. In addition and without limitation of the foregoing,
the Certificate Insurer shall be subrogated to the rights of the Servicer, the
Trustee and the Owner of each Class A Certificate in the conduct of any such
preference claim, including, without limitation, all rights of any party to an
adversary proceeding action with respect to any court order issued in connection
with any such preference claim.
END OF ARTICLE VII
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ARTICLE VIII
SERVICING AND ADMINISTRATION
OF HOME EQUITY LOANS
Section 8.01 Servicer and Sub-Servicers.
Acting directly or through one or more Sub-Servicers as provided in
Section 8.03, the Servicer shall service and administer the Home Equity Loans in
accordance with this Agreement and the servicing standards set forth in the FNMA
Guide and shall have full power and authority, acting alone, to do or cause to
be done any and all things in connection with such servicing and administration
which it may deem necessary or desirable. It is the intent of the parties hereto
that the Servicer shall have all of the servicing obligations hereunder which a
lender would have under the FNMA Guide (as such provisions relate to second lien
mortgages); provided, however, that to the extent that such standards, such
obligations or the FNMA Guide are amended by FNMA after the date hereof 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.
Subject to Section 8.03 hereof, the Servicer may, and is hereby
authorized to, perform any of its servicing responsibilities with respect to all
or certain of the Home Equity Loans through a Sub-Servicer as it may from time
to time designate, but no such designation of a Sub-Servicer shall serve to
release the Servicer from any of its obligations under this Agreement. Such
Sub-Servicer shall have all the rights and powers of the Servicer with respect
to such Home Equity Loans under this Agreement.
Without limiting the generality of the foregoing, but subject to
Sections 8.13 and 8.14, the Servicer in its own name or in the name of a
Sub-Servicer may be authorized and empowered pursuant to a power of attorney
executed and delivered by the Trustee to execute and deliver, and may be
authorized and empowered by the Trustee, to execute and deliver, on behalf of
itself, the Owners and the Trustee or any of them, (i) any and all instruments
of satisfaction or cancellation or of partial or full release or discharge and
all other comparable instruments with respect to the Home Equity Loans and with
respect to the Properties, (ii) to institute foreclosure proceedings or obtain a
deed in lieu of foreclosure so as to effect ownership of any Property in the
name of the Servicer on behalf of the Trustee, and (iii) to hold title to any
Property upon such foreclosure or deed in lieu of foreclosure on behalf of the
Trustee; provided, however, that to the extent any instrument described in
clause (i) preceding would be delivered by the Servicer outside of its usual
procedures for mortgage loans held in its own portfolio the Servicer shall,
prior to executing and delivering such instrument, obtain the prior written
consent of the Certificate Insurer, and provided further, however, that Section
8.14(a) shall constitute an authorization from the Trustee to the Servicer to
execute an instrument of satisfaction (or assignment of mortgage without
recourse) with respect to any Home Equity Loan paid in full (or with respect to
which payment in full has been escrowed). The Trustee shall execute any
documentation furnished to it by the Servicer for recordation by the Servicer in
the appropriate jurisdictions as shall be necessary to effectuate the foregoing.
Subject to Sections 8.13 and 8.14, the Trustee shall execute any authorizations
and other documents as the Servicer or such Sub-Servicer shall reasonably
request that are furnished to the Trustee to enable the Servicer and such
Sub-Servicer to carry out their respective servicing and administrative duties
hereunder.
The Servicer shall give prompt notice to the Trustee and the
Certificate Insurer of any action, of which the Servicer has actual knowledge,
to (i) assert a claim against the Trust or (ii) assert jurisdiction over the
Trust.
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Servicing Advances incurred by the Servicer or any Sub-Servicer in
connection with the servicing of the Home Equity Loans (including any penalties
in connection with the payment of any taxes and assessments or other charges) on
any Property shall be recoverable by the Servicer or such Sub-Servicer to the
extent described in Section 8.09(b) hereof.
Section 8.02 Collection of Certain Home Equity Loan Payments.
The Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Home Equity Loans, and shall,
to the extent such procedures shall be consistent with this Agreement and the
terms and provisions of any applicable Insurance Policy, follow collection
procedures for all Home Equity Loans at least as rigorous as those described in
the FNMA Guide. Consistent with the foregoing, the Servicer may in its
discretion waive or permit to be waived any late payment charge, prepayment
charge, assumption fee or any penalty interest in connection with the prepayment
of a Home Equity Loan or any other fee or charge which the Servicer would be
entitled to retain hereunder as servicing compensation. In the event the
Servicer shall consent to the deferment of the due dates for payments due on a
Note, the Servicer shall nonetheless make payment of any required Delinquency
Advance with respect to the payments so extended to the same extent as if such
installment were due, owing and Delinquent and had not been deferred, and shall
be entitled to reimbursement therefor in accordance with Section 8.09(a) hereof.
Section 8.03 Sub-Servicing Agreements Between Servicer and
Sub-Servicers.
The Servicer may enter into Sub-Servicing Agreements for any servicing
and administration of Home Equity Loans with any institution that is acceptable
to the Certificate Insurer and that is in compliance with the laws of each state
necessary to enable it to perform its obligations under such Sub- Servicing
Agreement and (x) has (i) been designated an approved seller-servicer by FHLMC
or FNMA for second mortgage loans and (ii) has equity of at least $5,000,000, as
determined in accordance with generally accepted accounting principles or (y) is
a Servicer Affiliate. The Servicer shall give notice to the Trustee, the
Certificate Insurer and the Rating Agencies of the appointment of any
Sub-Servicer. For purposes of this Agreement, the Servicer shall be deemed to
have received payments on Home Equity Loans when any Sub-Servicer has received
such payments. Each Sub-Servicer shall be required to service the Home Equity
Loans in accordance with this Agreement and any such Sub-Servicing Agreement
shall be consistent with and not violate the provisions of this Agreement. Each
Sub-Servicing Agreement shall provide that a successor Servicer shall have the
option to terminate such agreement without payment of any fees if the original
Servicer is terminated or resigns.
Section 8.04 Successor Sub-Servicers.
The Servicer shall be entitled to terminate any Sub-Servicing Agreement
in accordance with the terms and conditions of such Sub-Servicing Agreement and
to either itself directly service the related Home Equity Loans or enter into a
Sub-Servicing Agreement with a successor Sub-Servicer which qualifies under
Section 8.03.
Section 8.05 Liability of Servicer; Indemnification.
(a) The Servicer shall not be relieved of its obligations under this
Agreement notwithstanding any Sub-Servicing Agreement or any of the provisions
of this Agreement relating to agreements or arrangements between the Servicer
and a Sub-Servicer and the Servicer shall 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
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indemnification of the Servicer by such Sub-Servicer and nothing contained in
such Sub-Servicing Agreement shall be deemed to limit or modify this Agreement.
(b) The Servicer (except ______________________________ if it is
required to succeed the Servicer hereunder) 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 this 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 this Agreement, and the Servicer shall assume
(with the consent of the Trustee and the Certificate Insurer) 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 Class R 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 terms of this Agreement.
The provisions of this Section 8.05 shall survive the termination of this
Agreement and the payment of the outstanding Certificates.
Section 8.06 No Contractual Relationship Between Sub-Servicer,
Trustee or the Owners.
Any Sub-Servicing Agreement and any other transactions or services
relating to the Home Equity Loans involving a Sub-Servicer shall be deemed to be
between the Sub-Servicer and the Servicer alone and the Trustee, the Certificate
Insurer and the Owners shall not be deemed parties thereto and shall have no
claims, rights, obligations, duties or liabilities with respect to any
Sub-Servicer except as set forth in Section 8.07.
Section 8.07 Assumption or Termination of Sub-Servicing Agreement
by Trustee.
In connection with the assumption of the responsibilities, duties and
liabilities and of the authority, power and rights of the Servicer hereunder by
the Trustee pursuant to Section 8.20, it is understood and agreed that the
Servicer's rights and obligations under any Sub-Servicing Agreement then in
force between the Servicer and a Sub-Servicer shall be assumed simultaneously by
the Trustee without act or deed on the part of the Trustee; provided, however,
that the successor Servicer may terminate the Sub-Servicer as provided in
Section 8.03.
The Servicer shall, upon the reasonable request of the Trustee, but at
the expense of the Servicer, deliver to the assuming party documents and records
relating to each Sub-Servicing Agreement and an accounting of amounts collected
and held by it and otherwise use its best reasonable efforts to effect the
orderly and efficient transfer of the Sub-Servicing Agreements to the assuming
party.
Section 8.08 Principal and Interest Account.
(a) The Servicer shall establish and maintain at one or more Designated
Depository Institutions the Principal and Interest Account to be held as a trust
account. Each Principal and Interest Account shall be identified on the records
of the Designated Depository Institution as follows: [Name of Trustee], as
Trustee under the Pooling and Servicing Agreement dated as of __________ 1,
199_. If the institution at any time holding the Principal and Interest Account
ceases to be eligible as a Designated Depository Institution hereunder, then the
Servicer shall, within 30 days, be required to name a successor institution
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meeting the requirements for a Designated Depository Institution hereunder. If
the Servicer fails to name such a successor institution, then the Principal and
Interest Account shall thenceforth be held as a trust account with a qualifying
Designated Depository Institution. The Servicer shall notify the Trustee, the
Certificate Insurer and the Owners if there is a change in the name, account
number or institution holding the Principal and Interest Account.
Subject to Subsection (c) below, the Servicer shall deposit all
receipts required pursuant to Subsection (c) below and related to the Home
Equity Loans to the Principal and Interest Account on a daily basis (but no
later than the first Business Day after receipt).
(b) All funds in the Principal and Interest Account shall be held (i)
uninvested (up to the limits insured by the FDIC) or (ii) invested in Eligible
Investments. Any investments of funds in the Principal and Interest Account
shall mature or be withdrawable at par on or prior to the immediately succeeding
Monthly Remittance Date. The Principal and Interest Account shall be held in
trust in the name of the Trustee for the benefit of the Owners. Any investment
earnings on funds held in the Principal and Interest Account shall be for the
account of the Servicer and may only be withdrawn from the Principal and
Interest Account by the Servicer immediately following the remittance of the
Monthly Remittance Amount (and the Total Monthly Excess Spread included therein)
by the Servicer. Any investment losses on funds held in the Principal and
Interest Account shall be for the account of the Servicer and promptly upon the
realization of such loss shall be contributed by the Servicer to the Principal
and Interest Account. Any references herein to amounts on deposit in the
Principal and Interest Account shall refer to amounts net of such investment
earnings.
(c) The Servicer shall deposit to the Principal and Interest Account on
the Business Day after 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 and Net Liquidation Proceeds, other
recoveries or amounts related to the Home Equity Loans received by the Servicer
and any income from REO Properties, but net of (i) the Servicing Fee with
respect to each Home Equity Loan and other servicing compensation to the
Servicer as permitted by Section 8.15 hereof, (ii) principal collected and
interest accrued on any Home Equity Loan on or prior to the Cut-Off Date, (iii)
Net Liquidation Proceeds to the extent such Net Liquidation Proceeds exceed the
sum of (I) the Loan Balance of the related Home Equity Loan immediately prior to
liquidation, (II) accrued and unpaid interest on such Home Equity Loan (net of
the Servicing Fee) to the date of such liquidation, and (III) any Realized
Losses incurred during the related Remittance Period, (iv) reimbursements for
Delinquency Advances and (v) reimbursements 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 amount herein referred to as
"Daily Collections").
(d) (i) 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, only in the following priority and for the following
purposes:
(A) to withdraw interest paid with respect to any Home Equity
Loans that had accrued for periods prior to the Cut-Off
Date;
(B) to withdraw investment earnings on amounts on deposit in
the Principal and Interest Account;
(C) to reimburse itself pursuant to Section 8.09(a) for un-
recovered Delinquency Advances and Servicing Advances;
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(D) to withdraw amounts that have been deposited to the
Principal and Interest Account in error; and
(E) to clear and terminate the Principal and Interest Account
following the termination of the Trust pursuant to
Article IX.
(ii) The Servicer shall (a) remit to the Trustee for deposit in the
Certificate Account by wire transfer, or otherwise make funds available in
immediately available funds, without duplication, 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, and (b) on each Monthly
Remittance Date, deliver to the Trustee and the Certificate Insurer a monthly
servicing report, with respect to each Home Equity Loan Group, containing the
following information: principal and interest collected, scheduled interest,
Liquidated Loans, summary and detailed delinquency reports, Liquidation Proceeds
and other similar information concerning the servicing of the Home Equity Loans.
In addition, the Servicer shall inform the Trustee and the Certificate Insurer
on each Monthly Remittance Date, with respect to each Home Equity Loan Group, of
the amounts of any Loan Purchase Prices or Substitution Amounts so remitted
during the related Remittance Period, and of the Loan Balance of the Home Equity
Loan having the largest Loan Balance as of such date.
(iii) The Servicer shall provide to the Trustee the information
described in Section 8.08(d)(ii)(b) and in Section 7.09(b) to enable the Trustee
to perform its reporting requirements under Section 7.09 and the Trustee shall
forward such information to the Underwriters within five Business Days of
receipt thereof.
Section 8.09 Delinquency Advances and Servicing Advances.
(a) 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 on such Monthly Remittance Date and (II) the Principal Remittance Amount
on such Monthly Remittance Date, the Servicer shall remit to the Trustee for
deposit into 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 shall be permitted to fund its payment of Delinquency
Advances on any Business Day and to reimburse itself for any Delinquency
Advances paid from the Servicer's own funds from collections on any Home Equity
Loan in the related Home Equity Loan Group deposited to the Principal and
Interest Account subsequent to the related Remittance Period and shall deposit
into the Principal and Interest Account with respect thereto (i) collections
from the Mortgagor whose Delinquency gave rise to the shortfall which resulted
in such Delinquency Advance and (ii) Net Liquidation Proceeds recovered on
account of the related Mortgage Loan to the extent of the amount of aggregate
Delinquency Advances related thereto. If not recovered from the related
Mortgagor or the related Net Liquidation Proceeds, the Servicer shall recover
Delinquency Advances pursuant to Section 7.03(c)(ii)(C).
Notwithstanding the foregoing, in the event that the Servicer
determines that the aggregate unreimbursed Delinquency Advances exceed the
aggregate remaining Scheduled Payments due 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 prior paragraph. The Servicer shall give written
notice of such determination to the Trustee and the Certificate Insurer; and the
Trustee shall promptly furnish a copy of such notice to the Owners of the
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Class R Certificates; provided, that the Servicer shall be entitled to recover
any unreimbursed Delinquency Advances from the aforesaid Liquidation Proceeds
prior to the payment of the Liquidation Proceeds to any other party to this
Agreement.
(b) The Servicer will pay all "out-of-pocket" costs and expenses
incurred in the performance of its servicing obligations, including, but not
limited to, the cost of (i) Preservation Expenses, (ii) any enforcement or
judicial proceedings, including foreclosures, (iii) the management and
liquidation of REO Property and (iv) advances required by Section 8.13(a), but
the Servicer is only required to pay such costs and expenses to the extent the
Servicer reasonably believes such costs and expenses will be recoverable from
the related Home Equity Loan. Each such expenditure will constitute a "Servicing
Advance". The Servicer may recover Servicing Advances (x) from the Mortgagors to
the extent permitted by the Home Equity Loans or, if not 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 and (y)
as provided in Section 7.03(c)(ii)(C). The Servicer shall be entitled to recover
the Servicing Advances from the aforesaid Liquidation Proceeds prior to the
payment of the Liquidation Proceeds to any other party to this Agreement. Except
as provided in the previous sentence, in no case may the Servicer recover
Servicing Advances from the principal and interest payments on any Home Equity
Loan or from any amounts relating to any other Home Equity Loan except as
provided in Section 7.03(c)(ii)(C).
Section 8.10 Compensating Interest; Repurchase of Home Equity Loans.
(a) If a Prepayment of a Home Equity Loan occurs during any calendar
month or if the amount received with respect to a date-of-payment or simple
interest Home Equity Loan represents less than a full month's interest, any
difference between the interest collected from the Mortgagor and the full
month's interest at the Coupon Rate less the Servicing Fee ("Compensating
Interest") that is due shall be deposited by the Servicer (but not in excess of
the aggregate Servicing Fee for the related Remittance Period) to the Principal
and Interest Account on the next succeeding Monthly Remittance Date and shall be
included in the Monthly Remittance to be made available to the Trustee on such
Monthly Remittance Date.
(b) The Servicer, and in the absence of the exercise thereof by the
Servicer, the Certificate Insurer, has 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 pursuant to Section 8.13; provided, however, that the Servicer or
the Certificate Insurer, as the case may be, may not purchase any such Home
Equity Loan unless the Servicer or the Certificate Insurer, as the case may be,
has delivered 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 a purchase would not constitute a Prohibited Transaction for the Trust
or otherwise subject the Trust to tax and would not jeopardize the status of
either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC. Any such Loan so
purchased shall be purchased by the Servicer or the Certificate Insurer as the
case may be on a Monthly Remittance Date at a purchase price equal to the Loan
Purchase Price thereof, which purchase price shall be deposited in the Principal
and Interest Account.
(c) The Net Liquidation Proceeds from the disposition of any REO
Property shall be deposited in the Principal and Interest Account and remitted
to the Trustee as part of the Daily Collections remitted by the Servicer to the
Trustee.
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Section 8.11 Maintenance of Insurance.
(a) The Servicer shall cause to be maintained with respect to each Home
Equity Loan a hazard insurance policy with a generally acceptable carrier that
provides for fire and extended coverage, and which provides for a recovery by
the Trust of insurance proceeds relating to such Home Equity Loan in an amount
not less than the least of (i) the outstanding principal balance of the Home
Equity Loan (plus the related senior lien loan, if any), (ii) the minimum amount
required to compensate for damage or loss on a replacement cost basis and (iii)
the full insurable value of the premises. The Servicer shall maintain the
insurance policies required hereunder in the name of the mortgagee, its
successors and assigns, as loss payee. The policies shall require the insurer to
provide the mortgagee with 30 days' notice prior to any cancellation or as
otherwise required by law. The Servicer may also maintain a blanket hazard
insurance policy or policies if the insurer or insurers of such policies are
rated investment grade by Moody's and Standard & Poor's. Upon the request of the
Certificate Insurer or the Trustee, the Servicer will cause to be delivered to
such requesting Person a certified true copy of such blanket policy.
(b) If the Home Equity Loan at the time of origination relates to a
Property in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards, the Servicer will cause to be
maintained with respect thereto a flood insurance policy in a form meeting the
requirements of the current guidelines of the Federal Insurance Administration
with a generally acceptable carrier in an amount representing coverage, and
which provides for a recovery by the Trust of insurance proceeds relating to
such Home Equity Loan of not less than the least of (i) the outstanding
principal balance of the Home Equity Loan (plus the related senior lien loan, if
any), (ii) the minimum amount required to compensate for damage or loss on a
replacement cost basis and (iii) the maximum amount of insurance that is
available under the Flood Disaster Protection Act of 1973. The Servicer shall
indemnify the Trust out of the Servicer's own funds for any loss to the Trust
resulting from the Servicer's failure to maintain premiums for such insurance
required by this Section when so permitted by the terms of the Mortgage as to
which such loss relates.
Section 8.12 Due-on-Sale Clauses; Assumption and Substitution
Agreements.
When a Property has been or is about to be conveyed by the Mortgagor,
the Servicer shall, to the extent it has knowledge of such conveyance or
prospective conveyance, exercise its rights to accelerate the maturity of the
related Home Equity Loan under any "due-on-sale" clause contained in the related
Mortgage or Note; provided, however, that the Servicer shall not exercise any
such right if the "due-on-sale" clause, in the reasonable belief of the
Servicer, is not enforceable under applicable law. An opinion of counsel to the
foregoing effect shall conclusively establish the reasonableness of such belief.
In such event, the Servicer shall 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 Note and,
unless prohibited by applicable law or the Mortgage Documents, the Mortgagor
remains liable thereon. If the foregoing is not permitted under applicable law,
the Servicer is authorized to enter into a substitution of liability agreement
with such person, pursuant to which the original Mortgagor is released from
liability and such person is substituted as Mortgagor and becomes liable under
the Note; provided, however, that to the extent any such substitution of
liability agreement would be delivered by the Servicer outside of its usual
procedures for mortgage loans held in its own portfolio the Servicer shall,
prior to executing and delivering such agreement, obtain the prior written
consent of the Certificate Insurer. The Home Equity Loan, as assumed, shall
conform in all respects to the requirements, representations and warranties of
this Agreement. The Servicer shall notify the Trustee that any such assumption
or substitution agreement has been completed by forwarding to the Trustee the
original copy of such assumption or substitution agreement (indicating the File
to which it relates) which copy shall be added by the Trustee to the related
File and which shall, for all purposes, be considered
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a part of such File to the same extent as all other documents and instruments
constituting a part thereof. The Servicer shall be responsible for recording any
such assumption or substitution agreements. In connection with any such
assumption or substitution agreement, the required monthly payment on the
related Home Equity Loan shall not be changed but shall remain as in effect
immediately prior to the assumption or substitution, the stated maturity or
outstanding principal amount of such Home Equity Loan shall not be changed nor
shall any required monthly payments of principal or interest be deferred or
forgiven. Any fee collected by the Servicer or the Sub-Servicer for consenting
to any such conveyance or entering into an assumption or substitution agreement
shall be retained by or paid to the Servicer as additional servicing
compensation.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Home Equity Loan by operation of law or any assumption which the Servicer may be
restricted by law from preventing, for any reason whatsoever.
Section 8.13 Realization Upon Defaulted Home Equity Loans; Inspection.
(a) The Servicer shall foreclose upon or otherwise comparably effect
the ownership in the name of the Servicer on behalf of the Trust of Properties
relating to defaulted Home Equity Loans as to which no satisfactory arrangements
can be made for collection of Delinquent payments and which the Servicer has not
purchased pursuant to Section 8.10(b). In connection with such foreclosure or
other conversion, the Servicer shall exercise such of the rights and powers
vested in it hereunder, and use the same degree of care and skill in their
exercise or use, as prudent mortgage lenders would exercise or use under the
circumstances in the conduct of their own affairs and consistent with the
servicing standards set forth in the FNMA Guide, including, but not limited to,
advancing funds for the payment of taxes, amounts due with respect to Senior
Liens, and insurance premiums. Any amounts so advanced shall constitute
"Servicing Advances" within the meaning of Section 8.09(b) hereof. The Servicer
shall sell any REO Property within 23 months of its acquisition by the Trust, at
such price as the Servicer deems necessary to comply with this covenant unless
the Seller which delivered the related Home Equity Loan obtains for the
Certificate Insurer, Trustee and the Servicer an opinion of counsel experienced
in federal income tax matters acceptable to the Certificate Insurer and the
Trustee, addressed to the Certificate Insurer, the Trustee and the Servicer, to
the effect that the holding by the Trust of such REO Property for any greater
period will not result in the imposition of taxes on "Prohibited Transactions"
of the Trust or any REMIC therein as defined in Section 860F of the Code or
cause either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as
a REMIC under the REMIC Provisions at any time that any Certificates are
outstanding. Notwithstanding the generality of the foregoing provisions, the
Servicer shall manage, conserve, protect and operate each REO Property for the
Owners solely for the purpose of its prompt disposition and sale in a manner
which does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or result in the
receipt by the Lower-Tier REMIC or the Upper Tier REMIC of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or
any "net income from foreclosure property" which is subject to taxation under
the REMIC Provisions. Pursuant to its efforts to sell such REO Property, the
Servicer shall either itself or through an agent selected by the Servicer
protect and conserve such REO Property in the same manner and to such extent as
is customary in the locality where such REO Property is located and may,
incident to its conservation and protection of the interests of the Owners, rent
the same, or any part thereof, as the Servicer deems to be in the best interest
of the Owners for the period prior to the sale of such REO Property. The
Servicer shall take into account the existence of any hazardous substances,
hazardous wastes or solid wastes, as such terms are defined in the Comprehensive
Environmental Response Compensation and Liability Act, the Resource Conservation
and Recovery Act of 1976, or other federal, state or local environmental
legislation, on a Property in determining whether
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to foreclose upon or otherwise comparably convert the ownership of such
Property. The Servicer shall not take any such action with respect to any
Property known by the Servicer to contain such wastes or substances or to be
within one mile of the site of such wastes or substances, without the prior
written consent of the Certificate Insurer. With respect to any Home Equity Loan
secured by a mixed use Property, the Servicer shall, prior to foreclosing upon
or otherwise comparably effecting the ownership in the name of the Servicer on
behalf of the Trust, either (x) perform a "phase one environmental study" of
such Property or (y) repurchase such Property at the Loan Purchase Price.
(b) The Servicer shall determine, with respect to each defaulted Home
Equity Loan and in accordance with the procedures set forth in the FNMA Guide,
when it has recovered, whether through trustee's sale, foreclosure sale or
otherwise, all amounts it expects to recover from or on account of such
defaulted Home Equity Loan, whereupon such Home Equity Loan shall become a
"Liquidated Loan". After a Home Equity Loan has become a Liquidated Loan, the
Servicer shall promptly prepare and forward to the Depositor, the Trustee and
the Certificate Insurer a report detailing the Liquidation Proceeds received
from the Liquidated Loan, expenses incurred with respect thereto, and any loss
incurred in connection therewith.
Section 8.14 Trustee to Cooperate; Release of Files.
(a) Upon the payment in full of any Home Equity Loan (including any
liquidation of such Home Equity Loan through foreclosure or otherwise), or the
receipt by the Servicer of a notification that payment in full will be escrowed
in a manner customary for such purposes, the Servicer shall deliver to the
Trustee the FNMA "Request for Release of Documents" (FNMA Form 2009). Upon
receipt of such Request for Release of Documents, the Trustee shall promptly
release the related File, in trust, in its reasonable discretion to (i) the
Servicer, (ii) an escrow agent or (iii) any employee, agent or attorney of the
Trustee. Upon any such payment in full, or the receipt of such notification that
such funds have been placed in escrow, the Servicer is authorized to give, as
attorney-in-fact for the Trustee and the mortgagee under the Mortgage which
secured the Note, an instrument of satisfaction (or assignment of Mortgage
without recourse) regarding the Property relating to such Mortgage, which
instrument of satisfaction or assignment, as the case may be, shall be delivered
to the Person or Persons entitled thereto against receipt therefor of payment in
full, it being understood and agreed that no expense incurred in connection with
such instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Principal and Interest Account. In lieu of executing any such
satisfaction or assignment, as the case may be, the Servicer may prepare and
submit to the Trustee a satisfaction (or assignment without recourse, if
requested by the Person or Persons entitled thereto) in form for execution by
the Trustee with all requisite information completed by the Servicer; in such
event, the Trustee shall execute and acknowledge such satisfaction or
assignment, as the case may be, and deliver the same with the related File, as
aforesaid.
(b) From time to time and as appropriate in the servicing of any Home
Equity Loan, including, without limitation, foreclosure or other comparable
conversion of a Home Equity Loan or collection under any applicable Insurance
Policy, the Trustee shall (except in the case of the payment or liquidation
pursuant to which the related File is released to an escrow agent or an
employee, agent or attorney of the Trustee), upon request of the Servicer and
delivery to the Trustee of a receipt signed by an Authorized Officer of the
Servicer, release the related File to the Servicer and shall execute such
documents as shall be necessary to the prosecution of any such proceedings,
including, without limitation, an assignment without recourse of the related
Mortgage to the Servicer; provided that there shall not be released and
unreturned at any one time more than 10% of the entire number of Files. Such
receipt shall obligate the Servicer to return the File to the Trustee when the
need therefor by the Servicer no longer exists unless the Home Equity Loan shall
be liquidated, in which case, upon receipt of the FNMA
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"Liquidation Schedule" relating to such liquidation, the receipt shall be
released by the Trustee to the Servicer.
(c) The Servicer shall have the right to accept applications of
Mortgagors for consent to (i) partial releases of Mortgages, (ii) alterations
and (iii) removal, demolition or division of properties subject to Mortgages. No
application for approval shall be considered by the Servicer unless: (x) the
provisions of the related Note and Mortgage have been complied with; (y) 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 of the Home Equity Loans as set forth
in the Prospectus Supplement under "The Sellers and Servicer - Credit and
Underwriting Guidelines" and any increase in the Loan-to-Value Ratio shall not
exceed 15% unless approved in writing by the Certificate Insurer; and (z) the
lien priority of the related Mortgage is not affected. Upon receipt by the
Trustee of an Officer's Certificate executed on behalf of the Servicer setting
forth the action proposed to be taken in respect of a particular Home Equity
Loan and certifying that the criteria set forth in the immediately preceding
sentence have been satisfied, the Trustee shall execute and deliver to the
Servicer the consent or partial release so requested by the Servicer. A proposed
form of consent or partial release, as the case may be, shall accompany any
Officer's Certificate delivered by the Servicer pursuant to this paragraph. The
Servicer shall notify the Certificate Insurer and the Rating Agencies if an
application is approved under clause (y) above without approval in writing by
the Certificate Insurer.
Section 8.15 Servicing Compensation.
As compensation for its activities hereunder, the Servicer shall be
entitled to retain the amount of the Servicing Fee with respect to each Home
Equity Loan. Additional servicing compensation in the form of prepayment
charges, release fees, bad check charges, assumption fees, late payment charges,
prepayment penalties, or any other servicing-related fees, Net Liquidation
Proceeds not required to be deposited in the Principal and Interest Account
pursuant to Section 8.08(c)(ii) and similar items may, to the extent collected
from Mortgagors, be retained by the Servicer.
Section 8.16 Annual Statement as to Compliance.
The Servicer, at its own expense, will deliver to the Trustee, the
Depositor, the Certificate Insurer and the Rating Agencies, on or before March
31 of each year, commencing in 199_, an Officer's 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 this 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 this Agreement for such year, or, if there has been a default in the
fulfillment of all such obligations, specifying 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.
Section 8.17 Annual Independent Certified Public Accountants'
Reports.
On or before June 30 of any year, commencing in 199_, the Servicer, at
its own expense (or if the Trustee is then acting as Servicer, at the expense of
the Depositor, which in no event shall exceed $1,000 per annum), shall cause to
be delivered to the Trustee, the Certificate Insurer and the Rating Agencies a
letter or letters of a firm of independent, nationally recognized certified
public accountants reasonably acceptable to the Certificate Insurer, dated as of
the date of the Servicer's fiscal audit for subsequent letters, 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.
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Section 8.18 Access to Certain Documentation and Information
Regarding the Home Equity Loans.
The Servicer shall provide to the Trustee, the Certificate Insurer, the
FDIC and the supervisory agents and examiners of each of the foregoing (which,
in the case of supervisory agents and examiners, may be required by applicable
state and federal regulations) access to the documentation regarding the Home
Equity Loans, such access being afforded without charge but only upon reasonable
request and during normal business hours at the offices of the Servicer
designated by it.
Section 8.19 Assignment of Agreement.
The Servicer may not assign its obligations under this Agreement, in
whole or in part, unless it shall have first obtained the written consent of the
Trustee and the Certificate Insurer, which consent shall not be unreasonably
withheld; provided, however, that any assignee must meet the eligibility
requirements set forth in Section 8.20(i) hereof for a successor servicer.
Section 8.20 Removal of Servicer; Resignation of Servicer.
(a) The Certificate Insurer (or the Owners, with the consent of the
Certificate Insurer pursuant to Section 6.11 hereof) may remove the Servicer
upon the occurrence of any of the following events:
(i) The Servicer shall (I) apply for or consent to
the appointment of a receiver, trustee, liquidator or custodian or
similar entity with respect to itself or its property, (II) admit in
writing its inability to pay its debts generally as they become due,
(III) make a general assignment for the benefit of creditors, (IV) be
adjudicated a bankrupt or insolvent, (V) commence a voluntary case
under the federal bankruptcy laws of the United States of America or
file a voluntary petition or answer seeking reorganization, an
arrangement with creditors or an order for relief or seeking to take
advantage of any insolvency law or file an answer admitting the
material allegations of a petition filed against it in any bankruptcy,
reorganization or insolvency proceeding or (VI) take corporate action
for the purpose of effecting any of the foregoing; or
(ii) If without the application, approval or consent
of the Servicer, a proceeding shall be instituted in any court of
competent jurisdiction, under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking in respect of
the Servicer an order for relief or an adjudication in bankruptcy,
reorganization, dissolution, winding up, liquidation, a composition or
arrangement with creditors, a readjustment of debts, the appointment of
a trustee, receiver, liquidator or custodian or similar entity with
respect to the Servicer or of all or any substantial part of its
assets, or other like relief in respect thereof under any bankruptcy or
insolvency law, and, if such proceeding is being contested by the
Servicer in good faith, the same shall (A) result in the entry of an
order for relief or any such adjudication or appointment or (B)
continue undismissed or pending and unstayed for any period of
seventy-five (75) consecutive days; or
(iii) The Servicer shall fail to perform any one or
more of its obligations hereunder and shall continue in default thereof
for a period of thirty (30) days (one (1) Business Day in the case of a
delay in making a required payment to the Trustee under Section
8.08(d)(ii)(a)) after the earlier of (a) actual knowledge of an officer
of the Servicer or (b) receipt of notice from the Trustee or the
Certificate Insurer of said failure; provided, however, that if the
Servicer can demonstrate to the reasonable satisfaction of the
Certificate Insurer that it is
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diligently pursuing remedial action, then the cure period may be
extended with the written approval of the Certificate Insurer; or
(iv) The Servicer shall fail to cure any breach of
any of its representations and warranties set forth in Section 3.02
which materially and adversely affects the interests of the Owners or
the Certificate Insurer for a period of sixty (60) days after the
earlier of the Servicer's discovery or receipt of notice thereof;
provided, however, that if the Servicer can demonstrate to the
reasonable satisfaction of the Certificate Insurer that it is
diligently pursuing remedial action, then the cure period may be
extended with the written approval of the Certificate Insurer; or
(v) The merger, consolidation or other combination of
the Servicer with or into any other entity, unless (1) the Servicer is
the surviving entity of such combination or (2) the surviving entity is
a corporation or a state-chartered or national bank acceptable to the
Certificate Insurer (and the Owners of the Class R Certificates as
provided below but if such Owners and the Certificate Insurer cannot
agree, the Certificate Insurer shall control) organized and doing
business under the laws of any state or the United States.
(b) The Certificate Insurer may remove the Servicer upon the occurrence
of any of the following events:
(i) a Fixed Rate Group Available Funds Shortfall, or
an Adjustable Rate Group Available Funds Shortfall; provided, however,
that in the event that the Trustee shall become the Servicer hereunder,
if the Servicer can demonstrate to the reasonable satisfaction of the
Certificate Insurer that such event was due to circumstances beyond the
control of the Servicer, the right of removal hereunder shall not be
considered a default by the Servicer;
(ii) the failure by the Servicer to make any re-
quired Servicing Advance when due;
(iii) the aggregate number of Home Equity Loans 90 or
more days Delinquent, in foreclosure or relating to REO Properties has
exceeded ten percent of the total number of Home Equity Loans remaining
in the Trust for four consecutive months; provided, however, that in
the event that the Trustee shall become the Servicer hereunder, if the
Servicer can demonstrate to the reasonable satisfaction of the
Certificate Insurer that such event was due to circumstances beyond the
control of the Servicer, the right of removal hereunder shall not be
considered a default by the Servicer; or
(iv) the failure by the Servicer to make any
required Delinquency Advance or to pay any Compensating Interest when
due;
provided, however, that (x) prior to any removal of the Servicer by the
Certificate Insurer pursuant to clause (iii) of this Section 8.20(b), the
Servicer and the Trustee shall first have been given by the Certificate Insurer
and by registered or certified mail, notice of the occurrence of one or more of
the events set forth in clause (iii) above and the Servicer shall not have
remedied, or shall not have taken actions satisfactory to the Certificate
Insurer to remedy, such event or events within 60 days after the Servicer's
receipt of such notice and (y) upon the Trustee's determination that a required
Delinquency Advance or payment of Compensating Interest has not been made by the
Servicer, the Trustee shall so notify an Authorized Officer of the Servicer, the
Owners, if any, and the Certificate Insurer as soon as is reasonably practical.
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(c) If any event described in subsection (b)(iii) above occurs and is
continuing, during the thirty (30) day period following receipt of notice, the
Trustee, the Owners of the Class R Certificates and the Certificate Insurer
shall cooperate with each other to determine if the occurrence of such event is
more likely than not the result of the acts or omissions of the Servicer or more
likely than not the result of events beyond the control of the Servicer. If the
Trustee, the Owners of the Class R Certificates and the Certificate Insurer
conclude that the event is the result of the latter, the Servicer may not be
terminated, unless and until some other event set forth in subsection (b) (i),
(ii) or (iv) has occurred and is continuing. If the Trustee, the Owners of the
Class R Certificates and the Certificate Insurer conclude that the event is the
result of the former, the Certificate Insurer may terminate the Servicer in
accordance with this Section and the Trustee shall act as successor Servicer,
provided that the Trustee shall have until the 30th day following the date of
receipt of notice of the event to become the successor Servicer or to appoint a
successor Servicer pursuant to this Section.
If the Trustee, the Owners of the Class R Certificates and the
Certificate Insurer cannot agree, and the basis for such disagreement is not
arbitrary or unreasonable, as to the cause of the event, the decision of the
Certificate Insurer shall control; provided, however, that if the Certificate
Insurer decides to terminate the Servicer, the Trustee shall be relieved of its
obligation to assume the servicing or to appoint a successor, which shall be the
exclusive obligation of the Certificate Insurer.
The Certificate Insurer agrees to use its best efforts to inform the
Trustee of any materially adverse information regarding the Servicer's servicing
activities that comes to the attention of the Certificate Insurer from time to
time.
(d) If any event described in sections (a) and (b) above (other than
(b)(iii) for which Section 8.20(c) controls) occurs and is continuing, the
Certificate Insurer shall notify the Owners of the Class R Certificates in
writing if the Certificate Insurer intends to terminate the Servicer in its
capacity as Servicer under this Agreement. During the 30 day period following
receipt of such notice by the Owners of the Class R Certificates, such Owners
and the Certificate Insurer shall cooperate with each other to determine if the
occurrence of such event is more likely than not the result of the acts or
omissions of the Servicer or more likely than not the result of events beyond
the control of the Servicer. If the Owners of the Class R Certificates and the
Certificate Insurer conclude that the event is the result of the latter, the
Servicer may not be terminated. If the Owners of the Class R Certificates and
the Certificate Insurer conclude that the event is the result of the former, the
Certificate Insurer may terminate the Servicer in accordance with this Section
and the Trustee shall act as successor Servicer, provided that the Trustee shall
have until the 30th day following the date of receipt of notice of the event to
become the successor Servicer or to appoint a successor Servicer pursuant to
this Section. If the Owners of the Class R Certificates and the Certificate
Insurer cannot agree as to the cause of the event, the decision of the
Certificate Insurer shall control.
(e) The Servicer shall not resign from the obligations and duties
hereby imposed on it, except upon determination that its duties hereunder are no
longer permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it, the other activities
of the Servicer so causing such a conflict being of a type and nature carried on
by the Servicer at the date of this Agreement. Any such determination permitting
the resignation of the Servicer shall be evidenced by an opinion of counsel to
such effect which shall be delivered to the Trustee and the Certificate Insurer.
(f) No removal or resignation of the Servicer shall become effective
until the Trustee or a successor Servicer shall have assumed the Servicer's
responsibilities and obligations in accordance with this Section.
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(g) Upon removal or resignation of the Servicer, the Servicer at its
own expense also shall promptly deliver or cause to be delivered to a successor
servicer or the Trustee all the books and records (including, without
limitation, records kept in electronic form) that the Servicer has maintained
for the Home Equity Loans, including all tax bills, assessment notices,
insurance premium notices and all other documents as well as all original
documents then in the Servicer's possession.
(h) Any collections then being held by the Servicer prior to its
removal and any collections received by the Servicer after removal or
resignation shall be endorsed by it to the Trustee and remitted directly and
immediately to the Trustee or the successor Servicer.
(i) Upon removal or resignation of the Servicer, the Trustee (x) may
solicit bids for a successor servicer as described below, and (y) pending the
appointment of a successor servicer as a result of soliciting such bids, shall
serve as Servicer. The Trustee shall, if it is unable to obtain a qualifying bid
and is prevented by law from acting as Servicer, appoint, or petition a court of
competent jurisdiction to appoint, any housing and home finance institution,
bank or mortgage servicing institution which has been designated as an approved
seller-servicer by FNMA or FHLMC for first and second mortgage loans and having
equity of not less than $5,000,000 (or such lower level as may be acceptable to
the Certificate Insurer), as determined in accordance with generally accepted
accounting principles 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 hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the Servicer hereunder. The compensation of any
successor Servicer (including, without limitation, the Trustee) so appointed
shall be the aggregate Servicing Fee, together with the other servicing
compensation in the form of assumption fees, late payment charges or otherwise
as provided in Sections 8.08 and 8.15; provided, however, that if the Trustee
acts as successor Servicer then __________ agrees to pay to the Trustee at such
time that the Trustee becomes such successor Servicer a set-up fee of
twenty-five dollars ($25.00) for each Home Equity Loan then included in the
Trust Estate. The Trustee shall be obligated to serve as successor Servicer
whether or not the fee described in the preceding sentence is paid by
__________, but shall in any event be entitled to receive, and to enforce
payment of, such fee from __________.
(j) In the event the Trustee solicits bids as provided above, the
Trustee shall solicit, by public announcement, bids from housing and home
finance institutions, banks and mortgage servicing institutions meeting the
qualifications set forth above. Such public announcement shall specify that the
successor Servicer shall be entitled to the full amount of the aggregate
Servicing Fees as servicing compensation, together with the other servicing
compensation in the form of assumption fees, late payment charges or otherwise
as provided in Sections 8.08 and 8.15. Within thirty days after any such public
announcement, the Trustee shall negotiate and effect the sale, transfer and
assignment of the servicing rights and responsibilities hereunder to the
qualified party submitting the highest satisfactory bid as to the price they
will pay to obtain servicing. The Trustee shall deduct from any sum received by
the Trustee from the successor Servicer in respect of such sale, transfer and
assignment all costs and expenses of any public announcement and of any sale,
transfer and assignment of the servicing rights and responsibilities hereunder.
After such deductions, the remainder of such sum less any amounts due the
Trustee or the Trust from the Servicer shall be paid by the Trustee to the
Servicer at the time of such sale, transfer and assignment to the successor
Servicer.
(k) The Trustee and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession,
including the notification to all Mortgagors of the transfer of servicing. The
Servicer agrees to cooperate with the Trustee and any successor Servicer in
effecting the termination of the Servicer's servicing responsibilities and
rights hereunder and shall
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promptly provide the Trustee or such successor Servicer, as applicable, all
documents and records reasonably requested by it to enable it to assume the
Servicer's functions hereunder and shall promptly also transfer to the Trustee
or such successor Servicer, as applicable, all amounts which then have been or
should have been deposited in the Principal and Interest Account by the Servicer
or which are thereafter received with respect to the Home Equity Loans. Neither
the Trustee nor any other successor Servicer shall be held liable by reason of
any failure to make, or any delay in making, any distribution hereunder or any
portion thereof caused by (i) the failure of the Servicer to deliver, or any
delay in delivering, cash, documents or records to it, or (ii) restrictions
imposed by any regulatory authority having jurisdiction over the Servicer. If
the Servicer resigns or is replaced hereunder, the Seller agrees to reimburse
the Trust, the Owners and the Certificate Insurer for the costs and expenses
associated with the transfer of servicing to the replacement Servicer, but
subject to a maximum reimbursement to all such parties in the amount of
twenty-five dollars ($25.00) for each Home Equity Loan then included in the
Trust Estate.
(l) The Trustee or any other successor Servicer, upon assuming the
duties of Servicer hereunder, shall immediately make all Delinquency Advances
and deposit them to the Principal and Interest Account which the Servicer has
theretofore failed to remit with respect to the Home Equity Loans; provided,
however, that if the Trustee is acting as successor Servicer, the Trustee shall
only be required to make Delinquency Advances (including the Delinquency
Advances described in this clause (l)) if, in the Trustee's reasonable good
faith judgment, such Delinquency Advances will ultimately be recoverable from
the Home Equity Loans.
(m) The Servicer which is being removed or is resigning shall give
notice to the Certificate Insurer, the Mortgagors and the Rating Agencies of the
transfer of the servicing to the successor Servicer.
(n) The Trustee shall give notice to the Certificate Insurer, the
Owners, the Trustee, the Seller, and the Rating Agencies of the occurrence of
any event described in paragraphs (a) or (b) above of which the Trustee is
aware.
Section 8.21 Inspections by Certificate Insurer; Errors and Omissions
Insurance.
(a) At any reasonable time and from time to time upon reasonable
notice, the Trustee, the Certificate Insurer or any agents thereof may inspect
the Servicer's servicing operations and discuss the servicing operations of the
Servicer during the Servicer's normal business hours with any of its officers or
directors; provided, however, that the costs and expenses incurred by the
Servicer or its agents or representatives in connection with any such
examinations or discussions shall be paid by the Servicer;
(b) The Servicer agrees to maintain errors and omissions coverage and a
fidelity bond, each at least to the extent required by Section 305 of Part I of
the FNMA Guide or any successor provision thereof; provided, however, that if
the Trustee shall become the Servicer, any customary insurance coverage that the
Trustee maintains shall be deemed sufficient hereunder; provided, further, that
in the event that the fidelity bond or the errors and omissions coverage is no
longer in effect, the Trustee shall promptly give such notice to the Certificate
Insurer and the Owners. Upon the request of the Trustee or the Certificate
Insurer, the Servicer shall cause to be delivered to such requesting Person a
certified true copy of such fidelity bond or errors and omission policy.
END OF ARTICLE VIII
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ARTICLE IX
TERMINATION OF TRUST
Section 9.01 Termination of Trust.
The Trust created hereunder and all obligations created by this
Agreement 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 held by the Trustee and required to be paid to such
Owners pursuant to this Agreement upon the latest to occur of (a) the final
payment or other liquidation (or any advance made with respect thereto) of the
last Home Equity Loan in the Trust Estate, (b) the disposition of all property
acquired in respect of any Home Equity Loan remaining in the Trust Estate, (c)
at any time when a Qualified Liquidation of both Home Equity Loan Groups
included within the Trust is effected as described below and (d) the final
payment to the Certificate Insurer of all amounts then owing to it. To effect a
termination of this Agreement pursuant to clause (c) above, the Owners of all
Certificates then Outstanding shall (i) unanimously direct the Trustee on behalf
of the Lower-Tier REMIC and the Upper-Tier REMIC to adopt a plan of complete
liquidation for each of the Home Equity Loan Groups, as contemplated by Section
860F(a)(4) of the Code and (ii) provide 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 each such liquidation constitutes a Qualified
Liquidation, and the Trustee either shall sell the Home Equity Loans and
distribute the proceeds of the liquidation of the Trust Estate, or shall
distribute equitably in kind all of the assets of the Trust Estate to the
remaining Owners of the Certificates each in accordance with such plan, so that
the liquidation or distribution of the Trust Estate, the distribution of any
proceeds of the liquidation and the termination of this Agreement occur no later
than the close of the 90th day after the date of adoption of the plan of
liquidation and such liquidation qualifies as a Qualified Liquidation. In no
event, however, will the Trust created by this Agreement continue beyond the
expiration of twenty-one (21) years from the death of the last survivor of the
descendants of Joseph P. Kennedy, the late Ambassador of the United States to
the Court of Saint James, living on the date hereof. The Trustee shall give
written notice of termination of the Agreement to each Owner in the manner set
forth in Section 11.05.
Section 9.02 Termination Upon Option of Owners of Class R
Certificates.
(a) On any Monthly Remittance Date on or after the Clean-Up Call Date,
the Owners of a majority of the Percentage Interests represented by the Class R
Certificates then outstanding or, in the absence of a determination by such
Owners, the Certificate Insurer may determine to purchase and may cause the
purchase from the Trust of all (but not fewer than all) Home Equity Loans and
all property theretofore acquired in respect of any Home Equity Loan by
foreclosure, deed in lieu of foreclosure, or otherwise then remaining in the
Trust Estate (i) on terms agreed upon between the Certificate Insurer and the
Owners of such Class R Certificates, or (ii) in the absence of such an
agreement, at a price equal to 100% of the aggregate Loan Balances 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, plus all accrued and unpaid Servicing Fees plus the aggregate
amount of any unreimbursed Delinquency Advances and Servicing Advances and any
Delinquency Advances which the Servicer has theretofore failed to remit. In
connection with such purchase, the Servicer shall remit to the Trustee all
amounts then on deposit in the Principal and Interest Account for deposit to the
Certificate Account, which deposit shall be deemed to have occurred immediately
preceding such purchase.
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(b) In connection with any such purchase, such Owners of the Class R
Certificates shall unanimously direct the Trustee to adopt and the Trustee shall
adopt, as to the Lower-Tier REMIC and the Upper-Tier REMIC, a plan of complete
liquidation for all of the Home Equity Loan Groups as contemplated by Section
860F(a)(4) of the Code and shall provide to the Trustee and the Certificate
Insurer an opinion of counsel experienced in federal income tax matters
acceptable to the Certificate Insurer and the Trustee to the effect that such
purchase and liquidations constitutes, as to the Lower-Tier REMIC and the
Upper-Tier REMIC, a Qualified Liquidation. In addition, such Owners of the Class
R Certificates shall provide to the Trustee and the Certificate Insurer an
opinion of counsel acceptable to the Trustee and the Certificate Insurer to the
effect that such purchase and liquidation does not constitute a preference
payment pursuant to the United States Bankruptcy Code.
(c) The purchase option reserved to the Owners of a majority of the
Percentage Interests represented by the Class R Certificates may be exercised by
the Certificate Insurer if (i) not exercised by such owners and (ii) the
Servicer as of the Closing Date is no longer the Servicer hereunder.
(d) Promptly following any purchase described in this Section 9.02, the
Trustee will release the Files to the Owners of such Class R Certificates or the
Certificate Insurer, as the case may be, or otherwise upon their order, in a
manner similar to that described in Section 8.14 hereof.
Section 9.03 Termination Upon Loss of REMIC Status.
(a) 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 Lower-Tier REMIC or the Upper-Tier 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 (i) 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 and (ii) the
Certificate Insurer may notify the Trustee of the Certificate Insurer's
determination to purchase from the Trust all (but not fewer than all) Home
Equity Loans and all property theretofore acquired by foreclosure, deed in lieu
of foreclosure, or otherwise then remaining in the Trust Estate at a price equal
to the sum of (x) the greater of (i) 100% of the aggregate Loan Balances of the
Home Equity Loans as of the day of purchase minus amounts remitted from the
Principal and Interest Account representing collections of principal on the Home
Equity Loans during the current Remittance Period, and (ii) the fair market
value of such Home Equity Loans (disregarding accrued interest), (y) one month's
interest on such amount computed at the Adjusted Pass-Through Rate and (z) the
aggregate amount of any unreimbursed Delinquency Advances and Servicing Advances
and any Delinquency Advances which the Servicer has theretofore failed to remit.
Upon receipt of such direction from the Certificate Insurer, the
Trustee shall notify the Owners of the Class R Certificates of such election to
liquidate or such determination to purchase, as the case may be (the
"Termination Notice"). The Owners of a majority of the Percentage Interests of
the Class R Certificates then Outstanding may, within 60 days from the date of
receipt of the Termination Notice (the "Purchase Option Period"), at their
option, purchase from the Trust all (but not fewer than all) Home Equity Loans
and all property theretofore acquired by foreclosure, deed in lieu of
foreclosure, or otherwise then remaining in the Trust Estate at a purchase price
equal to the aggregate Loan Balances of all Home Equity Loans as of the date of
such purchase, plus (a) one month's interest on such amount at the Adjusted
Pass-Through Rate, (b) the aggregate amount of any unreimbursed Delinquency
Advances
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and Servicing Advances and (c) any Delinquency Advances which the Servicer has
theretofore failed to remit. If, during the Purchase Option Period, the Owners
of the Class R Certificates have not exercised the option described in the
immediately preceding paragraph, then upon the expiration of the Purchase Option
Period (i) in the event that the Certificate Insurer or the Owners of the Class
A Certificates with the consent of the Certificate Insurer have given the
Trustee the direction described in clause (a)(i) above, the Trustee shall sell
the Home Equity Loans and distribute the proceeds of the liquidation of the
Trust Estate, each in accordance with the plan of complete liquidation, such
that, if so directed, the liquidation of the Trust Estate, the distribution of
the proceeds of the liquidation and the termination of this Agreement occur no
later than the close of the 60th day, or such later day as the Certificate
Insurer or the Owners of the Class A Certificates with the consent of the
Certificate Insurer shall permit or direct in writing, after the expiration of
the Purchase Option Period and (ii) in the event that the Certificate Insurer
has given the Trustee notice of the Certificate Insurer's determination to
purchase the Trust Estate described in clause (a)(ii) above the Certificate
Insurer shall, within 60 days, purchase all (but not fewer than all) Home Equity
Loans and all property theretofore acquired by foreclosure, deed in lieu of
foreclosure or otherwise then remaining in the Trust Estate. In connection with
such purchase, the Servicer shall remit to the Trustee all amounts then on
deposit in the Principal and Interest Account for deposit to the Certificate
Account, which deposit shall be deemed to have occurred immediately preceding
such purchase.
(b) Following a Final Determination, the Owners of a majority of the
Percentage Interests of the Class R Certificates then Outstanding may, at their
option and upon delivery to the Certificate Insurer of an opinion of counsel
experienced in federal income tax matters acceptable to the Certificate Insurer
selected by the Owners of the Class R Certificates, which opinion shall be
reasonably satisfactory in form and substance to the Certificate Insurer, to the
effect that the effect of the Final Determination is to increase substantially
the probability that the gross income of the Trust will be subject to federal
taxation, purchase from the Trust all (but not fewer than all) Home Equity Loans
and all property theretofore acquired by foreclosure, deed in lieu of
foreclosure, or otherwise then remaining in the Trust Estate at a purchase price
equal to the aggregate Loan Balances of all Home Equity Loans as of the date of
such purchase, plus (a) one month's interest on such amount computed at the
Adjusted Pass-Through Rate, (b) the aggregate amount of unreimbursed Delinquency
Advances and (c) any Delinquency Advances which the Servicer has theretofore
failed to remit. In connection with such purchase, the Servicer shall remit to
the Trustee all amounts then on deposit in the Principal and Interest Account
for deposit to the Certificate Account, which deposit shall be deemed to have
occurred immediately preceding such purchase. The foregoing opinion shall be
deemed satisfactory unless the Certificate Insurer gives the Owners of a
majority of the Percentage Interests of the Class R Certificates notice that
such opinion is not satisfactory within thirty days after receipt of such
opinion. In connection with any such purchase, such Owners shall direct the
Trustee to adopt a plan of complete liquidation as contemplated by Section
860F(a)(4) of the Code and shall provide to the Trustee an opinion of counsel
experienced in federal income tax matters to the effect that such purchase
constitutes a Qualified Liquidation.
Section 9.04 Disposition of Proceeds.
The Trustee shall, upon receipt thereof, deposit the proceeds of any
liquidation of the Trust Estate pursuant to this Article IX to the Certificate
Account; provided, however, that any amounts representing unreimbursed
Delinquency Advances and Servicing Advances theretofore funded by the Servicer
from the Servicer's own funds shall be paid by the Trustee to the Servicer from
the proceeds of the Trust Estate.
END OF ARTICLE IX
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ARTICLE X
THE TRUSTEE
Section 10.01 Certain Duties and Responsibilities.
(a) The Trustee (i) (A) undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Trustee and (B) the
banking institution that is the Trustee shall serve as the Trustee at all times
under this Agreement, and (ii) in the absence of bad faith on its part, may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished pursuant to
and conforming to the requirements of this Agreement; but in the case of any
such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Agreement.
(b) Notwithstanding the appointment of the Servicer hereunder, the
Trustee is hereby empowered to perform the duties of the Servicer it being
expressly understood, however, that the foregoing describes a power and not an
obligation of the Trustee, and that all parties hereto agree that, prior to any
termination of the Servicer, the Servicer and, thereafter, the Trustee or any
other successor servicer shall perform such duties. Specifically, and not in
limitation of the foregoing, the Trustee shall upon termination or resignation
of the Servicer, and pending the appointment of any other Person as successor
Servicer, have the power and duty during its performance as successor Servicer:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Home Equity Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption
and substitution agreements as permitted by Section 8.12
hereof;
(iv) to deliver instruments of satisfaction pursuant to Section
8.14;
(v) to enforce the Home Equity Loans; and
(vi) to make Delinquency Advances and Servicing Advances and to
pay Compensating Interest.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(ii) the Trustee shall not be personally liable for any error of
judgment made in good faith by an Authorized Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in
accordance with the direction of the Certificate Insurer or
of the Owners of a majority in Percentage Interest of the
Certificates of the affected Class or
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Classes and the Certificate Insurer relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement relating to
such Certificates.
(d) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
(e) No provision of this Agreement shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. None of the provisions contained in this Agreement
shall in any event require the Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer under this
Agreement, except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges of,
the Servicer in accordance with the terms of this Agreement.
(f) The permissive right of the Trustee to take actions enumerated in
this Agreement shall not be construed as a duty and the Trustee shall not be
answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit, or
to take any remedial proceeding under this Agreement, or to take any steps in
the execution of the trusts hereby created or in the enforcement of any rights
and powers hereunder until it shall be indemnified to its satisfaction against
any and all costs and expenses, outlays and counsel fees and other reasonable
disbursements and against all liability, except liability which is adjudicated
to have resulted from its negligence or willful misconduct, in connection with
any action so taken.
(h) Neither the Servicer, the Seller nor the Trustee knowingly shall
take any action that would cause the Class A Certificates to fail to qualify as
"mortgage related securities" within the meaning of the Securities Exchange Act
of 1934, as amended.
Section 10.02 Removal of Trustee for Cause.
(a) The Trustee may be removed pursuant to paragraph (b) hereof upon
the occurrence of any 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):
(1) the Trustee shall fail to distribute to the Owners
entitled hereto on any Payment Date amounts available for distribution
in accordance with the terms hereof; (provided, however, that any such
failure which is due to circumstances beyond the control of the Trustee
shall not be a cause for removal hereunder); or
(2) the Trustee shall fail in the performance of, or breach,
any covenant or agreement of the Trustee in this Agreement, or if any
representation or warranty of the Trustee made in this Agreement or in
any certificate or other writing delivered pursuant hereto or in
connection herewith shall prove to be incorrect in any material respect
as of the time when the same shall have been made, and such failure or
breach shall continue or not be cured for a period of 30 days after
there shall have been given, by registered or certified mail, to the
Trustee by the Sellers,
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the Certificate Insurer, or by the Owners of at least 25% of the
aggregate Percentage Interests in the Trust Estate represented by the
Class A Certificates then Outstanding, or, if there are no Class A
Certificates then Outstanding, by such Percentage Interests represented
by the Class R Certificates, a written notice specifying such failure
or breach and requiring it to be remedied; or
(3) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have been entered
against the Trustee, and such decree or order shall have remained in
force undischarged or unstayed for a period of 75 days; or
(4) a conservator or receiver or liquidator or sequestrator
or custodian of the property of the Trustee is appointed in any
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings of or relating to the Trustee or relating to all
or substantially all of its property; or
(5) the Trustee shall become insolvent (however insolvency is
evidenced), generally fail to pay its debts as they come due, file or
consent to the filing of a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, voluntarily suspend payment of its
obligations, or take corporate action for the purpose of any of the
foregoing.
The Depositor shall give notice to the Certificate Insurer and the
Rating Agencies of the occurrence of any such event of which the Depositor is
aware.
(b) If any event described in paragraph (a) occurs and is continuing,
then and in every such case (i) the Certificate Insurer or (ii) with the prior
written consent (which shall not be unreasonably withheld) of the Certificate
Insurer, the Depositor and 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 such majority of the Percentage Interests represented by the
Subordinate Certificates, may, whether or not the Trustee resigns pursuant to
Section 10.09(b) hereof, immediately, concurrently with the giving of notice to
the Trustee, and without delaying the 30 days required for notice therein,
appoint a successor Trustee pursuant to the terms of Section 10.09 hereof.
(c) The Servicer shall not be liable for any costs relating to the
removal of the Trustee or the appointment of a new Trustee.
Section 10.03 Certain Rights of the Trustee.
Except as otherwise provided in Section 10.01 hereof:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, note or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Depositor, either of the Sellers,
the Certificate Insurer, or the Owners of any Class of Certificates mentioned
herein shall be sufficiently evidenced in writing;
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(c) whenever in the administration of this Agreement the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel, and the written advice of
such counsel (selected in good faith by the Trustee) shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reasonable reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the request or direction of
any of the Owners pursuant to this Agreement, unless such Owners shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, note or other
paper or document, but the Trustee in its discretion may make such further
inquiry or investigation into such facts or matters as it may see fit;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
attorneys or custodians;
(h) the Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized by the
Authorized Officer of any Person or within its rights or powers under this
Agreement other than as to validity and sufficiency of its authentication of the
Certificates;
(i) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act;
(j) pursuant to the terms of this Agreement, the Servicer is required
to furnish to the Trustee from time to time certain information and to make
various calculations which are relevant to the performance of the Trustee's
duties under this Agreement. The Trustee shall be entitled to rely in good faith
on any such information and calculations in the performance of its duties
hereunder, (i) unless and until an Authorized Officer of the Trustee has actual
knowledge, or is advised by any Owner of a Certificate (either in writing or
orally with prompt written or telecopies confirmation), that such information or
calculations is or are incorrect, or (ii) unless there is a manifest error in
any such information; and
(k) the Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Estate created hereby or the powers
granted hereunder.
Section 10.04 Not Responsible for Recitals or Issuance of
Certificates.
The recitals and representations contained herein and in the
Certificates, except any such recitals and representations relating to the
Trustee, shall be taken as the statements of the Depositor and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representation as to the validity or sufficiency of this Agreement, of the
Certificates, or any Home Equity Loan or document related thereto other than as
to validity and sufficiency of its authentication of the Certificates. The
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Trustee shall not be accountable for the use or application by the Depositor of
any of the Certificates or of the proceeds of such Certificates, or for the use
or application of any funds paid to the Depositor, either of the Sellers or the
Servicer in respect of the Home Equity Loans or deposited into or withdrawn from
the Principal and Interest Account or the Certificate Account by the Depositor,
the Servicer or either of the Sellers, and shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or otherwise to perfect or maintain the perfection of any security interest or
lien or to prepare or file any tax returns or Securities and Exchange Commission
filings for the Trust or to record this Agreement. The Trustee shall not be
required to take notice or be deemed to have notice or knowledge of any default
unless an Authorized Officer of the Trustee shall have received written notice
thereof or an Authorized Officer has actual knowledge thereof. In the absence of
receipt of such notice, the Trustee may conclusively assume that no default has
occurred.
Section 10.05 May Hold Certificates.
The Trustee, any Paying Agent, Registrar or any other agent of the
Trust, in its individual or any other capacity, may become an Owner or pledgee
of Certificates and may otherwise deal with the Trust with the same rights it
would have if it were not Trustee, any Paying Agent, Registrar or such other
agent.
Section 10.06 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other trust funds except to the extent required herein or required by law.
The Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Seller and except to the extent of
income or other gain on investments which are deposits in or certificates of
deposit of the Trustee in its commercial capacity.
Section 10.07 Compensation and Reimbursement; No Lien for Fees.
The Trustee shall receive compensation for fees and reimbursement for
expenses pursuant to Section 2.05, Section 7.03(c)(iv)(A) and Section 7.06
hereof. The Trustee shall have no lien on either the Trust Estate for the
payment of such fees and expenses.
Section 10.08 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation or association organized and doing business under the laws of the
United States of America or of any State authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000 subject to supervision or examination by the United States of
America, acceptable to the Certificate Insurer and having a deposit rating of at
least A- from Standard & Poor's (or such lower rating as may be acceptable to
Standard & Poor's) and A2 by Moody's (or such lower rating as may be acceptable
to Moody's). If such Trustee publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation or association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall, upon the request of the Seller
with the consent of the Certificate Insurer (which consent shall not be
unreasonably withheld) or of the Certificate Insurer, resign immediately in the
manner and with the effect hereinafter specified in this Article X.
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Section 10.09 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor trustee pursuant to this Article X shall become effective until the
acceptance of appointment by the successor trustee under Section 10.10 hereof.
(b) The Trustee, or any trustee or trustees hereafter appointed, may
resign at any time by giving written notice of resignation to the Depositor and
by mailing notice of resignation by first-class mail, postage prepaid, to the
Certificate Insurer and the Owners at their addresses appearing on the Register;
provided, that the Trustee cannot resign solely for the failure to receive the
Trustee Fee. A copy of such notice shall be sent by the resigning Trustee to the
Rating Agencies. Upon receiving notice of resignation, the Depositor shall
promptly appoint a successor trustee or trustees acceptable to the Certificate
Insurer by written instrument, in duplicate, executed on behalf of the Trust by
an Authorized Officer of the Seller, one copy of which instrument shall be
delivered to the Trustee so resigning and one copy to the successor trustee or
trustees. If no successor trustee shall have been appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Owner may, on behalf of himself and
all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and appropriate, appoint a successor trustee.
(c) If at any time the Trustee shall cease to be eligible under Section
10.08 hereof and shall fail to resign after written request therefor by the
Depositor or by the Certificate Insurer, the Certificate Insurer or the
Depositor with the written consent of the Certificate Insurer may remove the
Trustee and appoint a successor trustee acceptable to the Certificate Insurer by
written instrument, in duplicate, executed on behalf of the Trust by an
Authorized Officer of the Depositor, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee.
(d) The Owners of a majority of the Percentage Interests represented by
the Class A Certificates with the consent of the Certificate Insurer, or, if
there are no Class A Certificates then Outstanding, by such majority of the
Percentage Interests represented by the Class R Certificates, may at any time
remove the Trustee and appoint a successor trustee acceptable to the Certificate
Insurer by delivering to the Trustee to be removed, to the successor trustee so
appointed, to the Depositor, to the Servicer and to the Certificate Insurer,
copies of the record of the act taken by the Owners, as provided for in Section
11.03 hereof.
(e) If the Trustee fails to perform its duties in accordance with the
terms of this Agreement, or becomes ineligible pursuant to Section 10.08 to
serve as Trustee, the Certificate Insurer may remove the Trustee and appoint a
successor trustee by written instrument, in triplicate, signed by the
Certificate Insurer duly authorized, one complete set of which instruments shall
be delivered to the Depositor, one complete set to the Trustee so removed and
one complete set to the successor Trustee so appointed.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
the Seller shall promptly appoint a successor trustee acceptable to the
Certificate Insurer. If within one year after such resignation, removal or
incapability or the occurrence of such vacancy, a successor trustee shall be
appointed by act of the Certificate Insurer or the Owners of a majority of the
Percentage Interests represented by the Class A Certificates then Outstanding
with the consent of the Certificate Insurer, the successor trustee so appointed
shall forthwith upon its acceptance of such appointment become the successor
trustee and supersede the successor trustee appointed by the Depositor. If no
successor trustee shall have been so appointed by the Depositor or the
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Owners and shall have accepted appointment in the manner hereinafter provided,
any Owner may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(g) The Depositor shall give notice of any removal of the Trustee by
mailing notice of such event by first-class mail, postage prepaid, to the
Certificate Insurer, to the Rating Agencies and to the Owners as their names and
addresses appear in the Register. Each notice shall include the name of the
successor Trustee and the address of its corporate trust office.
Section 10.10 Acceptance of Appointment by Successor Trustee.
Every successor trustee appointed hereunder shall execute, acknowledge
and deliver to the Depositor on behalf of the Trust and to its predecessor
Trustee an instrument accepting such appointment hereunder and stating its
eligibility to serve as Trustee hereunder, and thereupon the resignation or
removal of the predecessor Trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts, duties and obligations of its predecessor
hereunder; but, on request of the Depositor or the successor Trustee, such
predecessor Trustee shall, upon payment of its charges then unpaid, execute and
deliver an instrument transferring to such successor trustee all of the rights,
powers and trusts of the Trustee so ceasing to act, and shall duly assign,
transfer and deliver to such successor trustee all property and money held by
such Trustee so ceasing to act hereunder. Upon request of any such successor
trustee, the Depositor on behalf of the Trust shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor trustee all such rights, powers and trusts.
Upon acceptance of appointment by a successor Trustee as provided in
this Section, the Depositor shall mail notice thereof by first-class mail,
postage prepaid, to the Owners at their last addresses appearing upon the
Register. The Depositor shall send a copy of such notice to the Rating Agencies.
If the Depositor fails to mail such notice within ten days after acceptance of
appointment by the successor Trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Trust.
No successor trustee shall accept its appointment unless at the time of
such acceptance such successor shall be qualified and eligible under this
Article X.
Section 10.11 Merger, Conversion, Consolidation or Succession to
Business of the Trustee.
Any corporation or association into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation or
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or association succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto; provided, however,
that such corporation or association shall be otherwise qualified and eligible
under this Article X. In case any Certificates have been executed, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such Trustee may adopt such execution and deliver the
Certificates so executed with the same effect as if such successor Trustee had
itself executed such Certificates.
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Section 10.12 Reporting; Withholding.
(a) The Trustee shall timely provide to the Owners the Internal Revenue
Service's Form 1099 and any other statement required by applicable Treasury
regulations as determined by the Tax Matters Person, and shall withhold, as
required by applicable law, federal, state or local taxes, if any, applicable to
distributions to the Owners, including but not limited to backup withholding
under Section 3406 of the Code and the withholding tax on distributions to
foreign investors under Sections 1441 and 1442 of the Code.
(b) As required by law or upon request of the Tax Matters Person and
except as otherwise specifically set forth in subsection (a) above, the Trustee
shall timely file all reports prepared by the Depositor and required to be filed
by the Trust with any federal, state or local governmental authority having
jurisdiction over the Trust, including other reports that must be filed with the
Owners, such as the Internal Revenue Service's Form 1066 and Schedule Q and the
form required under Section 6050K of the Code, if applicable to REMICs.
Furthermore, the Trustee shall report to Owners, if required, with respect to
the allocation of expenses pursuant to Section 212 of the Code in accordance
with the specific instructions to the Trustee by the Depositor with respect to
such allocation of expenses. The Trustee shall, upon request of the Depositor,
collect any forms or reports from the Owners determined by the Depositor to be
required under applicable federal, state and local tax laws.
(c) The Depositor covenants and agrees that it shall provide to the
Trustee any information necessary to enable the Trustee to meet its obligations
under subsections (a) and (b) above.
(d) Except as otherwise provided, the Depositor shall have the
responsibility for preparation of all returns, forms, reports and other
documents referred to in this Section and the Trustee's responsibility shall be
to execute such documents.
Section 10.13 Liability of the Trustee.
The Trustee shall be liable in accordance herewith only to the extent
of the obligations specifically imposed upon and undertaken by the Trustee
herein. Neither the Trustee nor any of the directors, officers, employees or
agents of the Trustee shall be under any liability on any Certificate or
otherwise to the Certificate Insurer, the Depositor, either of the Sellers, the
Servicer or any Owner for any action taken or for refraining from the taking of
any action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Trustee, its
directors, officers, employees or agents or any such Person against any
liability which would otherwise be imposed by reason of negligent action,
negligent failure to act or willful misconduct in the performance of duties or
by reason of reckless disregard of obligations and duties hereunder. Subject to
the foregoing sentence, the Trustee shall not be liable for losses on
investments of amounts in the Certificate Account (except for any losses on
obligations on which the bank serving as Trustee is the obligor). In addition,
the Depositor, each of the Sellers and Servicer covenant and agree to indemnify
the Trustee, and when the Trustee is acting as Servicer, the Servicer, from, and
hold it harmless against, any and all losses, liabilities, damages, claims or
expenses (including legal fees and expenses) of whatsoever kind arising out of
or in connection with the performance of its duties hereunder other than those
resulting from the negligence or bad faith of the Trustee, and the Depositor
shall pay all amounts not otherwise paid pursuant to Sections 2.05 and 7.06
hereof. The Trustee and any director, officer, employee or agent of the Trustee
may rely and shall be protected in acting or refraining from acting in good
faith on any certificate, notice or other document of any kind prima facie
properly executed and submitted by the Authorized Officer of any Person
respecting any matters arising hereunder. The provisions of this
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Section 10.13 shall survive the termination of this Agreement and the payment of
the outstanding Certificates.
Section 10.14 Appointment of Co-Trustee or Separate Trustee .
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Estate or Property may at the time be located, the
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee and reasonably acceptable to the Certificate Insurer to act as
co-Trustee or co-Trustees, jointly with the Trustee, of all or any part of the
Trust Estate or separate Trustee or separate Trustees of any part of the Trust
Estate, and to vest in such Person or Persons, in such capacity and for the
benefit of the Owners, such title to the Trust Estate, or any part thereof, and,
subject to the other provisions of this Section 10.14, such powers, duties,
obligations, rights and trusts as the Servicer and the Trustee may consider
necessary or desirable. If the Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, or in
the case any event indicated in Section 8.20(a) shall have occurred and be
continuing, the Trustee subject to reasonable approval of the Certificate
Insurer alone shall have the power to make such appointment. No co-Trustee or
separate Trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 10.08 and no notice to Owners of the
appointment of any co-Trustee or separate Trustee shall be required under
Section 10.09.
Every separate Trustee and co-Trustee shall, to the extent permitted,
be appointed and act subject to the following provisions and conditions:
(i) All rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate Trustee or
co-Trustee jointly (it being understood that such separate Trustee or
co-Trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Estate or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate Trustee or co-Trustee, but solely at
the direction of the Trustee;
(ii) No co-Trustee hereunder shall be held personally
liable by reason of any act or omission of any other co-Trustee
hereunder; and
(iii) The Servicer, the Certificate Insurer and the Trustee
acting jointly may at any time accept the resignation of or remove any
separate Trustee or co-Trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate Trustees and co-Trustees,
as effectively as if given to each of them. Every instrument appointing any
separate Trustee or co-Trustee shall refer to this Agreement and the conditions
of this Section 10.14. Each separate Trustee and co-Trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer.
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Any separate Trustee or co-Trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate Trustee or co-Trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
The Servicer and the Trustee hereby appoint
______________________________ (the "Initial Co- Trustee") as co-trustee with
respect to the Mortgage Loans secured by Mortgaged Properties situated in New
Jersey and any other part of the Trust Estate or property securing the same that
at any time may be situated in New Jersey.
END OF ARTICLE X
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ARTICLE XI
MISCELLANEOUS
Section 11.01 Compliance Certificates and Opinions.
Upon any application or request by the Depositor, the Seller, the
Certificate Insurer or the Owners to the Trustee to take any action under any
provision of this Agreement, the Depositor, either of the Sellers, the
Certificate Insurer or the Owners, as the case may be, shall furnish to the
Trustee a certificate stating that all conditions precedent, if any, provided
for in this Agreement relating to the proposed action have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Agreement relating to such particular application or request, no additional
certificate need be furnished.
Except as otherwise specifically provided herein, each certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Agreement (including one furnished pursuant to specific requirements of
this Agreement relating to a particular application or request) shall include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; and
(c) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 11.02 Form of Documents Delivered to the Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Trustee may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such Authorized Officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of an Authorized
Officer of the Trustee or any opinion of counsel may be based, insofar as it
relates to factual matters upon a certificate or opinion of, or representations
by, one or more Authorized Officers of the Depositor, either of the Sellers or
the Servicer, stating that the information with respect to such factual matters
is in the possession of the Depositor, such Seller or the Servicer, unless such
Authorized Officer or counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous. Any opinion of counsel may also be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an Authorized Officer of the Trustee, stating that the
information with respect to such matters is in the possession of the Trustee,
unless such counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or
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representations with respect to such matters are erroneous. Any opinion of
counsel may be based on the written opinion of other counsel, in which event
such opinion of counsel shall be accompanied by a copy of such other counsel's
opinion and shall include a statement to the effect that such counsel believes
that such counsel and the Trustee may reasonably rely upon the opinion of such
other counsel.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
Section 11.03 Acts of Owners.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by the
Owners may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Owners in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee, and, where it is hereby expressly required, to one or both of
the Sellers. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "act" of the Owners
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Agreement and conclusive in favor of the Trustee and the Trust,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Whenever
such execution is by an officer of a corporation or a member of a partnership on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority.
(c) The ownership of Certificates shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Owner of any Certificate shall bind the Owner of
every Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Trustee or the Trust in reliance thereon, whether or
not notation of such action is made upon such Certificates.
Section 11.04 Notices, etc. to Trustee.
Any request, demand, authorization, direction, notice, consent, waiver
or act of the Owners or other documents provided or permitted by this Agreement
to be made upon, given or furnished to, or filed with the Trustee by any Owner,
the Certificate Insurer, the Depositor or either of the Sellers shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with and received by the Trustee at the Corporate Trust Office.
Section 11.05 Notices and Reports to Owners; Waiver of Notices.
Where this Agreement provides for notice to Owners of any event or the
mailing of any report to Owners, such notice or report shall be sufficiently
given (unless otherwise herein expressly provided) if mailed, first-class
postage prepaid, to each Owner affected by such event or to whom such report is
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required to be mailed, at the address of such Owner as it appears on the
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice or the mailing of such report. In
any case where a notice or report to Owners is mailed in the manner provided
above, neither the failure to mail such notice or report nor any defect in any
notice or report so mailed to any particular Owner shall affect the sufficiency
of such notice or report with respect to other Owners, and any notice or report
which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given or provided. Notwithstanding the foregoing, if the Servicer
is removed or resigns or the Trust is terminated, notice of any such events
shall be made by overnight courier, registered mail or telecopy followed by a
telephone call.
Where this Agreement provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Owners shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Owners when such notice is required to be given
pursuant to any provision of this Agreement, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Agreement provides for notice to any rating agency that
rated any Certificates, failure to give such notice shall not affect any other
rights or obligations created hereunder.
Section 11.06 Rules by Trustee.
The Trustee may make reasonable rules for any meeting of Owners.
Section 11.07 Successors and Assigns.
All covenants and agreements in this Agreement by any party hereto
shall bind its successors and assigns, whether so expressed or not.
Section 11.08 Severability.
In case any provision in this Agreement or in the Certificates shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 11.09 Benefits of Agreement.
Nothing in this Agreement or in the Certificates, expressed or implied,
shall give to any Person, other than the Owners, the Certificate Insurer and the
parties hereto and their successors hereunder, any benefit or any legal or
equitable right, remedy or claim under this Agreement.
Section 11.10 Legal Holidays.
In any case where the date of any Monthly Remittance Date, any Payment
Date, any other date on which any distribution to any Owner is proposed to be
paid, or any date on which a notice is required to be sent to any Person
pursuant to the terms of this Agreement shall not be a Business Day, then
(notwithstanding any other provision of the Certificates or this Agreement)
payment or mailing need not
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be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made or mailed on the nominal date of any such
Monthly Remittance Date, such Payment Date, or such other date for the payment
of any distribution to any Owner or the mailing of such notice, as the case may
be, and no interest shall accrue for the period from and after any such nominal
date, provided such payment is made in full on such next succeeding Business
Day.
Section 11.11 Governing Law; Submission to Jurisdiction.
(a) In view of the fact that Owners are expected to reside in many
states and outside the United States and the desire to establish with certainty
that this Agreement will be governed by and construed and interpreted in
accordance with the law of a state having a well-developed body of commercial
and financial law relevant to transactions of the type contemplated herein, this
Agreement and each Certificate shall 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, without giving effect to the conflicts of law
principles thereof.
(b) The parties hereto hereby irrevocably submit to the jurisdiction of
the United States District Court for the Southern District of New York and any
court in the State of New York located in the City and County of New York, and
any appellate court from any thereof, in any action, suit or proceeding brought
against it or in connection with this Agreement or any of the related documents
or the transactions contemplated hereunder or for recognition or enforcement of
any judgment, and the parties hereto hereby irrevocably and unconditionally
agree that all claims in respect of any such action or proceeding may be heard
or determined in such New York State court or, to the extent permitted by law,
in such federal court. The parties hereto agree that a final judgment in any
such action, suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. To
the extent permitted by applicable law, the parties hereto hereby waive and
agree not to assert by way of motion, as a defense or otherwise in any such
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of such courts, that the suit, action or proceeding is brought in
an inconvenient forum, that the venue of the suit, action or proceeding is
improper or that the related documents or the subject matter thereof may not be
litigated in or by such courts.
(c) Each of the Depositor, the Sellers and the Servicer hereby
irrevocably appoints and designates the Trustee as its true and lawful attorney
and duly authorized agent for acceptance of service of legal process with
respect to any action, suit or proceeding set forth in paragraph (b) hereof.
Each of the Sellers and the Servicer agrees that service of such process upon
the Trustee shall constitute personal service of such process upon it.
(d) Nothing contained in this Agreement shall limit or affect the right
of the Depositor, the Sellers, the Servicer or the Certificate Insurer or any
third-party beneficiary hereunder, as the case may be, to serve process in any
other manner permitted by law or to start legal proceedings relating to any of
the Home Equity Loans against any Mortgagor in the courts of any jurisdiction.
Section 11.12 Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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Section 11.13 Usury.
The amount of interest payable or paid on any Certificate under the
terms of this Agreement shall be limited to an amount which shall not exceed the
maximum nonusurious rate of interest allowed by the applicable laws of the State
of New York or any applicable law of the United States permitting a higher
maximum nonusurious rate that preempts such applicable New York laws, which
could lawfully be contracted for, charged or received (the "Highest Lawful
Rate"). In the event any payment of interest on any Certificate exceeds the
Highest Lawful Rate, the Trust stipulates that such excess amount will be deemed
to have been paid to the Owner of such Certificate as a result of an error on
the part of the Trustee acting on behalf of the Trust and the Owner receiving
such excess payment shall promptly, upon discovery of such error or upon notice
thereof from the Trustee on behalf of the Trust, refund the amount of such
excess or, at the option of such Owner, apply the excess to the payment of
principal of such Certificate, if any, remaining unpaid. In addition, all sums
paid or agreed to be paid to the Trustee for the benefit of Owners of
Certificates for the use, forbearance or detention of money shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of such Certificates.
Section 11.14 Amendment.
(a) The Trustee, the Depositor, either of the Sellers and the Servicer
may, at any time and from time to time, and without notice to or the consent of
the Owners but with the consent of the Certificate Insurer, amend this
Agreement, subject to the provisions of Section 11.16 and 11.17 and the Trustee
shall consent to such amendment, for the purpose of (i) curing any ambiguity,
correcting or supplementing any provision hereof which may be inconsistent with
any other provision hereof, or adding provisions hereto which are not
inconsistent with the provisions hereof; (ii) upon receipt of an opinion of
counsel experienced in federal income tax matters to the effect that no
entity-level tax will be imposed on the Trust or upon the transferor of a Class
R Certificate as a result of the ownership of any Class R Certificate by a
Disqualified Organization, removing the restriction on transfer set forth in
Section 5.08(b) hereof or (iii) complying with the requirements of the Code and
the regulations proposed or promulgated thereunder including any amendments
necessary to maintain REMIC status or (iv) for any other purpose, provided that
in the case of this clause (iv) the Seller deliver (A) an opinion of counsel
acceptable to the Trustee that such amendment will not adversely affect 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 Certificate Insurance Policy. Notwithstanding anything to
the contrary herein, no such amendment shall (a) change in any manner the amount
of, or change the timing of, payments which are required to be distributed to
any Owner without the consent of the Owner of such Certificate, or (b) which
affects in any the manner the terms or provisions of the Certificate Insurance
Policy.
(b) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Owner in the manner set forth in Section 11.05, and to the Rating Agencies.
(c) The Certificate Insurer, the Owners and the Rating Agencies shall
be provided with copies of any amendments to this Agreement, together with
copies of any opinions or other documents or instruments executed in connection
therewith.
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Section 11.15 Paying Agent; Appointment and Acceptance of Duties.
The Trustee is hereby appointed Paying Agent. The Depositor may,
subject to the eligibility requirements for the Trustee set forth in Section
10.08 hereof, appoint one or more other Paying Agents or successor Paying
Agents.
Each Paying Agent, immediately upon such appointment, shall signify its
acceptance of the duties and obligations imposed upon it by this Agreement by
written instrument of acceptance deposited with the Trustee.
Each such Paying Agent other than the Trustee shall execute and deliver
to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of Section 6.02, that such Paying Agent will:
(a) allocate all sums received for distribution to the Owners
of Certificates of each Class for which it is acting as Paying Agent on
each Payment Date among such Owners in the proportion specified by the
Trustee; and
(b) hold all sums held by it for the distribution of amounts
due with respect to the Certificates in trust for the benefit of the
Owners entitled thereto until such sums shall be paid to such Owners or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided.
Any Paying Agent other than the Trustee may at any time resign and be
discharged of the duties and obligations created by this Agreement by giving at
least sixty (60) days written notice to the Trustee. Any such Paying Agent may
be removed at any time by an instrument filed with such Paying Agent and signed
by the Trustee.
In the event of the resignation or removal of any Paying Agent other
than the Trustee such Paying Agent shall pay over, assign and deliver any moneys
held by it as Paying Agent to its successor, or if there be no successor, to the
Trustee.
Upon the appointment, removal or notice of resignation of any Paying
Agent, the Trustee shall notify the Certificate Insurer and the Owners by
mailing notice thereof at their addresses appearing on the Register.
Section 11.16 REMIC Status.
(a) The parties hereto intend that the Lower-Tier REMIC and the
Upper-Tier REMIC shall each constitute, and that the affairs of the Lower-Tier
REMIC and the Upper-Tier REMIC shall each be conducted so as to qualify it as a
REMIC in accordance with the REMIC Provisions. In furtherance of such intention,
____________________ or such other person designated pursuant to Section 11.18
hereof shall act as agent for the Trust and as "tax matters person" (as defined
in the REMIC Provisions) for the Trust and in such capacity it shall: (i)
prepare or cause to be prepared and filed, in a timely manner, annual tax
returns and any other tax return required to be filed by the Lower-Tier REMIC
and the Upper- Tier REMIC established hereunder using a calendar year as the
taxable year for the Lower-Tier REMIC and the Upper-Tier REMIC established
hereunder; (ii) in the related first such tax return, make (or cause to be made)
an election satisfying the requirements of the REMIC Provisions, on behalf of
the Lower- Tier REMIC and the Upper-Tier REMIC, for it to be treated as a REMIC;
(iii) prepare and forward, or cause to be prepared and forwarded, to the Owners
all information, reports or tax returns required with
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<PAGE>
respect to the Lower-Tier REMIC and the Upper-Tier REMIC as, when and in the
form required to be provided to the Owners, and to the Internal Revenue Service
and any other relevant governmental taxing authority in accordance with the
REMIC Provisions and any other applicable federal, state or local laws,
including without limitation information reports relating to "original issue
discount" as defined in the Code based upon the prepayment assumption and
calculated by using the "Issue Price" (within the meaning of Section 1273 of the
Code) of the Certificates of the related Class; (iv) not take any action or omit
to take any action that would cause the termination of the REMIC status of
either the Lower-Tier REMIC or the Upper-Tier REMIC, except as provided under
this Agreement; (v) represent the Trust of the Lower-Tier REMIC or the
Upper-Tier REMIC in any administrative or judicial proceedings relating to an
examination or audit by any governmental taxing authority, request an
administrative adjustment as to a taxable year of the Trust or the Lower-Tier
REMIC or the Upper-Tier REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of the Trust or the Lower-Tier REMIC or the Upper-Tier REMIC, and
otherwise act on behalf of the Trust or any REMIC therein in relation to any tax
matter involving the Trust or any REMIC therein; (vi) comply with all statutory
or regulatory requirements with regard to its conduct of activities pursuant to
the foregoing clauses of this Section 11.16, including, without limitation,
providing all notices and other information to the Internal Revenue Service and
Owners of Class R Certificates required of a "tax matters person" pursuant to
subtitle F of the Code and the Treasury Regulations thereunder; (vii) make
available information necessary for the computation of any tax imposed (A) on
transferors of residual interests to certain Disqualified Organizations or (B)
on pass-through entities, any interest in which is held by a Disqualified
Organization; and (viii) acquire and hold the Tax Matters Person Residual
Interest. The obligations of the designated Tax Matters Person pursuant to this
Section 11.16 shall survive the termination or discharge of this Agreement.
(b) Each of the Sellers, the Depositor, the Trustee and the Servicer
covenant and agree for the benefit of the Owners and the Certificate Insurer (i)
to take no action which would result in the termination of "REMIC" status for
the Lower-Tier REMIC or the Upper-Tier REMIC, (ii) not to engage in any
"prohibited transaction", as such term is defined in Section 860F(a)(2) of the
Code, (iii) not to engage in any other action which may result in the imposition
on the Trust of any other taxes under the Code and (iv) to cause the Servicer
not to take or engage in any such action, to the extent the Sellers are aware of
any such proposed action by the Servicer.
(c) The Lower-Tier REMIC and the Upper-Tier REMIC shall, for federal
income tax purposes, maintain books on a calendar year basis and report income
on an accrual basis.
(d) Except as otherwise permitted by Section 7.05(b), no Eligible
Investment shall be sold prior to its stated maturity (unless sold pursuant to a
plan of liquidation in accordance with Article IX hereof).
(e) Neither the Depositor, either of the Sellers nor the Trustee shall
enter into any arrangement by which the Trustee will receive a fee or other
compensation for services rendered pursuant to this Agreement, other than as
expressly contemplated by this Agreement.
(f) Notwithstanding the foregoing clauses (d) and (e), neither the
Trustee nor either of the Sellers may engage in any of the transactions
prohibited by such clauses, unless the Trustee shall have received an opinion of
counsel experienced in federal income tax matters acceptable to the Certificate
Insurer to the effect that such transaction does not result in a tax imposed on
the Trustee or cause a termination of REMIC status for the Lower-Tier REMIC or
the Upper-Tier REMIC; provided, however, that such transaction is otherwise
permitted under this Agreement.
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(g) The Servicer and Tax Matters Person agree to indemnify the Trust
for any tax imposed on the Trust or the Lower-Tier REMIC or the Upper-Tier REMIC
as a result of their negligence.
Section 11.17 Additional Limitation on Action and Imposition of Tax.
Any provision of this Agreement to the contrary notwithstanding, the
Trustee shall not, without having obtained an opinion of counsel experienced in
federal income tax matters acceptable to the Certificate Insurer to the effect
that such transaction does not result in a tax imposed on the Trust or the
Lower-Tier REMIC or the Upper-Tier REMIC or cause a termination of REMIC status
for the Lower- Tier REMIC or the Upper-Tier REMIC, (i) sell any assets in the
Trust Estate, (ii) accept any contribution of assets after the Startup Day or
(iii) agree to any modification of this Agreement. To the extent that sufficient
amounts cannot be so retained to pay or provide for the payment of such tax, the
Trustee is hereby authorized to and shall segregate, into a separate
non-interest bearing account, the net income from any such Prohibited
Transactions of the Lower-Tier REMIC and the Upper-Tier REMIC and use such
income, to the extent necessary, to pay such tax; provided that, to the extent
that any such income is paid to the Internal Revenue Service, the Trustee shall
retain an equal amount from future amounts otherwise distributable to the Owners
of Class R Certificates and shall distribute such retained amounts to the Owners
of Class A Certificates to the extent they are fully reimbursed and then to the
Owners of the Class R Certificates. If any tax, including interest penalties or
assessments, additional amounts or additions to tax, is imposed on the Trust,
such tax shall be charged against amounts otherwise distributable to the owners
of the Class R Certificates on a pro rata basis. The Trustee is hereby
authorized to and shall retain from amounts otherwise distributable to the
Owners of the Class R Certificates sufficient funds to pay or provide for the
payment of, and to actually pay, such tax as is legally owed by the Trust (but
such authorization shall not prevent the Trustee from contesting any such tax in
appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings).
Section 11.18 Appointment of Tax Matters Person.
A Tax Matters Person will be appointed for the Lower-Tier REMIC and the
Upper-Tier REMIC for all purposes of the Code and such Tax Matters Person will
perform, or cause to be performed, such duties and take, or cause to be taken,
such actions as are required to be performed or taken by the Tax Matters Person
under the Code. The Tax Matters Person for the Lower-Tier REMIC and the
Upper-Tier REMIC shall be ____________________ as long as it owns a Class R
Certificate. If ____________________ does not own a Class R Certificate, the Tax
Matters Person may be any other entity that owns a Class R Certificate and
accepts a designation hereunder as Tax Matters person by delivering an affidavit
in the form of Exhibit I. ____________________ shall notify the Trustee in
writing of the name and address of another person who accepts a designation as
Tax Matters Person hereunder.
Section 11.19 The Certificate Insurer.
Any right conferred to the Certificate Insurer hereunder shall be
suspended and shall run to the benefit of the Owners during any period in which
the Certificate Insurer is in default in its payment obligations under the
Certificate Insurance Policy. At such time as the Class A Certificates and any
Reimbursement Amounts are no longer Outstanding hereunder, the Certificate
Insurer's rights hereunder shall terminate.
Section 11.20 Reserved.
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Section 11.21 Third Party Rights.
The Trustee, each of the Sellers, the Depositor and the Owners agree
that the Certificate Insurer shall be deemed a third-party beneficiary of this
Agreement as if it were a party hereto.
Section 11.22 Notices.
All notices hereunder shall be given as follows, until any superseding
instructions are given to all other Persons listed below:
The Trustee: ______________________________
------------------------------
Tel: (___) __________
Fax: (___) __________
Attention: ____________________
The Depositor: ContiSecurities Asset Funding Corp.
277 Park Avenue, 38th Floor
New York, New York 10172
Attention: Chief Counsel
Tel: (212) 207-2822
Fax: (212) 207-5251
The Sellers: ______________________________
------------------------------
Tel: (___) __________
Fax: (___) __________
------------------------------
------------------------------
Tel: (___) __________
Fax: (___) __________
The Servicer: ______________________________
------------------------------
Tel: (___) __________
Fax: (___) __________
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The Certificate
Insurer: ______________________________
------------------------------
Tel: (___) __________
Fax: (___) __________
Moody's: Moody's Investors Service
99 Church Street
New York, New York 10007
Attention: The Home Equity
Monitoring Department
Tel: (212) 553-0300
Fax: (212) 553-4773
Standard & Poor's: Standard & Poor's, a Division of the McGraw
Hill Companies
26 Broadway
15th Floor
New York, New York 10004
Attention: Residential Mortgage Group
Tel: (212) 208-8000
Fax: (212) 412-0224
Fitch: Fitch Investors Service, L.P.
One State Street Plaza
New York, New York 10004
Tel: (800) 753-4824
Fax: (212) 376-6964
Underwriters: ______________________________
------------------------------
Tel: (___) __________
Fax: (___) __________
------------------------------
------------------------------
Tel: (___) __________
Fax: (___) __________
------------------------------
------------------------------
Tel: (___) __________
Fax: (___) __________
Owners: As set forth in the Register.
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Others: Any notice to the Depositor, either Seller
or the Servicer shall also be furnished to:
ContiTrade Services L.L.C.
Chief Counsel
277 Park Avenue, 38th Floor
New York, New York 10172
Tel: (212) 207-2822
Fax: (212) 207-5251
END OF ARTICLE XI
115
<PAGE>
IN WITNESS WHEREOF, the Depositor, the Seller, the Servicer and the
Trustee have caused this Agreement to be duly executed by their respective
officers thereunto duly authorized, all as of the day and year first above
written.
CONTISECURITIES ASSET FUNDING CORP.,
as Depositor
By: ________________________________
Title: _____________________________
By: ________________________________
Title: _____________________________
____________________, as Seller
By: ________________________________
Title: _____________________________
By: ________________________________
Title: _____________________________
____________________, as Servicer
By: ________________________________
Title: _____________________________
By: ________________________________
Title: _____________________________
-----------------------------------,
as Trustee
By: ________________________________
Title: _____________________________
<PAGE>
SCHEDULE I-A
SCHEDULE OF FIXED RATE GROUP HOME EQUITY LOANS
A copy of this Schedule is maintained by the Trustee at the Corporate
Trust Office and by the Seller at its principal office.
<PAGE>
SCHEDULE I-B
SCHEDULE OF ADJUSTABLE RATE GROUP HOME EQUITY LOANS
A copy of this Schedule is maintained by the Trustee at the Corporate
Trust Office and by the Seller at its principal office.
<PAGE>
SCHEDULE II
RESERVED
<PAGE>
SCHEDULE III
HOME EQUITY LOANS WITH DELINQUENCY CHARACTERISTICS
A copy of this Schedule is maintained by the Trustee at the Corporate
Trust Office and by the Seller at its principal office.
<PAGE>
SCHEDULE IV
HOME EQUITY LOANS WITH 15-YEAR "BALLOON" PAYMENTS
A copy of this Schedule is maintained by the Trustee at the Corporate
Trust Office and by the Seller at its principal office.
<PAGE>
SCHEDULE V
HOME EQUITY LOANS WITH 5-YEAR "BALLOON" PAYMENTS
A copy of this Schedule is maintained by the Trustee at the Corporate
Trust Office and by the Seller at its principal office.
<PAGE>
EXHIBIT A-__
FORM OF CLASS A-__ CERTIFICATE
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ASSUMING
COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
__________ HOME EQUITY LOAN TRUST 199_-_
HOME EQUITY LOAN PASS-THROUGH CERTIFICATE
CLASS A-__
(_____% Pass-Through Rate)
Representing Certain Interests in a Pool of Home Equity Loans
Serviced by
--------------------
(This certificate does not represent an interest in, or an obligation
of, nor are the underlying Home Equity Loans insured or guaranteed by,
ContiSecurities Asset Funding Corp. This Certificate represents a fractional
ownership interest in the Home Equity Loans and certain other property held by
the Trust.)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
("__________________ Home Equity Loan Trust 199_-_") or its agent for
registration of transfer, exchange, or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
<TABLE>
<CAPTION>
<S> <C> <C>
No: A-__- _______
CUSIP
- ------------------ ------------------------------------ --------------------
Original Certificate Date Final Scheduled
Principal Balance Payment Date
CEDE & CO.
Registered Owner
Trustee Authentication
_______________________________________, as Trustee
By: __________________________________
Name: ________________________________
Title: _______________________________
Date of Authentication _______________
</TABLE>
A-__-1
<PAGE>
The registered Owner named above is the registered beneficial Owner of
a fractional interest in (i) the Home Equity Loans listed in Schedule I-A to the
Pooling and Servicing Agreement which each Seller has caused to be delivered to
the Depositor and the Depositor has caused to be delivered to the Trustee (and
all substitutions therefor as provided by Section 3.03, 3.04 and 3.06 of the
Pooling and Servicing Agreement), together with the related Home Equity Loan
documents and the Sellers' interest in any Property which secured a Home Equity
Loan but which has been acquired by foreclosure or deed in lieu of foreclosure,
and all payments thereon and proceeds of the conversion, voluntary or
involuntary, of the foregoing; (ii) such amounts as may be held by the Trustee
in the Certificate Account and the Upper-Tier Fixed Rate Group Distribution
Account 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
herein), whether in the form of cash, instruments, securities or other
properties (including any Eligible Investments held by the Servicer); (iii) the
Insurance Agreement; (iv) the Fixed Rate Group Certificate Insurance Policy
issued thereunder; (v) proceeds of all the foregoing (including, but not by way
of limitation, all proceeds of any mortgage insurance, hazard insurance and
title insurance policy 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.
The Owner hereof is entitled to principal payments on each Payment
Date, as hereinafter described, which will fully amortize such original
Certificate Principal Balance over the period from the date of initial issuance
of the Certificates to the final Payment Date for the Class A-__ Certificates.
Therefore, the actual Outstanding principal amount of this Certificate may, on
any date subsequent to _________ __, 199_ (the first Payment Date) be less than
the original Certificate Principal Balance set forth above.
Upon receiving the final distribution hereon, the Owner hereof is
required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement (as defined below) provides that, in any event, upon the making of the
final distribution due on this Certificate, this Certificate shall be deemed
cancelled for all purposes under the Pooling and Servicing Agreement.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING HOME EQUITY LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
THE PRINCIPAL OF THIS CERTIFICATE IS PAYABLE IN INSTALLMENTS.
THEREFORE, THE ACTUAL OUTSTANDING PRINCIPAL AMOUNT OF THIS CERTIFICATE MAY ON
ANY DATE SUBSEQUENT TO _________ __, 199_ (THE FIRST PAYMENT DATE) BE LESS THAN
ITS ORIGINAL CERTIFICATE PRINCIPAL BALANCE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT
OF ANY PERSON IS REPRESENTED HEREBY.
This Certificate is one of a Class of duly-authorized Certificates
designated as _________ Home Equity Loan Trust 199_-_, Home Equity Loan
Pass-Through Certificates, Class A-1 (the "Class A-1 Certificates") and issued
under and subject to the terms, provisions and conditions of that certain
Pooling and Servicing Agreement dated as of _________ 1, 199_ (the "Pooling and
Servicing Agreement") by
A-__-2
<PAGE>
and among ____________________, as the Servicer (the "Servicer"),
____________________, in its capacity as a Seller (the "Seller"),
ContiSecurities Asset Funding Corp., in its capacity as Depositor, (the
"Depositor") and Manufacturers and Traders Trust Company, a New York banking
corporation, in its capacity as the Trustee (the "Trustee"), to which Pooling
and Servicing Agreement the Owner of this Certificate by virtue of acceptance
hereof assents and by which such Owner is bound. Also issued under the Pooling
and Servicing Agreement are Certificates designated as _____________ Home Equity
Loan Trust 199_-_ Home Equity Loan Pass-Through Certificates, [add others],
Class B-IO (the "Class B-IO Certificates") and Class R (Residual Interest) (the
"Class R Certificates"). The Class A-__ Certificates, [add others] shall be
together referred to as the "Class A Certificates" and the Class A Certificates,
the Class B-IO Certificates and the Class R Certificates are together referred
to herein as the "Certificates." Terms capitalized herein and not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement.
On the 15th day of each month, or, if such day is not a Business Day,
then the next succeeding Business Day (each such day being a "Payment Date")
commencing __________ __, 199_ the Owners of the Class A-__ Certificates as of
the close of business on the day immediately preceding such Payment Date (the
"Record Date") will be entitled to receive the Class A-__ Distribution Amount
relating to such Certificate on such Payment Date. Distributions will be made in
immediately available funds to Owners of Certificates having an aggregate
original Class A-__ Certificate Principal Balance of at least $1,000,000 (by
wire transfer or otherwise) to the account of an 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.
Each Owner of record of a Class A-__ Certificate will be entitled to
receive such Owner's Percentage Interest in the amounts due on such Payment Date
to the Owners of the Class A-__ Certificates. The Percentage Interest of each
Class A-__ Certificate as of any date of determination will be equal to the
percentage obtained by dividing the original Certificate Principal Balance of
such Class A-__ Certificate on the Startup Day by the aggregate Class A-__
Certificate Principal Balance on the Startup Day.
The Certificate Insurer is required, subject to the terms of the
Certificate Insurance Policy to make Insured Payments available to the Trustee
on or prior to the related Payment Date for distribution to the Owners. "Insured
Payment" means with respect to either Home Equity Loan Group and as to any
Payment Date, without duplication, (A) the excess, if any, of (i) the sum of the
related Current Interest and the then existing related Subordination Deficit for
the related Home Equity Loan Group, if any, over (ii) Total Available Funds with
respect to such Group (net of the Premium Amount allocable to such Group) after
taking into account (x) the portion of any Fixed Rate Group Principal
Distribution Amount or Adjustable Rate Group Principal Distribution Amount, as
the case may be, to be actually distributed on such Payment Date without regard
to any related Insured Payment to be made with respect to such Payment Date) and
(y) the crosscollateralization provisions of Sections 7.03(c)(i)(B) and
7.03(c)(ii)(B) of the Pooling and Servicing Agreement, plus (B) an amount equal
to the Preference Amount with respect to the related Class of Class A
Certificates.
Upon receipt of amounts under the Certificate Insurance Policy on
behalf of the Owners of the Class A Certificates, the Trustee shall distribute
in accordance with the Pooling and Servicing Agreement such amounts (directly or
through a Paying Agent) to the Owners of the appropriate Class of the Class A
Certificates.
The Trustee or any duly-appointed Paying Agent will duly and punctually
pay distributions with respect to this Certificate in accordance with the terms
hereof and the Pooling and Servicing Agreement.
A-__-3
<PAGE>
Amounts properly withheld under the Code by any Person from a distribution to
any Owner shall be considered as having been paid by the Trustee to such Owner
for all purposes of the Pooling and Servicing Agreement.
The Home Equity Loans will be serviced by the Servicer pursuant to the
Pooling and Servicing Agreement. The Pooling and Servicing Agreement permits the
Servicer to enter into Sub-Servicing Agreements with certain institutions
eligible for appointment as Sub-Servicers for the servicing and administration
of certain Home Equity Loans. No appointment of any Sub-Servicer shall release
the Servicer from any of its obligations under the Pooling and Servicing
Agreement.
This Certificate does not represent a deposit or other obligation of,
or an interest in, nor are the underlying Home Equity Loans insured or
guaranteed by, ContiSecurities Asset Funding Corp. or any of its affiliates.
This Certificate is limited in right of payment to certain collections and
recoveries relating to the Home Equity Loans and amounts on deposit in the
Certificate Account and the Principal and Interest Account (except as otherwise
provided in the Pooling and Servicing Agreement) and payments received by the
Trustee pursuant to the Certificate Insurance Policy, all as more specifically
set forth hereinabove and in the Pooling and Servicing Agreement.
No Owner shall have any right to institute any proceeding, judicial or
otherwise, with respect to the Pooling and Servicing Agreement, or for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner. The Owner of this Certificate, by
its acceptance hereof, agrees, however, 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, the Certificate Insurer will be subrogated to the rights of such
Owners of Class A-__ Certificates with respect to such Insured Payment, shall be
deemed to the extent of the payments so made to be a registered Owner of such
Class A-__ Certificates and shall receive all future distributions of the Class
A-__ Distribution Amount until all such Insured Payments by the Certificate
Insurer have been fully reimbursed.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates from amounts other than those available under the related
Certificate Insurance Policy of all amounts held by the Trustee and required to
be paid to such Owners pursuant to the Pooling and Servicing Agreement upon the
later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Home Equity Loan in the Trust Estate or
(b) the disposition of all property acquired in respect of any Home Equity Loan
remaining in the Trust Estate or (ii) at any time when a Qualified Liquidation
of the Trust Estate is effected as described below. To effect a termination of
the Pooling and Servicing Agreement pursuant to clause (ii) above, the Owners of
all Certificates then Outstanding shall unanimously 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, and the Trustee shall either sell the Home Equity Loans
and distribute the proceeds of the liquidation of the Trust, or shall distribute
equitably in kind all of the assets of the Trust Estate to the remaining Owners
of the Certificates, each in accordance with such plan, so that the liquidation
or distribution of the Trust Estate, the distribution of any proceeds of the
liquidation and the termination of the Pooling and Servicing Agreement occur no
later than the close of the 90th day after the date of adoption of the plan of
liquidation and such liquidation qualifies as a Qualified Liquidation.
A-__-4
<PAGE>
The Pooling and Servicing Agreement additionally provides that (i) the
Owners of the Class R Certificates may, at their option, purchase from the Trust
all remaining Home Equity Loans and other property then constituting the Trust
Estate, and thereby effect early retirement of the Certificates, on any Monthly
Remittance Date after the Clean-Up Call Date and (ii) under certain
circumstances relating to the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC under the Code the Home Equity Loans may be sold,
thereby effecting the early retirement of the Certificates.
The Trustee shall give written notice of termination of the Pooling and
Servicing Agreement to each Owner in the manner set forth therein.
The Certificate Insurer or the Owners of the majority of the Percentage
Interests represented by the Class A Certificates with the prior written consent
of the Certificate Insurer have the right to exercise any trust or power set
forth in Section 6.11 of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Registrar duly executed by,
the Owner hereof or his attorney duly authorized in writing, and thereupon one
or more new Certificates of the like Class, tenor and a like Percentage Interest
will be issued to the designated transferee or transferees.
The Pooling and Servicing Agreement permits, with certain exceptions as
therein provided, the amendment thereof and the modifications of rights and
obligations of the parties provided therein by the Depositor, the Trustee, the
Sellers and the Servicer at any time and from time to time, with the prior
written approval of the Certificate Insurer and without the consent of the
Owners; provided, that in certain circumstances provided for in the Pooling and
Servicing Agreement, such consent of the Owners will be required prior to
amendments. Any such consent by the Owner at the time of the giving thereof, of
this Certificate shall be conclusive and binding upon such Owner and upon all
future Owners of the Certificate and of any Certificate issued upon the
registration of Transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Certificate.
The Trustee is required to furnish certain information on each Payment
Date to the Owner of this Certificate, as more fully described in the Pooling
and Servicing Agreement.
The Class A-__ Certificates are issuable only as registered
Certificates in minimum denominations of $1,000 original Certificate Principal
Balance. As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class A-__ Certificates are exchangeable
for new Class A-__ Certificates of authorized denominations evidencing the same
aggregate principal amount.
No service charge will be made for any such registration of transfer or
exchange, but the Registrar or Trustee may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Trustee or any such agent shall be affected by notice to the
contrary, except as may otherwise be specifically provided in the Pooling and
Servicing Agreement with respect to the Certificate Insurer.
A-__-5
<PAGE>
IN WITNESS WHEREOF, the Depositor has caused this Certificate to be
duly executed on behalf of the Trust.
CONTISECURITIES ASSET FUNDING
CORP., as Depositor
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
A-__-6
<PAGE>
EXHIBIT B-IO
FORM OF CLASS B-IO CERTIFICATE
__________ Home Equity Loan Trust 199_-_
HOME EQUITY LOAN PASS-THROUGH CERTIFICATE
INTEREST-ONLY CLASS B-IO CERTIFICATE
Representing Certain Interests Relating to a Pool
of Home Equity Loans formed by ContiSecurities Asset
Funding Corp.
and Serviced by
--------------------
as Servicer
This certificate does not represent an interest in, or an obligation
of, nor are the underlying Home Equity Loans insured or guaranteed by,
ContiSecurities Asset Funding Corp. This certificate represents a fractional
ownership interest in the Home Equity Loans as described herein, moneys in
certain Accounts created pursuant to the Pooling and Servicing Agreement and
certain other rights relating thereto and is payable only from amounts received
by the Trustee relating to the Home Equity Loans held by the Trust.
No.: B-IO-1
_________________
Date
100% ________________
Percentage Interest Final Scheduled
Distribution Date
________________________________________
Registered Holder
Trustee Authentication
- ---------------------------------------,
as Trustee
By: ___________________________________
Name: _________________________________
Title: ________________________________
Date of Authentication: _______________
B-IO-1
<PAGE>
The registered Owner named above is the registered beneficial Owner of
a fractional interest in (a) the Home Equity Loans listed in Schedules I-A and
I-B to the Pooling and Servicing Agreement which each Seller has caused to be
delivered to the Depositor and the Depositor has caused to be delivered to the
Trustee (and all substitutions therefor as provided by Section 3.03, 3.04 and
3.06 of the Pooling and Servicing Agreement), together with the related Home
Equity Loan documents and the Sellers' interest in any Property which secured a
Home Equity Loan but which has been acquired by foreclosure or deed in lieu of
foreclosure, 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 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 herein), whether in the form of cash, instruments, securities
or other properties (including any Eligible Investments held by the Servicer);
(c) the Insurance Agreement; (d) the Certificate Insurance Policies issued
thereunder; and (e) proceeds of all the foregoing (including, but not by way of
limitation, all proceeds of any mortgage insurance, hazard insurance and title
insurance policy 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.
Upon receiving the final distribution hereon, the Owner hereof is
required to send this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-__ CERTIFICATES OF THIS
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY
STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT
SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ASSUMING COMPLIANCE WITH THE
REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING HOME EQUITY LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
B-IO-3
<PAGE>
THIS CERTIFICATE IS AN INTEREST ONLY CERTIFICATE THE HOLDER OF THIS
CERTIFICATE SHALL NOT BE ENTITLED TO ANY DISTRIBUTION OF PRINCIPAL WITH RESPECT
TO THE HOME EQUITY LOANS.
This Certificate is one of a Class of duly-authorized Certificates
designated as __________ Home Equity Loan Trust 199_-_, Home Equity Loan
Pass-Through Certificates, Class R (the "Class R Certificates") and issued under
and subject to the terms, provisions and conditions of that certain Pooling and
Servicing Agreement dated as of __________ __, 199_ (the "Pooling and Servicing
Agreement") by and among ________________________________________, as the
Servicer (the "Servicer"), ________________________________________, in its
capacity as a Seller (a "Seller"), ContiSecurities Asset Funding Corp., in its
capacity as Depositor, (the "Depositor") and ____________________
____________________, a __________ banking corporation, in its capacity as the
Trustee (the "Trustee"), to which Pooling and Servicing Agreement the Owner of
this Certificate by virtue of acceptance hereof assents and by which such Owner
is bound. Also issued under the Pooling and Servicing Agreement are Certificates
designated as __________ Home Equity Loan Trust 199_-_ Home Equity Loan
Pass-Through Certificates, Class A-__ [list classes] (collectively, the "Class A
Certificates") and Class R (the "Class R Certificates"). The Class A
Certificates, the Class B-IO Certificates and the Class R Certificates are
together referred to herein as the "Certificates." Terms capitalized herein and
not otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement.
Terms capitalized herein and not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
On the 15th day of each month, or, if such day is not a Business Day,
then the next succeeding Business Day (each such day being a "Payment Date")
commencing __________ __, 199_, the Owners of the Class B-IO Certificates as of
the close of business on the last business day of the calendar month immediately
preceding the calendar month in which such Payment Date occurs (the "Record
Date") will be entitled to receive the Class B-IO Distribution Amount (as
defined in the Pooling and Servicing Agreement) relating to such Payment Date.
Distributions will be made in immediately available funds to such Owners, by
wire transfer or otherwise, to the account of an Owner at a domestic bank or
other entity having appropriate facilities therefor, if such Owner has so
notified the Trustee at least 5 business days prior to the related record date,
or by check mailed to the address of the person entitled thereto as it appears
on the Register.
Each Owner of record of a Class B-IO Certificate will be entitled to
receive such Owner's Percentage Interest in the amounts due on such Payment Date
to the Holders of the Class B-IO Certificates. The Percentage Interest of each
Class B-IO Certificate as of any date of determination will be equal to the
percentage interest set forth on such Class B-IO Certificate.
The Trustee or any duly appointed Paying Agent will duly and punctually
pay distributions with respect to this Certificate in accordance with the terms
hereof and the Pooling and Servicing Agreement. Amounts properly withheld under
the Code or applicable to any Holder shall be considered as having been paid by
the Trustee to such Owner for all purposes of the Pooling and Servicing
Agreement.
The Home Equity Loans will be serviced by the Servicer pursuant to the
Pooling and Servicing Agreement. The Pooling and Servicing Agreement permits the
Servicer to enter into Sub-servicing Agreements with certain institutions
eligible for appointment as Sub-Servicers for the servicing and administration
of certain Home Equity Loans. No appointment of any Sub-servicer shall release
the Servicer from any of its obligations under the Pooling and Servicing
Agreement.
B-IO-4
<PAGE>
This Certificate does not represent a deposit or other obligation of,
or an interest in, nor are the underlying Home Equity Loans insured or
guaranteed by, the Depositor or ContiMortgage or any of their subsidiaries and
affiliates and are not insured or guaranteed by the Federal Deposit Insurance
Corporation, the Government National Mortgage Association, or any other
governmental agency. This Certificate is limited in right of payment to certain
collections and recoveries relating to the Home Equity Loans and amounts on
deposit in the Accounts (except as otherwise provided in the Pooling and
Servicing Agreement), all as more specifically set forth hereinabove and in the
Pooling and Servicing Agreement.
No Owner shall have any right to institute any proceeding, judicial or
otherwise, with respect to the Pooling and Servicing Agreement, or for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms hereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates from amounts other than those available under the related
Certificate Insurance Policy of all amounts held by the Trustee and required to
be paid to such Owners pursuant to the Pooling and Servicing Agreement upon the
later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Home Equity Loan in the Lower-Tier REMIC
or (b) the disposition of all property acquired in respect of any Home Equity
Loan remaining in the Lower-Tier REMIC or (ii) at any time when a Qualified
Liquidation of the Lower-Tier REMIC is effected as described below. To effect a
termination of the Pooling and Servicing Agreement pursuant to clause (ii)
above, the Owners of all Certificates then Outstanding shall unanimously 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, and the Trustee shall either
sell the Home Equity Loans and distribute the proceeds of the liquidation of the
Trust, or shall distribute equitably in kind all of the assets of the Lower-Tier
REMIC to the remaining Owners of the Certificates, each in accordance with such
plan, so that the liquidation or distribution of the Lower-Tier REMIC, the
distribution of any proceeds of the liquidation and the termination of the
Pooling and Servicing Agreement occur no later than the close of the 90th day
after the date of adoption of the plan of liquidation and such liquidation
qualifies as a Qualified Liquidation.
The Pooling and Servicing Agreement additionally provides that (i) the
Owners of the Class R Certificates may, at their option, purchase from the Trust
all remaining Home Equity Loans and other property then constituting the
Lower-Tier REMIC and the Upper-Tier REMIC, and thereby effect early retirement
of the Certificates, on any Monthly Remittance Date after the Clean-Up Call Date
and (ii) under certain circumstances relating to the qualification of the
Lower-Tier REMIC and the Upper-Tier REMIC as a REMIC under the Code the Home
Equity Loans may be sold, thereby effecting the early retirement of the
Certificates.
The Trustee shall give written notice of termination of the Pooling and
Servicing Agreement to each Owner in the manner set forth therein.
B-IO-5
<PAGE>
The Certificate Insurer or the Owners of a majority of the Percentage
Interests represented by the Class A Certificates then outstanding with the
prior written consent of the Certificate Insurer have the right to exercise any
trust or power set forth in Section 6.11 of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Registrar duly executed by,
the Owner hereof or his attorney duly authorized in writing, and thereupon one
or more new Certificates of the like Class, tenor and a like Percentage Interest
will be issued to the designated transferee or transferees.
The Pooling and Servicing Agreement permits, with certain exceptions as
therein provided, the amendment thereof and the modifications of rights and
obligations of the parties provided therein by the Trustee, the Sellers and the
Servicer at any time and from time to time, with the prior written approval of
the Certificate Insurer and of each Account Party and not less than a majority
of the Percentage Interest represented by each affected Class of Certificates
then Outstanding, and in certain other circumstances provided for in the Pooling
and Servicing Agreement may be amended without the consent of the Owners. Any
such consent by the Owner at the time of the giving thereof, of this Certificate
shall be conclusive and binding upon such Owner and upon all future Owners of
the Certificate and of any Certificate issued upon the registration of Transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Certificate.
The Trustee is required to furnish certain information on each Payment
Date to the Owner of this Certificate, as more fully described in the Pooling
and Servicing Agreement.
The Class B-IO Certificates are issuable only as registered
Certificates in minimum percentage interests of all interests in the Class B-IO
Certificates. As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class B-IO Certificates are exchangeable
for new Class B-IO Certificates of the same percentage interest as the Class
B-IO Certificates exchanged.
No service charge will be made for any such registration of transfer or
exchange, but the Registrar or Trustee may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Trustee or any such agent shall be affected by notice to the
contrary, except as may otherwise be specifically provided in the Pooling and
Servicing Agreement with respect to the Certificate Insurer.
B-IO-6
<PAGE>
IN WITNESS WHEREOF, the Depositor has caused this Certificate to be
duly executed on behalf of the Trust.
CONTISECURITIES ASSET FUNDING
CORP.,
as Depositor
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
B-IO-7
<PAGE>
EXHIBIT B
FORM OF CLASS R CERTIFICATE
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
CLASS OF "RESIDUAL INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G AND 860D OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ASSUMING COMPLIANCE
WITH THE REMIC PROVISIONS OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY BE MADE ONLY IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.08 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
TRANSFER OF THIS CLASS R CERTIFICATE IS RESTRICTED AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. NO TRANSFER OF THIS CLASS R CERTIFICATE MAY BE
MADE TO A "DISQUALIFIED ORGANIZATION" AS DEFINED IN SECTION 860E(e)(5) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). SUCH TERM INCLUDES THE
UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN
GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, ANY AGENCY OR INSTRUMENTALITY OF ANY
OF THE FOREGOING (OTHER THAN CERTAIN TAXABLE INSTRUMENTALITIES), ANY COOPERATIVE
ORGANIZATION FURNISHING ELECTRIC ENERGY OR PROVIDING TELEPHONE SERVICE TO
PERSONS IN RURAL AREAS, OR ANY ORGANIZATION (OTHER THAN A FARMER'S COOPERATIVE)
THAT IS EXEMPT FROM FEDERAL INCOME TAX UNLESS SUCH ORGANIZATION IS SUBJECT TO
THE TAX ON UNRELATED BUSINESS INCOME. NO TRANSFER OF THIS CLASS R CERTIFICATE
WILL BE REGISTERED BY THE CERTIFICATE REGISTRAR UNLESS THE PROPOSED TRANSFEREE
HAS DELIVERED AN AFFIDAVIT AFFIRMING, AMONG OTHER THINGS, THAT THE PROPOSED
TRANSFEREE IS NOT A DISQUALIFIED ORGANIZATION AND IS NOT ACQUIRING THE CLASS R
CERTIFICATE FOR THE ACCOUNT OF A DISQUALIFIED ORGANIZATION. A COPY OF THE FORM
OF AFFIDAVIT REQUIRED OF EACH PROPOSED TRANSFEREE IS ON FILE AND AVAILABLE FROM
THE TRUSTEE.
A TRANSFER IN VIOLATION OF THE APPLICABLE RESTRICTIONS MAY GIVE RISE TO
A SUBSTANTIAL TAX UPON THE TRANSFEROR OR, IN CERTAIN CASES, UPON AN AGENT ACTING
FOR THE TRANSFEREE. A PASS-THROUGH ENTITY THAT HOLDS THIS CLASS R CERTIFICATE
AND THAT HAS A DISQUALIFIED ORGANIZATION AS A RECORD OWNER IN ANY TAXABLE YEAR
GENERALLY WILL BE SUBJECT TO A TAX FOR EACH SUCH YEAR EQUAL TO THE PRODUCT OF
(A) THE AMOUNT OF EXCESS INCLUSIONS WITH RESPECT TO THE PORTION OF THIS
CERTIFICATE OWNED THROUGH SUCH PASS-THROUGH ENTITY BY SUCH DISQUALIFIED
ORGANIZATION, AND (B) THE HIGHEST MARGINAL FEDERAL TAX RATE ON CORPORATIONS. FOR
PURPOSES OF THE PRECEDING SENTENCE, THE TERM "PASS-THROUGH" ENTITY INCLUDES
REGULATED INVESTMENT COMPANIES, REAL ESTATE INVESTMENT TRUSTS, COMMON TRUST
FUNDS, PARTNERSHIPS, TRUSTS, ESTATES, COOPERATIVES
B-1
<PAGE>
TO WHICH PART I OF SUBCHAPTER 1T OF THE CODE APPLIES AND, EXCEPT AS PROVIDED IN
REGULATIONS, NOMINEES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING HOME EQUITY LOANS ARE
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
__________ HOME EQUITY LOAN TRUST 199_-_
HOME EQUITY LOAN PASS-THROUGH CERTIFICATE
CLASS R
(Residual Interest)
Representing Certain Interests Relating to a Pool of
Conventional Home Equity Loans
Serviced by
--------------------
(This certificate does not represent an interest in, or an obligation
of, nor are the underlying Home Equity Loans insured or guaranteed by,
ContiSecurities Asset Funding Corp. This Certificate represents a fractional
residual ownership interest in the Trust Estate.)
No: R - 1
-----------------------
Date
Percentage Interest ______ %
--------------------------
Final Scheduled Payment Date
________________________________________
Registered Owner
The registered Owner named above is the registered beneficial Owner of a
fractional interest in (a) the Home Equity Loans listed in Schedules I-A and I-B
to the Pooling and Servicing Agreement which each Seller has caused to be
delivered to the Depositor and the Depositor has caused to be delivered to the
Trustee (and all substitutions therefor as provided by Section 3.03, 3.04 and
3.06 of the Pooling and Servicing Agreement), together with the related Home
Equity Loan documents and the Sellers' interest in any Property which secured a
Home Equity Loan but which has been acquired by foreclosure or deed in lieu of
foreclosure, 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 and the 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 herein), whether in the form of cash, instruments,
securities or other properties (including any Eligible Investments held by the
Servicer); (c) the Insurance Agreement; (d) the Fixed Rate Group Certificate
Insurance Policy and the Adjustable Rate Group Certificate Insurance Policy
issued thereunder; and (e) proceeds of all the foregoing (including, but not by
way of limitation, all proceeds of any mortgage insurance, hazard insurance and
title insurance policy 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.
B-2
<PAGE>
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY.
Trustee Authentication
MANUFACTURERS AND TRADERS TRUST COMPANY, as Trustee
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Date of Authentication: ___________________
B-3
<PAGE>
This Certificate is one of a Class of duly-authorized Certificates
designated as __________ Home Equity Loan Trust 199_-_, Home Equity Loan
Pass-Through Certificates, Class R (the "Class R Certificates") and issued under
and subject to the terms, provisions and conditions of that certain Pooling and
Servicing Agreement dated as of __________ __, 199_ (the "Pooling and Servicing
Agreement") by and among ________________________________________, as the
Servicer (the "Servicer"), _________ ______________________________, in its
capacity as a Seller (a "Seller"), ContiSecurities Asset Funding Corp., in its
capacity as Depositor, (the "Depositor") and ____________________________
____________, a __________ banking corporation, in its capacity as the Trustee
(the "Trustee"), to which Pooling and Servicing Agreement the Owner of this
Certificate by virtue of acceptance hereof assents and by which such Owner is
bound. Also issued under the Pooling and Servicing Agreement are Certificates
designated as __________ Home Equity Loan Trust 199_-_ Home Equity Loan
Pass-Through Certificates, Class A-__ [list classes] (collectively, the "Class A
Certificates") and Class B-IO (the "Class B-IO Certificates"). The Class A
Certificates, the Class B-IO Certificates and the Class R Certificates are
together referred to herein as the "Certificates." Terms capitalized herein and
not otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement.
On the 15th day of each month, or, if such day is not a Business Day,
then the next succeeding Business Day (each such day being a "Payment Date")
commencing __________ __, 199_, each Owner of a Class R Certificate as of the
close of business on the last day of the calendar month immediately preceding
the calendar month in which a Payment Date occurs (the "Record Date") will be
entitled to receive the Residual Net Monthly Excess Cashflow relating to such
Certificate on such Payment Date. Distributions will be made in immediately
available funds to Owners of Class R Certificates having an aggregate Percentage
Interest of at least 10% (by wire transfer or otherwise) to the account of an
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 Trustee or any duly-appointed Paying Agent will duly and punctually
pay distributions with respect to this Certificate in accordance with the terms
hereof and the Pooling and Servicing Agreement. Amounts properly withheld under
the Code by any Person from a distribution to any Owner shall be considered as
having been paid by the Trustee to such Owner for all purposes of the Pooling
and Servicing Agreement.
The Home Equity Loans will be serviced by the Servicer pursuant to the
Pooling and Servicing Agreement. The Pooling and Servicing Agreement permits the
Servicer to enter into Sub-Servicing Agreements with certain institutions
eligible for appointment as Sub-Servicers for the servicing and administration
of certain Home Equity Loans. No appointment of any Sub-Servicer shall release
the Servicer from any of its obligations under the Pooling and Servicing
Agreement.
This Certificate does not represent a deposit or other obligation of,
or an interest in, nor are the underlying Home Equity Loans insured or
guaranteed by, ContiMortgage Corporation or any of their affiliates. This
Certificate is limited in right of payment to certain collections and recoveries
relating to the Home Equity Loans, all as more specifically set forth
hereinabove and in the Pooling and Servicing Agreement.
No Owner shall have any right to institute any proceeding, judicial or
otherwise, with respect to the Pooling and Servicing Agreement, or for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent
B-4
<PAGE>
provided in the Pooling and Servicing Agreement with respect to such Certificate
or to institute suit for the enforcement of any such distribution, and such
right shall not be impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates from amounts other than those available under the
Certificate Insurance Policy of all amounts held by the Trustee and required to
be paid to such Owners pursuant to the Pooling and Servicing Agreement upon the
later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Home Equity Loan in the Upper-Tier REMIC
and the Lower-Tier REMIC or (b) the disposition of all property acquired in
respect of any Home Equity Loan remaining in the Trust Estate or (ii) at any
time when a Qualified Liquidation of the Trust Estate is effected as described
below. To effect a termination of the Pooling and Servicing Agreement pursuant
to clause (ii) above, the Owners of all Certificates then Outstanding shall
unanimously 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, and the
Trustee shall either sell the Home Equity Loans and distribute the proceeds of
the liquidation of the Trust, or shall distribute equitably in kind all of the
assets of the Trust Estate to the remaining Owners of the Certificates, each in
accordance with such plan, so that the liquidation or distribution of the Trust
Estate, the distribution of any proceeds of the liquidation and the termination
of the Pooling and Servicing Agreement occur no later than the close of the 90th
day after the date of adoption of the plan of liquidation and such liquidation
qualifies as a Qualified Liquidation.
The Pooling and Servicing Agreement additionally provides that (i) the
Owners of the Class R Certificates may at their option, purchase from the Trust
all remaining Home Equity Loans and other property then constituting the Trust
Estate, and thereby effect early retirement of the Certificates, on any Monthly
Remittance Date after the Clean-Up Call Date and (ii) under certain
circumstances relating to the qualification of the Upper-Tier REMIC and the
Lower-Tier REMIC as a REMIC under the Code the Home Equity Loans may be sold,
thereby effecting the early retirement of the Certificates.
The Trustee shall give written notice of termination of the Pooling and
Servicing Agreement to each Owner in the manner set forth therein.
The Certificate Insurer or the Owners of a majority of the Percentage
Interests represented by the Class A Certificates, Class B-IO Certificates and
the Class R Certificates, then outstanding with the prior written consent of the
Certificate Insurer have the right to exercise any trust or power set forth in
Section 6.11 of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Registrar duly executed by,
the Owner hereof or his attorney duly authorized in writing, and thereupon one
or more new Certificates of the like Class, tenor and a like aggregate
fractional undivided interest in the Lower-Tier REMIC will be issued to the
designated transferee or transferees.
The Pooling and Servicing Agreement permits, with certain exceptions as
therein provided, the amendment thereof and the modifications of rights and
obligations of the parties provided therein by the Trustee, the Sellers and the
Servicer at any time and from time to time, with the prior written approval of
the Certificate Insurer and not less than a majority of the Percentage Interest
represented by each affected Class of Certificates then Outstanding, and in
certain other circumstances provided for in the
B-5
<PAGE>
Pooling and Servicing Agreement may be amended without the consent of the
Owners. Any such consent by the Owner at the time of the giving thereof, of this
Certificate shall be conclusive and binding upon such Owner and upon all future
Owners of the Certificate and of any Certificate issued upon the registration of
Transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent or waiver is made upon this Certificate.
The Trustee is required to furnish certain information on each Payment
Date to the Owner of this Certificate, as more fully described in the Pooling
and Servicing Agreement.
The Class R Certificates are issuable only as registered Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Class R Certificates are exchangeable for new
Class R Certificates evidencing the same Percentage Interest as the Class R
Certificates exchanged.
No service charge will be made for any such registration of transfer or
exchange, but the Registrar or Trustee may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Trustee or any such agent shall be affected by notice to the
contrary, except as may otherwise be specifically provided in the Pooling and
Servicing Agreement with respect to the Certificate Insurer.
B-6
<PAGE>
IN WITNESS WHEREOF, the Depositor has caused this Certificate to be
duly executed on behalf of the Trust.
CONTISECURITIES ASSET FUNDING
CORP.,
as Depositor
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
B-7
<PAGE>
EXHIBIT C
[RESERVED]
C-1
<PAGE>
EXHIBIT D
FORM OF CERTIFICATE RE: HOME EQUITY LOANS
PREPAID IN FULL AFTER CUT-OFF DATE
CERTIFICATE RE: PREPAID LOANS
I, __________________________, _______________ of
______________________________ ("_____________"), hereby certify that between
the "Cut-Off Date" (as defined in the Pooling and Servicing Agreement dated as
of __________ __, 199_ among ContiSecurities Asset Funding Corp., as Depositor,
___________________, as the Servicer, _____________________, as a Seller and
______________________________, as Trustee) and the "Startup Day," the following
schedule of "Home Equity Loans" (each as defined in the Pooling and Servicing
Agreement) have been prepaid in full.
Account Original Current Date Paid
Number Name Amount Balance Off
Dated: __________ __, 199_
By: _______________________________________
Title: ____________________________________
D-1
<PAGE>
EXHIBIT E
FORM OF TRUSTEE'S RECEIPT
TRUSTEE'S ACKNOWLEDGEMENT OF RECEIPT
________________________________________, a __________ banking
corporation, in its capacity as trustee (the "Trustee") under that certain
Pooling and Servicing Agreement dated as of __________ __, 199_ (the "Pooling
and Servicing Agreement") among ContiSecurities Asset Funding Corp., as
Depositor, ____________________, as the Servicer, ____________________, as a
Seller and ____________________, as Trustee, hereby acknowledges receipt
(subject to review as required by Section 3.06(a) of the Pooling and Servicing
Agreement) of the items delivered to it by the Sellers and the Depositor with
respect to the Home Equity Loans pursuant to Section 3.05(b)(i) of the Pooling
and Servicing Agreement.
The Schedule of Home Equity Loans is attached to this Receipt.
The Trustee hereby additionally acknowledges that it shall review such
items as required by Section 3.06(a) of the Pooling and Servicing Agreement and
shall otherwise comply with Section 3.06(b) of the Pooling and Servicing
Agreement as required thereby.
MANUFACTURERS AND TRADERS TRUST
COMPANY, as Trustee
By: _______________________________________
Title: ____________________________________
Dated: __________ __, 199_
E-1
<PAGE>
EXHIBIT F
FORM OF POOL CERTIFICATION
POOL CERTIFICATION
WHEREAS, the undersigned is an Authorized Officer of
______________________________, a __________ banking corporation, acting in its
capacity as trustee (the "Trustee") of a certain pool of mortgage loans (the
"Pool") heretofore conveyed in trust to the Trustee, pursuant to that certain
Pooling and Servicing Agreement dated as of __________ __, 199_ (the "Pooling
and Servicing Agreement") among ContiSecurities Asset Funding Corp., as
Depositor, ____________________, as the Servicer, ____________________, as a
Seller and ____________________, as Trustee; and
WHEREAS, the Trustee is required, pursuant to Section 3.06(a) of the
Pooling and Servicing Agreement, to review the Mortgage Files relating to the
Pool within a specified period following the Startup Day and to notify the
related Seller promptly of any defects with respect to the Pool, and such Seller
is required to remedy such defects or take certain other action, all as set
forth in Section 3.06(b) of the Pooling and Servicing Agreement; and
WHEREAS, Section 3.06(a) of the Pooling and Servicing Agreement
requires the Trustee to deliver this Pool Certification upon the satisfaction of
certain conditions set forth therein.
NOW, THEREFORE, the Trustee hereby certifies that it has determined
that all required documents (or certified copies of documents listed in Section
3.05 of the Pooling and Servicing Agreement) have been executed or received, and
that such documents relate to the Home Equity Loans identified in the Schedule
of Home Equity Loans pursuant to Section 3.06(a) of the Pooling and Servicing
Agreement or, in the event that such documents have not been executed and
received or do not so relate to such Home Equity Loans, any remedial action by
the Sellers pursuant to Section 3.06(b) of the Pooling and Servicing Agreement
has been completed. The Trustee makes no certification hereby, however, with
respect to any intervening assignments or assumption and modification
agreements.
as Trustee
By: _______________________________________
Title: ____________________________________
Dated: __________ __, 199_
F-1
<PAGE>
EXHIBIT G
FORM OF DELIVERY ORDER
DELIVERY ORDER
[Trustee's Address]
Attention: Corporate Trustee Department
Dear Sirs:
Pursuant to Section 4.01 of the Pooling and Servicing Agreement, dated
as of __________ __, 199_ (the "Pooling and Servicing Agreement") among
ContiSecurities Asset Funding Corp., as Depositor,
________________________________________, as the Servicer,
_____________________________ ___________, as the Seller, and
________________________________________, a __________ banking corporation, as
Trustee (the "Trustee"), __________ HEREBY CERTIFIES that all conditions
precedent to the issuance of the __________ Home Equity Loan Trust 199_-_, Home
Equity Loan Pass-Through Certificate, Class A, Class B-IO and Class R (the
"Certificates"), HAVE BEEN SATISFIED, and HEREBY REQUESTS YOU TO AUTHENTICATE
AND DELIVER said Certificates, and to RELEASE said Certificates to the owners
thereof, or otherwise upon their order.
Very truly yours,
CONTISECURITIES ASSET FUNDING CORP.,
By: _______________________________________
Title: ____________________________________
Dated: __________ __, 199_
G-1
<PAGE>
EXHIBIT H
[RESERVED]
H-1
<PAGE>
EXHIBIT I
FORM OF CLASS R TAX MATTERS TRANSFER CERTIFICATE
AFFIDAVIT PURSUANT TO SECTION
860E(e) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Investor] (the
"Investor"), a [savings institution] [corporation] duly organized and existing
under the laws of [the State of ] [the United States], on behalf of which he
makes this affidavit.
2. That (i) the Investor is not a "disqualified organization" and will
not be a "disqualified organization" as of [date of transfer] (For this purpose,
a "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 (other than certain taxable
instrumentalities), any cooperative organization furnishing electric energy or
providing telephone service to persons in rural areas, or any organization
(other than a farmers' cooperative) that is exempt from federal income tax
unless such organization is subject to the tax on unrelated business income.);
(ii) it is not acquiring the Class R Certificate for the account of a
disqualified organization; (iii) it consents to any amendment of the Pooling and
Servicing Agreement that shall be deemed necessary by the Trustee (upon advice
of counsel) to constitute a reasonable arrangement to ensure that the Class R
Certificates will not be owned directly or indirectly by a disqualified
organization; and (iv) it will not transfer such Class R Certificate unless (a)
it has received from the transferee an affidavit in substantially the same form
as this affidavit containing these same four representations and (b) as of the
time of the transfer, it does not have actual knowledge that such affidavit is
false.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer] and its corporate seal to be hereunto attached, attested by
its [Assistant] Secretary, this day of , .
[NAME OF INVESTOR]
By: ________________________________
[Name of Officer]
[Title of Officer]
I-1
<PAGE>
[Corporate Seal]
Attest:
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known
or proved to be the same person who executed the foregoing instrument and to be
the [Title of Officer] of the Investor, and acknowledged to me that he executed
the same as his free act and deed and the free act and deed of the Investor.
Subscribed and sworn before me this ________ day of ___________ , ____.
- ------------------------------
NOTARY PUBLIC
COUNTY OF
---------------------
STATE OF
---------------------
My commission expires the ____ day of _________________, _____.
I-2
ARTER & HADDEN
ATTORNEYS AT LAW
Cleveland founded 1843 Irvine
Columbus Los Angeles
Dallas 1801 K Street, N.W./Suite 400K San Francisco
Washington, D.C. 20006-1301
202/775-7100 telephone
202/857-0182 facsimile
Exhibit 5.1
January 8, 1997
ContiSecurities Asset Funding Corp.
277 Park Avenue
New York, New York 10172
Re: ContiSecurities Asset Funding Corp.
Mortgage Loan Asset-Backed Certificates
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to ContiSecurities Asset Funding Corp. (the
"Depositor") in connection with the preparation and filing of the registration
statement on Form S-3 (such registration statement, the "Registration
Statement") being filed today with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended (the "Act"), in respect of
Mortgage Loan Asset-Backed Certificates (the "Certificates") which you plan to
offer in series, each series to be issued under a separate pooling and servicing
agreement (a "Pooling and Servicing Agreement"), in substantially the form set
forth as an exhibit to the Registration Statement, among the Depositor, one or
more sellers, a servicer and a trustee (the "Trustee") each to be identified in
the prospectus supplement for such series of Certificates.
We have examined and relied on the originals or copies certified or
otherwise identified to our satisfaction of all such documents and records of
the Depositor and such other instruments and other certificates of public
officials, officers and representatives of the Depositor and such other persons,
and we have made such investigations of law, as we deemed appropriate as a basis
for the opinions expressed below.
The opinions expressed below are subject to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors'
rights generally and to general equity principles.
<PAGE>
ARTER & HADDEN
We are admitted to the Bar of the District of Columbia and we express
no opinion as to the laws of any other jurisdiction except as to matters that
are governed by Federal law and the General Corporation Law of the State of
Delaware. All opinions expressed herein are based on laws, regulations and
policy guidelines currently in force and may be affected by future regulations.
Based upon the foregoing, we are of the opinion that:
1. When, in respect of a series of Certificates, a Pooling and
Servicing Agreement has been duly authorized by all necessary action and duly
executed and delivered by the Depositor, one or more sellers, the servicer and
the Trustee for such series, such Pooling and Servicing Agreement, will be a
valid and legally binding obligation of the Depositor; and
2. When a Pooling and Servicing Agreement for a series of Certificates
has been duly authorized by all necessary action and duly executed and delivered
by the Depositor, one or more sellers, the servicer and the Trustee for such
series, and when the Certificates of such series have been duly executed and
authenticated in accordance with the provisions of the Pooling and Servicing
Agreement, and issued and sold as contemplated in the Registration Statement and
the prospectus, as amended or supplemented, delivered pursuant to Section 5 of
the Act in connection therewith, such Certificates will be legally and validly
issued, fully paid and nonassessable, and the holders of such Certificates will
be entitled to the benefits of such Pooling and Servicing Agreement.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to this firm in the Registration
Statement and the related prospectus under the heading "Legal Matters".
This opinion is furnished by us as counsel to the company and is solely
for the benefit of the addressee thereof. It may not be relied upon by any other
person or for any other purpose without our prior written consent.
Very truly yours,
/s/ Arter & Hadden
Arter & Hadden
ARTER & HADDEN
ATTORNEYS AT LAW
Cleveland founded 1843 Irvine
Columbus Los Angeles
Dallas 1801 K Street, N.W./Suite 400K San Francisco
Washington, D.C. 20006-1301
202/775-7100 telephone
202/857-0182 facsimile
Exhibit 8.1
January 8, 1997
Re: ContiSecurities Asset Funding Corp.
Mortgage Loan Asset-Backed Certificates
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to ContiSecurities Asset Funding Corp. in
connection with the preparation and filing of the registration statement on Form
S-3 (such registration statement, the "Registration Statement") being filed
today with the Securities and Exchange Commission pursuant to the Securities Act
of 1933, as amended (the "Act"), in respect of Mortgage Loan Asset-Backed
Certificates (the "Certificates") which you plan to offer in series. Our advice
formed the basis for the description of federal income tax consequences
appearing under the heading "Certain Federal Income Tax Consequences" in the
prospectus contained in the Registration Statement. Such description does not
purport to discuss all possible federal income tax consequences of an investment
in Certificates but with respect to those tax consequences which are discussed
in our opinion, the description is accurate.
We hereby consent to the filing of this letter as Exhibit 8.1 to the
Registration Statement and to the reference to this firm in the Registration
Statement and related prospectus under the heading "Certain Federal Income
Consequences."
Very truly yours,
/s/ Arter & Hadden
Arter & Hadden
